A kidney for a heart – some thoughts on ownership of biological material

Back in 2001 Richard Batista, a vascular surgeon at Nassau University Medical Center, donated a kidney to his wife Dawnell Batista in an attempt to save both her life and their failing marriage (here and here). Although the transplantation (Ms Batista’s third) was a success nothing could salvage the marriage and in 2005 Ms Battista filed for divorce. The infuriated Mr Battista responded by demanding his kidney back. Mr Battista said that while he had done everything to save her – as his lawyer put it “acted ‘godlike’” – she had exploited his kindness and betrayed him in the worst of ways. He accused her of having an affair with her physical therapist, said that she refused marriage counselling (implying it could have saved the marriage) and that she would not let him see their 3 children. Ms Battista, on the other hand, denied the affair and said that her soon to be ex-husband was “insanely jealous and hyper-suspicious”. Faced with the impossibility of actually getting the organ back Mr Battista has announced that he wants to be compensated monetarily. More precisely he holds that $1.5 million would be the appropriate market value of the kidney. The hearing started last month and it seems fair to assume that the claim for monetary compensation will be rejected. The selling of organs is illegal in the USA and as pointed out by one of the lawyers involved; a kidney is not a marital asset to be divided. The sensationalist overtones of the Batista case aside, it is clear that ownership of biological material is one of the most challenging issues in bioethics today. Arguably, a strongly contributing factor is that it is not particularly clear what it means to own biological material. Which are the rights and obligations that we have with regards to our own, and other people’s, biological material?

Elsewhere I have defended the idea that regardless where one stands on the actual commercialization aspect a more nuanced approach to ownership than the current one would be desirable. I have argued that part of the problem is that many of us believe that we have a reasonably good understanding of what it means to own an object. When we use the word in an everyday sense we often seek to describe the type of relationship one has with objects like one’s mobile phone or one’s jeans. There is a very strong tendency to reduce ownership to a simple binary issue of owning or not owning. But if we choose to define ownership in such a complete way it becomes difficult to account for cases where there are several stakeholders, each holding a different set of rights as is the case with e.g. patents and copyrights.

A more fruitful approach would be to divide up ownership in a number of separate rights and obligations and then proceed to combine these in different bundles. These bundles could subsequently be attached to different agents. The possibility of assigning different types of property rights in an object to different people would be useful in many cases. Undoubtedly some combinations are more promising than others and although ‘the bundle approach’ cannot be expected to solve all problems related to this complex issue, I believe that it can make for a more open and productive debate.

From a theoretical perspective this approach has its roots in the analytical tradition that holds that legitimate ownership is a social construction. On this view, ownership is the result of a series of social choices and events that could well have been different. Society is free to choose the system of property rights that best promotes social goods and one of the chief tasks of government is to create such a system. A key person in this tradition is Felix Cohen who explained that if we seek to conduct a detailed analysis of property rights it is more useful to see those rights as sets (bundles) of legal relations between the owner and the non-owners of an object. Which rights and obligations that ought to be included in such a bundle depend on the object in question and thus we can use the model to describe different kinds of ownership. In addition to this tailoring there is also the possibility of attaching several bundles (each with a different mix of rights and obligations if necessary) to the one and same object.

A natural continuation of Cohen’s analysis was to put together a detailed list of the various rights and obligations that might be included in the bundles. There are several such examples but the most successful one is Tony Honoré’s. His list includes 11 types of legal relations said to be the major components of the full liberal type of ownership manifesting itself in modern capitalism. Some examples are; the right to possess, the right to use, the right to manage and the right to income.

Honoré himself said little on which of the rights that might be necessary and sufficient for ownership. Indeed, it seems to me that the specific combination would depend on the type of biological material we were dealing with. Evidently not all of the rights as listed by Honoré are applicable to biological material. None the less, a person’s legal rights with respect to biological material can be constructed in many different ways depending on what types of legal relations are included in the bundle and the flexibility of the approach is highly useful when discussing property rights in biological material.

Björkman B. and Hansson S O., “Bodily Rights & Property Rights”, Journal of Medical Ethics, 32(5): 209-214, 2006
Björkman B. (2007), “Different Types – Different Rights”, Science and Engineering Ethics, 13(2): 221-233,2007.
Cohen F S. Dialogue on Private Property, Rutgers Law Review 1957;9:357-387.
Honoré T. Ownership. In AG Gueast ed., Oxford Essays on Jurisprudence. UK, Oxford University Press, 1961.

 

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