Every day in the United States and around the world, patients and research participants at hospitals and doctors' offices give biological samples, whether in the form of surgically removed cancer tissue or a routine blood sample. Many of these patients are entirely unaware that their tissues were not thrown out as hazardous waste, and instead used by scientists for the development of new drugs and therapies. The courts in the United States in Moore v. Regents of the University of California, Greenberg v. Miami Children's Hospital Research Institute, and most recently Washington University v. Catalona have determined that a patient does not retain rights to his tissues once they are removed, regardless of whether the patient consented to this forfeiture of rights.
This Note argues that the United States' regulations and common law developments are simply inadequate to achieve the appropriate balance between protecting patients' autonomy and further promoting scientific research. Sweden, Iceland, and Denmark have made greater strides in protecting these basic human tenets in the context of tissue banks through the implementation of comprehensive national policies. The United States should look to these nations for guidance in forming its own uniform national policy, as our current legal landscape regulating tissue banks will remain fragmented so long as it develops out of sporadic common law precedents. A legislatively enacted nationwide legal structure would help ensure a uniform approach among courts addressing tissue bank issues and aid in striking an appropriate balance between the recognition of patients' rights and the promotion of scientific research.
Lisa C. Edwards,
Tissue Tug-of-War: A Comparison of International and U.S. Perspectives on the Regulation of Human Tissue Banks,
41 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol41/iss2/6