Assigning Rights and Protecting Interests: Constructing Ethical and Efficient Legal Rights in Human Tissue Research
59 Pages Posted: 26 Jul 2013
Human genetic material often is used for research with only blanket consent for its collection. As a string of recent cases demonstrates, however, we cannot ignore the need to accommodate the interests of tissue providers while not stifling research. This Article provides a systematic account of the interests that tissue providers may have regarding the use of their tissue in research. It then proposes a new model for adjudicating disputes between tissue providers and researchers. Traditional solutions in tort, contract, and real property have proven insufficient to protect provider interests, particularly as genetic research flourishes. But a solution, drawn from intellectual property doctrine, is possible. Individuals should have informational property rights, a property right in their own genetic information. Rather than blanket consent, the Article advocates an informational property approach modeled on Creative Commons licensing and tiered consent practices, reinforced by enhanced privacy protections in tort.
Keywords: Human subjects research, DNA, property, information property, contracts, torts
JEL Classification: K11, K32
Suggested Citation: Suggested Citation