Recently I made couple of posts on the controversial question whether tissues and cells are property according to current Russian law concluding with affirmative answer. I'd like to continue developing this idea, diving into the problem of starting point of their existence as well as the content of the owner's right.
When the new chattel starts to exist?
Before thinking about how right of ownership on
biosamples is limited in favour of third parties and, in particular, the
progenitor, the content of the right should be talked about as nobody have
discussed it in respect of Russian legislation yet. Given that a subject matter of any property right is a
material thing (which is definitely true for Russian law), until dissection of
tissue (cells) from a body there is no separate object and thus no right upon
it.[1]
For this reason the separation of the sample from the body cannot be considered
as analogy for fruits and fructiferous thing (art. 136 of the Civil Code) as a
body of a living human being is certainly not a ‘thing’.
So the dissection is a moment when a new
chattel is created and according to art. (1) 218 of the Code the owner of the
new object is the one who creates it ‘for oneself’. When the separation is made
by the progenitor, for example, at home, he or she thus becomes an owner unlike
the case when a medical institution through its personnel does it. The latter
either must consider biosamples as waste and destroy it or should preserve them
from rotting by putting ‘work and skill’. Whatever the conservation technique
would be, it is always done in the interests of the medical entity (for
scientific, educational or other reasons) but not ‘for the patient’.
Moreover, as biosamples require essential
skills for their preservation, one should remember a 'processing rule', which
provides that whoever the owner of the raw material was, the new thing made of
it would belong to a bona fide converter given that the work and skill value
overtopped that of raw material significantly (art. (1) 220 of Civil Code). In
the current issue unless the tissues and cells are preserved, they must be
destroyed as medical waste and thus they have ‘negative’ price. However, their
preservation converts them into pieces of scientific, educational and probably
commercial value falling exactly within the scope of the cited art. of the Code.
As ‘raw material’ can give no financial benefit, the patient cannot claim any
compensation for its use. That means that a new chattel is created by a medical
institution, which makes it for itself, and thus should be considered as its
primary owner.
In other words, when biosamples are collected
at come they prime facie belong to a donor, while being dissected in a medical
body they become the property of the institution.
The content of property rights on biomaterial
Russian law traditionally considers the
ownership as a brunch of primarily three abilities namely to possess, to use
and to dispose of a thing. To possess means to have economical power over
something, which is usually argued to be a matter of fact and not a right
enforceable against anyone else. It seems entirely clear that any owner can
possess bodily material in this sense.
As we discussed above, in absence of general
prohibition an owner can also dispose of the samples with some limitations provided by specific acts of legislation. It should be
repeated that all these restrictions are set for ‘donor – donee’
relationship so the latter can truly free alienate the tissues and cells either
for consideration or gratuitously. That leads to a conclusion that an owner can
either destruct these objects as waste or create a new thing out of them, for
example, an educational exhibit.
The dominant approach to ability to use as a
part of the ownership right is that ‘usage’ means possibility to obtain gains
out of functions of the object as they commonly understood and applied in
turnover. For example, to use a car means primarily to drive it while its
keeping in one’s yard is argued to be mere possession. Thinking about ‘usage’
of biosamples in that sense faces inevitably difficulties, as there are no
common views on their functions.
Although over thousands of years people have
being studied human body, just recently (from historical perspective) genetics
have made possible to read the entire genome out of a single cell, even dead
one. Big data technologies help to compare thousands of genomes to let
scientists extract new information out of them as well as find totally new ways
of its application in medical or pharmacy purposes. Absence of common view on
how bodily material is to be used can lead one to thinking that its function
depends on the contract it was transferred upon. For example, if medical intervention was aimed
remove a tumor – is should be destructed, the blood taken for biochemical
analysis should not used for any other research and so on. This view is emotionally backed with a wish
to give a progenitor maximum protection, limiting usage of one’s cells as much
as possible.
However this approach is arguably wrong for
several reasons in Russian law.
First of all, ownership on tissues and cells is
restricted without any lawful ground while international law as well as
national legislation consider ownership as just the same pillar of public order
as human’s freedom or body integrity. Art. 17 of the Universal Declaration of
Human Rights provides that ‘Everyone has the right to own property alone as
well as in association with others’ so ‘No one shall be arbitrarily deprived of
his property’. Art. 1 of the first additional Protocol to the European Convention
for the Protection of Human Rights and Fundamental Freedoms entitled every
natural or legal person ‘to the peaceful enjoyment of his possessions. No one shall
be deprived of his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of international
law’. On this basis art. 35 of Russian Constitution guaranteed property
protection and stated that only federal law may restrict right of ownership in
order to protect the fundamental principles of public order, morals, health,
rights and lawful interests of other persons, national defence or security. So
to restrict one’s right on bodily material some legal grounds should be found
in order to evaluate whether they aimed to protect above-mentioned purposes.
However, as I have said before, current Russian legislation contains none
universal restrictions so we must not invent one.
Secondly, without any legal ground or
justification the approach limits the owner’s freedom to receive and impart
information (art. 19 of the Universal Declaration of Human Rights, art (1) 10
of the European Convention for the Protection of Human Rights and Fundamental
Freedoms), and it should be specifically mentioned that any restrictions
provided to protect confidential information are regarded as exclusions from
this universal freedom (art. (2) 10 of the European Convention). To develop
these basic ideas art. 29 of Russian Constitution proclaimed the freedom of
ideas and speech, including the right to freely look for, receive, transmit,
produce and distribute information by any legal way while art. (1) 44 of the
Constitution guaranteed to everyone the freedom of scientific and technical
creativity. In this context the prohibition for collection, keeping or
dissemination of information without one’s consent (art. (1) 24 of the
Constitution) shall be considered as the restriction of the freedom to speak
and to create just the same way as it is viewed in the rest of the Globe. As any exclusions must not be construed expansively,
in a case of doubt freedom to speak should prevail privacy. Applying these
reasons to the problem in question we should infer the right of an owner to
freely obtain genetic information out of bodily material as well as keep and
distribute these information with respect to limitation set in the law of
privacy. However, it is this freedom to extract information of the cells that
constitutes the essence of the ability to use biosamples in the modern world
so, to put it in other words, to regard the right to obtain genetic information
means to regard the right to use tissues and cells universally.
Then, not only doesn’t the criticised approach
protect the progenitor from infringement of her privacy, but leads to them
directly because limiting the owner’s right to use, it doesn’t limit the right
to dispose. So nothing prevails the owner from transferring the sample to a
third party to make a survey that was arguably banned for him or her personally. That means that
formalities and restrictions could make the owner distribute biosamples to
skirt the problem thus raising the risk of privacy interference.
Moreover, a donor cannot control the criticised
restriction so the only way to enforce it would be to further develop
bureaucracy, which shall be avoided in any case. Otherwise the limitation would
become a formality too easy to skirt.
Finally, the approach would contradict the
basics of the national health legislation. I mean that a medical institution
rarely can state in the contract an exact purpose of research it collects
biosamples for, so in vast majority of cases it would be impossible to use
bodily materials. In the USA, Australia and European Union the same problem was
thoroughly discussed in terms of narrow, broad or blank consent and as was
shown above the current legislation in the EU, for instance, provides quite
flexible solution. To restrict usage of bodily material further than it is done
in developed counties means nothing else but to hinder medical research in Russia
that is obviously contrary to aims of the current legislation.
In essence all these arguments result in the
conclusion that owners of bodily material can use it universally, for any
purposes they wish unless otherwise directly provided by law (all these
restrictions will be discussed below), for example, it can be used in
scientific or educational projects, as part of biobanks collections or for
deriving cell lines.
[1] The controversial question whether
there is a property right on one’s own body should be set aside here, for
current legislation the answer is clearly negative.
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