Since Moore v. Regents of the University of California, there has been a wide-ranging debate regarding the holding of the case and its implications for property law. Moore stands for the notion that individuals do not have a property interest in ordinary cells taken from their bodies during medical procedures nor the commercial products that researchers might develop from them. At the same time, cases such as Davis v. Davis and Hecht v. Superior Court have asserted that individuals maintain a property interest in other types of cells—namely embryos and gametes (eggs and sperm)—once they are removed from the body. This, among other developments, has led to a fragmented regime in property law pertaining to excised biological materials that turns, in large part, on the type of cell in question: individuals have a diminished interest in regular somatic cells (skin, muscle, etc.) while courts have recognized that people retain a heightened property interest in reproductive cells such as sperm, eggs, and embryos. The articulated reason for the differential property interests in these two cell types is that embryos and gametes have the “potential for human life” while individuals are thought to have little use for ordinary body cells once they are excised.
This default rule has framed property law regarding excised human cells for over two decades. It exists to balance the need for scientists to have access to research materials with individuals’ reproductive autonomy. To the extent that the dividing line determining the property interest in excised cells turns largely upon their “potential for human life,” the recent development of induced pluripotent stem cells (iPSCs) suggests that this default rule is becoming increasingly untenable. Research has shown that iPSCs can create the ability to genetically reprogram somatic cells into a pluripotent state that may allow them to differentiate into other types of cells—including eggs and sperm—that can be used to create new organisms. While these developments have not yet been fully applied to human iPSCs, they nonetheless suggest that iPSCs may soon be able to give ordinary somatic body cells the same potential for human life as naturally produced embryos and gametes but without the corresponding property interest.
This Article argues that given this new technology, its relative success in animal models, and its impending application to human cells, the current default rules precluding individuals’ property interest in excised somatic cells needs substantial reconsideration. We propose a three-part approach to manage the challenges that iPSCs create for this aspect of property law. This includes (1) a self-imposed moratorium on human applications of iPSC research that can lead to human reproduction (2) Congressional action that vests property interests in the donors of somatic cells once their cells have been reprogrammed to a pluripotent state and differentiated into reproductive cells and (3) Judicial action that distinguishes Moore and related cases by acknowledging the reversion of property interest to donors once somatic materials are reprogrammed to a state of pluripotency and differentiated into reproductive cells. This proposal offers the best way to deal with the profound legal issues created by this new technology with the least disruption to existing rules and policy preferences.
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