Podcast transcript

The legal use of body tissue

Audio

You can also listen to the interview [MP3 13.7MB].

iTunes

Visit this channel at La Trobe on iTunesU.

Transcript

Matt Smith

Welcome to a La Trobe University podcast. I would be Matt Smith, your host, and my guest today is Dr Imogen Goold, a Fellow and tutor in Law from St Anne’s College at the University of Oxford. She is an expert in the tricky legal area of property law and human body parts, and the problems that can arise when trying to use human tissues.

Imogen Goold

Human tissues is used in lots of different ways. One of the ways that people know about that’s obvious is transplantation, organ donation, and that comes from living people and deceased people, so obviously from dead people you can take all sorts of organs, like hearts and lungs and so on, but from living people you can take kidneys, you can take pieces of liver, your liver will regenerate if you take part of it. You can take a lobe of someone’s lung, and transplant that, but there’s also things like skin grafts and blood transfusions and so on, so they’re all ways that we use tissue to treat people.

We also use tissue to make therapeutic substances, so we fraction blood and you get things like Factor VIII that helps treat various disorders, cord blood which is blood that is taken from the umbilical cord when a baby’s born, and that contains substances that be used to treat blood cancers and a range of quite rare diseases. So those are the therapeutic uses but we also use tissue for research, so there’s research that people do using what you might call biologically inactive tissue. You might take a slide of brain tissue that’s preserved in paraffin and you could look at that under a microscope and look at its structures. But we also have things called cell lines which are creations made with cells, where the cells are alive and continue to replicate. So the oldest of those is from 1954. It was divided and shared around the world and that cell line, it’s called the HeLa cell line and it’s very famous. I think the estimate now is that there are more cells than the HeLa cell line spread around the world than there were in the body of the woman that the cells were originally taken from.

Then there are other ways we use tissue that are probably less apparent. So if you’ve ever watched CSI, then obviously bits of your tissue end up all over the place, and forensic scientists and police use them to find out things, so that’s a use of tissue that’s important and raises lots of issues. People make artistic works out of tissue. There’s a very famous work in London called Self by an artist called Marc Quinn, and it’s a model of his own head that’s made with 9 litres I think of his own blood. And he has … the look of shock on your face. No, it’s beautiful. It’s fantastic and he makes a new one every five years, so his work is partly about the ageing process. I think there’s one in the National Portrait Gallery now, so it’s quite an innovative way to make a portrait of somebody.

Matt Smith

So once some tissue or an organ leaves a person’s body, what happens to it? Ultimately, they should be the person who decides how it is used, isn’t that right?

Imogen Goold

I think that it’s clear that people’s body parts and their tissue often is very important to them, so about twelve years ago in the UK, there were revelations that parts of children’s bodies had been retained after autopsy, not so much without consent, but with possibly debatable consent. Some of the parents didn’t really fully understand what was going to happen. And the families when they discovered that, were incredibly distressed. And people do become distressed when they learn that their family members’ or their friends’ bodies have been treated in a way that they think is disrespectful. That’s a reason why it’s really important to let people say what is done with their bodies. But it’s important for people in life to know that they’ll be treated with respect later on.

There’s also the fact that many types of body tissue has information in it. So you might want to control what happens because of privacy. Sometimes people use blood for a paternity test and you might think you want that controlled because you don’t want someone to know information about you without your permission. But then these interests are in tension in a sense, with other interests, so medical research is tremendously important to the community, because we all benefit from medical breakthroughs and they come from research using tissue. We all benefit from people using tissue that’s collected in forensics because of crime prevention. Sometimes there are reasons why an individual’s control might be trumped by other concerns.

Matt Smith

It sounds a bit like you’re treating body parts and tissue like they’re property though and that at some point they stop belonging to the person who they originally belonged to.

Imogen Goold

The property aspect is quite technical I think, in a legal sense. What’s interesting about talking about property and tissue is that people intuitively think that their body parts are theirs and they talk in the language of ownership and self-ownership, and this is something a legal philosopher Jim Harris called body ownership rhetoric, that we invoke the language of property to express the strength of our feelings – it’s mine, you can’t touch it. And so that’s what people are trying to say when they use property language about their body parts. But the reality is that if your tissue is removed from your body, it’s not your property at all, in fact it’s nobody’s property really. It’s only when certain things are done with it that it might become property in the law, and then the rights to that property won’t vest in you, they’ll vest in somebody else. The example is, the preservation of tissue, when it’s removed. Say, a medical institution has lawful possession of some of your body parts and they preserve them. It becomes their property. And that’s essentially the state of the law at the moment, until a very recent case, which I think goes against people’s intuitions for the most part.

Matt Smith

What are the areas of body part law that you think need to be addressed, then?

Imogen Goold

I think the thing from a legal perspective that’s problematic, is that the case law as it stands doesn’t have a good basis and it doesn’t make a lot of sense, and it doesn’t really fit within the way that we generally deal with the concept of property at law. So the idea that putting your work and skill into something that was previously unowned creates some property rights in it that you can exercise, doesn’t really have a sound basis in the cases. The cases rest on a very old authority from the 17th century, that you couldn’t own a corpse. And then at the turn of the 19th century there was a case in Australia where they brought in this idea that you could work on something and change it, and then it would become your property. And I think that that was a really pragmatic decision but it wasn’t a particularly principled decision. And then just recently we’ve had cases in the UK and in Australia, where they’ve started to look at it differently and say, what kinds of rights do people have in their tissue? Do these rights look like they’re treating them like property or do they have enough rights that we might see it as property, and if that’s the case, then we can treat it as property, and that too isn’t particularly satisfactory. But it is at least a move in the right direction, and my work is about thinking about how can we come to some principled ethical approach that defines the status of tissue so that we know what can be done with it.

Matt Smith

How far does it extend to something like, say, DNA use or the use of your eggs and sperm?

Imogen Goold

There are particular rules about that. If you’re just going to make a child the traditional way, you just do that, that’s fine. But if you need help, say through IVF, then there are very particular rules about that. And there are things that IVF clinics are not allowed to do, so in the UK they can’t do things like create a human-animal chimera, and they can’t use your gametes without your permission. So that’s quite strictly regulated in a way that doesn’t need an overlay of property rights, although the case that came up in the UK three years ago did say that someone’s gametes were their property for particular purposes.

With other uses of tissue, sometimes property is a useful thing and sometimes it’s not. So in a way property might give you too much. So it might be that you think that property is useful when you’re donating to research, so if I give you my tissue, it becomes yours. The problem with that is, that then you would get all the rights associated with it, which would mean that you could do things with it that I may not want you to do, but it’s too late because I’ve transferred to you all of the control of it. And that’s where something like testing my DNA and finding out that I’ve got a late onset disorder like Huntington’s Disease, and I might have chosen not to find that out, and you find it out because you test my tissue. But there are legislative provisions in the UK and in Australia that prevent you from doing that. But that’s the thing about the way the law is at the moment. There are reactive pieces of legislation to deal with particular problems and then in the UK they came out as a response to what happened with the organ retention and in Australia, there were two big enquiries about ten years ago, into the use of genetic information. Out of those came a range of recommendations, and one of them was about the thing that you just asked about. Can you test somebody’s tissue without your permission, and you can’t. You certainly can’t do a genetic analysis on their tissue without their permission.

Matt Smith

Is that necessarily a bad thing, because the last thing that you want to do is for it to be pushed to the point where somebody can donate an organ and then say, OK, look I want that back now, because that kidney was mine and that person, you know, insulted my sister or something like that – a family feud going on and I now want the kidney back, because you know that that sort of thing would happen.

Imogen Goold

One of the things that’s interesting and complex about this area, is the difference between being an owner and being owned, and whether my living body is property, or whether it’s only when it’s taken out of my body and separated from me. And I think conceptually it doesn’t make a lot of sense to say that my living body can be owned, and particularly that it could be owned by other people, that it could be owned by me. I think being both owner and owned is confused. So in that situation I would imagine that, if I donate my organ it becomes part of the other person, so it’s no longer a piece of property. Say that you did conceptualise it as my bit of property that goes into my property, then you’d have to think that it was a gift. And when you make a gift to somebody, you generally can’t take it back. In that sense, the person who’d got the kidney would be well within their rights to say, 'you can’t have it back, it’s too late'. In the same way, if I give you a birthday present and then I decide really I’m very unhappy with you – I can’t demand my birthday present back.

There was a case in the US a few years ago where a man died, and his wife donated his kidneys to a friend of theirs, who had end-stage renal disease. And he was given one of the kidneys and the other kidney went off to be given to somebody else. And it turned out that the kidney he was given, wasn’t suitable for transplant. So he ended up with no kidney. And he brought a claim saying, well both kidneys, at the point when they were given to him by a direct donation, became his property. In dealing with the second kidney and giving it to somebody else, that they had impinged on his proprietary rights. And the courts said, no, that this wasn’t the case. That they weren’t his property and that wasn’t how they were going to conceptualise what had happened. If it had been his property, it would have actually resolved the problem, but then the downside would be that he would have had rights to two kidneys. It turned out that the second kidney also wasn’t compatible with him, but saved the other person. So that’s the sort of situation where letting somebody’s individual rights trump the community’s interests, is problematic, because he would have just got two useless kidneys, and somebody else wouldn’t have got a kidney.

Matt Smith

There’s a lot of creative ways that people decide to sign off their body once they die. What’s one that you’ve heard of that you particularly like? Do you have a favourite at all? It’s a bit macabre to call it a favourite.

Imogen Goold

What do people do with their bodies? I think what’s really interesting is that there’s an exhibition called Body Worlds by a man called Gunther von Hagens. And he has a technique where he preserves bodies using a technique called plastination, which means he can preserve them looking incredibly lifelike. This exhibition travels the world and it’s of people’s … the whole corpses, skin stripped off so you can see their muscles, in all sorts of various poses and he says this is educational. And it is partially educational. It’s partially also a bit of shock factor. There’s one of a woman who has a foetus inside her. So in that way you can see how bodies work, and maybe that’s a very good thing, that people understand how their bodies work. What’s interesting with that is that, early on, I believe when he first started, there were suggestions that the supply of bodies was a bit dubious and he may have got them without proper consent. But now, people line up to give them to him. He has people really wanting to do that with their bodies, and I find that fascinating, that people want to do that. So I reckon that’s about the oddest thing.

Matt Smith

Well, there’s a waiting list to get your body used in the body farms in the US, where they study decomposition rates, isn’t there?

Imogen Goold

I didn’t know that, but I’m not surprised at all. Because similarly, people want to donate their bodies for anatomy study and there’s too many.

Matt Smith

Well, it’s good that we’re at that situation and that we’re no longer at the body snatching stage I suppose, of the 1800s.

Imogen Goold

That is true. So then, having your body dissected was regarded as incredibly degrading, and also the idea that the body was made in the image of God and that it needed to remain that way so that you would go to heaven, your soul would rest in peace, or whatever you thought happened. So what they used to do was an extra punishment for a particularly bad murderer, was to be hung and then dissected. This really undermined trying to get people to accept the need for dissection. So they were desperate for bodies. But at the same time, partly people didn’t want to give them, but also the law was making it worse, by associating this fear that people had about dissection with punishment.

Matt Smith

I think my favourite tale of how somebody let their body be used is Tchaikovsky. He left his skull to be used in productions of Hamlet and it was used in 2008 by David Tennant, in the big production there. The theatre needed a human tissue licence in order to do that.

Imogen Goold

Yeah, so in the UK at that time, there was an authority called the Human Tissue Authority, and if you were going to use tissue, you had to have a licence from the HTA, that allows you to do that. Which I think is great. I mean, then that sort of thing is a way people use bodies that people don’t think about, and that’s the sort of situation where you can imagine it being sold eventually. Or what happens if the RSC goes bankrupt and that sort of thing. And all of those uses of tissue are not really regulated in the sense of … if it gets sold it’s not clear what happens. So you’d need a HTA licence, but things like Marc Quinn’s Self are sold for hundreds of thousands of pounds, but you’re not really allowed to sell tissue, legally. So obviously there are situations either that the law kind of winks at, or we just, for practical reasons, allow them to go ahead. It’s the same with selling hair to buy real hair extensions, is not particularly well regulated. It’s not really problematic. That’s the other thing. You don’t really have to have regulation about everything, and hair is something that I think people are not much bothered about, it’s not particularly harming, it’s not something that’s sensitive to people in the way that other things are.

Matt Smith

Dr Imogen Goold there, from St Anne’s College at the University of Oxford. That’s all the time we have for the La Trobe University podcast today. If you have any questions, comments or feedback about this podcast, or any other, then send us an email at podcast@latrobe.edu.au.