04 April 2011
Solicitor with a master's degree (LLM) in medical lawAppeared in BioNews 602
Altruism Reconsidered: Exploring New Approaches to Property in Human Tissue
Published by Ashgate
ISBN-10: 0754672700, ISBN-13: 978-0754672708
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This book, developed from PROPEUR, a European research project on 'Property Regulation in Science, Ethics and Law', consists of nineteen contributors, including the editors, from different European countries and from different disciplines (mostly in natural science, law or philosophy). This diversity causes what is described in the initial acknowledgments as a 'positive confusion' not only because of the number and complexity of the issues raised, but also because of the large number of languages which had to be translated, with accompanying diverse perspectives. The authors, translators and editors deal with this challenge successfully and the resulting text is mostly clear and well written.
The central question to this book is set out in Dr Michael Steinmann's introduction: 'As the demand for human tissue is constantly rising, and biobanks are becoming ever more important for medical research, bioethics cannot but continue to engage in the assessment of the field. What is the ethical paradigm that guides the donation to biobanks?'.
In the opening chapter, Professor Peter Sýkora examines the seminal influence of Professor Richard Titmuss's book, 'The Gift Relationship: From Human Blood to Social Policy', which arguably formed the basis for policy on donation of human tissue in the UK and elsewhere. Professor Titmuss's argument that altruistic donation is 'cheaper, more effective of higher quality and safer for both donors and recipients than the commercial model' has long been accepted not only as true but also as socially beneficial for promoting altruism and social solidarity. However, Professor Sýkora goes on to say, 'his arguments have been challenged and found to be unsupported'. He identifies two overriding challenges to the altruistic model, one being the 'gap between supply and demand of human organs for transplant. The black market is a fact of life'. The other is that human tissue which enters the transfer chain 'as a gift is frequently transformed into a commercial product - one that is sold, not donated, to its ultimate recipient'. Legal cases arising from this (most notably in Moore v Regents of California) are examined later in the book.
Subsequent chapters analyse the underlying issues in further detail from both a legal and ethical perspective. Professor Roger Brownsword's essay, 'Property in Human Tissue: Triangulating the Issue', is particularly illuminating in its examination of whether regulators should recognise that a person can have proprietary rights in relation to his or her own body or in relation to body parts that have been removed (or in some future world, in relation to personalised body parts that have not yet been fitted). He goes on to identify the paradox contained in current law: 'How can it be rational for regulators to permit me to have property rights over your tissue and for you to have property rights over my tissue while not recognising either of us as proprietors of our own tissue?'. His conclusion is inconclusive: 'Even if we can see where the disputants are coming from, it does not follow that we can see where the debate is going, nor (without a good deal more) where it ought to be going'.
Several authors do, however, offer concrete conclusions and even solutions, putting forward possible alternatives to the altruistic model. These include the contractual model (Christine Noiville), the charitable trust model (Caroline Mullen) which 'involves people donating samples and information, along with property rights over the donation, to the trust organisation', the taxation model (Jasper Bovenberg), which allows donors to be compensated, and the proposal of some kind of reciprocity (Peter Sýkora).
The final few chapters provide important background to the debate by outlining relevant European legislation and regulation as well as some national law. There is also a description of the PROPEUR project itself.
A serious lack (especially for a book which describes itself as a legal text) is the absence of a table of cases and of the legislation referred to (these are not included in the index either). There is also no indication of when any of the chapters were written, other than their origins in the PROPEUR project, which took place between 2004 and 2007. The book itself was published in 2009, so its chapters could therefore have been written at any time during a five-year period, and this is not helpful to the legal reader.
However, in spite of these omissions, this book is worth reading for its valuable insights on a controversial and increasingly important issue. Its diverse and sometimes conflicting views provide cause for thought rather than easy answers.
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