At first glance, something as personal as an individual’s DNA might seem a clear candidate for heritable ownership: every person is born with a specific set of genes that effectively defines who they are and that can’t be exported or replicated without their consent. However, under current law, individuals do not own their DNA or any other body tissue to that extent – and correctly so. DNA is naturally occurring and can’t be manipulated outside of a laboratory, so no one has initial control over it. And if they did own it, some unwanted implications would immediately arise. Furthermore, any concerns over how it is used in research or databases can be better addressed by regulations on the fields of privacy and tort law, rendering property law ineffective on matters of the human genetic code.
DNA isn’t simple. When we mention this three-letter word we are referring to the entirety of the human genome, which consists of 23 pairs of chromosomes that collectively carry about 22,000 genes, each one having millions of nucleotides. The actual deoxyribonucleic acid (DNA) is the material that encodes each gene and forms the famous “double helix” structure we see in biology books. The way our nucleotides are arranged is what gives us our distinct characteristics, as pairs of adenine and thymine and of cytosine and guanine (the four possible nucleotides) are linked by covalent bonds. Some of these sequences are shared by all humans, as they code functions essential to life, but others present some variations that are specific to each person.
This multifaceted genetic information is inherited from our parents, and therefore, inhibited from our input. No human can choose the genes they are born with, a fact that makes them essentially a product of nature and its intrinsic processes. This latter definition was used by the Supreme Court of the United States in Association of Molecular Pathology v. Myriad Genetics (2013) to apply the worldwide understanding that DNA can’t be owned by individuals or by a third party in an initial stage. In this case, Myriad, a genetics company, claimed patents on isolated strands of DNA that it had previously located in its laboratories. If Myriad’s pleas over the BRCA1 and BRCA2 genes were recognized, the company would have exclusive rights to isolate and study a piece of the human genome.
Justice Clarence Thomas, writing for a unanimous Court, denied the patents, stating that “a naturally occurring DNA segment is a product of nature and not patent eligible.” (Myriad 580). The High Court’s decision reflected the global viewpoint that for something natural to be owned, it has to have been modified insofar as it becomes nonnatural, i.e., not encountered in nature in the human developed form (land is an exception to this “modification” rule). Hence, DNA, preceding any laboratory alteration, is a natural phenomenon and cannot be subject to proprietorship.
Moreover, Justice Thomas’ opinion also noted one of many preposterous consequences that a contrary ruling could bring into play. Discussing why laws of nature make for a special circumstance under American patent law, he observed that “without this exception, there would be considerable danger that the grant of patents would tie up the use of [scientific and technological] tools and thereby inhibit future innovation premised upon them.” (Myriad 589) (internal quotation marks omitted). Indeed, if genetic research was reliant on bureaucracy and extensive new contract and consent procedures due to ownership recognition, it would carry a novel yet unnecessary burden that could repel scientists and impede medical breakthroughs.
Additionally, when a person died, the beneficiaries listed on their will would be entitled to the deceased’s genome, a situation that not only feels unethical but could also translate into delays and unwelcome obstacles to burials and autopsies, or even destruction of evidence in scenarios that a deceased patient’s relative sues a hospital for medical negligence and before proper analysis cremates the body and thus eliminates all genetic traits, for example. In other instances, such as in a bone marrow transplant, donors themselves could be subject to lawsuits: a recipient whose body denies the donated tissue would possibly have the right to sue because they were supplied with a “faulty product.”
However, under the same topic of donation, one could argue that when, under current legislation, an individual sends their DNA to a laboratory or other genetic company for analysis, they are engaging in a trade that inherently encompasses and recognizes ownership (here, of the person’s genome and the organization’s methods). Although this reasoning has its merits, the activity comprehended in such conditions would be one of consent rather than one of donation or gifting. When providing a researcher with a collection of their genes, a person would simply be authorizing a partial invasion of their body and its products.
Even then, it could be pointed out that biobanks, for reference, have had property rights over donated blood and tissues recognized around the globe by courts and statutes – and, ergo, so should DNA. While this is true, it is so only to some extent. In a few cases, ownership is necessary for security purposes, as these institutions have to protect these materials from tampering and theft and have to guarantee that they are adequately stored and in a proper state to be used and employed in other humans in a near or a distant future. Therefore, there is a primordial reason as to why some third parties are owners of bodily products, and perhaps, in the future, of human genomes.
Notwithstanding the aforementioned points, a suggestion can be made that people aren’t primarily concerned about how their genes are obtained, but rather about how they are used, which resumes the debate of consent over ownership (Clayton et al. 16). If the main issue isn’t about proprietorship but indeed about process, there are better ways of addressing that worry and controlling undue use of DNA other than applying property law and accepting its overreaching implications. These solutions would be found in the fields of tort law and privacy law, which are well suited to govern the third party use of genetic information.
For example, current battery provisions already protect individuals from the invasion of their bodies via menacing physical contact, an action necessary for acquiring DNA without permission of its host (battery is not only a tort but also a crime). This safeguard comes without the requirement of recognized ownership, as the body is the statutory subject of a tort of battery at the same time no court has said it is so because someone owns their torso. The genome, as part of the body, is included in the interpretation of such laws and thus cannot be removed from one’s cells without their consent.
In the privacy camp, existing legislation requires doctors and researchers to inform patients, donors, and subjects of studies of any information related to a procedure or project they are about to undergo or participate in. Only after this dialogue practitioners and scientists can obtain authorization from the individual and commence their actions; otherwise they are subject to medical negligence lawsuits. This practice of informed consent might even be improved by a proposed method of dynamic consent, that would allow patients to be constantly updated on how their DNA is being used and defer to them the option of opting out of a study at any moment while also fostering medical innovation (Kaye et al. 142). This would be one of many ways we can still contribute to finding a common answer to the various questions the genetics debate has presented, having private concerns and scientific advance mutually in mind.
Nonetheless, the human genome has proven itself as a complex structure and has imposed a convoluted analysis of its relationship with its hosts and subjects of operation. But as discussed, DNA is naturally occurring and not modified, and therefore not subject to property rights under current legislation and judicial precedent – not only in the U.S. but also around the world. If the opposite was to be determined, it would create absurd consequences ranging from unnecessary postmortem hardships to unmerited antemortem lawsuits. Additionally, consent controls ownership in today’s realities and some third party entities have property rights only because there is a security need for it, whereas it is better to restrict the improper use of DNA on a direct level as a matter of privacy and tort law instead of deferring to property jurisprudence and its preposterous consequences. As a result, individuals should not own their own DNA but rather have bigger autonomy and input on the ways it is used.
Randy
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