Legal status of genetic samples

20.11 The present state of the law suggests that human tissue samples are property in a limited sense, and in limited circumstances. The traditional position under the common law was that a human corpse could not be the subject of property rights. This rule gained support in a number of English cases and was generally accepted throughout the 19th century.[9]

20.12 Since then, a number of cases have declared urine and blood samples to be capable of being stolen.[10] These cases have been cited as support for the property status of samples, since only property can be the subject of theft.[11] Additionally, in 2000, the Supreme Court of Western Australia held that tissue samples were property within the meaning of a Supreme Court rule allowing inspection of ‘property’.[12]

20.13 Over the last century, the common law has shifted away from the original rule towards recognising limited ownership interests in one specific area—preserved samples of tissue held, generally, in hospitals and clinical laboratories, and laboratory samples that have been commercially developed, such as cell lines. The shift away from the rule against property in corpses began when the High Court of Australia held that it was possible for a person to acquire property rights over a corpse.[13] Although the decision was not unanimous on this point, Griffith CJ took the view that the rule against property existed, but that it was subject to an exception. His Honour held that it was possible for human bodies and parts to become the subject of property rights where work or skill have been exercised to preserve them.[14] This rule has been followed in subsequent cases, including the English case of R v Kelly,[15]which held that preserved body parts taken from the Royal College of Surgeons were the property of the Royal College and that the unauthorised removal was theft.[16]

20.14 Under existing law, two elements are required for a sample to become property under this rule. First, the organisation or person using the tissue must have lawful authority to do so, such as a hospital has in relation to tissue taken for therapeutic purposes. Second, that organisation must apply some work or skill to the preservation of the sample. If both requirements are satisfied, the sample may be treated as property of the organisation.[17]

20.15 The recognition of property rights has implications for access, storage and use of such samples. However, the cases to date have dealt with only very limited fact situations. The courts have not produced any clear ruling on the particular property rights that may be held over tissue samples, beyond a right of possession—the violation of which constitutes theft only in specific circumstances. It is not clear what other property rights exist in relation to tissue samples, though it could be argued that the common law has implicitly accepted the existence of other property rights in tissue, such as the right to use, by allowing continued possession by hospitals, laboratories and museums.[18]

[9] The major cases are R v Sharpe (1857) 169 All ER 959; R v Price (1884) 12 QB 247 and Williams v Williams (1881) 20 ChD 659.

[10]R v Rothery [1976] Crim LR 691; R v Welsh [1974] RTR 478.

[11] R Magnusson, ‘The Recognition of Proprietary Rights in Human Tissue in Common Law Jurisdictions’ (1992) 18 Melbourne University Law Journal 601, 617; G Dworkin and I Kennedy, ‘Human Tissue: Rights in the Body and its Parts’ (1993) 1 Medical Law Review 291, 300; P Matthews, ‘Whose Body: People as Property’ (1983) 36 Current Legal Problems 193, 223. Compare D Mortimer, ‘Proprietary Rights in Body Parts: The Relevance of Moore’s Case in Australia’ (1993) 19 Monash University Law Review 217, 244. On property status and theft see B Fisse, Howard’s Criminal Law (5th ed, 1990) Law Book Company, Sydney, 258–260.

[12]Roche v Douglas [2000] 22 WAR 331. A similar conclusion on similar facts was made in Pecar v National Australia Trustees Ltd (Unreported, Supreme Court of NSW, Bryson J, 27 November 1996).

[13]Doodeward v Spence (1908) 6 CLR 406. The case concerned an action for the return of a two-headed foetus preserved in a jar of alcohol.

[14] Ibid, 414 (Griffith CJ).

[15]R v Kelly [1998] 3 All ER 741.

[16] Compare Dobson v North Tyneside Health Authority [1996] 4 All ER 474. This decision has been criticised and was not followed in later cases. See D Brahams, ‘Body Parts as Property’ (1998) 66(2) Medico-Legal Journal 45.

[17]Doodeward v Spence (1908) 6 CLR 406, 414. This statement was cited with approval in Pecar v National Australia Trustees Ltd (The Estate of Ivan Urlich deceased) (Unreported, Supreme Court of NSW, Bryson J, 27 November 1996), 4; R v Kelly [1998] 3 All ER 741, 749.

[18] A more detailed analysis can be found in Australian Law Reform Commission and Australian Health Ethics Committee, Protection of Human Genetic Information, DP 66 (2002), ALRC, Sydney Ch 17.