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Case Comment: Moore v. Regents of the University of California

Published online by Cambridge University Press:  24 February 2021

Helen R. Bergman
Helen R. Bergman*
Affiliation:
Bryn Mawr College; Boston University School of Law
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Abstract

The increasing use of human tissues in medical research has spawned a host of ethical and legal debates. Legal analysis in this area has almost exclusively focused on the question of property rights in both the tissues used in research and in the resulting products. One illustrative case is Moore v. Regents of the Unversity of California, in which a patient sued his doctor for conversion of his spleen which had been removed for therapeutic purposes. The doctor later used the spleen to develop a patented and profitable cellline. This Comment examines and rejects the property law approach to this issue. Instead, this Comment proposes two legislative changes which would 1) eliminate any trade in human tissues and 2) require doctors to inform their patients of any research interest in proposed medical procedures. These proposals resolve the problem presented in Moore, and avoid the misleading, and inevitably unanswerable, question of property rights.

Type
Notes and Comments
Information
American Journal of Law & Medicine , Volume 18 , Issue 1-2: Rationing Health Care: Social, Political and Legal Perspectives , 1992 , pp. 127 - 145
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1992

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Footnotes

*

This Comment is dedicated to my parents, Edna Elizabeth Heatherington and Robert Lewis Bergman, with gratitude for their support and encouragement of this endeavor and many others.

References

1 “Tissue” is defined as a mass or layer of cells forming a basic structural element of an animal or plant body. THE MERRIAM-WEBSTER DICTIONARY 716 (3d ed. 1974).

2 “Cell” is denned as a tiny mass of protoplasm that contains a nucleus, is enclosed by a membrane, and forms the fundamental unit of living matter. THE MERRIAM-WEBSTER DICTIONARY 124 (3d ed. 1974).

3 See generally UNITED STATES CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, NEW DEVELOPMENTS IN BIOTECHNOLOGY: OWNERSHIP OF HUMAN TISSUES AND CELLS — SPECIAL REPORT 31-46 (1987) [hereinafter OTA REPORT].

4 Moore v. Regents of the Univ. of Cal., 249 Cal. Rptr. 494 (Cal. Ct. App. 1988), rev'd, 793 P.2d 479 (Cal. 1990).

5 Moore's third amended complaint also included claims for lack of informed consent, breach of fiduciary duty, fraud and deceit, unjust enrichment, quasi-contract, breach of implied covenant of good faith and fair dealing, intentional infliction of emotional distress, negligent misrepresentation, interference with prospective advantageous economic relationships, slander of title, accounting and declaratory relief. Moore, 249 Cal Rptr. at 498.

6 Id. (this cell line is capable of producing pharmaceutical products of enormous therapeutic and commercial value).

7 See OTA REPORT, supra note 3, at 27.

8 National Organ Transplant Act, 42 U.S.C.A. §§ 273-274e (West 1991).

9 The NOTA would reach only activities that involve interstate commerce but would have national effect; a Model Act could be adopted by individual states and enforced locally. Therefore, each proposal addresses separate concerns.

10 Moore, 249 Cal. Rptr. at 498. As the court points out, because this case is an appeal from the sustaining of demurrers, the statements of the court referring to the facts of the case are based on the unproven allegations of the complaint.

11 Moore, 793 P.2dat481.

12 Id.

13 The Use of Human Biological Materials in the Development of Biomedical Products: Hearings Before the Subcomm. on Investigations and Oversight of the House Comm. on Science and Technology, 99th Cong., 1st Sess. 241 (1985) [hereinafter House Hearings] (statement of John Moore).

14 Id.

15 Id.

16 Id.

17 Moore, 793 P.2d at 481.

18 Id. (quoting allegations in Moore's complaint).

19 Id. at 482. The Regents are the administrators of the University of California consortium of schools and obtained the patent rights pursuant to Golde's employment contract because his research took place at UCLA. See id.

20 Id.

21 Id.

22 Home Hearings, supra note 13, at 241.

23 Id.

23 Id.

24 Id. at 242.

25 Id. at 241-42.

26 Id. at 242.

27 Id. at 242-43.

28 Moore, 249 Cal. Rptr. at 494.

29 Id. at 501-02.

30 Id. at 501.

31 Moore, 793 P.2d at 479.

32 Venner v. State, 354 A.2d 483 (Md. Ct. Spec. App. 1976). Of course, the primary focus of this case was Fourth Amendment search and seizure law, for which property interests are a corollary issue.

33 Id. at 498 (holding that the defendant had abandoned his excrement for purposes of the Fourth Amendment).

34 Bouvia v. Superior Court, 225 Cal. Rptr. 297 (Cal. Ct. App. 1986). See also Schloendorff v. Society of New York Hosp., 105 N.E. 92 (N.Y. 1914).

35 Moore, 249 Cal. Rptr. at 505.

36 O'Donnell v. Slack, 55 P. 906 (Cal. 1899) (recognizing some property rights in a dead body for next of kin); Cohen v. Gorman Mortuary, Inc., 41 Cal. Rptr. 481 (Cal. Ct. App. 1964) (recognizing a limited property interest in dead bodies).

37 Moore, 249 Cal. Rptr. at 506.

38 Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974) (affording legal protection to an individual's proprietary interest in his own identity); Lugosi v. Universal Pictures, 603 P.2d 425 (Cal. 1979) (avoiding determining whether interest in commercial persona was “property” but finding it protected nonetheless).

39 Moore, 249 Cal. Rptr. at 508.

40 Id.

41 Moore, 793 P.2d at 479. Due to the procedural stance of the case, the decision addressed only what causes of action would lie and made no conclusions as to the outcome of the litigation.

42 Id. at 485.

43 See id. at 493-97.

44 Moore, 249 Cal. Rptr. at 508 n.14. See infra text accompanying notes 72-79.

45 Moore, 793 P.2d at 493.

46 Id. at 489.

47 Id.

48 Id. at 490.

49 Id. at 491.

50 Id. at 492.

51 Id.

52 Id. (citing Diamond v. Chakrabarty, 447 U.S. 303, 309-10 (1980)).

53 Id. at 493 (footnote omitted).

54 Id. at 494.

55 id. at 493.

56 Id. at 496.

57 Id. at 483.

58 Cobbs, 502 P.2d 1 (Cal. 1972).

59 Moore, 793 P.2d at 483 (citing Cobbs, 502 P.2d at 9).

60 See, e.g., Schloendorff v. Society of New York Hosp., 105 N.E. 92, 93 (N.Y. 1972).

61 Moore, 793 P.2d at 483 (citing Cobbs, 502 P.2d at 9).

62 Id. (citing Stafford v. Schultz, 270 P.2d 1 (Cal. 1954); Nelson v. Gaunt, 178 Cal. Rptr. 167 (Cal. Ct. App. 1981); Berkey v. Anderson, 82 Cal. Rptr. 67 (Cal. Ct. App. 1969); Bowman v. McPheeters, 176 P.2d 745 (Cal. Ct. App. 1947)).

63 Id.

64 Id. at 484. Although these laws clearly are aimed more directly at doctors who have a profit interest in the laboratories to which they send their patients for tests, the underlying principle is the same.

65 Id.

66 Id. at 486 (footnote omitted).

67 RUSSELL, SCOTT, THE BODY AS PROPERTY 6–7 (1981)Google Scholar.

68 Stephen A., Mortinger, Comment, Spleen for Sale: Moore v. Regents of the University of California and the Right to Sell Parts of Your Body, 51 OHIO ST. L.J. 499, 503 (1990)Google Scholar [hereinafter Stephen A. Mortinger, Comment, Spleen for Sale].

69 Id. (citing PERCIVAL E., JACKSON, THE LAW OF CADAVERS AND OF BURIAL AND BURIAL PLACES 128 (2d ed. 1950)).Google Scholar

70 RUSSELL, SCOTT, supra note 67, at 191Google Scholar.

71 Id. at 192-93. The development of this classification had nothing to do with cases like Moore but rather emerged from lawsuits arising from transmission of disease through transfusions. Plaintiffs attempted to characterize blood banks as involved in the sale of goods and therefore liable for defects. In order to limit liability for such socially beneficial organizations, courts characterized the supply of blood as a service and thus exempt from product liability and implied warranties of fitness. See, e.g., Perlmutter v. Beth David Hosp., 123 N.E.2d 792 (N.Y. 1954). Many states have now codified the classification of blood transfusion as a service. See, e.g., ARIZ. REV. STAT. ANN. § 20-448 (1991); CAL. HEALTH & SAFETY CODE § 342 (West 1991); D.C CODE ANN. § 28:2-314 (1991); HAW. REV. STAT. § 393-7 (1991); I I I. REV. STAT. ch. 111§ , para. 2901 (1991); IND. CODE ANN. § 16-8-7-8 (Burns 1991); MD. COM. LAW II § 2- 106 (1991); MASS. GEN. LAWS ANN. ch. 106, § 2-314 (West 1992); Miss. CODE ANN. § 75-2- 314 (1990); NEB. REV. STAT. § 68-1403 (1990); N.Y. U.CC. LAW § 5704 (McKinney 1991); OR. REV. STAT. § 414.510 1989); PA. STAT. ANN. tit. 35, § 6514 (Purdon 1991).

72 See Stephen A. Mortinger, Comment, Spleen for Sale, supra note 68, at 503.

73 Schmerber v. California, 384 U.S. 757 (1966). See also Stephen A., Mortinger, Comment, Spleen for Sale, supra note 68, at 505Google Scholar. Here, the main argument was the Fifth Amendment right against self-incrimination.

74 Webster v. Reproductive Health Services, 492 U.S. 490 (1989); Roe v. Wade, 410 U.S. 113, reft g denied, 410 U.S. 959 (1973). See also Stephen A., Mortinger, Comment, Spleen for Sale, supra note 68, at 505-06Google Scholar. Again, the main issue was a right to privacy, but the Court implicitly rejects any property interest which would outweigh the state's interests.

75 National Organ Transplant Act, 42 U.S.C.A. §§ 273-274(e) (West 1991). 76 Id. § 274(e)(a) (“It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.“).

77 Ann, Macintosh, Note, Regulating the “Gift of Life“— The 1987 Uniform Anatomical Gift Act, 65 WASH. L. REV. 171, 177 (1990)Google Scholar [hereinafter Ann Macintosh, Note, Regulating the Gift of Life]. 78 See infra text accompanying notes 82-84.

79 See generally Roe v. Wade, 410 U.S. 113, reh'g denied, 410 U.S. 959 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965).

80 BLACK's LAW DICTIONARY 1216 (6th ed. 1979) (“the right to dispose of a thing in every legal way … ; dominion or indefinite right of use or disposition which one may lawfully exercise over particular things ….“) (emphasis added).

81 See Moore, 249 Cal. Rptr. at 503.

82 See OTA REPORT, supra note 3, at 15-19 (discussing policy issues and options for Congressional action).

83 In the case of a replicating cell line, the sample can keep growing, thus increasing the burdens involved in record-keeping.

84 See OTA REPORT, supra note 3, at 15-19.

85 Id. at 116.

86 Roy, Hardiman, Note, Toward the Right of Commercially: Recognizing Property Rights in the Commercial Value of Human Tissue, 34 UCLA L. REV. 207, 240 (1986)Google Scholar [hereinafter Roy Hardiman, Note, Toward the Right of Commerciality].

87 OTA REPORT, supra note 3, at 116.

88 Id. at 117.

89 Id. at 55.

90 Id.

91 See id. at 12-13.

92 See supra text accompanying notes 82-83.

93 Thomas P., Dillon, Note, Source Compensation for Tissues and Cells Used in Biotechnical Research: Why A Source Shouldn't Share in the Profits, 64 NOTRE DAME L. REV. 628, 637 (1989)Google Scholar [hereinafter Thomas P. Dillon, Note, Source Compensation].

94 Id. at 637.

95 See generally Ann, Mcintosh, Note, Regulating the Gift of Life, supra note 77, at 174-75.Google Scholar

96 See supra text accompanying notes 74-77.

97 Thomas H., Murray, On the Human Body as Property: The Meaning of Embodiment, Markets, and the Meaning of Strangers, 20 U. MICH.J.L. REF. 1055, 1056-57 (1987).Google Scholar

98 Id. at 1085.

99 Id. at 1086.

100 Id. at 1085.

101 Id. at 1088.

102 This is not, of course, to deny that there is a perpetual shortage of organs suitable for transplant, but is merely a recognition of the successes thus far achieved in organ donation.

103 Moore, 249 Cal. Rptr. at 500.

104 See supra text accompanying note 90.

105 OTA REPORT, supra note 3, at 55.

106 See generally id. at 31-45 (describing the basic techniques of biotechnology and their application in product development).

107 See supra text accompanying notes 51-53.

108 OTA REPORT, supra note 3, at 71.

109 Thomas P., Dillon, Note, Source Compensation, supra note 93, at 641Google Scholar.

110 John J., Howard, Biotechnology, Patients’ Rights, and the Moore Case, 44 FOOD DRUG COSM. LJ. 331, 340 (1989).Google Scholar

111 Roy, Hardiman, Note, Toward the Right of Commerciality, supra note 86, at 229.Google Scholar

112 See OTA REPORT, supra note 3, at 14 (describing the changing relationship between doctors and patients).

113 See generally id. at 97-98.

114 See generally Moore, 249 Cal. Rptr. at 498-501; House Hearings, supra note 13, at 261-63 (statement of John Moore).

115 See Patricia A., Martin & Martin L., Lagod, Biotechnology and the Commercial Use of Human Cells: Toward an Organic View of Life and Technology, 5 SANTA CLARA COMPUTER & HIGH TECH. L.J. 211, 232 (1989).Google Scholar

116 This type of change has been proposed elsewhere. Thomas P., Dillon, Note, Source Compensating, supra note 93, at 628.Google Scholar This proposal goes further by also recommending a Model Informed Consent Act.

117 National Organ Transplant Act, 42 U.S.C. § 274e(a) (West 1991).

118 Id. § 274e(c)(l) (West 1991).

119 See supra notes 1-2.

120 Numerous states have already adopted informed consent legislation. None of these laws, however, require doctors to disclose their research interests to patients. See, e.g., ARK. CODE ANN. § 16-114-206 (Michie 1991); DEL. CODE ANN. tit. 16, § 5161 1991); FLA. STAT. ANN. § 393.13 (West 1990); ME. REV. STAT. ANN. tit 34-B, § 5605 (West 1990); MINN. STAT. § 253B.03 (1991); Miss. CODE ANN. § 11-1-59 (1990); N.Y. Civ. PRAC. L. & R. § 214-a (Consol. 1991); S.C. CODE ANN. § 44-7-50 (Law Co-op. 1990); S.D. CODIFIED LAWS ANN. § 27B-8- 20 (1991); VT. STAT. ANN. tit. 14, § 3075 (1991).

121 The NCCUSL has considered and rejected the idea of informed consent legislation:

There is no reason to believe that those states with informed-consent legislation are dissatisfied with their efforts nor … that uniform legislation on this subject would be enacted by those states that decided not to adopt informed-consent legislation in the 1970s. Basically, informed-consent legislation is an idea whose time has come — and gone. UNIF. LAW COMM'RS MODEL HEALTH-CARE CONSENT ACT, 9 UNIFORM LAWS ANNOTATED 453 n.l (1988). Given the nature of the problem presented in this Note, however, it is possible that states would reexamine the issue and choose to enact this legislation or amend their current legislation to include the research interest provision proposed here.

122 See PRESIDENT's COMM'N FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, DECIDING TO FOREGO LIFE-SUSTAINING TREATMENT: A REPORT ON THE ETHICAL, MEDICAL, AND LEGAL ISSUES IN TREATMENT DECISIONS 51-52 (1983); see abo AMERICAN HOSP. ASS'N, DEVELOPMENT AND IMPLEMENTATION OF A PATIENT's BILL OF RIGHTS IN HOSPITALS 4-6 (1980).