Beyond Henrietta Lacks: How the Law Has Denied Every American Ownership Rights to Their Own Cells
A 2017 portrait of Henrietta Lacks.
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.
Every weekend since January, pediatrician Cora Collette Breuner has volunteered to give the COVID-19 vaccine to individuals from age 12 to 96 in an underserved community in Washington state.
Even though the COVID-19 vaccines have been shown to be incredibly safe and effective, there's still quite a bit of hesitancy among parents to vaccinate their teenage children, says Breuner, an adolescent medicine specialist at Seattle Children's Hospital and a past chair of the American Academy of Pediatrics' Committee on Adolescence. "They have questions and they have questions," she says.
Breuner patiently answers them all. Even then, parents—who have the final say in whether their child gets the vaccine—may be reluctant to sign off on it.
In 41 states, parents must consent for minors under age 18 to receive a COVID-19 vaccine. One state—Nebraska—requires parental consent for individuals under age 19, according to the Kaiser Family Foundation. Healthcare workers can't legally give teens COVID-19 vaccines otherwise. In a May report, the nonprofit healthcare organization highlights that from a legal perspective, "the landscape may be shifting slightly as more jurisdictions seek to encourage vaccination of young people."
Meanwhile, as the Delta variant creates a new surge in cases, some ethicists and pediatricians argue that state laws should be amended or loosened to allow minors to consent to COVID-19 vaccination on their own, without the need for parental permission.
"COVID-19 has killed millions of people around the world and disrupted the global economy," says pediatrician John Lantos. "It's a global catastrophe that requires special rules."
There are compelling arguments in favor of letting minors consent on their own, says Robyn Shapiro, a health care lawyer and a bioethicist in the Milwaukee area. "By that, I mean they're either old enough or they're evaluated in such a way that they have sufficient understanding of what they're agreeing to."
Shapiro and other ethicists argue that teens are perfectly capable of giving "informed consent"—a key principle in ethics that means fully understanding the benefits and risks of a medical intervention. To give informed consent, a person must be able to process that information in line with their own values. Only then can they make an autonomous choice and sign a consent form, Shapiro says.
Most states already have laws permitting minors to consent to testing and treatments related to sexually transmitted diseases, birth control, behavioral health, and substance abuse. It wouldn't be that much of a stretch to add COVID-19 vaccination to the list, Shapiro says. New Jersey and New York have introduced bills to let teens as young as 14 to consent to getting the COVID-19 vaccine and Minnesota has proposed a bill to allow children as young as 12 to give consent.
With any medical test or intervention, doctors often wrestle with how to best involve teens in conversations about their own health care, says John Lantos, a pediatrician and director of the Bioethics Center at Children's Mercy Kansas City.
"Most bioethicists would say that [teens] should be included to the degree that they have decision-making capacity," he says. "In most cases, that means including them in discussions with their parents in trying to achieve consensus about what the best choice may be."
COVID-19 vaccination also presents a unique circumstance, Lantos notes. It raises the question: Should teens have greater decisional authority because it's a public health emergency? In his opinion, the answer is yes. "COVID-19 has killed millions of people around the world and disrupted the global economy," says pediatrician Lantos. "It's a global catastrophe that requires special rules."
In North Carolina, state legislators are moving to do the opposite. State law currently allows those under 18 to make vaccination decisions on their own, but on Aug. 5, North Carolina's General Assembly approved a Republican-sponsored bill requiring parental consent for 12- to 17-year-olds to get a COVID-19 vaccine.
Kyle Brothers, a pediatrician in Louisville, Kentucky, says it's "ethically justifiable" for states to permit adolescents, especially those on the verge of adulthood, to consent to COVID-19 vaccination and other straightforward medical care.
In many cases, 16- and 17-year-old adolescents are capable of making well-informed decisions, says Brothers, a member of the American Academy of Pediatrics' Section on Bioethics. "The problem is, the law tends not to have that level of nuance," he adds. "We know in the real world that maturing and developing the ability to make decisions is a continuous process, but the law sets a bright line at age 18."
Lacking parental consent, some defiant teens are researching avenues to get vaccinated without their mom's or dad's knowledge. They may have turned to VaxTeen.org, a site operated by a Los Angeles teenager that provides information on consent laws by state.
If parents are wavering on the decision to give consent, Breuner recommends that they speak with a trusted healthcare provider about their specific concerns. These kinds of dialogues often can clarify lingering worries and may help drive up consent rates for teen vaccination.
Vaccine-hesitant parents should hear out their teens who wish to be vaccinated. Teenagers have their own opinions and belief systems, and parents should respect their child's choice to be vaccinated if they wish, considering the minimal risk of harm and the significant benefit to society as a whole.
George J. Annas, professor and director at the Center for Health Law, Ethics & Human Rights at Boston University, says parents have a legal obligation to provide their children with necessary medical treatment, or they could be found guilty of child neglect. The circumstances vary, but in the face of unrelenting COVID-19, he says parents have an ethical duty to consent to teens' vaccination because "the disease is rampant and children are dying."
Professor Tim Caulfield stops by the "Making Sense of Science" podcast this month to discuss the infodemic around COVID-19 and how to deal with it.
The "Making Sense of Science" podcast features interviews with leading medical and scientific experts about the latest developments and the big ethical and societal questions they raise. This monthly podcast is hosted by journalist Kira Peikoff, founding editor of the award-winning science outlet Leaps.org.
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Kira Peikoff was the editor-in-chief of Leaps.org from 2017 to 2021. As a journalist, her work has appeared in The New York Times, Newsweek, Nautilus, Popular Mechanics, The New York Academy of Sciences, and other outlets. She is also the author of four suspense novels that explore controversial issues arising from scientific innovation: Living Proof, No Time to Die, Die Again Tomorrow, and Mother Knows Best. Peikoff holds a B.A. in Journalism from New York University and an M.S. in Bioethics from Columbia University. She lives in New Jersey with her husband and two young sons. Follow her on Twitter @KiraPeikoff.