1. It is not without significance that one of the most influential books on women, health, and health care is titled Our Bodies, Ourselves (New York: Simon & Schuster, 1976)Google Scholar.

2. It should be noted that, while these ideals are thought to be generally applicable, they are frequently applied ambivalently, if at all, where women's childbearing capabilities and choices are concerned—see, e.g., Re Baby R. (1987) 9 R.F.L. (3d) 415Google Scholar (B.C. Prov. Ct.); rev'd.—although after the fact, when a caesarian section had already been performed—(1988) 15 R.F.L. (3d) 225 (B.C.S.C); Re Children's Aid Society of Belleville, Hastings Cty. and T. (1987) 59 O.R. (2d) 204Google Scholar (Prov. Ct.) (considering maternal/fetal conflicts). But see Re A. (in utero) (1990) 75 0. R. (2d) 82 (U.F.C.).

3. The Uniform Law Conference of Canada proposed model uniform legislation in 1963, which was adopted in 1965 and revised in 1971 and 1989. The 1989 revisions have not yet been incorporated into provincial law. See Law Reform Commission of Canada, Procurement and Transfer of Human Tissues and Organs (Working Paper 66) (Ottawa: Supply and Services Canada, 1992) at 130–35Google Scholar (tracing development of Uniform Acts and outlining changes in 1989 Uniform Act).

4. R.S.O. 1990, c. H-20.

5. See Human Tissue Gift Act, R.S.A. 1980, c. H-12; Human Tissue Gift Act, R.S.B.C. 1979, c. 187; The Human Tissue Act, S.M. 1987–88, c. 39; Human Tissue Act, R.S.N.B. 1973,c. H-12; The Human Tissue Act, R.S.N. 1990, c. H-15, Human Tissue Ordinance, R.O.N.W.T. 1974, c. H-14; Human Tissue Gift Act, R.S.N.S. 1989, c. 215; Human Tissue Gift Act, R.S.P.E.I. 1988, c. H-13; The Human Tissue Gift Act, R.S.S. 1978, c. H-15; Human Tissue Gift Act, R.S.Y.T. 1986, c. 89.

6. Civil Code of Lower Canada, arts. 20–22. Living donors may consent to donation or transplantation if the risks assumed are not disproportionate to the expected benefits. Where an individual has died without any instructions regarding donation, the spouse or family of the deceased may consent or a physician may procure organs or tissues from a recently deceased individual without consent where “two physicians attest in writing to the impossibility of obtaining it in due time, the urgency of the operation, and the serious hope of saving a human life.” See also Law Reform Commission of Canada, supra note 3 at 132–33.

7. Supra note 4, sec. 10. In Manitoba's 1987 amendments to its Human Tissue Act, supra note 5, sec. 15(2)–(4), payments for reasonable associated expenses were specifically excluded from the definition of “selling or buying.”

8. Supra note 4, sec. 1. It should also be noted that while the statute speaks to gifts, it does not specifically address other mechanisms that result in human biological material becoming available. Organs are donated, and typically, blood is as well. Their availability results from a conscious decision to give; other material, such as body fluids or tissue, may be given but is frequently a waste product or “left over” from medical treatment or tests. It has been pointed out that, with the latter, “le point de départ du process industriel [i.e., in biotechnology] n'est plus un don, mais un abandon,” with the result that “ces choses sont appropriables par celui qui s'en empare.” See Hermitte, M. A., “Le corps hors du commerce, hors du marché” (1988) 33 Arch. Phil. Dr. 323 at 338Google Scholar.

9. Law Reform Commission of Canada, supra note 3 at 135, citing Minn. Stat. Ann. sec. 145.422 (West 1988 Supp.).

10. Supra note 4, sec. 10. As an example of the gaps the statute leaves, it has been suggeste that the prohibition would not extend to commercial ovum donation or embryo transfer; see Dickens, B., “The Control Of Living Body Materials” (1977) 27 U.T.L.J. 142 at 166CrossRefGoogle ScholarPubMed. Some jurisdictions prohibit sales for any purpose; see, e.g., The Human Tissue Act, S.M. 1987–88, c. 39, sec. 15(2).

11. Ibid. at sec. 10.

12. This possibility is explored further in Dickens, B., “The Ectogenic Human Being: A Problem Child of Our Time” (1980) 18 U.W.O.L. Rev. 241 at 257Google Scholar. Commercial transactions with respect to blood have been variously characterized as service and commodity transactions in the United States. See Titmuss, R., The Gift Relationship: From Human Blood to Social Policy (New York: Random House, 1971)Google Scholar.

13. Supra note 4, sec. 12; Law Reform Commission of Canada, supra note 3 at 134.

14. Supra note 3 at 214 (Uniform Human Tissue Donation Act (1989)) sec. 15.

15. Although the possibility remains that any particular instance could be found void at common law as against public policy.

16. Or, to approach the analysis differently, it could be argued that if the product can be patented, then it is a new invention, factually and legally distinct from the human tissue from which it was derived; see discussion of Moore v. Regents of the University of California, infra, notes 44–50 and accompanying text. The Law Reform Commission of Canada has implicitly accepted this differentiation between human tissues and products derived from them, as it recently recommended that the purchase or sale of human bodies, organs and other nonregenerative tissue be made a Criminal Code offence, while at the same time recommending that bodily substances “transformed by skill and labour into … processed and preserved tissue … should be considered proprietary objects that fall within criminal law protection against theft.” Supra note 3 at 184, 187.

17. For a partial listing, see Dillon, T. P., “Source Compensation for Tissues and Cells Used in Biotechnical Research: Why a Source Shouldn't Share in Profits” (1989) 64 Notre Dame L. Rev. 628Google Scholar.

18. Law Reform Commission of Canada, supra note 3. The 1989 Model Act has not as yet resulted in legislative amendments. It clarifies some but not all of the questions of legislative interpretation raised in the preceding text.

19. 271 Cal.Rptr. 146;51 Cal. 3d 120(1990)(S.C.Cal.)[hereinafter, Moore(S.C.) and cited to 271 Cal. Rptr].

20. An unauthorized interference with property rights; acting in a way inconsistent with the owner's title to the property.

21. Golde, D., “Letter to the Editor” (1991) 324:24New Eng. J. Med. 1745Google Scholar.

22. Office Of Technology Assessment, New Developments in Biotechnology: Ownership of Human Tissues and Cells (Special Report OTA-BA-337) (Washington, DC: U.S. Congress, 1987)Google Scholar [hereinafter Ownership of Human Tissues] at 156.

23. Ibid. at 33.

24. They did not have Moore sign a consent form for the use of his tissue in their research until 1983. (Moore v. Regents of the University of California 202 Cal. App. 3d 1405; 249 Cal. Rptr. 494 (1988) at 510 [hereinafter Moore (C.A.), and cited to 249 Cal. Rptr.].

25. Ibid. at 501

26. Ibid. at 531; interview with Moore, , Quirks & Quarks, CBC Radio, June 29 1991Google Scholar.

27. Moore (C.A.), supra note 24 at 500.

28. The causes of action are listed in Moore (S.C.), supra note 19 at 149, note 4.

29. No. S006987, W. H. Deering and J. L. Cole, JJ.

30. Cert, denied, 59 LW 3652.

31. Moore (C.A.), supra note 24 at 503 (emphasis added).

32. Moore (S.C.), supra note 19 at 154.

33. See, e.g., Waldron, J., “What Is Private Property?” (1985) 5 Oxford J. of Legal Studies 313CrossRefGoogle Scholar. This understanding of property was accepted by the Supreme Court of Canada in R. v. Stewart [1988] 1 S.C.R. 963 at 975.

34. See, e.g., Snare, F., “The Concept of Property” (1972) 9 Am. Phil. Q. 200Google Scholar; Honoré, A., “Ownership” in Oxford Essays in Jurisprudence: A Collaborative Work, ed. Guest, A.G. (Oxford: Clarendon: 1961) at 113Google Scholar.

35. Moore (C.A.), supra note 24 at 504.

36. On the dual character of human beings as subject and object in this context, see Deleury, E., “La Personne en son corps: l'éclatement du sujet” (1991) 70 Can. Bar Rev. 448Google Scholar.

37. Moore (C.A.), supra note 24 at 505.

38. Moore (S.C), supra note 19 at 158.

39. Ibid. at 160. Given the concern to protect and promote research, one might speculate that, if the cells had been stolen from the researchers' laboratory before being worked on at all, the majority might be prepared to find that the researchers had a property or special possessory interest in the cells sufficient to found a criminal charge of theft.

40. Ibid. at 157.

41. As the court noted: “Defendants' position that plaintiff cannot own his tissue, but they can, is fraught with irony … We cannot reconcile defendants' assertion of what appears to be their property interest in removed tissue and the resulting cell-line with their contention that the source of the material has no rights therein” (Moore (C. A.), supra note 24 at 507).

42. Ibid. at 508.

43. Moore (S.C.), supra note 19 at 158.

44. Office of Technology Assessment, New Developments in Biotechnology: Patenting Life (Washington, DC: U.S. Congress, 1989)Google Scholar [hereinafter Patenting Life] at 37.

45. See Fox, H., Canadian Patent Law and Practice, 4th ed. (Toronto: Carswell, 1969)Google Scholar; Barriger, R., Canadian Patent Act Annotated (Aurora: Canada Law Book, 1989)Google Scholar.

46. Moore (S.C.), supra note 19 at 160. Natural phenomena cannot be patented, at least not per se (Patenting Life, supra note 44 at 39).

47. For a description of the patenting process in the United States, see Patenting Life, supra note 44, c. 3.

48. Moore (S.C.), supra note 19 at 160, 159.

49. Patenting Life, supra note 44 at 4, 30, 127–28.

50. It should be noted that in the United States, the decision that a patent could be awarded with respect to a cell line derived from human cells was itself an extension of an earlier determination of the United States Supreme Court in Diamond v. Chakrabarty 447 U.S 303 (1980), in which a slim majority of the court held that a patent could be granted with respect to a living organism—in that case, a genetically modified bacterium capable of breaking down multiple components of crude oil. In Canada, see Pioneer Hi-Bred, infra note 87.

51. See Locke's, essay “Of Property” in Property: Mainstream and Critical Positions, ed. MacPherson, C. B. (Toronto: University of Toronto Press, 1978) at 17Google Scholar. Americans might well identify a different genesis for this justification of property rights; see Nedelsky, J., Private Property and the Limits of American Constitutionalism (Chicago & London: University of Chicago Press, 1991)Google Scholar, tracing the development of competing justifications for private property in American history.

52. Ibid. at 18.

53. Vandelac, L., “Femmes, santé, notre pouvoir” in G.R.A.F., Nous, notre santé, nos pouvoirs (Montreal: Éditions co-opératives Albert-Martin, 1983) 183 at 190Google Scholar.

54. Moore (S.C.), supra note 19 at 162–63.

55. Bentham, “Security and Equality of Property” in C. B. Macpherson,, supra note 51 at 50–52: “We come now to the principle object of law—the care of security … The idea of property consists in an established expectation … Now this expectation, this persuasion, can only be the work of law … As regards property, security consists in receiving no check, no shock, no derangement to the expectation founded on the laws, of enjoying such and such a portion of the good.”

56. Supra note 22. Parenthetically, that report (and indeed, all the other scientific material the majority relied on) was only before the court because it was included as an appendix to one of the defendant's opening briefs (Moore (S.C.), supra note 19 at 189). Given that this was a case of first impression, and that it was at a very early stage in the proceedings—a preliminary motion attacking the sufficiency of a pleading—the court's categorical acceptance of positions put forward in that report is surprising.

57. Moore (S.C.), supra note 19 at 160–64.

58. Ibid. at 161.

59. Ibid. at 180.

60. See, e.g., “Fury Over Patenting Treasures Locked in Body” Globe and Mail (23 October 1991) A13Google Scholar; Patenting Life, supra note 44 at 49, 55. But see “Letter to the Editor” from Dr. Golde, John Moore's physician, indicating that the Mo cell line is available from the American Type Culture Collection for only a nominal fee (supra note 21). As my colleague, David Vaver, points out, presumably this would be for the purposes of experimentation. If another researcher developed something different from the Mo cell line, that too might be patentable, but both might have to consent to or licence use of the “improvement” patent. See also Fox, R., The Sociology of Medicine (Englewood Cliffs, NJ: Prentice-Hall, 1989) at 206–7Google Scholar, pointing out academic scientists' continuing ambivalence about applying for patents for their work. Fox suggests this is in part attributable to “collectivistic and ‘communistic’ values of science” and scientists' awareness that their discoveries depended on earlier discoveries by others.

61. Patenting Life, supra note 44 at 49, quoting William Duffy, a patent lawyer for Monsanto: “Those companies in the private sector which are investing hundreds of millions of dollars in this new science do not accept the theory that patents are unimportant. Such a concept is particularly repugnant to patent-conscious, research-intensive pharmaceutical firms dealing in global markets with drugs which require staggering investments of time and money before ultimately yielding a commercial return. To them the patent shelter is paramount. It is quite literally their sole incentive for risk taking.”

62. Moore (S.C.), supra note 19 per Mosk, J. (dissenting) at 181.

63. Ibid. at 181, 161, and see supra note 61.

64. See discussion in Vaver, D., “Intellectual Property Today: Of Myths and Paradoxes” (1990) 69 Can. Bar Rev. 98 at 115–17Google Scholar and references cited therein.

65. Moore would have to establish that if he had had the additional information, he would not have consented to the procedures. In the circumstances, this would be a difficult test to meet, at least vis-à-vis the original splenectomy, as it was life-saving, and some follow-up care was obviously necessary as well. But see J. Broussard's suggested relaxation of the test in these circumstances (Moore (S.C.), supra note 19 at 167.

66. A difficulty recognized by the majority in its judgment. See Moore (S.C.), supra note 19 at 153–54.

67. A reaction discussed further in the text accompanying note 81.

68. Supra note 36 at 471. She goes on to adopt the view that the addition of scientific labour and expertise transforms the substances such that they are no longer a product of the human body.

69. Radin, M. J., “Property and Personhood” (1982) 34 Stan. L. Rev. 957 at 978CrossRefGoogle Scholar.

70. Moore (C.A.), supra note 24 at 508.

71. The relationship between the language of possession, kinship, and proper body parts is explored in Miller, G. A. & Johnson-Laird, P. N., Language and Perception (Cambridge: Belknap Press, 1976) at 562–65CrossRefGoogle Scholar.

72. See Kennedy, D. & Michelman, F., “Are Property and Contract Efficient?” (1980) 8 Hofstra L. Rev. 711Google Scholar, analyzing the institution of private property and the malleability of much of what is thought constitutive of “property.”

73. Or perhaps more accurately in this context: “Use only with Owner's Permission and on Owner's Terms.”

74. The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11 at 88, sec. 7. See, e.g., Fleming v. Reid, (1991)4 O.R. (3d) 74 at 88 (C.A.), Morgentaler v. R., [1988] 1 S.C.R. 30 at 53. But for a suggestion that what is protected by law is more these abstract values as embodied in the abstract conception of a person than human bodies themselves, see Hermitte, supra note 8 at 326–27.

75. See World Health Organization, Human Organ Transplantation (Geneva: WHO, 1991) at 7Google Scholar; Giesen, D., International Medical Malpractice Law: A Comparative Law Study of Civil Liability Arising from Medical Care (Tubingen: J.C.B. Mohr, 1988) at 627Google Scholar. Despite difficulties in substantiating some of the allegations of organ and tissue sales, the issue has resulted in international response. In 1989, the World Health Organization enacted a resolution urging nations to take measures to prevent the purchase and sale of human organs for transplantation; see “WHO Resolution Preventing the Purchase and Sale of Human Organs,” reproduced in Law Reform Commission of Canada, supra note 3 at 202–3, citing (1989) 40:3 Int. Dig. Health Leg. 724. The World Medical Association has condemned the “purchase and sale of human organs for transplantation.” At the 14th International Congress on Penal Law in 1989, held under the auspices of the International Association of Penal Law, it was resolved that “[c]ommercialization of human organs and tissues should be prevented, if necessary by penal sanctions.” See WHO, Human Organ Transplantation at 14–15Google Scholar. The practice also evokes the history of slavery in North America. Property in bodies means the ability to sell; selling bodies is like slavery. There is a strong aversion to countenancing a regime that would tolerate any form or shadow of that institution.

76. See R. Titmuss, The Gift Relationship: From Human Blood to Social Policy, supra note 12, dealing with the history of the sale of blood and blood products in the United States. Conversely, prohibiting sales of even regenerative human tissue in order to safeguard human dignity will be cold comfort if nothing is done to address the needs that would drive people to that as a solution in the first place.

77. Radin, M. J., “Market-Inalienability” (1987) 100 Harv. L. Rev. 1849 at 1870CrossRefGoogle Scholar.

78. Ibid. at 1880–81.

79. Moore (S.C.) supra note 19 at 164, note 44.

80. A process Radin refers to as “commodification” (supra note 77 at 1855, note 24). For some indication of the ramifications of treating body parts as property and the “fantastic” questions that would have to be resolved, see Scott, R., The Body as Property (New York: Viking Press, 1981) at 184–85Google Scholar (applicability of sale-of-goods laws, liability to income and capital gains taxation, permissibility of nonmonetary and future consideration—for instance, present donations in return for future guarantees of priority should blood or organs be required later, or present payment in return for delivery of one's body after death, and many others).

81. “Plaintiff has asked us to recognize and enforce a right to sell one's own body tissue for profit. He entreats us to regard the human vessel—the single most venerated and protected subject in any civilized society—as equal with the basest commercial commodity. He urges us to commingle the sacred with the profane. He asks much.” (Moore (S.C.), supra note 19 at 164 (emphasis in original).

82. See Hermitte, supra note 8 at 324, 326–27.

83. See also Deleury, supra note 36 at 471 to the same effect, and Law Reform Commission of Canada, supra note 16. But see Hermitte, supra note 8 at 334, referencing the analysis of René Savatier: “les substances d'origine humaine ne se déshumanisent jamais totalement, même lorsqu'elles s'éloignent de leur source: dans la substance totalement transformée par l'industrie perdure quelque chose de l'origine humaine.” In this context, one of the questions that remains is whether the material retains something of or some connection with the specific human source, or whether the material is still “human” only in a generic sense.

84. See R. Scott, The Body as Property, supra note 80 at 179–97 for examples of existing markets in “human materials” such as blood. Scott clearly details the toleration of such markets even in societies where official opinion opposes the concept.

85. In a survey done for the Office of Technology Assessment in the United States in the mid-1980s of the 400 companies in the United States in the biotechnology field, all reported using human tissue in product development. Additionally, 49% of university scientists surveyed reported using human cells and tissues in their biomedical research. The number of samples of human tissue used was in the tens of thousands. See Curran, W. J., “Scientific and Commercial Development of Human Cell Lines” (1991) 324:14New Eng. J. Med. 998 at 999CrossRefGoogle ScholarPubMed. See also Ownership of Human Tissues, supra note 22, c. 4.

86. See, e.g., Snare, supra note 34. In an interesting counterpoint to this view of property, it has been suggested that among research scientists, given the “institutionalized norms of ‘disinterestedness’, ‘humility’ and … ‘the communism of intellectual property’, … property rights in science [i.e., to scientific discoveries] become whittled down to just this one: the recognition by others of the scientist's distinctive part in having brought the result into being.” In other words, scientific norms would preclude the scientist from exercising the usual concomitants of a property right, particularly the ability to exclude others from access to or to regulate their use of the discovery in scientific work. Recognition of one's originality becomes the property right; the right of recognition is the “single property-norm.” See R. Fox, supra note 60 at 206, 209, quoting Merton, R. K., “Priorities in Scientific Discovery: A Chapter in the Sociology of Science” in The Sociology of Science (Chicago & London: University of Chicago Press, 1973) at 294–96Google Scholar. The implications of these differing conceptions of the constitutive conventions of property as between scientists and the larger (or perhaps just the legal) community are beyond the scope of this paper. Merton first wrote on this topic in the 1950s; it would seem that with the ever-expanding reality of an economic potential to discoveries in the biological sciences, scientists' views of property have become more like the general norm (see supra notes 59–64 and accompanying text.

87. See Vaver, supra note 64 at 122, noting that while the Canadian Patent Appeal Board has indicated its willingness to accept applications for multicellular life forms (Re Abitibi Co., (1982) 62 C.P.R. (2d) 80 at 90), the Supreme Court of Canada may have made it virtually impossible for applications for life forms more complex than micro-organisms to comply adequately with the statutory requirement that the invention be fully disclosed so as to be reproducible by a third party (Pioneer Hi-Bred Ltd. v. Comm. of Patents (1989) 60 D.L.R. (4th) 223 (S.C.C.)). However, the Law Reform Commission of Canada notes that a patent was granted on a human liver cell line as early as 1976 (Patent no. 999, 546 of 9 November 1976)(see supra note 3 at 124, note 778).

88. Moore (S.C.), supra note 19 at 154–55.

89. A system that recommended itself to Arabian, J. in his concurring judgment in Moore (S.C.), supra note 19 at 165; see also Danforth, M., “Cells, Sales and Royalties: The Patient's Right to a Share in the Profits” (1988) 6 Yale L. and Pol. Rev. 179 at 198–201Google Scholar.

90. Andrews, L. B., “My Body, My Property” (1986) Hastings Center Rep. 28Google Scholar.

91. Radin, supra note 77 at 1917ff; the Law Reform Commission of Canada recently recommended that the purchase or sale of human bodies, organs, and other nonregenerative tissue be made a Criminal Code offence (supra note 3 at 184).

92. Sharpe, G., “Commerce in Tissue and Organs” (1985) 6 Health Law in Canada 27 at 31Google ScholarPubMed.

93. Deleury, supra note 36 at 471–72; Hermitte, supra note 8 at 339.

94. Hermitte, supra note 8 at 325, 339.

95. Calabresi, G., “Do We Own our Bodies?” (1991) Health Matrix 5 at 14–18Google Scholar.

96. Knoppers, B., Human Dignity and Genetic Heritage (Ottawa: Law Reform Commission of Canada, 1991) at 20–21Google Scholar.

97. Snare, supra note 34 at 203.

98. For the source, consent or an ability to opt out of the general type of use proposed may be important where the material is not a conscious gift, as with waste material from operations; for recipients, rights and duties could perhaps vary by the type of use and extend to later recipients as well, such as biotechnology companies employing tissue obtained from a researcher.

99. On the symbolic significance of and meaning attributed to giving and receiving organs, see R. Fox, supra note 60 at 254–59. See also Hermitte, supra note 8 at 339, who suggests that the visible philanthropic character of the exchange is very important to preserve if one wishes to counter the further reification of the body.

100. See Kennedy & Michelman, supra note 72 (detailing many variations in rules and regimes, all under the rubric “private property”).