January 25, 2021

The Niche

Trusted stem cell blog & resources

Our bodies, not our cells?

leftover-bloodDo we own our cells? Do we have some intrinsic right to them once they are outside our bodies?

One of the arguments I hear most often from physicians at stem cell clinics and some clinic patients is that patients have an inherent right to ownership and almost unlimited use of their own stem cells, but over the years my own reading on this issue has suggested that actually their assumptions are not necessarily the actual reality.

At that link above you can read about some pretty striking examples of where cell ownership was not clearly established. Think of the case of Henrietta Lacks and the cell line HeLa.

The argument from individuals on their ownership-based use of their stem cells was reflected in public reactions to the FDA too. One of the most common comments on the FDA online docket related to oversight of stem cells was “My cells are my cells”.

Are they really though by law?

There is in fact no universal, intrinsic ownership or right to one’s own cells or tissues once they are removed from our bodies here in the U.S. that I know of. I’m not aware of any federal law, for instance, that says Americans have broad ownership of biological materials once they are removed from their bodies. It’s also not in the Constitution.

For those who argue ownership and right to use their cells such as stem cells once removed from their bodies, I’d be curious to hear if you have any concrete evidence to back that up in terms of specific language to this effect present in actual laws. The key thing seems to be that once part of us such as our cells is removed from our bodies it ceases to be part of us even if it is later implanted back into us. That former cell/tissue of ours has become a thing instead, and in some cases it is now a commercial product, particularly if it is modified in any way.

Let’s look at some examples.

  • If you take the case of leftover blood samples in those tubes they use for blood tests on us, we do not seem to own those. In fact, as far as I know the medical organization that drew the blood probably owns those and can use them for research or other purposes if they are anonymized.
  • If you bank your blood prior to a surgery, then I’m guessing that you would own that blood and the institution holding onto it for you cannot take it away, but are there actual laws or legal cases addressing this?
  • If during surgery a physician removes a tumor or some normal tissue (e.g. fat, skin, etc.) in the process, as far as I know the patient does not own that material any more. It is routinely discarded or in some circumstances can be used for research.
  • If a physician at a clinic or other entity removes stem cells from a patient, I doubt that the patient has any claim of ownership of those stem cells unless otherwise specified in a document that they and the provider both signed.
  • If a party freezes gametes or embryos from IVF, then there would seem to be ownership there. Are there laws?
  • If a party freezes stem cells in a bank, there seems to be a presumption of ownership there, but is that spelled out in the contract?

So there are potential cases both ways.

However, outside of banked blood, banked stem cells or reproductive materials, what about other cells such as those isolated in a same-day procedure or stem cells stored by a clinic in a freezer without expressly being paid by the patient to do so? Even in the first three cases, is there cellular ownership expressly by law?

I don’t think we consumers definitely own our externalized cells in all or even most cases.

Now let’s be clear, I’m not saying that this widespread lack of cell ownership is a positive thing. I’m just saying it is generally the reality today. If we don’t like it, maybe we should work for a law that establishes clear ownership.

One might argue that even absent definitive ownership by patients of their own cells once those cells are removed from the body, patients should still have rights to use those cells or products made from them without interference from the FDA, but that’s not quite the same thing as arguing this kind of assertion from the basis of ownership. To argue for wide freedom of use of stem cells without oversight also has major risks.

So for you patients out there arguing your wide rights to your stem cells, give this a bit more thought and do some reading on it. It seems likely that in fact the stem cell clinics that you visit actually would have a good case that they own your cells or at the very least ownership is not yours by default. Of course, the use of biological samples for research has a very positive role in biomedical science, but ownership is a tricky issue.

The bottom line is that if you are going to argue “my cells are my cells” meaning ownership of extracted, externalized and sometimes processed stem cells, you need to establish ownership based on the law. If there are in fact laws out there conferring patient ownership on stem cells, I’d love to hear about them.

For another view on some of the same questions, see “Our Bodies, Our Cells” by Mary Ann Chirba and Alice Noble.

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