26 November 2016


'‘Abandonment’ and the acquisition of property rights in separated human biomaterials' by Neil Maddox in (2016) Medical Law International 1-23 offers
a critique of the concept of ‘abandonment’ when utilized in relation to separated human biomaterials. In the absence of the recognition of even limited property rights in the human source of such materials, the author contends that utilizing abandonment is meaningless and misleading. Absurd consequences need not result from recognition of such rights and indeed most cases of purported abandonment of human tissue are more akin to voluntary transfers. Describing such transfers in terms of abandonment obscures questions as to the agency and the scope of the fiduciary duties of medical professionals and researchers. Income rights in such materials are more appropriately determined as normative questions as to who should benefit from windfall wealth in human biomaterials, not by reference to abandonment. An alternative framework that recognized that the source of human tissue had limited property rights in it would solve many of the conceptual difficulties outlined. 
Maddox argues
Modern advances in biotechnology have led to rigorous debate as to how we properly regulate biological materials once they have been separated from the person. There are conflicting views as the usefulness of utilizing a property model to deal with these issues. Questions as to the ownership of such separated materials, and in particular whether they vests in its source or a subsequent appropriator, such as a medical research institute, have led to some notable litigation. Broadly, these disputes can be divided into those where the power to control the materials is in issue and those where it is the entitlement to the income from their commercialization. To admit that the source has property rights in their tissue after it has been separated from their body, it is feared by some, would impose onerous costs upon medical researchers in investigating title, and would impede research. To prevent this, so this argument goes, the source should be granted no property in their own biological materials.  Nonetheless, and somewhat incongruously, a concept derived from property law, that of ‘abandonment’ has been invoked in this debate in aid of this view.
Abandonment first appears prominently in a report of the Nuffield Council on Bioethics in 1995 concerning legal and ethical issues relating to human tissue. The report recommended, inter alia, that in any consent to treatment, tissue removed in the course of that treatment would be regarded as abandoned by its source.
Such an approach would conveniently preclude the source of tissue from making any subsequent claims to it, protecting the hospital and subsequent researchers from having to fend off litigation that might impede the smooth running of the hospital and the progress of important medical research. In other words, it is a simple and easy way to resolve any potential title disputes relating to human tissue. The normative merits of this approach are not the focus of this article. Instead, I seek to critique utilizing the concept of abandonment to justify such an approach. There are a number of elements to this.
First, abandonment is one of those phrases that has different meanings depending on the context. When one describes a person ‘abandoning’ their property (or their tissue, blood or sperm sample for that matter), it is not always clear what is meant. It can mean, inter alia, the abandonment of all claims in respect of a thing, as appeared to be what was meant in the Nuffield report or be employed as a legal term of art to refer to ‘divesting abandonment’ a concept derived from property law, whereby an owner loses all ownership of his property if divesting abandonment is found to have occurred. Second, in property law there are specific requirements that must be met before divesting abandonment operates and an owner is deemed to have his ownership extinguished: There must be loss of de facto physical control, there must be an intention to abandon all rights in the property and there must be indifference as to who any subsequent owner might be. I contend that these requirements are often overlooked when discussing abandonment of human tissue, and, further, that if we are to examine these elements closely, it becomes apparent that many cases of purported abandonment of human tissue are more akin to voluntary transfer (also referred to as delivery). Incorrectly invoking abandonment obscures this, and also obscures the potential remedies available to a source of human tissue consequent on such a finding.
Third, I contend that is impossible to determine the role that the concept of abandonment might usefully play in relation to human tissue, when it is has not been conclusively determined where the original ownership of such material lies. I argue that this uncertainty may only be resolved by recognizing that limited property rights vest in the source of the material. Following on from this argument, I contend that the source of human tissue never has income rights to them, and thus such rights accrue as windfall wealth, not by virtue of their abandonment by their source, the concept here further confusing an already muddled area of law.
This article first sets out the differing meanings of the term abandonment and then examines the law relating to the property law concept of divesting abandonment, fleshing out is operation and requirements. Then, I examine how abandonment has been applied in relation to human tissue, critiquing such use in the Nuffield report and I outline the inappropriateness of using a line of American Jurisprudence as precedent for a general presumption of abandonment. I then set out the difficulty of utilizing abandonment in relation to human tissue, given the uncertainty as to who the original owner of such material is. I further contend that most cases of purported abandonment of hospital waste are more akin to voluntary transfers, as there is no break in seisin and no ‘roll of the dice’ by their source as to who the subsequent owner might be. I then discuss how income rights in human materials do not arise by virtue of their abandonment by the source, and that invoking abandonment obscures normative questions as to where such rights should initially vest. Finally, I argue that an alternative framework where limited property rights were granted to the source of human tissue need not lead to absurd consequences, and abandonment could be useful in such a framework, as there would be expressly identified rights to abandon.
Maddox concludes
There is a myriad of objections to invoking the concept of abandonment to separated human biological materials. Much of the difficulty comes from utilizing a property law concept, despite the failure (for the most part) of the law to recognize that the source of these materials has any property rights in them. Such materials are the source’s property in so far as their actions can be taken to have extinguished any ownership rights they had in them before being acquired by a hospital or research institute. However, when one inquires as to the ownership rights that the source abandoned, one is met with the objection that there is no property in the body. You can’t have your cake and eat it. While there is a failure to recognize the property rights of the source in the body, then it is the language of property that should be abandoned.
There is also merit in recognizing a limited form of property in separated body parts – mere property – that is an extension of the bodily use freedom principle. Absurd consequences need not result as such items would not be the same as chattels and would not be treated the same. Such an approach need not impose onerous costs on medical institutions in investigating ownership. Furthermore, most cases of purported abandonment in a medical context are more akin to a voluntary transfer, as there is no roll of the dice as to the identity of the next owner. The misdescription of such transfers as abandonment obscures questions about the agency and undue influence that are appropriately raised where a fiduciary personally benefits through the relationship from a gratuitous transfer of a valuable or useful res. Finally, it is more appropriate to determine entitlement to income rights in such materials by reference to nuanced normative questions concerning where ownership o