Medical Law Review, Vol. 22, No. 4, pp. 606–619 doi: 10.1093/medlaw/fwt048 Advance Access Publication: February 12, 2014

CO M M E N TA RY

BENJAMIN J. CAPPS* Centre for Biomedical Ethics, Yong Loo Lin School of Medicine, National University of Singapore, Singapore *E-mail:[email protected]

A B S T R AC T This article is an analysis of Derek Morgan’s manuscript—‘Coming Back to Life: The Normal Chaos of Medical Law’, which remained unpublished at his death in 2011. Morgan made two claims in the manuscript: (1) medical practitioners and patients approach health from the different perspectives of ‘reason’ and ‘emotion’ respectively, while medical law treads the line between these ultimately resulting in ‘normal chaos’. (2) In this respect, medical law ought to be coaxed ‘back to life’ so that it can address broader principles and values in respect to practical resolution; however, it has, in the face of this chaos, become dull in its ambitions. In this article, I first analyse these two claims in detail, before, second, illustrating the ‘normal chaos’ of medical law using the debate over ownership of human cells and tissues. I draw my own conclusions as to whether Morgan’s final thesis was successful. KEYWORDS: Case of Moore, Case of Yearworth, Human rights, Derek Morgan, Legal idealism

© The Author [2014]. Published by Oxford University Press; all rights reserved. For Permissions, please email: [email protected]

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A CRITICAL COMMENTARY ON DEREK MORGAN’S UNPUBLISHED MANUSCRIPT: ‘COMING BACK TO LIFE: THE NORMAL CHAOS OF MEDICAL LAW’ AND HOW TO DEAL WITH PROPERTY IN HUMAN CELLS

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R Lee and D Morgan, Abortion and Embryo Research: The New Law. A Guide to the Human Fertilisation and Embryology Act 1990 (Blackstone Press, London 1990). Revised as: R Lee and D Morgan, Human Fertilisation and Embryology: Regulating the Reproductive Revolution (Blackstone Press, London 2001). His observations were conceptually complex, and sometimes out of left field—derived from his knowledge of law, philosophy, and (exposure) to social sciences. See: R Ashcroft. ‘Book reviews: Issues in Medical Law and Ethics’ (2004) 23 New Genet Soc 121–6. D Morgan, Issues in Medical Law and Ethics (Cavendish Publishing, London 2001) Ch 6: Where Do I Own My Body? (And Why?).

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I N T RO D U C T I O N Some time has passed since Derek Morgan’s untimely death in 2011 (b.1954). On one of his several visits to Singapore, he handed me a draft manuscript of his Inaugural Lecture given in St. George’s Church Lecture Theatre, Sheffield on the 23 October 2009. At the time he jotted on the manuscript for my attention: any ‘comments, criticisms, limitations, amendments, additions’? Although we discussed the ideas on a number of occasions, I am only now putting my thoughts into words. Derek was an influential scholar in medical law and jurisprudence and made a number of important contributions in the field of bioethics. His last position was as Professor of Medical Law & Jurisprudence at Sheffield University Law School. He had previously taught at the Law School at Cardiff University in two periods from 1985 to 1988 and again from 1995 to 2005. He also had a stint as Professor of Health Law & Biomedical Innovation at the School of Law, Queensland University of Technology. He had been an Assistant Editor of the Journal of Medical Ethics and Journal of Law & Society, and a section editor of the Journal of Social Welfare & Family Law. He was a member of the BMA’s Medical Ethics Committee (1995–2005), and a Specialist Legal Advisor to the House of Commons Select Committee on Science & Technology on Reproductive Technologies & the Law (2003–05) and a member of the Chief Medical Officer’s Expert Group on Stem Cells: Medical Progress with Responsibility (1999–2000). The publication of his 1990 book, co-authored with Robert Lee, mapping the then new Human Fertilisation and Embryology Act, heralded an epoch of sorts in reproductive medicine.1 His research picked up some of the most important developments in the relations between medicine, society, and the law, and provides key reflection on the consequences of the transformation in medical law that occurred during the 1990s and 2000s. The draft manuscript, in this respect, is an anthology of his work and an attempt to provide a coherent theoretical approach to medical law–what it is, and importantly, where it is going. Thus, it is foremost a critical reflection on the law’s social meanings and functions; and in particular, a commentary on the tradition of jurisprudential enquiry—aspects often central to Morgan’s writing.2 This article is a critique of Morgan’s approach to issues as broadly applied to issues of medical law, and more narrowly, to the subset of regulating property in biomedicine; an issue he picked up in his own Issues in Medical Law and Ethics.3 Derek’s manuscript was still a work in progress (and some parts, by his own admission, were still quite rough); but I hope that I have interpreted him rightly, and that at least my critique is held in the spirit of charity. In the following, I aim to continue the lively debate that Derek was so much part of.

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PA R T O NE : CO MI N G BAC K TO LI F E : TH E N O R M A L C H AO S O F M E D I CA L LAW The manuscript makes three claims that I quote in their entirety:

(ii) That in our concentration on aspects of the value of life, modern medical law has apparently come to prize and exult values such as individual autonomy and choice to the exclusion of other values, such as care, interdependence and phenomenological accounts of illness. It has ignored the importance of lives as lived. I urge that that should change too. (iii) That, in consequence of this, medical law like another close cousin, sometimes believed to be once removed, medical ethics, has come to concern itself predominantly with matters of secondary importance, important granted, but not pre-eminently so, to the exclusion of others. In its blindness or aphasia to lives as lived, we in the medical law community, like many in the bioethics bailiwick, have overlooked significant inquiries such as oppression, exclusion and power. It may not surprise you to learn–you may see a pattern emerging here– that I urge that should change too.’4 These claims are explained in the manuscript to be grounded in two ideas—One, that medicine (and doctors that practice it) and patients tend to approach health from the different perspectives of ‘reason’ and ‘emotion’, respectively. Medical law treads the line between these, but ultimately contributing to, after what Ulrich Beck and Elizabeth Beck Gernsheim call, ‘normal chaos’.5 Two, that medical law ought to be coaxed ‘back to life’. Law is an emanation of abstract elucidation about a broader set of principles and values and an attempt at their practical resolution where there is conflict; however, medical law has become dull in its ambitions. Scholars have argued, and Judges have strived for greater consistency and coherence, but this has come at the price of losing sight of the importance of reasoned social subjectivity. Medical law, on the contrary, should be a release for robust ideas of justice in health care. Whether these claims are factually correct or not is not my concern here; I am more interested in whether the approach Morgan advocates can reveal anything about current practice 4 5

Quotes without reference immediately attached are from the draft manuscript in my possession. They put this down to the ‘collision of interest between love, family and personal freedom . . . [in respect to] the expansion of the nuclear family and its extension in time; it will be an alliance between individuals as it always has been, and it will be glorified largely because it represents a sort of refuge in the chilly environment of our affluent, impersonal, uncertain society, stripped of its traditions and scarred by all kinds of risk’; U Beck and E Gernsheim, The Normal Chaos of Love, M Ritter & J Weibel, (trans.) (Polity Press, Cambridge 1995) 1–2.

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(i) ‘That chaos is a normal state of affairs, at least for medical law; in large part because medical law, like its close cousin, family law, is a particular side for the engagement of emotions: love, passion, hate, anger, bewilderment, fear, loathing, secrets and lies. The celebration of the value of reason has until late held inordinate sway in the construction and analysis of medical law. I urge that that should change.

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in medical law—and in particular, as an example, whether or not it can influence how we regulate transactions in human body parts. My first task, then, is to spell out this approach.

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D Morgan, Issues in Medical Law and Ethics (Cavendish Publishing, London 2001). See: R Brownsword, ‘Stem Cells and Cloning: Where the Regulatory Consensus Fails’ (2005) 39 New Eng L Rev 535–2. The obvious example is the revision of the Human Fertilisation and Embryology Act 1990, revised in 2008. B Capps, ‘Enhancing Public Ethics: Libertarianism, Legitimation, and the Problems of Technology Regulation’ (2010) 2 Asian Bioethics Review 273–287. ‘Thus, in circumstances where good lawyering demands good ethical deliberation, a technocratic style hinders the attorney’s performance . . . whatever advantages codified black letter rules offer in other settings, they do not obtain when it comes to fostering ethical deliberation in lawyers’; H Feldman, ‘Codes and Virtues: Can Good Lawyers be Good Ethical Deliberators’ (1995–1996) 69 S Cal L Rev 885–948, 887 & 932. ‘Doctors may work like artists who seek to make something of the “material” which is before them; they may value patients as “good cases”’; A Campbell, Professional Care: Its Meaning and Practice (Fortress Press, Philadelphia 1984) 27–8. Morgan, above, n 6, 8.

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Normal chaos In Issues in Medical Law and Ethics, Morgan makes a convincing case that the law’s dynamic is grounded in social policy.6 With each new technology comes controversy and public hullabaloo, which then sets up the strategic reactions of regulatory institutions and parliaments. Whether the law can keep up with these rapidly evolving events—whether it is able to transform itself or rest uneasily on traditions—is a perennial concern highlighted by a spate of cases throughout the 1990s and since.7 Most recently, technical achievements, such as those in regenerative medicine, have pushed to the limits regulatory provisions established some time ago.8 In this respect, Morgan writes: ‘In seeking to take its place in the pantheon of justice and addressing those concerns of social welfare, medical law now seeks more commonly to reflect and refract social values rather than to guide, less so even to lead them.’ Morgan opines that medical law ought to be a stirring and evaluative exercise (more of this later); instead, it has become benign and remote from the issues affecting people. One of the outcomes of this is the casting of the legal person as one autonomous agent among many; and as society becomes more and more defined by technology, the social person is governed by a liberal agenda of choice. In the most celebrated terms—rights liberate the person; it confirms their entitlement to live their own life. Critiques of this progression have been numerous in the bioethics literature,9 yet medical law, according to Morgan, has remained disinterested in opaque matters of moral freedom; it is far more content to be the bastion of consistency and certainty in presuming that persons are remote, legal agents. Medical law—like the analysis of black-letter lawyers10 and the actions of some doctors11—thus might be criticised for detextualising understating of the intellectual and emotional demands of practice, leading to an ethically void, and perhaps excessive focus, on patients’ rights.12 The concern for Morgan is that medical law—and medical practice—no longer treats patients as persons; instead, they operate within, and sometimes drive a service

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In part driven by the march of autonomy; O O’Neill, Autonomy and Trust in Bioethics (Cambridge University Press, Cambridge 2002). K Liddell and A Hall, ‘Beyond Bristol and Alder Hey: The Future Regulation of Human Tissue’ (2005) 13 Med L Rev 170–223. I will return to the question of body parts in part two. For example, courts limit themselves to adjudicating on the intentions of the law rather than context or experience of the litigants. In the case of Evans, which concerned the legal destruction of frozen embryos that her previous partner refused to consent to be used by her, the Judgement reads: ‘the Grand Chamber, in common with every other court which has examined this case, has great sympathy for the applicant, who clearly desires a genetically related child above all else’; nevertheless, the Court denied her request to use the embryos; Evans v The United Kingdom [2007] Application no 6339/05, para 90.

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economy that treats the ailments of people as consumers.13 Medicine is now about repairing the machine (the mind is there, but that is not of their concern), and medical law likewise become mechanistic, immune to the distractions of desire and emotion, and only concerned with the subject’s autonomy within a framework of statute and precedent. This individualism might have purposes—it allows doctors to distance themselves from the patient sufficiently to ‘do their job’; and the same might be said for the surgeon or coroner. In respect to medical law, this distancing from the person might allow it to focus the ‘two sides’ of conjecture, and to find independent solutions appropriate for universalisability and precedent. But, it also has a plausibly dehumanising effect: during Alder Hey, the pathologists did not conceive of the human body in the same way that the parents’ saw their child’s bodily remains, for instance.14 Morgan points at events like the Organs Retention Scandal as the result of this legal turn; and it is here that Morgan’s work deserves our full attention. The normal chaos of medical law is this: ‘a bridge between the reasoned world of the will and the experienced world of the emotion’. This recalls various natural divisions—between the parents and the pathologists; or the doctor and their patient; and between that of the Cartesian mind and body and a phenomenological account of health and illness. When medical law tries to make sense of this, according to Morgan, things become chaotic. This is problematic, and there are two solutions to this predicament proposed by Morgan—and one might think that by following but one of his ideas (but better, both), it would lead to a more fruitful dynamic between medical law and medicine. First, there is not an irreducible confusion between reason and emotion; what medical law needs to do is approach both as potentially independent sources of valuation, and, in so doing, avoid very primitive and defective reasoning that either facts or values matter. Secondly, it must approach difficult cases in the spirit of accommodating conflicting positions—to work out those which are unreasoned prejudice for sure —but to be easy with the fact that eliminating every reasoned alternative except exactly one is not always possible, and certainly may not be a judicial failure. Various legal cases illustrate the attempt to confine law to the bounds of analytical reason, and all this does is add to the turbulent relationships and unsatisfactory resolutions between the medical profession and patients.15 What can we make of Morgan’s two pronged approach? First, he is critical of the court becoming too focussed on issues of formal legitimacy—the intention of the legislator—and not the nature of the issues themselves. This, it would seem, is a consequence of taking sides with reason—in abstract terms, adjudicating on what the

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particular law’s factual purpose is rather than the interests of persons involved. Secondly, as Morgan declared some time ago, rights need to be used with caution; taken at face value, rights define nothing more than choices.16 Morgan points to this as a misunderstanding and misapplication of rights talk to problems in health care, especially when rights are isolated from relations and contexts. So, one might think that another cause of chaos is medical law’s simple adoption of a libertarian ‘rights’ ethos. The error of the courts is positive reading of rights as directives on law making, but with little scope for the requirement for moral interpretation.17

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Morgan, above note 6, 9. ‘This underlines the important requirement that courts develop a moral point of view . . . This entails that the court should not, because it cannot, disguise its judgments as no more than a positivistic exercise concerned only with its own internal, self-referential logic’; R Lee and D Morgan, ‘Regulating Risk Society: Stigmata Cases, Scientific Citizenship & Biomedical Diplomacy’ (2001) 23 Syd LR 297–318; 306. Morgan, above, n 6, 6. A Campbell, Health as Liberation: Medicine, Theology and the Quest for Justice (Pilgrim Press, Cleveland 1995) 2. H Hart, The Concept of Law (2nd edn Oxford University Press, Oxford 1994). Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 96, 969. ‘There can be no more noble or fitting ambition than to defend and promote the values of a common humanity. This applies in the doctrinal details of tort doctrine as much as it does in the grander issues of constitutional politics.’ A Hutchinson and D Morgan, ‘A Final Letter’ (2010) Sept J Jurispr 335–48. The fictional case is reprinted as: A Hutchinson and D Morgan, ‘The Canengusian Connection: the Kaleidoscope of Tort Theory’ (2010) Sept J Jurispr 289+.

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Coming back to life So, how ought medical law be coaxed ‘back to life’? According to Morgan, law is in part an emanation of philosophy (qua legal idealism); therefore, medical law should properly be a release for robust ideas of justice in health care: ‘to do medical law, then, is to do medical ethics’.18 ‘Health as liberation’,19 for example, should be integral to legal debate and not forsaken because, superficially, it is an idea too baffling for practical resolution. Most importantly, law should have something to say about moral life —‘lives as lived’, but with the expectation that chaos will inevitably ensue. This chaotic approach requires us to focus on what the courts (at least) are really doing in examining statutes of medical law: ‘recognising that they are morality plays as much as medical stories and that they are constitutes of morally and relationally situated people’. The first thing to say, then, is that Morgan is somewhat in opposition to Hart’s separation thesis.20 This thesis may or may not have been in mind when the Court presiding over the Conjoined Twins’ infamously declared itself to be ‘a court of law, not of morals’; defining its ‘duty’ ‘to apply the relevant principles of law to the situation before us’.21 Morgan would be critical of this separation, as evidenced with his appreciation of ‘Derall Leftt, J’, the only one of the imaginary judges to be brought out of retirement to reflect upon the equally fictional case of Allan v Derek: ‘The voice of the judiciary is moral and political whether it likes it or not.’22 Conceptually, this is to presuppose that the problems of social order require societies to have laws, and to conceive of human nature and the nature of human interactions in a particular way that edifies the legislature’s relationship with moral justice. If a debate is of the kind that is

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L Fuller, The Morality of Law (revised edition Yale University Press, New Haven and London 1969) 96. There are many scholars of law working on a particular kind of ‘natural law’ under a theoretical grounding of ethical rationalism. Their task is to discover universals and properly apply them to morals and laws, which are conceptually one in the same.

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conceived of as ‘moral’, then it matters not what label law is given, and, as such, the court did not exceed its jurisdiction, at least in Re A, in pronouncing as to whether some lives were simply not worth living. These are moral questions as much as they are about legal precedent; and it was clear that the case was not about statute but alluded to the stories of Jodie (if not Mary), their parents, and the ambitions of the doctors. In the final section of his paper, Morgan writes about the ‘choice agenda’, and it is clear that the ‘reason’ he is critical of justifies a particular species of rights—liberties: as fully autonomous individuals, our rights are about making choices about the health care we receive as consumers. First, he is critical because medicine becomes fixated by ‘individualistic, industrial, [and] innovative health’, and in examining these developments—whether they use stem cells or nanotechnologies—there is a tendency to not care too much about ‘lives as led’. This, Morgan writes, makes us more concerned with the ‘sanctity of individual lives and the sanctuary that law can provide for them or us [as a category of legal agent], than with other inhabitants of moral communities’. Secondly, then, Morgan opines that medical law misses the central problem of modern health care—that, as consumers and providers, it wrongly assumes that we have no experiences or expectations beyond the market. Medicine not only fixes the categorical ailments of categorical agents, but, that the medical market, as it is here conceived of, is apt at only improving the lives of those already enriched, and very good at disenfranchising those less well off. Medical law, unless it becomes more ‘emotional’, and therefore less categorical in its judgements, simply contributes to this injustice. So, must society necessarily accept a state of chaos? One might be content to somehow fault rights themselves for this chaos; certainly, some would squarely put the blame for on universal adjudications emanating from those European bastions of human rights—Strasbourg and The Hague—because they have lost ground in either making the theoretical basis of self-evidence principles stick, or lost sight of their applicability to divergent interests. But, conversely, in at least some cases, it is the chaos caused as a result of emotional decrees, backed up by partisan agendas and the media to rabble-rouse the public, which decries human rights. And in these cases, might it be considered that beliefs and contested values are the true causes of chaos? So, the alternative might be for a disimpassioned adjudicator to provide reasons; we might, for instance, simply find law to be ‘the enterprise of subjecting human conduct to the governance of rules’;23 and, as such, is a sub-category of practical reason. Thus, the moral legitimacy of law is measured by an objectively justifiable moral theory—we just need to find and then properly apply those a priori principles.24 But, this task may be not one that lawyers or judges are willing or even equipped to tackle, and, in difficult cases, purveyors of medical law might prefer the view from objective actuality— that the law is clear in such and such a matter, and resolution need only require the correct application of points of law to the facts of the case. The public, as well as

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some professions, often decries dispassionate reason; giving the impression that bickering is preferable to moral certainty—at least in this way relative historical, religious, and cultural artefacts are preserved through ‘value-pluralism’.25 The argument might go: of course we disagree about points of law or the facts of a case; but these evidential quarrels are nothing compared with the expected clash between different conceptions of the moral life. But should society, therefore, settle for this normal chaos; and might we be able breath life back into legal adjudication through a better understanding of ethical rationalism? In the remainder of this article, I will attempt to reconcile Morgan’s approach with the particular issue of property in human body parts.

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J Coggon, What Makes Health Public? A Critical Evaluation of Moral, Legal, and Political Claims in Public Health (Cambridge University Press, Cambridge 2012) 222–3. Morgan, above, n 6, 89. See: R Porter, Flesh in the Age of Reason (Alan Lane, London 2003) 223. Legal property in human cells and tissues is subject to the reasoning of Moore (1998). John Moore’s claim that he had property in the cells taken from his body without his consent was rejected; but in doing so, this set up the curious circumstance in which no one can own the cells removed from their own body, yet anyone else who is capable of applying skill to them can. Moore v Regents of the University of California (1998) 249 Cal Rptr 494; 215 Cal. App. 3d 709; (1990); 271 Cal Rptr 146; 793 P2d 479; cert denied (1991) 111 SCt 1388. For example, and this is by no means an exhaustive list: In the UK, courts have treated body parts separated without permission, such as hair and urine, as property in the criminal law of theft or battery; see: R v Herbert (1961) 25 JCL 163; R v Welsh [1974] RTR 478. US courts have found that a decedent’s preserved

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PA RT TWO : ‘W H E R E D O I OW N M Y BO DY ? ( A N D W H Y ? )’ Morgan discusses the idea that a person might own their body in Issues in Medical Law and Ethics, concluding that ‘Questions about body ownership are questions about society’s attempts to understand and control threats to its stability and identity; what kind of society it is.’26 Morgan alludes to the bewildering arguments about whether one owns their own body, and whether there is property in parts of it removed; but fundamentally it is a telling statement about how the law tends to reflect various arguments to define societal interests. This is an important observation in the context of ‘Coming back to life’. No-ownership in the human body manifests a long history of law anchored in the notion that society should be reverent in the proper treatment of ‘embodied persons’ subsequent to death; later, this became a public health response for a quick burial or cremation.27 The idea that the body had worth began with the advent of a sound medical basis for cadaveric dissection and in response to the unwelcome digging up of corpses to be procured by anatomists. The law has reflected these changes—including responding to the advent of technology in criminal investigations—to grant limited rights of possession with those involved with burial, licensed dissections, forensics, and criminal investigations. In respect to body parts, there is also recognition of property under specific conditions: we can gift parts of our bodies, such as organs, but we cannot normally sell them (although both presupposes rights of transfer?); and barring some exceptions, cells and tissues are Res nullius, no one’s thing, or matter unconnected until claimed by someone else with an interest in ownership.28 To date, there have been a handful of judgements which presuppose that human parts and products thereof can be property;29 and importantly, more recent cases foretell of the

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sperm has a property interest because the donor has the authority to use it for reproduction; see: Hecht v Superior Court, 16 Cal. App.4th 836, 20 Cal. Rptr. 2d 275 (2d Dist. 1993). In York v Jones (717 F.Supp 421, 1989) , the court treated frozen embryos possessed by an IVF clinic as property owned by the parents and held under a bailment contract by the clinic. Yearworth and others v North Bristol NHS Trust, EWCA Civ 37 (2009); QB 1 (2010); Kate Jane Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118; Jocelyn Edwards; Re the estate of the late Mark Edwards 7 [2011] NSWSC 478. The demand for oocytes has led to a change in many jurisdictions to the conditions for procuring eggs as marketable artefacts; see: B Capps and A Campbell, ‘Why (only some) Compensation for Oocyte Donation for Research Makes Ethical Sense’ (2007) 4 Journal of International Biotechnology Law 89–102. Also see: ‘Consent will be based on an explanation and understanding of, amongst other things: the fact that UK Biobank will be the legal owner of the database and the sample collection, and that participants will have no property rights in the samples [section I.B.1]. . . . Such ownership conveys certain rights, such as the right to take legal action against unauthorised use or abuse of the database or samples, and the right to sell or destroy the samples. Participants will not have property rights in the samples.’ UK Biobank Ethics and Governance Framework. Version 3.0 (October 2007). s II.A. R Brownsword, ‘Reproductive Opportunities and Regulatory Challenges’ (2004) 62 Mod L Rev 304–21. S Holm, ‘Going to the Roots of the Stem Cell Controversy (2002) 16 Bioethics 493–507. Cf. Compromise only ‘. . . hopes to vault people past their real, unliquidated disagreements’; F Michelman, ‘Constitutional Legitimation for Political Acts’ (2003) 66 Mod L Rev 1–15, 6–8.

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potentially profound changes challenging Moore.30 As it transpires, ‘legal refinement’ is necessary as technologies create evermore reasons and opportunities to own human body parts. However, this conceptual shift signifies a pressing jurisprudential issue because the commodification of human material within the context of a bio-economy —especially in respect to stem cell grown artefacts—will be expected to continue to define the way in which we appropriate and trade cells and tissues.31 So how might Morgan’s challenge fit in this respect? (Due to space, I will not discuss the quite different issues of a potential organ market.) In many respects, the law itself has not responded well to developments in technology. Part of this is because of the tendency for regulators to play catch up and only act prospectively to the events created by new technologies.32 Morgan, however, explains that, in the use of novel technologies, it is inevitable that the mere application of moral theories to reconcile their place in society tends only to lead to problematic legal judgements. Therapeutic cloning, for instance, is a contested technology because of the use of human embryos and the spectre of reproductive cloning.33 The law, as has been shown, is hardly likely to resolve such moral controversies. In fact, moral convictions are often regarded by those who possess them as self-evident truths, creating the unrecognisable conflict between rival positions that the law cannot possibly be definitive about.34 The liberal solution has been to embrace relativism; yet, in terms of a universal legal framework this will not do. When one moves from almost universal convictions to more intractable moral problems, the issue of why a particular law ought to be accepted comes to the fore; legal adjudication cannot bypass this requirement, no matter how eloquently the judgement sides with one or the other protagonist. Laws, just like beliefs and opinions, rest on a prior moral point of view, and unless they can be grounded in a unified reason, they are nothing more than expressions of relative sentiments. To illustrate this, consider again the case of Moore. In this US case, the Majority was convinced that to allow property in cells in the period that they are immediately

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detached from the person would ‘destroy the economic incentive to conduct important medical research’.35 This distinctly utilitarian reasoning resulted in the asymmetrical property rights we now are seemingly stuck with. However, on closer scrutiny, one might be less convinced of the logical explanation for the current predicament.36 Ever since Moore, the courts have been going through a process of ‘torturing the provisions of existing common law and statute to breaking point’37 and often without being critical of the reasoning. At the time, Mosk, J dissenting from the Majority, disparagingly opined:

In his analysis on property, Morgan agrees that something went wrong in Moore, and finds specific fault that disclosure of monetary gain is necessary for an informed decision to consent to the biopsies, and failure to disclose this could be seen as negligent or unjust enrichment.39 However, despite these reasonable solutions which, as being based on existing legal precedent, have countenance, cells and tissues are still routinely retained as a result of medical indications or amassed from that which is abandoned or discarded. In matter of fact, until the recent case of Yearworth, to be discussed shortly, the law has remained rather quiet in respect to making serious challenges to the Moore precedent.40 In the bioethics literature, however, there have been some notable challenges to this peculiar state of affairs.41 For instance, one might challenge the ethical grounding of the Majority’s utilitarian judgement; arguing instead that persons have rights that disqualify such logic from being applied to them. To do so, one would need to make a plausible case that current understandings of property actually harm them and that we need a proper remedy for this. Thus, while misappropriating cells is not either a material or physical risk to the person’s health, it might create adverse personal harms, and because of this there is both the right to use and the right to exclude use by others because that does the work of controlling the fate of these cells in a precautionary sense. The plaintiffs’ complaints in Catalona 42 and Greenburg 43—both of which substantively ruled against any rights that persons have in respect to cells from their bodies, arose out of a perceived 35 36

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Moore, above, n 28, 146. Lord Judge CJ in Yearworth described the bifurcation of property rights in Moore as ‘not entirely logical’; Yearworth, above, n 30; para 45(d). See: B Capps, Redefining Property in Human Body Parts: An Ethical Enquiry in the Stem Cell Era. in A Akabayashi (ed), The Future of Bioethics: International Dialogues (Oxford University Press, Oxford 2014). Morgan, above, n 6, 102. Moore, above, n 28, 166. Morgan, above, n 6, 102. Yearworth, above, n 30. A number of related cases have used Moore to shore up and protect research interests in human body parts: see: Washington University v Catalona 437 F. Supp 2d 985, E.D. Mo; 490 F.3d 667 (2007),676–77; and Greenberg v Miami Children’s Hospital Research Institute 264 F. Supp. 2d 1064, S. D. Fla. See below, nn 42 and 43. D Beyleveld and R Brownsword, Human Dignity in Bioethics and Biolaw (Oxford University Press, Oxford 2001) Ch 8.

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. . . the majority cite no case holding that an individual’s right to develop and exploit the commercial potential of his own tissue is not a right of sufficient worth or dignity to be deemed a protectable property interest’.38

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In Catalona (Rights of ownership of the contents of a tissue repository are with the institution in which the research was carried out, and not with the researcher who alleges that the samples were donated to him personally) above, n 40, the Supreme Court’s opinion was that patients did not have continuing property rights in the research samples they had donated: ‘Thus, the district court properly concluded the research participants made informed and voluntary decisions to participate in genetic cancer research, and thereby donated their biological materials to Washington University as valid inter vivos gifts. This voluntary transfer of tissue and blood samples to [Washington University] – without any consideration or compensation as an incentive for doing so – demonstrates WU owns the biological samples currently housed in the Biorepository.’ In Greenberg, above, n 40. (Patenting of a test for the Canavan Disease), a researcher enjoyed considerable cooperation from the families affected by a Canavan disease who voluntarily donated tissues and funds to the research. Subsequently, the researcher filed a patent to license a test for the disease. The plaintiffs reportedly felt betrayed by the fraudulent concealment of the researchers’ real intentions. The Court relied heavily on the reasoning in Moore to find for the Defendants (including dismissing ownership of the cells by the source) in all but the motion of unjust enrichment (the Defendants obtained a benefit from the provision of cells and should therefore pay up for the time and resources provided). M Goodson and B Vernon, ‘A Study of Public Opinion on the Use of Tissue Samples from Living Subjects for Clinical Research’ (2004) 57 J Clin Pathol 135–8. This article failed to specify the kind of ‘tissue or organs’ that those asked would object to. It is likely that specifying the kinds of cells, tissue, or organs (hair, as distinct from a heart) will elicit different responses; see: E Clayton, ‘Informed Consent and Biobanks’ (2005) 33 J Law Med Ethics 15–21. I stress that although some people want to be asked to donate, there is a higher level of disinterest in what happens to the samples once they are donated: K Hoeyer and others, ‘The Ethics of Research Using Biobanks: Reason to Question the Importance Attributed to Informed Consent’ (2005) 167 Arch Intern Med 97–100. ‘[I]f adequately informed, the vast majority of patients consent to the research use of surgically resected tissue, even if the research is in a commercial setting.’ A Jack and C Womack, ‘Why Surgical Patients do not Donate Tissue for Commercial Research: Review of Records’ (2003) 327 BMJ 262. Yearworth, above, n 30, para 23.

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powerlessness of patients to stop others—scientists and doctors—from doing what they wanted with their body parts. Moreover, it is telling that a significant minority of patients want their authority to make choices about body parts to be respected;44 and, contrary to the fears of Moore, the language in studies that use ‘donated’ or ‘abandoned’ under conditions of consent can achieve the same objectives.45 These observations suggest that a condition of ex anti ownership does not in fact risk a shortage of parts for research. So, what might we expect property do in these transactions? The recent case of Yearworth is an attempt to create a prescriptive grounding for an a fortiori justification to treat human material as property (rather than considering it as something else conceptually different). It was argued that patients do expect to control parts of their bodies after removal as a matter of right (in terms of bailment); however, this right cannot be effectively or logically subsumed under a right of bodily integrity (what Yearworth referred to as a ‘fiction’),46 and without this solution available, patients must look elsewhere to protect their interests from misappropriation. This makes property a matter of first presumption, or prima facie right; that the person has a relationship with that object in the sense that no other has. This does not mean that in particular circumstances that other rights might prevail and thus justify the legitimate removal of control of property from the property owner. Importantly, however, is that it offers a remedy to those to whom the undisclosed fate of excised tissue entails a loss of control of the tangible and intangible objects and which are connected to one’s interests. Many have been wary of this as it might lead to evermore exceptions to the ‘no-property’ rule and thus ultimately justify the contentious ownership of the body as properly understood (in the sense that

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47

48 49

R Skloot, The Immortal Life of Henrietta Lacks (Crown Publishers, New York 2010); most recently, see the debates surrounding the high resolution sequencing of the HeLa cell: J Landry and others, ‘The Genomic and Transcriptomic Landscape of a HeLa Cell Line’ (2013) 3 G3 1213–1224. B Clucas, ‘The Sheffield School and Discourse Theory: Divergences and Similarities in Legal Idealism/ Anti-Positivism’ (2006) 19 Ratio Juris 230–44. D Morgan, ‘Technology in the Age of Anxiety—The Moral Economy of Regulation’ (2009) 29 LS 492– 508.

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we own everyday objects). However, if property can be put to work in a framework of rights, then it might be possible to do without the asymmetrical ownership currently found in the transfer of human cells and tissues; patients are the owners of cells derived from their bodies and can be engaged in the occurrence and benefits of these kinds of transfer. Whether this reasoning can create a degree of order so that the state of chaos is not inevitable is one thing; and whether Morgan would welcome this degree of harmony, unfortunately, I cannot know. However, Morgan also begs us to look at this issue in another way—the importance of lives as lived. This, one will recall, is the other side of chaos. In another celebrated case of cell misappropriation—that of Henrietta Lacks—the injustice was exposed further recently.47 In 1951, Henrietta Lacks checked into the John Hopkins Hospital in Baltimore with abnormal bleeding from her cervix. She was not aware at the time that the cancerous cells taken from her body might lead lucrative research or contribute to potential clinical advances (although apparently the doctors did); the patented HeLa cell line is now ubiquitous in laboratories around the world. Henrietta’s plight never reached the courts; and the family found out only much later that her cells had become ubiquitous, and now a fully sequenced genomic map. In contrast to Moore, however, the case is also contextualised by issues of race and class; Lacks, her family and many descendants lived in and survived conditions of poverty. This case, therefore, would not be complete without an inquiry into oppression, exclusion, and power. Now, while it would be inexcusably amiss to leave out such discussions from the bioethics debate, would such inquiries be proper in terms of medical law? As a legal idealist,48 Morgan expects matters of ethics to be integral to the study of jurisprudence and the laws we create and use; these laws are about the ‘inhabitants of moral communities’. In the matter of making and interpreting law, however, the underlying ethical reasoning is not complete without the contextual circumstance. In this respect, Morgan is particularly sceptical of the current trend in law to only empower individuals: we not only need to consider the diagnoses and treatments of medical disease or the scientific advancements which allow choice, but also the social aspects of sickness and lives lived by those who are ill. Commentating on the work of Roger Brownsword, he warns against ‘Citizen Consumer, dedicated follower of Choice: rational, atomising, an attic autonomist’.49 Morgan is critical because, although people ought to have choices respected, the practice in medical law does not necessarily take the time to understand the choices they make. This opens up an enquiry into the plight of individuals exploited by current property laws to find remedies. Yet, can we really ask this legal process to become a stagecoach for chaotic passions to prevail? In the Lacks case, relatives even now have difficulties in reconciling the ‘immortality’ of Henrietta. In interviews, they talked about her still existing—that the cells could be used to somehow remake her; the cells—and Henrietta—were still

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50 51 52

53 54 55 56

A Schulman, ‘What is the Body Worth?’ (2012) 35 New Atlantis 99–115. S Pattinson, ‘Reproductive Cloning: Can Cloning Harm the Clone?’ (2002) 10 Med L Rev 295–307. This might be temporal or circumstantial; and ‘If the everyday world is your cognitive home, it is not natural to detach abstractions and logic and the hypothetical from their concrete referents’; J Flynn, What Is Intelligence?: Beyond the Flynn Effect (Cambridge University Press, Cambridge 2007) 24. D Morgan, ‘Regulating the Bio-Economy’ in B Bennett and G Tomossy (eds) Globalisation and Health: Challenges for Health Law and Bioethics (Springer, Dordrecht 2006) 59–69. Morgan, above, n 49, 508. A Pollock and others, ‘Planning the New NHS: Downsizing for the 21st Century’ (1999) 319 BMJ 179–84. Cf. A Gewirth, Reason and Morality (Chicago University Press, Chicago 1978).

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alive.50 Such an emotional response alludes to the possibilities of cloning; yet, they also do not do justice to the complex arguments that can shed light on, for example, the cloning debate.51 In highly charged issues, therefore, it is not surprising that the law tends to turn to reason rather that emotion. Values and beliefs are parochial or governed by the conditions in which one lives;52 the law is about creating precedents, which, although not necessarily immutable, should not be substantially transient between different epochs and value sets. Essentially, the purpose of medical law—as part of that enterprise of subjecting human conduct to the governance of rules—should, firstly, apply to the medical fraternities and offer solutions in respect to the complex relationships that follow with their patients; and secondly, ought to justify its relationship with other exclusive matters. It is this latter point that I find most persuasive—that medical law is unjustly reflecting powerful bio-business interests over the people actually implicated. Modern societies are now openly and intractably integrated with a wide spectrum of interests, including private and public health, the environment, the economy, and globalisation (together, these mingle with modern technologies to create something like a ‘bioeconomy’),53 so now it makes little sense to separate our lives from its private, communal, and now ‘privatised’ being. Morgan writes: ‘questions of allocative justice have predominated at the expense of an equal consideration of aspects of distributive justice; there has been a concentration on what should be protected rather than who should benefit from that protection’.54 Yet I think this can be answered by way of a scam—that to a degree, the law has been hostage to interests that have prevented a reasoned discussion about distribution from taking place. Moore and its adherence to business interests is one example. In more recent areas, health systems that used to be free for all at point of need are now subject to a cost-cutting mandate of a corporate infrastructure whose only interest is securing capital.55 This is presumed to be about choices within a system of fair allocation that is limited by the conditions of limited resources; what it’s really about is economic liberty, which is fine for those privileged enough to have this, but rather less so who have an interest in actual conditions for substantive fairness. Rights-talk supports those in the latter camp because generic rights would provide for the conditions of economic wellbeing but only as a function of more basic rights entailing productive agency.56 Equally then, just as the normative debate about rights must be had to redress the exploitation of patients as unknowing donors to the bio-business, the ambitions for medical law now must also be reorintated from ‘values such as individual autonomy and choice’ that are most at home within a purely economic outlook, to include ‘care, interdependence

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and phenomenological accounts of illness’. Morgan is right, now, more than ever, to conclude that medial law should have due consideration of, and should try to force through ideals of justice; to refocus on the ways in which lives can be liberated from those interests which are merely privileged. However, my departure from his thesis is that perhaps rights, as logical concepts of ethical rationalism, can do the same trick, while also allowing the courts to maintain a semblance of objectivity to ‘lives as lived’.

AC K N OW L ED G EM E NT My thanks to Celia Wells for her encouragement to complete this paper, and Oliver Quick for his insightful comments on an early draft. Needless to say, responsibility for any mistakes remains with the author. The paper is dedicated to the memory of my friend, and an inspirational colleague, Derek Morgan. CON F LI C T OF IN TE RE S T Ethics approval not required. No conflicts of interest declared. No funding was received to support the writing of this article. 57

D Morgan, ‘The Problems and Possibilities in Regulating Technological Frontiers: The Politics of the New Anxiety? (2007) 15 JLM 77–88.

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CON C LU S IO N Morgan wrote: ‘[s]cientific citizenship requires that law develop a moral vision and vocabulary so that we shape the moral dimensions of the emergent bioeconomy’.57 His Inaugural Lecture was in many ways a smörgåsbord of ideas in respect to this vision. Perhaps most pervasively, Morgan asks to what extent and how will the technologies affect and address the oppressed; and who, how, and in what way will they liberate? Since I have ended this article with a sketch of my conciliatory view of rights, I am wary of too-confidently projecting it on a thinker who is, sadly, no longer around to correct the liberties I take with his ideas. Still, mine is one (I think appealing) way to square his perspective with Moore and Lacks as points of moral conflict—the solution in both was that industry ambitions seemed to be prioritised over any interests the patients might have. In retrospect, the lives of these people were not only unimportant in terms of the lopsided transactions, but actually perceived as impediments to the privileges of a flourishing industry. Yearworth, I think, is closer to what Morgan envisaged for law coming back to life; but achieves synchronicity between the rational and the emotional by reevaluating the reasoning of precedent: by attempting to disassociate property from the precedent but illogical biases of Moore, and to reaffirm the status of individuals as lives lived. These people had suffered and ethically deserved redress, and the Judge quite rightly conceived of a different kind of society. In my words, this is one in which the individual is fully integrated into legal decisions that affect them and their communities (exposing the bad logic of utility that deliberately excludes them), and, indirectly (but as a direct challenge to Moore), that people rightly have a role as meaningful participants in research endeavours that actually do benefit society. Morgan argued that chaos should be the normal state in medical law: a balance between reason and rationality with emotion and passion. I’m not so sure that chaos is the only way to find justice in this new world of biocommerce; but I do agree that the value of medical law stretches beyond arguing mere points of law.

A critical commentary on Derek Morgan's unpublished manuscript: 'coming Back to Life: The Normal Chaos of Medical Law' and how to deal with property in human cells.

This article is an analysis of Derek Morgan's manuscript-'Coming Back to Life: The Normal Chaos of Medical Law', which remained unpublished at his dea...
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