Wednesday, 15 February 2017

Is there a property right on human tissues and cells?

Is there a property right in human tissues and cells after separation from the body? The issue is being hotly debated throughout the Globe and today I'd like to outline few existing norms on the topic according to Russian law. 
In Russian legislation there are no general provisions on biomaterial after separation from a human body, in the Law “On protection of human health” (hereinafter – “the Law On Health Protection”) where they are expected to be located one can find only a mention that laboratory diagnostics is a kind of medical service (art. 2). 

However the law remarkably failed to prohibit to ‘sale or make any other bargains for profit’ with human organs or tissues. The proscription had been made in art (2) 47 of The Foundations of Legislation on Human Health Protection, which were abolished in the 2011 by the Law On Health Protection enactment, and, in alliance with art. (1) 4 of the Law on Transplantation making the same prohibition for organs for transplantation, it had been construed as general withdrawal of any tissues and cells from the turnover. Not only is it absent in the current law, the regulation contains different aspects of contracts with donor’s blood, gametes and some other cells and tissues, so one should conclude that in Russia any restrictions on contracts with human cells are exceptions, not general rules. Moreover, vast market of pay diagnostic of human cells, sale of hair or breast milk confirms legality of such contracts.
Besides this preterition there are few regulatory provisions in the law.       
Blood donations
The Federal Law N 124-FZ “On Blood and its components donation” enacted 29.07.2012 regulate procedures of procurement, preservation and transportation of human blood and its components for donation purposes (art. 1) and it can be easily seen from either the law itself or the executive orders made upon it that blood may be procured or transferred to a third party not only gratuitously but also for monetary compensation. That is enough to say that human blood is a kind of property and as such it can be a subject matter of a contract of proprietary interest.
Reproductive technologies
One can find several provisions on donation of reproductive tissues and cells. For instance, it is mentioned in art. 55 of The Law On Health Protection amid assisted reproductive technologies and the norm delegated to the Federal Ministry of Health to establish rules for their application. Art. 40 of the Executive Order On The Way How Assisted Reproductive Technologies Shall Be Applied stated that any human being can preserve his or her reproductive tissues or cells not only on medical prescription but on their on wish. Any such procurement requires a voluntary informed consent made prior to intervention (see art. 43 and 45 for men and women respectively). Then art. 49 mentions a medical entity being a custodian of reproductive tissues and cells bearing responsibility for keeping them in good conditions. Finally art. 52 constitutes a patient’s right to withdraw its biomaterial on the written request. All these provisions infer that biosamples are considered as property belonging to a patient and a subject matter of a contract of deposit.
Art. 54 confirms a woman’s right to donate her oocytes if she have given an informed consent for medical intervention as well as permission to use her cells for other patients (see art. 58). In contrast with deposit relationships previously outlined in this case the woman agrees to transfer her bodily material and given the cells are proved to be property, we should infer that she vests her rights in the medical entity. Similar provisions for sperm donation (art. 62 – 69) shall be interpreted respectively.
Medical waste
Provisions on medical waste can be found in the “Sanitary epidemiological requirements for medical waste treatment”[1] few of them being made on private law. Chapter 2 of these Requirements prescribes to bury anatomopathological and organic surgery waste (namely organs and tissues) on a plant according to a set procedure thus considering them as a subject matter of a contract of service and hence, a property to be transferred.

[1] Authority to set these rules was given to the Russian Chief Sanitary Doctor by the Government according to art. 49 The Law On Health Protection