Lecture 17- Ownership of DNA: individuals/families; patents (law) Flashcards
Q: A person cannot legally sell bodily material removed from his or her body because:
A. The Australian community believes that tissue donation should always be voluntary (that is without payment).
B. Blood relatives share the same genetic features so a person does not own his or her bodily material.
C. The law does not recognise property rights in excised bodily material in favour of the person from whom the material came.
D. Blood relatives may object if familial material is sold.
C is correct
B is wrong,
A is sort of right
D also sort of true
What are the questions relating to legal rights to your body and bodily fluids, tissues, body parts etc.?
- Who owns your body and excised tissue?
- Can you legally sell your bodily material – or information derived from it?
- Can you legally prevent others gaining access to your excised bodily material, including blood relatives who may need your tissue/information for genetic tests?
- What legal remedies are there if people take or use your bodily material/ information without your consent?
What are the issues surrounding the ownership of DNA?
- Legal rights over your own body, excised tissue
- Biological patents – including human material
- Ethical objections concerning biological patents.
- watch- mine alone, my rights only, if you take it the action and the breach of rights is clear
- house: other interests involved, if have tennants, mogage, council etc.
- bodily fluid: not just my interests
Q: A patent is:
A. Ownership of a physical thing.
B. A right to prevent other people using your invention in any circumstances.
C. An intellectual property right for which you are entitled to be paid when other people use your invention for a limited time.
D. An intellectual property right that cannot be exercised in relation to living organisms.
A- no, B- no, C- yes. D- no
What was the case with prince Harry?
- DNA trophy hunters: plot to steal Prince Harry’s hair for DNA test to question paternity
- some people believe that he is not the biological child of Diana
- would this be a theft if they got his hair?, if she pulled the hair then it is assault but if he drops it then not clear what his rights are -maybe disjucntion
What was the case involving the remains of several children in Bristol?
- Parents entitled to information and return of ‘human material’ for burial
- your bodily tissue may be kept, pap smear, blood etc.
- stored for comparison etc.
- if you die under suspicious circumstances
- Guthrie cards= babies tested at birth, drop of blood, stored for references
What are some of the legal rights you have over your body?
• some ‘control’
- people can’t remove tissue without your consent: human tissue legislation; common law of battery (trespass)
- very limited rights over excised tissue
- others can acquire proprietary rights over your tissue by ‘care and skill’
What were the legal developments of the ownership of your body?
1882: no one owns bodies, body parts
1908: can gain interest in corpse by ‘work and skill’
1974/6: urine, blood can be stolen
1990: don’t own your cells removed from body - now commercial cell line
1992: blood products are goods
1998: body parts can be stolen
2000: removed tissue is ‘property’ for forensic test
2001: parents of deceased children entitled to body, body parts, tissue for burial
2001: property rights not dependent on work done
2006: researcher can gain good title – people can’t get tissue back
2009: semen donors ‘owned’ semen
- work and skill 1908: abnormal two headed fetus, used in a show, the show owner cannot have interest, the doctor who put it in the fomaline has the right to it because he transformed it from rubbish to exhibi
t -cell line, man had his spleen removed, without consent the doctors developed a cell line from it, when he found out he wanted proceeds from the profits (but legally didn’t own the spleen)
- the researchers had rights as they developed it (work and skill)
- bodily material cannot be property, and cannot be stolen, but this changed, can be stolen (in certain circumstances, when taken from evidence lockers for example) -tissue retained by hospital (2001) children who died in a hospital, material removed to find out why the kids died, this was retained even after burial, scandal as they didn’t tell the parents -the parents were right to get the whole body but it is contrary to the law 2009
- men who had cancer and put their semen there, to use after chemo, here the men were entitled to possession and also widows
Is it an offense to take someone’s DNA?
-in some cases yes
- X swipes Y’s beer glass for DNA - analyses it - sells information to newspaper - Y has genetic condition
- X de-encrypts anonymised genetic information about Y from research study and uses it for a wrongful purpose
- X obtains a sample from child to see if he is the father [to evade paternal duties …]
- has X committed an offence?
- if takes away the dress= not an offense, if have it analysed and doesn’t tell anyone= no offense, if tries to
What was the case involving ownership of semen?
• Men who deposited semen samples for freezing before they undertook treatment for cancer ‘owned’ it - ‘the sole object … was that, in certain events, it might later be used for their benefit’
What is the opinion of some writers on the ownership of bodies and excised tissue?
- ‘Every person ought to be regarded as the owner of any separated part of his body’
- the ‘next milestone [in medical law] will be the legal recognition of self
- ownership’ -law: you don’t own your body or anything that comes from your body, it is starting to get recognised that you may have rights to stop some uses of the tissue but hasn’t happen
What was a proposal for updating the criminal act in regards to DNA?
- The proposed new criminal offence ‘would apply where any individual or corporation, without lawful authority, submits a sample for testing, or conducts genetic testing on a sample, knowing (or recklessly indifferent…) that the individual from whom the sample was taken did not consent to such testing’
- if you can get something from someone’s body without touching them, analyse it, then it is not an offense
What the patent legislation?
-Patents Act 1990 (Cth) s 18(1) ‘patentable invention’ is
‘(a) is a manner of manufacture … [that]
(b) when compared with the prior art …
(i) is novel; and (ii) involves an inventive step;
and (c) is useful;
and (d) was not secretly used in the patent area before the priority date of that claim…’.
Does not occur naturally in nature
Not ‘human beings, and the biological processes for their generation: s 18(2).
-always part of legislation -have to show how to make it
What are the biological products that can be patented?
-Patents for biological products
- synthetic genes, DNA coding for a gene, gene probes
- diagnostic tests, methods of producing insulin, antibiotics, vaccines, drugs, and pharmaceuticals
- agricultural plants, animals & crops
- pollution control, toxic waste management and ‘oil eating bacteria’. -non human animals can be patented, mice etc. (mice that get tumours a lot)
What is a patent?
- not ‘ownership’
- right to exploit an invention for limited period
- not ‘secret’ - ‘manner of manufacture’ must be disclosed so others ‘skilled in that art’ can reproduce it
- Others are entitled to use it (can get licence to do so).
