Neither Moore Nor the Market: Alternative Models for Compensating Contributors of Human Tissue
![handle is hein.journals/amlmed28 and id is 85 raw text is: American Journal of Law & Medicine, 28 (2002): 77-105
0 2002 American Society of Law, Medicine & Ethics
Boston University School of Law
Neither Moore nor the Market:
Alternative Models for Compensating
Contributors of Human Tissue
Charlotte H. Harrisont
I. INTRODUCTION
Parts and products of the human body are increasingly important to biomedical
research. Tumors removed in surgery help researchers map the molecular
progression of cancer. Blood samples matched to clinical profiles suggest the role of
genes and other factors in disease. Both hospital patients and visitors to the World
Wide Web' may be approached to provide tissues for study.
Sometimes this research results in commercial developments that produce
substantial financial rewards for researchers, biotechnology companies and
pharmaceutical or medical device makers.2 Frequently, the use of human tissue is
crucial to the scientific discoveries on which those products rely.3 Yet, the individual
sources of tissue seldom share in the ensuing profits.
The acceptability of this arrangement, often criticized as a double standard,
has been scrutinized thoughtfully and vigorously in the literature of law and ethics for
more than a decade. Debate was stimulated by a controversial 1990 decision in
Moore v. Regents of the University of California.4 In that case, a divided California
Supreme Court rejected a patient's claim that his property rights had been violated
when his doctor and others made highly profitable use of the patient's surgically
excised spleen cells without obtaining his permission or sharing the commercial
proceeds.5 Since the Moore decision, commentators and the medical community
t Charlotte H. Harrison, Fellow in Medical Ethics, Harvard Medical School; J.D. 1984,
Harvard Law School; M.P.H. 2000, Harvard School of Public Health; M.T.S. 2001, Harvard Divinity
School. The author thanks Troy Brennan, Bartha Maria Knoppers, Eric Rakowski, Fred Reinhart,
Walter Robinson and Heleen van Luijn for their comments on earlier drafts.
I Andrew Pollack, Company Seeking Donors ofDNA for a Gene Trust, N.Y. TIMES. Aug. 1,
2000, at Al.
2 Tissue collected for biomedical research, which is the subject of this paper, is to be
distinguished from tissue used for therapeutic purposes, including blood provided for transfusion and
skin, heart valves or solid organs provided for transplantation, or for non-medical purposes.
3 For a survey of the importance of human biological materials to medical research, see NAT'L
BIOETHICs ADVISORY COMM'N, I RESEARCH INVOLVING HUMAN BIOLOGICAL MATERIALS: ETHICAL
ISSUES AND POLICY GUIDANCE 19-24 (1999) [hereinafter NBAC REP.],
4 793 P.2d 479 (Cal. 1990).
5 Id. at 480. The Court did recognize the physician's obligation of informed consent. For
discussion of the case, see infra notes 8-11, 15-20 and accompanying text.](ViewImageLocal?handle=hein.journals/amlmed28&div=8&collection=journals&method=preview&ext=.png&size=3)
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Neither Moore Nor the Market: Alternative Models for Compensating Contributors of Human Tissue
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