Document Type : Research Paper

Author

• Saeed Mahjoub

Assistant Professor, Department of Private Law, Faculty of Law, University of Qom, Qom, Iran

Abstract

Introduction

Discussion of human tissues can be approached from two perspectives. The first concerns the issue of property and ownership in tissues that have been separated from the human body. The second concerns the transferability and potential exploitation of human tissue after partial or complete modification—a field of inquiry situated at the intersection of medical law, intellectual property, and ethics. Corresponding to these two perspectives, numerous claims have been brought before the U.S. legal system. Prominent examples include Moore v. Regents of the University of California and Lacks v. Thermo Fisher Scientific Inc. In the former, the plaintiff claimed that his spleen cells, removed during medical treatment, were subsequently used for scientific and commercial purposes without his consent.
The case of Lacks v. Thermo Fisher Scientific Inc. dates to the 1950s, when cells from Henrietta Lacks’s cervix were taken without her knowledge or consent and developed into the first immortal cell line (HeLa). This generated substantial profits for the physicians and companies involved. Decades later, after her family became aware of what had happened, they filed a lawsuit alleging violations of the civil and moral rights of Lacks’s survivors, as well as unjust enrichment through the use of biological tissues without the individual’s consent. These two cases occupy a distinctive place in the comparative law literature due to the way they frame the legal issues and the reasoning adopted. Accordingly, the present study aimed to analyze the two cases and discuss their legal dimensions.

Literature Review

In “A Comparative Study of Organ Trade in France and the Legal System of the Islamic Republic of Iran,” Rahimi-Zamanaabadi and Babaei-Sakhmars (2024) examined the causes and factors underlying the trading of human organs. In another article titled “Organ Trade From the Perspective of Imami Jurisprudence,” Asghari and Abedian-Kalkhuran (2014) merely collected and presented the views of Islamic jurists on the issue. In “Examination of the Evidence for the Legitimacy of Buying and Selling Body Organs in Shia Jurisprudence,” Fakhla’i and Golbaghi-Masouleh (2014) analyzed the relevant evidentiary sources and concluded that organ trade is valid under Shia jurisprudence. The study by Rajaei et al. (2011), titled “The Nature of the Relationship Between a Person and Their Body Organs From the Perspective of Islamic Jurisprudence and Law,” adopted the theory of incomplete dominion (sulṭah-yi nāqis) through a purely jurisprudential analysis, without addressing the broader implications of the theory. Although Rajaei et al. (2011) is jurisprudentially consistent with the current study’s approach, it did not examine the position of Iran’s legal system, nor did it analyze the implications of the theory within that legal framework. Moreover, the novelty of the current analysis lies in its comparative perspective.

Materials and Methods

The present research employed a descriptive–analytical method. It also relied on library sources to collect the data and present the discussion.

Results and Discussion

The nature of the relationship between a person and their body tissues can be understood as follows. First, according to the criterion that divides organs into principal (ra’īsiyyah) and non‑principal (ghayr ra’īsiyyah), and given the invalidity of the sale or donation of principal organs, if a tissue falls within the category of principal organs, its sale, purchase, or donation is undoubtedly void. Therefore, the discussion concerns only non‑principal and regenerative tissues. On the one hand, these tissues may possess proprietary status (māliyyah), and on the other hand, the person exercises a form of dominion over them. Accordingly, the relationship must inevitably be characterized as a right of ownership (ḥaqq‑i mālikiyyat) in its full sense. However, although human organs and tissues may have lawful utility (manfaʿat‑i muḥallaleh) and rational utility (manfaʿat-i ʿuqalāʾī), the subject matter involves the human person and human personality. For this reason, the legislature has often prohibited such transactions in order to prevent the trafficking in the human body. Consequently, the recognition of full legal proprietary status for these organs within the legal system remains subject to doubt.
Furthermore, the recognition of bequests (waṣiyyah) concerning organs—given that a bequest is conceivable only with respect to property—and the absence of a strict identity between ownership (milkīyyat) and proprietary status (māliyyah) indicate that an individual possesses a form of dominion and exclusive control (ikhtiṣāṣ) over their organs. It is precisely this dominion that has led the legislature to permit organ donation and the making of bequests concerning organs.
Therefore, tissues such as cells, plasma, and similar biological materials may be regarded as customary property (māl‑i ʿurfī). However, due to legislative prohibitions grounded in considerations of public interest, the preservation of human dignity, and respect for the sanctity of the human person (ḥurmat‑i nafs), their full legal proprietary status is denied, and complete ownership over them is not recognized. Nonetheless, this does not negate the existence of dominion and a right of exclusive control for the individual. This right falls within the category of exclusive control (ḥaqq-i ikhtiṣāṣ), rather than objective ownership (mālikiyyat-i ʿaynī), and belongs exclusively to the individual whose body it is. Accordingly, others may not possess, exploit, analyze, or commercialize such tissues without the individual’s permission.
Briefly, the implications of this theory are as follows. First, this form of ownership establishes for the individual a right of exclusive control (ḥaqq-i ikhtiṣāṣ), rather than a right of transaction (ḥaqq-i muʿāmalah). Second, any unauthorized use constitutes usurpation (ghaṣb) and is thus prohibited. Third, due to the lack of legal proprietary status, its sale is impermissible; however, its donation is valid. Moreover, because the tissues are regenerative, repeated donation is possible. Fourth, under the rules governing gifts (hibah), receiving considerations in the form of customary compensation or a reward for donation is permissible. As long as such compensation does not customarily amount to a commercial transaction, the repetition of this practice does not face any legal impediment.

Conclusion

The analysis of Moore v. Regents of the University of California and Lacks v. Thermo Fisher Scientific Inc. demonstrated that even in legal systems with well‑developed property rules, courts approach separated human body parts with caution and often refrain from recognizing traditional property rights over them. In effect, the U.S. legal system has been reluctant to enter the domain of the proprietary status of human tissues, often justifying this position on the grounds that recognizing such proprietary rights could hinder the progress of medical research. In the absence of a comprehensive determination regarding the proprietary status of human tissues, the U.S. legal system has instead focused on the patient’s consent, which represents a secondary level of the discussion. For this reason, particular emphasis is placed on the informed consent and the ethical and professional responsibilities of physicians in the exploitation of human tissues.
In Iranian law, separated body parts—provided that they possess rational utility (manfaʿat-i ʿuqalāʾī) and exchange value—may be the subject of trading. However, regarding non-separated body parts, a distinction must be made between principal and non‑principal organs. Given the general invalidity of their sale and purchase in either case, and despite the conditional acceptance of bequests, the prevailing view considers such transactions invalid—except in the case of a bequest for the purpose of donation. It should be noted that none of the aforementioned approaches is sufficient. Rather, it is necessary for the legislature to explicitly recognize the concept of incomplete dominion (sulṭah-yi nāqis) and ownership in the sense of a right of exclusive control (ḥaqq‑i ikhtiṣāṣ) over human tissues.

Keywords

• Exclusive right
• ownership
• human tissues
• dominion over the body
• the U.S. legal system

Main Subjects

• Private Law