355(15) N. Engl. J. Med. 1517-1519 (October 12, 2006)
Abstract
The law governing control and commercialization of human body tissue is confused and in flux. Variables include whether the tissue is from a cadaver or living person, whether it is in situ or already excised, whether it is replaceable or irreplaceable, whether it is organ or non-organ, and whether it was obtained in the course of research, clinical care, donation or sale. This field would be helped by a more sustained analysis of the degree to which rules governing body tissue derive from tort (battery, negligent infliction of emotional distress, trespass, fraud and conversion, etc.) or property doctrines. In addition, given the value of tissue to scientific research, consideration ought to be given to a re-framing of the body and its tissues as a common resource with the living human cast in the role of steward rather than owner.
