My body, his property?: Prescribing a framework to determine ownership interests in directly donated human organs

Temple Law Review

Volumn 80, Issue 4, 2007, Pages 1203-1228

  Colleran, Erin ^a  

^a NONE

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EID: 67649644859     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (211)

1. Mark Johnson, Man Not Entitled to Kidney: The Appeals Court Ruled that a Florida Man Did Not Own a Kidney Promised to Him by the Widow of a Lifelong Friend, THE INTELLIGENCER (Doylestown, PA), Dec. 15,2006, at All.
2. Fertility Clinic Is Sued over the Loss of Embryos, N.Y. TIMES, Oct. 1.1995, at 26.
3. Davan Maharaj, Fertility Doctor Charged with Eggs Theft, L.A. TIMES, NOV. 19,1997, at A3.
4. Carla Hall, Lover Wins Custody of Dead Man's Sperm: Woman Gets 12 Frozen Vials, Ending Legal Fight with His Children, L.A. TIMES, Feb. 25,1997, at Al.
5. Denise Grady, Woman Has Child After Receiving Twin's Ovarian Tissue, N.Y. TIMES, June 8, 2005, at A12.
6. See, e.g., Melissa M. Perry, Comment, Fragmented Bodies, Legal Privilege, and Commodiftcation in Science and Medicine, 51 ME. L. REV. 169,172 (1999) (noting "gap in current legal discourse" regarding scientific and medical interests in face of rapid biotechnological advances); William Boulier, Note, Sperm, Spleens, and Other Valuables: The Need to Recognize Property Rights in Human Body Parts, 23 HOFSTRA L. REV. 693,694-95 (1995) (arguing that law must evolve in light of present reality of biotechnologically advanced society).
7. Compare, e.g., Lori B. Andrews, My Body, My Property, HASTINGS CTR. REP., Oct. 1986, at 28, 29-31 (advocating for recognition of property right in human body), with, e.g., Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. REV. 359, 428-43 (2000) (arguing against recognition of property rights in body).
8. Compare, e.g., Moore v. Regents of the Univ. of Cal" 793 P.2d 479, 492 (Cal. 1990) (finding that plaintiff had no ownership interest in excised cells because current state statute restricting how excised cells could be used eliminated property rights), with, e.g., Colavito v. N.Y. Organ Donor Network, Inc. (Colavito III), 860 N.E.2d 713, 717-19 (N.Y. 2006) (discussing common-law property rights in human corpses to determine whether property interest exists in donated organ).
9. Andrews, supra note 7, at 29. But see Hecht v. Superior Court (Hecht I), 20 Cal. Rptr. 2d 275, 283 (Ct. App. 1993) (finding sperm to be "unique type of 'property'").
10. Hecht I, 20 Cal. Rptr. 2d at 281-83; Michele Goodwin, Formalism and the Legal Status of Body Parts, 2006 U. CHI. LEGAL F. 317,321.
11. Goodwin, supra note 10, at 323.
12. Id. at 319.
13. E.2d 713 (N.Y. 2006).
14. See infra Part II.B.3 for a complete discussion of Colavito.
15. See Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 492-95 (Cal. 1990) (holding plaintiff had no ownership interest in cell line created using his bodily material); Hecht I, 20 Cal. Rptr. 2d at 275 (finding girlfriend had ownership interest in sperm bequeathed by deceased boyfriend).
16. See Colavito III, 860 N.E.2d at 713 (holding that intended recipient of incompatible donated organ had no ownership interest in organ prior to transplantation).
17. Keyes v. Konkel, 78 N.W. 649, 649 (Mich. 1899); M.H. Klaiman, Whose Brain Is It Anyway? The Comparative Law of Post-Mortem Organ Retention, 26 J. LEGAL MED. 475, 479 (2005); Michelle Bourianoff Bray, Note, Personalizing Personalty: Toward a Property Right in Human Bodies, 69 TEX. L. REV. 209,225 (1990) (citing Regina v. Sharpe, (1857) 169 Eng. Rep. 959 (Q.B.)).
18. Newman v. Sathyavaglswaran, 287 F.3d 786, 791 (9th Cir. 2002) (citing Pierce v. Proprietors of Swan Point Cemetery, 10 R.I. 227,239 (1872)).
19. R v. Stewart, (1840) 113 Eng. Rep. 1007, 1009 (Q.B.) (imposing common law duty that required "the individual under whose roof a poor person dies" to provide pauper with proper Christian burial).
20. (1884) 12 App. Cas. 247 (Q.B.D.).
21. Id. at 254.
22. Bray, supra note 17, at 226-27.
23. See Bessemer Land & Improvement Co. v. Jenkins, 18 So. 565, 567 (Ala. 1895) (finding that dead body is not subject to property right, and noting that American courts have generally adopted this view from England).
24. Newman v. Sathyavaglswaran, 287 F.3d 786, 791-92 (9th Cir. 2002) (citing In re Johnson's Estate, 7 N.Y.S.2d 81, 85-86 (Sur. Ct. 1938)).
25. Id. at 791-92 (citing In re Johnson's Estate, 7 N.Y.S.2d at 85-86).
26. I. 227 (1872).
27. Pierce, 10 R.I. at 238 (explaining that quasi-property right entails right to protection from violation and proper burial).
28. See, e.g., Bogert v. City of Indianapolis, 13 Ind. 134, 138 (1859) (holding that "the bodies of the dead belong to the surviving relations ... as property, and that they have the right to dispose of them as such, within restrictions analogous to those by which the disposition of other property may be regulated"); Herzl Congregation v. Robinson, 253 P. 654, 655 (Wash. 1927) (finding "quasi-property right in a dead human body inherent" in deceased's immediate relatives).
29. See, e.g., Shults v. United States, 995 F. Supp. 1270, 1273-76 (D. Kan. 1998) (discussing parents' right to recovery when deceased son's organs were removed during autopsy and were not returned but were incinerated); Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877, 880-82 (Colo. 1994) (discussing parents' right to recover for emotional distress when son's dead body was mistakenly cremated).
30. Culpepper, 877 P.2d at 880.
31. Id. (citing Scarpaci v. Milwaukee County, 292 N.W.2d 816, 821 (Wis. 1980)). The Second Restatement of the Law of Torts has proposed a cause of action for Interference with Dead Bodies under the quasi-property legal fiction theory. RESTATEMENT (SECOND) OF TORTS § 868 (1979). The comment to section 868 states that "[i]n practice the technical [quasi-property] right has served as a mere peg upon which to hang damages for the mental distress inflicted upon the survivor; and in reality the cause of action has been exclusively one for the mental distress." RESTATEMENT (SECOND) OF TORTS § 868 cmt. a (1979).
32. See, e.g., Shults, 995 F. Supp. at 1275-76 (finding no cause of action for conversion, and holding that injury should be addressed through tort of interference with corpse); Culpepper, 877 P.2d at 882 (rejecting "fictional theory that a property right exists in a dead body" that would allow plaintiffs to bring cause of action for conversion, and holding that recovery would be more appropriate through tort action related to emotional distress); Bauer v. N. Fulton Med. Ctr., Inc., 527 S.E.2d 240, 244-45 (Ga. Ct. App. 1999) (rejecting cause of action for conversion for unauthorized removal of deceased husband's eye tissue and awarding damages through malpractice remedy); Bourgoin v. Stanley Med. Research Inst., No. CV-05-34, CV-05-82, CV-05-83, CV-05-121, CV-05-252, CV-05-186, CV-05-195, 2005 WL 3882080, at *2-3 (Me. Super. Nov. 23, 2005) (denying deceased's family members' cause of action for conversion, and opining that preferred cause of action for nonconsensual removal of deceased's organs is infliction of emotional distress). But see Spates v. Dameron Hosp. Ass'n, 7 Cal. Rptr. 3d 597, 608 (Ct. App. 2003) (holding that fact that quasi-property interest in deceased's body vested in next of kin did support cause of action for conversion).
33. See, e.g.. Fuller v. Marx, 724 F.2d 717, 719-20 (8th Cir. 1984) (recognizing only quasi-property interest in deceased son's organs, and holding that mother did not have constitutionally protected property right); Georgia Lions Eye Bank, Inc. v. Lavant, 335 S.E.2d 127, 128 (Ga. 1985) (dismissing due process claim, and holding that mother had no property interest in child's body outside of quasi-property right to bury deceased).
34. 923 F.2d 447 (6th Cir. 1991).
35. Brotherton, 923 F.2d at 482.
36. Id. See generally Kathryn E. Peterson, Note, My Father's Eyes and My Mother's Heart: The Due Process Rights of the Next of Kin in Organ Donation, 40 VAL. U. L. REV. 169, 185-220 (2005) (discussing statutory and common law rights of next of kin in organ donation and whether these rights create constitutionally protected due process property right).
37. 58 F.3d 1111 (6th Cir. 1995).
38. 287 F.3d 786 (9th Cir. 2002).
39. See Newman, 287 F.3d at 795-99 (holding that California recognizes parents' constitutionally protected interest in their deceased children's bodies); Whaley, 58 F.3d at 1116 (holding that next of kin had constitutionally protected property interest in bodies of deceased relatives that was violated when defendants removed corneas and eyeballs of deceased relatives without consent).
40. 793 P.2d 479 (Cal. 1990).
41. See Michelle J. Burke & Victoria M. Schmidt, Old Remedies in the Biotechnology Age: Moore v. Regents, 3 RISK: ISSUES IN HEALTH & SAFETY 219, 220 (1992) (noting that Moore attracted widespread attention and raised novel policy issues discussed at congressional hearings and in professional literature).
42. Moore, 793 P.2d at 480.
43. Charles M. Jordan, Jr. & Casey J. Price, First Moore, Then Hecht: Isn't It Time We Recognize a Property Interest in Tissues, Cells, and Gametes?, 37 REAL PROP. PROB. & TR. J. 151,160-61 (2002).
44. Moore, 793 P.2d at 480-81. At this time, it was common knowledge to all Moore's physicians that blood products and components of patients with hairy-cell leukemia were valuable and would provide significant commercial and scientific advantages in the field. Id.
45. Id.
46. Id.
47. Id. at 481-82.
48. Moore, 793 P.2d at 487. At the time of the trial, the potential market for the types of proteins produced by cell lines like the one at issue in Moore had an estimated value of three billion dollars. Id. at 516.
49. Moore v. Regents of the Univ. of Cal., 249 Cal. Rptr. 494, 503-04 (Ct. App. 1988), aff'd in part, rev'd in part, 793 P.2d 479 (Cal. 1990).
50. Id. at 504-05; see also Andrew Wancata, Note, No Value for a Pound of Flesh: Extending Market-Inalienability of the Human Body, 18 J.L. & HEALTH 199, 210 (2003-2004) (noting that allowing Moore to recover on conversion theory would have effected recognition of complete property right in human body).
51. Moore, 249 Cal. Rptr. at 505-07.
52. Id. at 504.
53. Id. (internal quotation marks omitted).
54. Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 489-90 (Cal. 1990) (citing CAL. GOV'T CODE § 27491.46-47 (West 1979); CAL. HEALTH & SAFETY CODE § 7054.3-4 (West 1972)).
55. Id. at 492.
56. Id. at 489.
57. Id. at 492. The court reasoned that the cell line was a product of invention because "[f]ederal law permits the patenting of organisms that represent the product of 'human ingenuity,' but not naturally occurring organisms." Id.
58. Moore, 793 P.2d at 493.
59. Id. at 494. The Moore court explained that recognizing a property interest in cell samples would result in a compromise of free and efficient access to and exchange of scientific materials for research purposes. Id. at 495. It ultimately concluded that upholding Moore's claims for breach of fiduciary duty and lack of informed consent offered him adequate compensation and protection. Id. at 496-97.
60. Id. at 497-98 (Arabian, J., concurring).
61. See, e.g., Gina M. Grandolfo, Comment, The Human Property Gap, 32 SANTA CLARA L. REV. 957, 981-85 (1992) (criticizing Moore and discussing alternative theories of compensation for wrongful use of individual's cells or body parts).
62. See, e.g., Greenberg v. Miami Children's Hosp. Research Institute, Inc., 264 F. Supp. 2d 1064. 1074-75 (S.D. Fla. 2003) (holding that voluntary donors of tissue and fluids had no ownership interest in their donations and could not sustain causes of action for conversion against defendant physicians who patented successful research done using their bodily matter).
63. For a comprehensive discussion of cases, statutes, and medical issues involving property and personhood interests in cryopreserved embryos, see Laura S. Langley & Joseph W. Blackston, Sperm, Egg, and a Petri Dish: Unveiling the Underlying Property Issues Surrounding Cryopreserved Embryos, 27 J. LEGAL MED. 167 (2006).
64. l. Rptr. 2d 275 (Ct. App. 1993). Hall v. Fertility Inst. of New Orleans, 647 So. 2d 1348 (La. Ct. App. 1994), is a less familiar case with many factual similarities to Hecht. Hall, upon discovering that he was seriously ill, deposited fifteen vials of sperm with a sperm bank and legally executed an "Act of Donation," thereby conveying his interest in the frozen semen deposits to his girlfriend. Hall, 647 So. 2d at 1350. Hall's mother, the executrix of his estate, wanted the sperm to be considered succession property or to be destroyed and sought an injunction preventing the release of the semen to the girlfriend. Id. at 1349. The appellate court upheld the trial court's grant of summary judgment and held that the sole issue in the case was the validity of the Act of Donation, an issue to be determined at a full trial. Id. The court held that if, at trial, the decedent was found competent and not under undue influence at the time the act was executed, the frozen semen would become his girlfriend's property and she would be given full rights to its disposition. Id. at 1350-51. This case illustrates another instance in which a court alluded to a "property" interest where excised cell or tissue would pass in some way from a donor to a donee-recipient.
65. A letter recovered after Kane's death indicated that he had in fact been "assiduously generating" his sperm, knowing that he intended to take his own life. Hecht 1,20 Cal. Rptr. 2d at 277.
66. Id. at 279.
67. Id. at 280-81.
68. Id.
69. Id. at 281.
70. Hecht I, 20 Cal. Rptr. 2d at 283. The probate code defined property very broadly as '"anything that may be the subject of ownership and includes both real and personal property and any interest therein.'" Id. at 281 (quoting CAL. PROB. CODE § 62).
71. Hecht v. Superior Court (Hecht II), 59 Cal. Rptr. 2d 222,226 (Ct. App. 1996) (order not to be officially published). The initial settlement gave Hecht twenty percent of the estate's assets, including the sperm, and therefore she was given only three of the fifteen vials of sperm. Hecht II, 59 Cal. Rptr. 2d at 225. In this proceeding, Hecht sought to get the other twelve vials of sperm, which the court ordered released to her. Id. at 227-28.
72. Id. at 226.
73. Id.
74. Hecht II, 59 Cal. Rptr. 2d at 226-27.
75. Hecht I, 20 Cal. Rptr. 2d at 282 (quoting ETHICS COMM. OF THE AM. FERTILITY SOCIETY, ETHICAL CONSIDERATIONS OF THE NEW REPRODUCTIVE TECHNOLOGIES (1986)).
76. W.2d 588,597 (Tenn. 1992).
77. Davis, 842 S.W.2d at 597.
78. Colavito v. N.Y. Organ Donor Network, Inc. (Colavito I), 356 F. Supp. 2d 237, 238 (E.D.N.Y 2005), aff'd in part, 438 F.3d 214 (2d Cir. 2006). Colavito's claims also included fraud and violations of the New York public health laws, which will not be discussed in this Comment. Id.
79. Colavito v. N.Y. Organ Donor Network (Colavito II), 438 F.3d 214,217) (2d Cir. 2006).
80. Id.
81. Id. A factual dispute exists with regard to Mrs. Lucia's understanding about what would happen to the second kidney. She testified that she was never made aware of what would happen, but her understanding was that if Mr. Colavito was '"taken care of and he was fine, then the kidney could be given to another person.'" Id. at 218 (quoting Debra Lucia's testimony). The NYODN official's report, however, indicates that Mrs. Lucia '"consented to donating the second kidney to the pool.'" Id. at 218 n.4 (quoting report).
82. Colavito II, 438 F.3d at 218.
83. Id.
84. Id.
85. Id. at 219.
86. Id.
87. Colavito II, 438 F.3d at 219.
88. Mark Johnson, Court Dismisses Lawsuit over Organ Transplant: 17th-century Common Law Cited in Ruling Against Man Who Didn't Get Kidney, ALBANY TIMES UNION, Dec. 15,2006, at A5.
89. Colavito v. N.Y. Organ Donor Network, Inc. (Colavito I), 356 F. Supp. 2d 237,237 (E.D.N.Y. 2005), affd in part, 438 F.3d 214 (2d Cir. 2006).
90. Complaint at 7-8, Colavito I, 356 F. Supp. 2d 237 (No. 03-4187), 2003 WL 23883879.
91. Colavito /, 356 F. Supp. 2d at 242. A claim for conversion requires that the plaintiff '"establish legal ownership of a specific identifiable piece of property and the defendant's exercise of dominion over or interference with the property in defiance of the plaintiff's rights.'" Id. at 242 (quoting Ahles v. Aztec Enters., Inc., 502 N.Y.S.2d 821,822 (App. Div. 1986)).
92. Id. at 244. Recognizing that this was an issue of first impression in American case law, the district court turned to cases discussing the existence or extent of property rights that attach to the body at death and concluded that courts have not applied traditional property law to the body or organs of the deceased. Id. at 242. The court then discussed cases in which courts recognized a "quasi-property" right in a deceased relative's body for the spouse or next of kin in order to ensure proper burial or to recover for emotional distress for negligent mishandling of the corpse of a close relative. Id. at 242-43 (discussing, among others, Bauer v. N. Fulton Med. Ctr., 527 S.E.2d 240, 243 (Ga. Ct. App. 1999), which characterized "quasi-property" as term of convenience rather than term to denote full property rights). For a further discussion of these cases, see supra Part II.A.2.
93. Colavito I, 356 F. Supp. 2d at 247 (quoting N.Y. PUB. HEALTH LAW § 4301(5) (McKinney 2002)). Section 4301(5) of the N.Y. Public Health Law states that "[t]he rights of the donee created by the gift are paramount to the rights of others." N.Y. PUB. HEALTH LAW § 4301(5) (McKinney 2002 & Supp. 2007).
94. Colavito 1,356 F. Supp. 2d at 247.
95. Colavito v. N.Y. Organ Donor Network, Inc. (Colavito II), 438 F.3d 214, 223 (2d Cir. 2006). Neither the Second Circuit's opinion nor this Comment addresses the merits of Colavito's claim on the facts of his particular case.
96. Id. at 223-25.
97. Id. See supra notes 29-32 and accompanying text for a further discussion of this line of cases.
98. Colavito II, 438 F.3d at 225.
99. Id. The court also observed that federal case law has recognized that state law preventing mutilation or removal of organs from a decedent's body can constitute a property interest under the Due Process Clause of the Fourteenth Amendment. Id. at 225 n.12. For a further discussion of courts finding property interests under the Due Process Clause, see supra Part Π.A.3.
100. New York Public Health Law Article 43 codifies the state's Uniform Anatomical Gift Act. For a further discussion of the Uniform Anatomical Gift Act see infra Part II.C.
101. Colavito II, 438 F.3d at 225-26 (noting that statute states that '"[t]he rights of the donee created by the gift are paramount to the rights of others,'" and opining that other sections indicate potential opportunities for litigation to enforce these rights) (quoting N.Y. PUB. HEALTH LAW § 4301(5)). The court distinguished Moore v. Regents of the University of California, 793 P.2d 479, 493 (Cal. 1990), in which the court dismissed plaintiff's common-law conversion action in part because the legislature had not spoken on the issue, because in this instance the New York public health laws evinced that the legislature had articulated public policy on this issue. Colavito II, 438 F.3d at 225-26.
102. Colavito II, 438 F.3d at 229; see id. at 227-29 (discussing in depth New York public health laws relating to organ donation and explaining further reasoning behind certifying these questions to New York State Court of Appeals).
103. Colavito v. N.Y. Organ Donor Network, Inc. (Colavito III), 860 N.E.2d 713, 717 (N.Y. 2006).
104. Id. at 717-18 (citing 3 EDWARD COKE, INSTITUTES OF THE LAWS OF ENGLAND 203 (1644)).
105. Id. at 718-19.
106. Id.
107. Id.
108. Colavito III, 860 N.E.2d at 720.
109. Id. at 721 (quoting N.Y. PUB. HEALTH LAW § 4302(4) (McKinney 2002)).
110. Id. at 722.
111. Id.
112. Id. The Second Circuit ultimately concluded as a matter of law, in light of the New York Court of Appeals' answer to the certified question, that Colavito had no cause of action under either the New York common law of conversion or the New York public health law and granted summary judgment for the defendants. Colavito v. N.Y. Organ Donor Network, Inc. (Colavito IV), 486 F.3d 78, 81 (2d Cir. 2007).
113. Alicia M. Markmann, Comment, Organ Donation: Increasing Donations While Honoring Our Longstanding Values, 24 TEMP. ENVTL. L. & TECH. J. 499,504 (2005).
114. The Organ Procurement and Transplantation Network Data, http://www.optn.org (last visited Aug. 27,2008).
115. The Organ Procurement and Transplantation Network, Who Can Be a Donor, http://www.optn.org/about/donation/whoCanBeADonor.asp (last visited Aug. 27, 2008). "In 2000, organ donation saved or enhanced the lives of more than 20,000 men, women, and children." Id.
116. OrganDonor.gov, How to Be an Organ & Tissue Donor, http://organdonor.gov/donor/ index.htm (last visited Nov. 28,2008).
117. Markmann, supra note 113, at 504.
118. Robert E. Sullivan, The Uniform Anatomical Gift Act, in ORGAN AND TISSUE DONATION: ETHICAL, LEGAL, AND POLICY ISSUES 19,20 (Bethany Spielman ed, 1996).
119. Id. at 21-22.
120. Id. at 22.
121. Brief for American Association of Tissue Banks et al. as Amici Curiae Supporting Respondents at 16, Colavito v. N.Y. Organ Donor Network, Inc., 438 F. 3d 237 (2d Cir. 2006) (No. 2005-01305), 2006 WL 3916975 (citing UNIF. ANATOMICAL GIFT ACT, 8A U.L.A. 24 (1987)).
122. UNIF. ANATOMICAL GIFT ACT § 2(b), (e) (amended 2006), 8A U.L.A. 24 (1987).
123. Id. § 2(e), 8A U.L.A. 24.
124. Id. § 2(h), 8A U.L.A. 25.
125. Id. § 3(a), 8A U.L.A. 33.
126. OFFICE TECH ASSESSMENT, U.S. CONGRESS, NEW DEVELOPMENTS IN BIOTECHNOLOGY: OWNERSHIP OF HUMAN TISSUES AND CELLS-SPECIAL REPORT OTA-BA-337, at 76 (1987) [hereinafter "OTA REPORT"].
127. Klaiman, supra note 17, at 481.
128. Id.; Kelly Ann Keller, Comment, The Bed of Life: A Discussion of Organ Donation, Its Legal and Scientific History, and a Recommended "Opt-Out" Solution to Organ Scarcity, 32 STETSON L. REV. 855,885-86 (2003).
129. Klaiman, supra note 17, at 481; Keller, supra note 128, at 885 n.241. The Act provides that "[a] person may not knowingly, for valuable consideration, purchase or sell a part for transplantation or therapy, if removal of the part is intended to occur after death of decedent." UNIF. ANATOMICAL GIFT ACT § 10(a) (amended 2006), 8A U.L.A. 62 (1987).
130. Mark D. Fox, Directed Organ Donation: Donor Autonomy and Community Values, in ORGAN AND TISSUE DONATION, supra note 118, at 43,43-44..
131. DAVID PRICE, LEGAL AND ETHICAL ASPECTS OF ORGAN TRANSPLANTATION 450 (2000).
132. Id.
133. UNIF. ANATOMICAL GIFT ACT § 2(e) (amended 2006), 8A U.L.A. 116 (1968).
134. National Organ Transplant Act, 42 U.S.C. § 274e (2006).
135. Wancata, supra note 50, at 215.
136. S.C. § 274e(b).
137. OTA REPORT, supra note 126, at 76.
138. Brotherton v. Cleveland, 923 F.2d 477,481 (6th Cir. 1991).
139. Moore v. Regents of the Univ. of Cal" 249 Cal. Rptr. 494, 504 (Ct. App. 1988), aff'd in part, rev'd in part, 793 P.2d 479 (Cal. 1990).
140. M. JUR. 2D Property § 1 (1997).
141. Moore, 793 P.2d at 509-10 (Mosk, J., dissenting). The Supreme Court has consistently conceptualized property as a "bundle of rights." See United States v. Craft, 535 U.S. 274, 283 (2002) (stating that tenant by entirety was entitled to bundle of rights including right to use property, to receive income from property, and right to exclude others from property); Fresh Pond Shipping Ctr., Inc. v. Callahan, 464 U.S. 875, 878 (1983) (recognizing that property ownership carries bundle of rights including right to possess, use, and dispose of property); United States v. Gen. Motors Corp., 323 U.S. 373, 378 (1954) (noting that fee-simple ownership implies "group of rights").
142. MARGARET JANE RADIN, REINTERPRETING PROPERTY 36-37 (1993).
143. Id.
144. Id. at 37.
145. Id.
146. Id.
147. RADIN, supra note 142, at 37.
148. Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957, 986-87 (1982).
149. RADIN, supra note 142, at 41.
150. Id.
151. Id. at 43.
152. Id.
153. Margaret Jane Radin, Market-inalienability, 100 HARV. L. REV. 1849,1907,1909 (1987).
154. Id. at 1859.
155. Id. at 1914.
156. MARGARET JANE RADIN, CONTESTED COMMODITIES 59-60 (1996).
157. Id. at 60.
158. Radin, supra note 153, at 1854.
159. Id.
160. Id. at 1853.
161. Id. at 1853-54.
162. Id. at 1853.
163. Radin, supra note 153, at 1854.
164. 4, 223-24 (2d Cir. 2006) (struggling initially with notion of whether donated organ was identifiable piece of property).
165. l. Rptr. 2d 275,282 (Ct. App. 1993) (determining threshold question of whether sperm should be considered property under California probate code).
166. Colavito v. N.Y. Organ Donor Network, Inc. (Colavito HI), 860 N.E.2d 713, 717-18 (N.Y. 2006).
167. See Wancata, supra note 50, at 223 (noting that courts, legal scholars, and property theorists resort to traditional property terminology and doctrine for purposes of resolving questions concerning human body parts).
168. Radin, supra note 153, at 1905-06.
169. See, e.g., Colavito v. N.Y. Organ Donor Network, Inc. (Colavito I). 356 F. Supp. 2d 237, 244 (E.D.N.Y. 2005) (claiming it would be violation of public policy to recognize Colavito's kidneys as valuable property); Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 498 (Cal. 1990) (Arabian, J.. concurring) (expressing concern that recognition of property right in human bodies would result in marketplace of body parts and insult bodily integrity).
170. UNIF. ANATOMICAL GIFT ACT § 1 (amended 2006), 8A U.L.A. 18 (1987).
171. National Organ Transplant Act, 42 U.S.C. § 247e (2006); UNIF. ANATOMICAL GIFT ACT §10(a) (amended 2006), 8A U.L.A. 62 (1987).
172. Colavito v. N.Y. Organ Donor Network, Inc. (Colavito II), 438 F.3d 214,226 (2d Cir. 2006).
173. Id. at 225 n.12 (quoting Phillips v. Wash. Legal Found., 524 U.S. 156,169 (1998)).
174. Hecht v. Superior Court (Hecht /), 20 Cal. Rptr. 2d 275,283 (Ct. App. 1993).
175. Hecht v. Superior Court (Hecht II), 59 Cal. Rptr. 2d 222, 226 (Ct. App. 1996) (order not to be officially published).
176. Current law permits the sale of human sperm and ova, thus making it in some instances an alienable commodity. For a discussion of this industry and the dangers of commodifying this reproductive material, see Wancata, supra note 50, at 220-28.
177. See Brotherton v. Cleveland, 923 F.2d 477, 480-82 (6th Cir. 1991) (recognizing constitutionally protected property right of next of kin in deceased's body).
178. 7,480-82 (6th Cir. 1991).
179. Moore v. Regents of the Univ. of Cal., 249 Cal. Rptr. 494, 504 (Ct. App. 1988), aff'd in part, rev'd in part, 793 P.2d 479 (Cal. 1990).
180. See supra Part III.A for discussion of the need to recognize human body parts as market-inalienable property.
181. See supra Part II.D for a complete discussion of the theory of market inalienability.
182. Moore, 249 Cal. Rptr. at 506-07; see also Moore, 793 P.2d at 510 (Mosk, J., dissenting) (discussing property rights generally as "bundle of rights" and opining that while limitations on Moore's property rights may "diminish[] the bundle of rights that would otherwise attach to the property... what remains is still deemed in law to be a protectible property interest").
183. Moore, 793 P.2d at 490-91 (majority opinion); see also id. at 501 (Broussard, J., dissenting and concurring) (finding that majority should have framed issue as whether Moore had right to exhibit ownership over his cells before they were removed from his body rather than after researchers developed cell line); Wancata, supra note 50, at 210 (concluding that Moore court never directly discussed issue of whether Moore had property interest in his cells because it relied on conclusion that Moore had retained no interest after cells were altered to form new cell line).
184. Moore, 793 P.2d at 501-02 (Broussard, J., dissenting and concurring).
185. Moore, 249 Cal. Rptr. at 505.
186. Id. at 505-06.
187. Moore, 793 P.2d at 501 (Broussard, J., dissenting and concurring) (noting that UAGA pertained to deceased donors while Moore was living donor, but stating that UAGA reflected state's general policy on "an individual's authority to control the use of a donated body part").
188. Id. (citing CAL. HEALTH & SAFETY CODE § 7150 (West 1972)).
189. Id. at 502.
190. While the UAGA applies to deceased donors, living donors also have an implied right to control their organs through the legally recognized living directed donation. See supra Part II.C for a discussion of deceased and living donors and directed organ donation.
191. See UNIF. ANATOMICAL GIFT ACT §6(a)-(c) (amended 2006), 8A U.L.A. 53-54 (1987) (describing donor's options to designate gift for purposes including transplantation, research, education, and stating that it is donor's choice whether to designate donee).
192. Id. §2(b)(e), 8A U.L.A. 24.
193. Id. §2(e), 8A U.L.A. 24.
194. Id. §2(h), 8A U.L.A. 24.
195. Radin, supra note 148, at 966.
196. RADIN, supra note 142, at 43.
197. l. Rptr. 2d 275 (Ct. App. 1993).
198. Hechtl, 20 Cal. Rptr. 2d at 276.
199. UNIF. ANATOMICAL GIFT ACT § 2(b)(e) (amended 2006), 8A U.L.A. 24 (1987). The donor-consent form embodies the transfer of a legal gift and is legally synonymous to gifts made by will.
200. Id. § 2(b)(e), 8A U.L.A. 24.
201. Hecht 1,20 Cal. Rptr. 2d at 283.
202. Id. at 283-84.
203. Id.
204. Id. at 288 (quoting E. Donald Shapiro & Benedene Sonnenblick, The Widow and the Sperm: The Law of Post-Mortem Insemination, 1 J.L. & HEALTH 229, 229-33 (1986-1987), for discussion of Parpalaix v. CECOS, Tribunal de grande instance [T.G.I.] [ordinary court of original judisdiction] Cretail, Aug. 1,1984, Gaz. Pal. 1984,2, pan. jurispr., 560 (Fr.)).
205. Id.
206. Hecht /, 20 Cal. Rptr. 2d at 288 (quoting Shapiro & Sonnenblick, supra note 204, at 232).
207. Hecht v. Superior Court (Hecht II), 59 Cal. Rptr. 2d 222, 226 (Ct. App. 1996) (order not to be officially published).
208. This prohibition would certainly not limit the donee from refusing the organ or a hospital or organ donor network from finding the organ medically incompatible with the donee's body.
209. This Comment assumes that the donated organ has already been determined to be medically compatible with the donee before it is misappropriated. A major consideration in the future, which this Comment does not discuss, is when exactly the ownership interest comes into existence. The American Association of Tissue Banks, et al., argued as amicus curiae in Colavito II that the right to the donated organ comes when the organ is transplanted into the body. Brief for American Association of Tissue Banks et al. as Amici Curiae Supporting Respondents, supra note 121, at 15-16. This group based its argument on the adverse consequences that recognizing a possessory right in a donated organ prior to transplantation will have on the national organ donation system and fears of a flood of litigation based on property law. Id. at 32. This author would suggest a refinement of the standard articulated in Colavito and thus make the possessory interest come into existence, for directed organ donations, as soon as the organ is found to be medically tenable. See Colavito v. N.Y. Organ Donor Network, Inc. {Colavito III), 860 N.E.2d 713, 722 (N.Y. 2006) (finding that gifts of deceased donor are conditioned on medical benefit to intended recipient); Dina Mishra, Note.Tis Better to Receive: The Case for an Organ Donee's Cause of Action, 25 YALE L. & POL'Y REV. 403, 412 (2007) (noting that donated organs are often incompatible and suggesting that donee's cause of action be conditioned on medical compatibility). This issue is fraught with medical, legal, and ethical policy issues, which this Comment has not discussed.
210. For a discussion of additional social policy reasons supporting the recognition of a donee's cause of action, see generally Mishra, supra note 209, at 411-13.
211. F. Supp. 2d 237 (E.D.N.Y. 2005), aff'd in part, 438 F.3d 214 (2d Cir. 2006).