By James Toomey
The story of Henrietta Lacks is surely among the most famous in the history of bioethics, and its facts are well-known. Ms. Lacks sought treatment for cervical cancer. After conducting a biopsy on her tumor, her doctors learned that her cancer cells reproduced uniquely effectively. Without her knowledge or consent, her doctors derived from the cells the HeLa cell line — the world’s first immortal human cell line, worth billions and a driver of the biotechnology revolution. Lacks died in poverty.
No doubt her doctors’ behavior was not consistent with today’s standards of informed consent. But another question has remained more persistently challenging — did the doctors steal something from Lacks? Did she own the cells of her tumor? Or, perhaps more precisely, because few argue that HeLa is really the same thing as Lacks’s tumor cells, did she own the genetic information contained in her tumor?
In a new paper, Property’s Boundaries (forthcoming in the Virginia Law Review, March 2023), I develop a theory of what can and cannot be owned to answer these kinds of questions — pervasive in bioethics, from debates about ownership of organs to embryos. My conclusion, in short, is that because the essence of the idea of ownership is a relationship of absolute control, anything that can be the subject of human control can, in principle, be owned. But that which we cannot control we cannot own. From this perspective, Henrietta Lacks owned the cells of her tumor, and the tumor itself. But the genetic information within them — facts about the universe subject to no human control — simply cannot be owned, by her or anyone else.
Most treatments of this subject thus far have — following the view of property we were all taught as 1Ls, that ownership is a conceptually arbitrary “bundle of sticks” — think of ownership of genes as a policy question. Maybe the law ought to recognize gene ownership to protect the exogenous value of privacy, or maybe it ought not to encourage scientific research. Both positions are plausible, but they involve the sort of naked policy balancing suitable for legislatures, not courts. Yet courts are routinely called on to answer questions about the boundaries of ownership in bioethics. In so doing, they must stick to the basic concepts of the law and their entailments, at risk of legislating.
In short, most prior analyses of ownership in bioethics are about what should be owned. But there’s real value in understanding the logically prior question of what can be.
And indeed, as it turns out, the bundle of sticks theory of property no longer reigns unchallenged in contemporary private law theory — it has been criticized from a number of directions in recent years, from bona fide conceptualists to those arguing from the economy if not the ontology of legal concepts. Property’s Boundaries builds within this body of scholarship.
The concept of ownership, I argue, exists outside of its legal construction — and indeed, ownership’s existence outside of the law legitimates judicial resolution of many property questions. How is this possible, you may ask — steeped, as I perhaps cavalierly assume you are, in a hundred years of nominalist jurisprudence? Three ways. Most speculatively, it might be that, as the turn-of-the-last-century German legal philosopher Adolf Reinach argued, the basic categories of private law indeed do exist somehow in the fabric of the universe, like we might think mathematical categories do. Coming back to earth, it’s at least as plausible that these concepts are evolved, universal features of human psychology. But maybe the idea of ownership is just a social construction — it could still organize and legitimate property law to the same extent.
Having (I hope) convinced you that the existence of the concept of ownership outside of the law is at least possible, I then argue that the concept of ownership is characterized by a relationship of absolute control. This is what we talk about when we talk about ownership — the real fact of an individual’s control over something else. This theory isn’t thoroughly novel — Blackstone, famously, believed it, and contemporary Kantian property theorists come close — but it is distinct from several familiar alternatives. Control is not exclusion. Indeed, it’s logically prior to exclusion — to exclude is to exercise control, but to control is not necessarily to exclude. And it’s not about labor, either. Locke’s famous theory of property is more a theory of who should own what rather than what can be owned at any rate.
This theory of property, then, offers a straightforward descriptive line of the boundaries of ownership applicable to bioethics. Because ownership is about control, we can own that which we can control; we cannot own that which we can’t.
Whether or not we ought to, we can control our organs. We can, in principle, take them out, destroy them, sell them. Indeed, if you want to control my organs, you’ll have to get through me. Organs, body parts, and the cells that make them up, then, can be owned — they are the proper conceptual subjects of the common law of property. The same goes, incidentally, for gametes, embryos, or corpses.
But not everything that exists can, even in principle, be controlled by human agency. Perhaps most prominent in this category is information — facts about the universe. At the risk of sounding trite, the truth is not subject to human control. Einstein couldn’t own the equivalency of mass and energy. And for all its diversity and complexity, that’s all genetic information is — facts about the universe. We don’t, in short, own our genes. No one does. Indeed, we simply couldn’t if we tried.