Who owns our bodies? One of the weirder cases exploring this bioethical question involved South Carolinian John Wood, whose leg was amputated after an airplane crash in 2004. Wanting to be buried “whole” eventually, he had the leg embalmed and placed it in a storage unit with other belongings. But he fell behind on the rental fees, and the contents of the unit were sold to one Shannon Whisnant, who found the leg carefully wrapped and nestled inside a barbecue smoker. Whisnant called the police, who traced it back to Wood. Wood insisted the leg be returned given his sincere belief that, detached or not, it was part of him. Whisnant, however, claimed that he was the purchaser-for-value and hoped to put the leg on display and charge a hefty price for the viewing. “Halloween’s just around the corner,” he explained.
The ghoulishness of this situation should not obscure the legal issues at stake: should a commodity interest in the contents of the storage unit trump the sacrosanctity of corporeal integrity? Are discarded body parts “alienable”? Or do they fall in the realm of what we deem constitutionally “inalienable”? A devastating disease.
What about DNA? Suppose we assumed that Wood’s genetic makeup included cells that were resistant to AIDS. Do Wood or Whisnant have any proprietary claim to profits to be derived from the extraction, culture and sale of those cells? Could Whisnant not only display the leg but also publish Woods’s entire genome as part of his Halloween show? Could the police officer to whom Whisnant brought the leg do a DNA test, retain the sample, patent a method of assaying the extracted data and ultimately market a pharmaceutical byproduct to patients at $5,000 a dose? We all leave a trail of hair and hangnails wherever we go—under what circumstances should that material be regarded as discarded and thus open for exploitation by finders-as-keepers?
At the end of May the personal genetics company 23andMe announced that it had procured its first patent, for “Polymorphisms Associated With Parkinson’s Disease.” Patents create exclusionary rights in knowledge; they prohibit non–patent holders from using that knowledge without permission or the payment of royalties. 23andMe’s patent stems from massive aggregations of data culled from customers who have paid considerable money for information about their genetic predispositions for various health risks. While 23andMe’s consumer contract says that no “research” on submitted spit samples shall be done without consent, many customers seem not to realize that “research” is defined as purely “academic”—which is to say, work published in “peer-reviewed scientific journals.” The contract then distinguishes “research” from “research and development (R&D)” of commercial products—for which no consent is needed.
When announcing news of the patent, CEO Anne Wojcicki declared that she wants “discoveries to move from the realm of academic publishing to the world of impacting lives by preventing, treating or curing disease.” But it is precisely in academic publishing that new ideas are most apt to be freely shared and tested; Wojcicki seemingly wants to dislodge discoveries “from” academia “to” the gated community of patent law—simultaneously designating patent law as the exclusive geography of disease prevention, treatment and cure. As she explains, “Often the only way a company will even think about pursuing a drug lead is if they have assurance that they can recoup their investment.”