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.
Podcast: The Friday Five weekly roundup in health research
The Friday Five covers five stories in health 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.
Covered in this week's Friday Five:
- Sex differences in cancer
- Promising research on a vaccine for Lyme disease
- Using a super material for brain-like devices
- Measuring your immunity to Covid
- Reducing dementia risk with leisure activities
One day in recent past, scientists at Columbia University’s Creative Machines Lab set up a robotic arm inside a circle of five streaming video cameras and let the robot watch itself move, turn and twist. For about three hours the robot did exactly that—it looked at itself this way and that, like toddlers exploring themselves in a room full of mirrors. By the time the robot stopped, its internal neural network finished learning the relationship between the robot’s motor actions and the volume it occupied in its environment. In other words, the robot built a spatial self-awareness, just like humans do. “We trained its deep neural network to understand how it moved in space,” says Boyuan Chen, one of the scientists who worked on it.
For decades robots have been doing helpful tasks that are too hard, too dangerous, or physically impossible for humans to carry out themselves. Robots are ultimately superior to humans in complex calculations, following rules to a tee and repeating the same steps perfectly. But even the biggest successes for human-robot collaborations—those in manufacturing and automotive industries—still require separating the two for safety reasons. Hardwired for a limited set of tasks, industrial robots don't have the intelligence to know where their robo-parts are in space, how fast they’re moving and when they can endanger a human.
Over the past decade or so, humans have begun to expect more from robots. Engineers have been building smarter versions that can avoid obstacles, follow voice commands, respond to human speech and make simple decisions. Some of them proved invaluable in many natural and man-made disasters like earthquakes, forest fires, nuclear accidents and chemical spills. These disaster recovery robots helped clean up dangerous chemicals, looked for survivors in crumbled buildings, and ventured into radioactive areas to assess damage.
Now roboticists are going a step further, training their creations to do even better: understand their own image in space and interact with humans like humans do. Today, there are already robot-teachers like KeeKo, robot-pets like Moffin, robot-babysitters like iPal, and robotic companions for the elderly like Pepper.
But even these reasonably intelligent creations still have huge limitations, some scientists think. “There are niche applications for the current generations of robots,” says professor Anthony Zador at Cold Spring Harbor Laboratory—but they are not “generalists” who can do varied tasks all on their own, as they mostly lack the abilities to improvise, make decisions based on a multitude of facts or emotions, and adjust to rapidly changing circumstances. “We don’t have general purpose robots that can interact with the world. We’re ages away from that.”
Robotic spatial self-awareness – the achievement by the team at Columbia – is an important step toward creating more intelligent machines. Hod Lipson, professor of mechanical engineering who runs the Columbia lab, says that future robots will need this ability to assist humans better. Knowing how you look and where in space your parts are, decreases the need for human oversight. It also helps the robot to detect and compensate for damage and keep up with its own wear-and-tear. And it allows robots to realize when something is wrong with them or their parts. “We want our robots to learn and continue to grow their minds and bodies on their own,” Chen says. That’s what Zador wants too—and on a much grander level. “I want a robot who can drive my car, take my dog for a walk and have a conversation with me.”
Columbia scientists have trained a robot to become aware of its own "body," so it can map the right path to touch a ball without running into an obstacle, in this case a square.
Jane Nisselson and Yinuo Qin/ Columbia Engineering
Today’s technological advances are making some of these leaps of progress possible. One of them is the so-called Deep Learning—a method that trains artificial intelligence systems to learn and use information similar to how humans do it. Described as a machine learning method based on neural network architectures with multiple layers of processing units, Deep Learning has been used to successfully teach machines to recognize images, understand speech and even write text.
Trained by Google, one of these language machine learning geniuses, BERT, can finish sentences. Another one called GPT3, designed by San Francisco-based company OpenAI, can write little stories. Yet, both of them still make funny mistakes in their linguistic exercises that even a child wouldn’t. According to a paper published by Stanford’s Center for Research on Foundational Models, BERT seems to not understand the word “not.” When asked to fill in the word after “A robin is a __” it correctly answers “bird.” But try inserting the word “not” into that sentence (“A robin is not a __”) and BERT still completes it the same way. Similarly, in one of its stories, GPT3 wrote that if you mix a spoonful of grape juice into your cranberry juice and drink the concoction, you die. It seems that robots, and artificial intelligence systems in general, are still missing some rudimentary facts of life that humans and animals grasp naturally and effortlessly.
How does one give robots a genome? Zador has an idea. We can’t really equip machines with real biological nucleotide-based genes, but we can mimic the neuronal blueprint those genes create.
It's not exactly the robots’ fault. Compared to humans, and all other organisms that have been around for thousands or millions of years, robots are very new. They are missing out on eons of evolutionary data-building. Animals and humans are born with the ability to do certain things because they are pre-wired in them. Flies know how to fly, fish knows how to swim, cats know how to meow, and babies know how to cry. Yet, flies don’t really learn to fly, fish doesn’t learn to swim, cats don’t learn to meow, and babies don’t learn to cry—they are born able to execute such behaviors because they’re preprogrammed to do so. All that happens thanks to the millions of years of evolutions wired into their respective genomes, which give rise to the brain’s neural networks responsible for these behaviors. Robots are the newbies, missing out on that trove of information, Zador argues.
A neuroscience professor who studies how brain circuitry generates various behaviors, Zador has a different approach to developing the robotic mind. Until their creators figure out a way to imbue the bots with that information, robots will remain quite limited in their abilities. Each model will only be able to do certain things it was programmed to do, but it will never go above and beyond its original code. So Zador argues that we have to start giving robots a genome.
How does one do that? Zador has an idea. We can’t really equip machines with real biological nucleotide-based genes, but we can mimic the neuronal blueprint those genes create. Genomes lay out rules for brain development. Specifically, the genome encodes blueprints for wiring up our nervous system—the details of which neurons are connected, the strength of those connections and other specs that will later hold the information learned throughout life. “Our genomes serve as blueprints for building our nervous system and these blueprints give rise to a human brain, which contains about 100 billion neurons,” Zador says.
If you think what a genome is, he explains, it is essentially a very compact and compressed form of information storage. Conceptually, genomes are similar to CliffsNotes and other study guides. When students read these short summaries, they know about what happened in a book, without actually reading that book. And that’s how we should be designing the next generation of robots if we ever want them to act like humans, Zador says. “We should give them a set of behavioral CliffsNotes, which they can then unwrap into brain-like structures.” Robots that have such brain-like structures will acquire a set of basic rules to generate basic behaviors and use them to learn more complex ones.
Currently Zador is in the process of developing algorithms that function like simple rules that generate such behaviors. “My algorithms would write these CliffsNotes, outlining how to solve a particular problem,” he explains. “And then, the neural networks will use these CliffsNotes to figure out which ones are useful and use them in their behaviors.” That’s how all living beings operate. They use the pre-programmed info from their genetics to adapt to their changing environments and learn what’s necessary to survive and thrive in these settings.
For example, a robot’s neural network could draw from CliffsNotes with “genetic” instructions for how to be aware of its own body or learn to adjust its movements. And other, different sets of CliffsNotes may imbue it with the basics of physical safety or the fundamentals of speech.
At the moment, Zador is working on algorithms that are trying to mimic neuronal blueprints for very simple organisms—such as earthworms, which have only 302 neurons and about 7000 synapses compared to the millions we have. That’s how evolution worked, too—expanding the brains from simple creatures to more complex to the Homo Sapiens. But if it took millions of years to arrive at modern humans, how long would it take scientists to forge a robot with human intelligence? That’s a billion-dollar question. Yet, Zador is optimistic. “My hypotheses is that if you can build simple organisms that can interact with the world, then the higher level functions will not be nearly as challenging as they currently are.”
Lina Zeldovich has written about science, medicine and technology for Popular Science, Smithsonian, National Geographic, Scientific American, Reader’s Digest, the New York Times and other major national and international publications. A Columbia J-School alumna, she has won several awards for her stories, including the ASJA Crisis Coverage Award for Covid reporting, and has been a contributing editor at Nautilus Magazine. In 2021, Zeldovich released her first book, The Other Dark Matter, published by the University of Chicago Press, about the science and business of turning waste into wealth and health. You can find her on http://linazeldovich.com/ and @linazeldovich.