Beyond Henrietta Lacks: How the Law Has Denied Every American Ownership Rights to Their Own Cells
The common perception is that Henrietta Lacks was a victim of poverty and racism when in 1951 doctors took samples of her cervical cancer without her knowledge or permission and turned them into the world's first immortalized cell line, which they called HeLa. The cell line became a workhorse of biomedical research and facilitated the creation of medical treatments and cures worth untold billions of dollars. Neither Lacks nor her family ever received a penny of those riches.
But racism and poverty is not to blame for Lacks' exploitation—the reality is even worse. In fact all patients, then and now, regardless of social or economic status, have absolutely no right to cells that are taken from their bodies. Some have called this biological slavery.
How We Got Here
The case that established this legal precedent is Moore v. Regents of the University of California.
John Moore was diagnosed with hairy-cell leukemia in 1976 and his spleen was removed as part of standard treatment at the UCLA Medical Center. On initial examination his physician, David W. Golde, had discovered some unusual qualities to Moore's cells and made plans prior to the surgery to have the tissue saved for research rather than discarded as waste. That research began almost immediately.
"On both sides of the case, legal experts and cultural observers cautioned that ownership of a human body was the first step on the slippery slope to 'bioslavery.'"
Even after Moore moved to Seattle, Golde kept bringing him back to Los Angeles to collect additional samples of blood and tissue, saying it was part of his treatment. When Moore asked if the work could be done in Seattle, he was told no. Golde's charade even went so far as claiming to find a low-income subsidy to pay for Moore's flights and put him up in a ritzy hotel to get him to return to Los Angeles, while paying for those out of his own pocket.
Moore became suspicious when he was asked to sign new consent forms giving up all rights to his biological samples and he hired an attorney to look into the matter. It turned out that Golde had been lying to his patient all along; he had been collecting samples unnecessary to Moore's treatment and had turned them into a cell line that he and UCLA had patented and already collected millions of dollars in compensation. The market for the cell lines was estimated at $3 billion by 1990.
Moore felt he had been taken advantage of and filed suit to claim a share of the money that had been made off of his body. "On both sides of the case, legal experts and cultural observers cautioned that ownership of a human body was the first step on the slippery slope to 'bioslavery,'" wrote Priscilla Wald, a professor at Duke University whose career has focused on issues of medicine and culture. "Moore could be viewed as asking to commodify his own body part or be seen as the victim of the theft of his most private and inalienable information."
The case bounced around different levels of the court system with conflicting verdicts for nearly six years until the California Supreme Court ruled on July 9, 1990 that Moore had no legal rights to cells and tissue once they were removed from his body.
The court made a utilitarian argument that the cells had no value until scientists manipulated them in the lab. And it would be too burdensome for researchers to track individual donations and subsequent cell lines to assure that they had been ethically gathered and used. It would impinge on the free sharing of materials between scientists, slow research, and harm the public good that arose from such research.
"In effect, what Moore is asking us to do is impose a tort duty on scientists to investigate the consensual pedigree of each human cell sample used in research," the majority wrote. In other words, researchers don't need to ask any questions about the materials they are using.
One member of the court did not see it that way. In his dissent, Stanley Mosk raised the specter of slavery that "arises wherever scientists or industrialists claim, as defendants have here, the right to appropriate and exploit a patient's tissue for their sole economic benefit—the right, in other words, to freely mine or harvest valuable physical properties of the patient's body. … This is particularly true when, as here, the parties are not in equal bargaining positions."
Mosk also cited the appeals court decision that the majority overturned: "If this science has become for profit, then we fail to see any justification for excluding the patient from participation in those profits."
But the majority bought the arguments that Golde, UCLA, and the nascent biotechnology industry in California had made in amici briefs filed throughout the legal proceedings. The road was now cleared for them to develop products worth billions without having to worry about or share with the persons who provided the raw materials upon which their research was based.
Critical Views
Biomedical research requires a continuous and ever-growing supply of human materials for the foundation of its ongoing work. If an increasing number of patients come to feel as John Moore did, that the system is ripping them off, then they become much less likely to consent to use of their materials in future research.
Some legal and ethical scholars say that donors should be able to limit the types of research allowed for their tissues and researchers should be monitored to assure compliance with those agreements. For example, today it is commonplace for companies to certify that their clothing is not made by child labor, their coffee is grown under fair trade conditions, that food labeled kosher is properly handled. Should we ask any less of our pharmaceuticals than that the donors whose cells made such products possible have been treated honestly and fairly, and share in the financial bounty that comes from such drugs?
Protection of individual rights is a hallmark of the American legal system, says Lisa Ikemoto, a law professor at the University of California Davis. "Putting the needs of a generalized public over the interests of a few often rests on devaluation of the humanity of the few," she writes in a reimagined version of the Moore decision that upholds Moore's property claims to his excised cells. The commentary is in a chapter of a forthcoming book in the Feminist Judgment series, where authors may only use legal precedent in effect at the time of the original decision.
"Why is the law willing to confer property rights upon some while denying the same rights to others?" asks Radhika Rao, a professor at the University of California, Hastings College of the Law. "The researchers who invest intellectual capital and the companies and universities that invest financial capital are permitted to reap profits from human research, so why not those who provide the human capital in the form of their own bodies?" It might be seen as a kind of sweat equity where cash strapped patients make a valuable in kind contribution to the enterprise.
The Moore court also made a big deal about inhibiting the free exchange of samples between scientists. That has become much less the situation over the more than three decades since the decision was handed down. Ironically, this decision, as well as other laws and regulations, have since strengthened the power of patents in biomedicine and by doing so have increased secrecy and limited sharing.
"Although the research community theoretically endorses the sharing of research, in reality sharing is commonly compromised by the aggressive pursuit and defense of patents and by the use of licensing fees that hinder collaboration and development," Robert D. Truog, Harvard Medical School ethicist and colleagues wrote in 2012 in the journal Science. "We believe that measures are required to ensure that patients not bear all of the altruistic burden of promoting medical research."
Additionally, the increased complexity of research and the need for exacting standardization of materials has given rise to an industry that supplies certified chemical reagents, cell lines, and whole animals bred to have specific genetic traits to meet research needs. This has been more efficient for research and has helped to ensure that results from one lab can be reproduced in another.
The Court's rationale of fostering collaboration and free exchange of materials between researchers also has been undercut by the changing structure of that research. Big pharma has shrunk the size of its own research labs and over the last decade has worked out cooperative agreements with major research universities where the companies contribute to the research budget and in return have first dibs on any findings (and sometimes a share of patent rights) that come out of those university labs. It has had a chilling effect on the exchange of materials between universities.
Perhaps tracking cell line donors and use restrictions on those donations might have been burdensome to researchers when Moore was being litigated. Some labs probably still kept their cell line records on 3x5 index cards, computers were primarily expensive room-size behemoths with limited capacity, the internet barely existed, and there was no cloud storage.
But that was the dawn of a new technological age and standards have changed. Now cell lines are kept in state-of-the-art sub zero storage units, tagged with the source, type of tissue, date gathered and often other information. Adding a few more data fields and contacting the donor if and when appropriate does not seem likely to disrupt the research process, as the court asserted.
Forging the Future
"U.S. universities are awarded almost 3,000 patents each year. They earn more than $2 billion each year from patent royalties. Sharing a modest portion of these profits is a novel method for creating a greater sense of fairness in research relationships that we think is worth exploring," wrote Mark Yarborough, a bioethicist at the University of California Davis Medical School, and colleagues. That was penned nearly a decade ago and those numbers have only grown.
The Michigan BioTrust for Health might serve as a useful model in tackling some of these issues. Dried blood spots have been collected from all newborns for half a century to be tested for certain genetic diseases, but controversy arose when the huge archive of dried spots was used for other research projects. As a result, the state created a nonprofit organization to in essence become a biobank and manage access to these spots only for specific purposes, and also to share any revenue that might arise from that research.
"If there can be no property in a whole living person, does it stand to reason that there can be no property in any part of a living person? If there were, can it be said that this could equate to some sort of 'biological slavery'?" Irish ethicist Asim A. Sheikh wrote several years ago. "Any amount of effort spent pondering the issue of 'ownership' in human biological materials with existing law leaves more questions than answers."
Perhaps the biggest question will arise when -- not if but when -- it becomes possible to clone a human being. Would a human clone be a legal person or the property of those who created it? Current legal precedent points to it being the latter.
Today, October 4, is the 70th anniversary of Henrietta Lacks' death from cancer. Over those decades her immortalized cells have helped make possible miraculous advances in medicine and have had a role in generating billions of dollars in profits. Surviving family members have spoken many times about seeking a share of those profits in the name of social justice; they intend to file lawsuits today. Such cases will succeed or fail on their own merits. But regardless of their specific outcomes, one can hope that they spark a larger public discussion of the role of patients in the biomedical research enterprise and lead to establishing a legal and financial claim for their contributions toward the next generation of biomedical research.
These technologies may help more animals and plants survive climate change
This article originally appeared in One Health/One Planet, a single-issue magazine that explores how climate change and other environmental shifts are making us more vulnerable to infectious diseases by land and by sea - and how scientists are working on solutions.
Along the west coast of South Florida and the Keys, Florida Bay is a nursery for young Caribbean spiny lobsters, a favorite local delicacy. Growing up in small shallow basins, they are especially vulnerable to warmer, more saline water. Climate change has brought tidal floods, bleached coral reefs and toxic algal blooms to the state, and since the 1990s, the population of the Caribbean spiny lobster has dropped some 20 percent, diminishing an important food for snapper, grouper, and herons, as well as people. In 1999, marine ecologist Donald Behringer discovered the first known virus among lobsters, Panulirus argus virus—about a quarter of juveniles die from it before they mature.
“When the water is warm PaV1 progresses much more quickly,” says Behringer, who is based at the Emerging Pathogens Institute at the University of Florida in Gainesville.
Caribbean spiny lobsters are only one example of many species that are struggling in the era of climate change, both at sea and on land. As the oceans heat up, absorbing greenhouse gases and growing more acidic, marine diseases are emerging at an accelerated rate. Marine creatures are migrating to new places, and carrying pathogens with them. The latest grim report in the journal Science, states that if global warming continues at the current rate, the extinction of marine species will rival the Permian–Triassic extinction, sometimes called the “Great Dying,” when volcanoes poisoned the air and wiped out as much as 90 percent of all marine life 252 million years ago.
Similarly, on land, climate change has exposed wildlife, trees and crops to new or more virulent pathogens. Warming environments allow fungi, bacteria, viruses and infectious worms to proliferate in new species and locations or become more virulent. One paper modeling records of nearly 1,400 wildlife species projects that parasites will double by 2070 in the far north and in high-altitude places. Right now, we are seeing the effects most clearly on the fringes—along the coasts, up north and high in the mountains—but as the climate continues changing, the ripples will reach everywhere.
Few species are spared
On the Hawaiian Islands, mosquitoes are killing more songbirds. The dusky gray akikiki of Kauai and the chartreuse-yellow kiwikiu of Maui could vanish in two years, under assault from mosquitoes bearing avian malaria, according to a University of Hawaiʻi 2022 report. Previously, the birds could escape infection by roosting high in the cold mountains, where the pests couldn’t thrive, but climate change expanded the range of the mosquito and narrowed theirs.
Likewise, as more midge larvae survive over warm winters and breed better during drier summers, they bite more white-tailed deer, spreading often-fatal epizootic hemorrhagic disease. Especially in northern regions of the globe, climate change brings the threat of midges carrying blue tongue disease, a virus, to sheep and other animals. Tick-borne diseases like encephalitis and Lyme disease may become a greater threat to animals and perhaps humans.
"If you put all your eggs in one basket and then a pest comes a long, then you are more vulnerable to those risks," says Mehroad Ehsani, managing director of the food initiative in Africa for the Rockefeller Foundation. "Research is needed on resilient, climate smart, regenerative agriculture."
In the “thermal mismatch” theory of wildlife disease, cold-adapted species are at greater risk when their habitats warm, and warm-adapted species suffer when their habitats cool. Mammals can adjust their body temperature to adapt to some extent. Amphibians, fish and insects that cannot regulate body temperatures may be at greater risk. Many scientists see amphibians, especially, as canaries in the coalmine, signaling toxicity.
Early melting ice can foster disease. Climate models predict that the spring thaw will come ever-earlier in the lakes of the French Pyrenees, for instance, which traditionally stayed frozen for up to half the year. The tadpoles of the midwife toad live under the ice, where they are often infected with amphibian chytrid fungus. When a seven-year study tracked the virus in three species of amphibians in Pyrenees’s Lac Arlet, the research team found that, the earlier the spring thaw arrived, the more infection rates rose in common toads— , while remaining high among the midwife toads. But the team made another sad discovery: with early thaws, the common frog, which was thought to be free of the disease in Europe, also became infected with the fungus and died in large numbers.
Changing habitats affect animal behavior. Normally, spiny lobsters rely on chemical cues to avoid predators and sick lobsters. New conditions may be hampering their ability to “social distance”—which may help PaV1 spread, Behringer’s research suggests. Migration brings other risks. In April 2022, an international team led by scientists at Georgetown University announced the first comprehensive overview, published in the journal Nature, of how wild mammals under pressure from a changing climate may mingle with new populations and species—giving viruses a deadly opportunity to jump between hosts. Droughts, for example, will push animals to congregate at the few places where water remains.
Plants face threats also. At the timberline of the cold, windy, snowy mountains of the U.S. west, whitebark pine forests are facing a double threat, from white pine blister rust, a fungal disease, and multiplying pine beetles. “If we do nothing, we will lose the species,” says Robert Keane, a research ecologist for the U.S. Forest Service, based in Missoula, Montana. That would be a huge shift, he explains: “It’s a keystone species. There are over 110 animals that depend on it, many insects, and hundreds of plants.” In the past, beetle larvae would take two years to complete their lifecycle, and many died in frost. “With climate change, we're seeing more and more beetles survive, and sometimes the beetle can complete its lifecycle in one year,” he says.
Quintessential crops are under threat too
As some pathogens move north and new ones develop, they pose novel threats to the crops humans depend upon. This is already happening to wheat, coffee, bananas and maize.
Breeding against wheat stem rust, a fungus long linked to famine, was a key success in the mid-20th century Green Revolution, which brought higher yields around the world. In 2013, wheat stem rust reemerged in Germany after decades of absence. It ravaged both bread and durum wheat in Sicily in 2016 and has spread as far as England and Ireland. Wheat blast disease, caused by a different fungus, appeared in Bangladesh in 2016, and spread to India, the world’s second largest producer of wheat.
Insects, moths, worms, and coffee leaf rust—a fungus now found in all coffee-growing countries—threaten the livelihoods of millions of people who grow coffee, as well as everybody’s cup of joe. More heat, more intense rain, and higher humidity have allowed coffee leaf rust to cycle more rapidly. It has grown exponentially, overcoming the agricultural chemicals that once kept it under control.
To identify new diseases and fine-tune crops for resistance, scientists are increasingly relying on genomic tools.
Tar spot, a fungus native to Latin America that can cut corn production in half, has emerged in highland areas of Central Mexico and parts of the U.S.. Meanwhile, maize lethal necrosis disease has spread to multiple countries in Africa, notes Mehrdad Ehsani, Managing Director for the Food Initiative in Africa of the Rockefeller Foundation. The Cavendish banana, which most people eat today, was bred to be resistant to the fungus Panama 1. Now a new fungus, Panama 4, has emerged on every continent–including areas of Latin America that rely on the Cavendish for their income, reported a recent story in the Guardian. New threats are poised to emerge. Potato growers in the Andes Mountains have been shielded from disease because of colder weather at high altitude, but temperature fluxes and warming weather are expected to make this crop vulnerable to potato blight, found plant pathologist Erica Goss, at the Emerging Pathogens Institute.
Science seeks solutions
To protect food supplies in the era of climate change, scientists are calling for integrated global surveillance systems for crop disease outbreaks. “You can imagine that a new crop variety that is drought-tolerant could be susceptible to a pathogen that previous varieties had some resistance against,” Goss says. “Or a country suffers from a calamitous weather event, has to import seed from another country, and that seed is contaminated with a new pathogen or more virulent strain of an existing pathogen.” Researchers at the John Innes Center in Norwich and Aarhus University in Denmark have established ways to monitor wheat rust, for example.
Better data is essential, for both plants and animals. Historically, models of climate change predicted effects on plant pathogens based on mean temperatures, and scientists tracked plant responses to constant temperatures, explains Goss. “There is a need for more realistic tests of the effects of changing temperatures, particularly changes in daily high and low temperatures on pathogens,” she says.
To identify new diseases and fine-tune crops for resistance, scientists are increasingly relying on genomic tools. Goss suggests factoring the impact of climate change into those tools. Genomic efforts to select soft red winter wheat that is resistant to Fusarium head blight (FHB), a fungus that plagues farmers in the Southeastern U.S., have had early success. But temperature changes introduce a new factor.
A fundamental solution would be to bring back diversification in farming, says Ehsani. Thousands of plant species are edible, yet we rely on a handful. Wild relatives of domesticated crops are a store of possibly useful genes that may confer resistance to disease. The same is true for livestock. “If you put all your eggs in one basket and then a pest comes along, then you are more vulnerable to those risks. Research is needed on resilient, climate smart, regenerative agriculture,” Ehsani says.
Jonathan Sleeman, director of the U.S. Geological Survey National Wildlife Health Center, has called for data on wildlife health to be systematically collected and integrated with climate and other variables because more comprehensive data will result in better preventive action. “We have focused on detecting diseases,” he says, but a more holistic strategy would apply human public health concepts to assuring animal wellbeing. (For example, one study asked experts to draw a diagram of relationships of all the factors affecting the health of a particular group of caribou.) We must not take the health of plants and animals for granted, because their vulnerability inevitably affects us too, Sleeman says. “We need to improve the resilience of wildlife populations so they can withstand the impact of climate change.”
The Friday Five: Artificial DNA Could Give Cancer the Hook
The Friday Five covers five stories in research that you may have missed this week. There are plenty of controversies and troubling ethical issues in science – and we get into many of them in our online magazine – but this news roundup focuses on scientific creativity and progress to give you a therapeutic dose of inspiration headed into the weekend.
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Here are the promising studies covered in this week's Friday Five:
- Artificial DNA gives cancer the hook
- This daily practice could improve relationships
- Can social media handle the truth?
- Injecting a gel could speed up recovery
- A blood pressure medicine for a long healthy life