13/07/2023
التعامل دون إذن في الجينات الوارثية في أعضاء أو أجزاء تم إزالتها من جسم الإنسان يصعب تناوله من حيث المسؤولية التعاقدية او التقصيرة، لانتفاء الملكية في الأولى وانتفاء الضرر في الثانية، ومن السوابق القضاية في ذلك الشأن والتي اعترفت بصعوبة التطبيق القضائي، وأرجعت المسؤولية للمسؤولية الطبية، القضية التالية:
Moore v. Regents of the University of California (1990)
FACTS
Moore, a patient at UCLA Hospital, was being treated for life-threatening leukemia and often had tissue removed during his treatment. He gave his consent to blood samples in which the tissue was taken, but he was unaware that the UCLA doctors had noticed unique characteristics in his tissue that might be profitably researched and developed. In addition to using the blood samples for Moore's treatment, the doctors used them for unrelated research on tissue. From their investigation, they developed a cell line that could prove useful in immunology.
After the doctors received a patent on the cell line, Moore finally became aware of how they had used his tissue. He brought a lawsuit alleging fraud, conversion, and breach of fiduciary duty, but the lower court ruled that he had not stated the necessary elements of a claim for any of these causes of action.
Opinions
Majority
Edward P. Panelli
A breach of fiduciary duty cause of action may be appropriate because Moore was not informed by the doctors that they were using his tissue for research purposes, and he did not have the opportunity to consent to such a use. On the other hand, a conversion claim is not appropriate because he had no right of possession or ownership over his tissue as property. Under California Health and Safety Code Section 7054.4, an individual has no proprietary interest over removed body parts, which would clash with the public good and inhibit scientific research. (Since conversion gives rise to strict liability, scientists might refrain from using removed body parts for research that benefits society.) Panelli also noted that patients have the opportunity to hold doctors accountable in these situations through a breach of fiduciary duty claim, so it was unnecessary to provide multiple redundant avenues of relief.
Concurrence
Armand Arabian
Arabian wrote merely to emphasize his conviction that human tissue never should be viewed as property.
Dissent
Richard M. Mosk
Noting that the doctors had a greater right to Moore's tissue than Moore, Mosk felt that this result was counterintuitive. People should be able to have at least as much control over their body parts, even when removed, as anyone else does. He would have extended current law on conversion to include removed tissue as property. The concept that a party could benefit from someone else's body parts, even without that person's consent, struck Mosk as a more subtle version of slavery or involuntary servitude.
CASE COMMENTARY
This case shows the difficulty of applying traditional property principles to modern categories that those principles never could have envisioned. The concept of property has become much looser and harder to define with time