Recognize a property right in one’s own DNA.

Recognize a property right in one’s own DNA.

“[Mapping the human genome] seems to me to be an epochal moment, because we’re going to get depths of insight into the nature of human nature that we never could have imagined, and that will dwarf anything that philosophers and indeed scientists have managed to produce in the last two millennia. That’s not to denigrate what’s gone before, but the genome changes everything.”
– The Genome Changes Everything: A Talk with Matt RidleyBoth the United States and the State of Texas have long recognized a right to property. The Fifth Amendment to the U.S. Constitution provides that a person may not “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Similarly, Texas Constitution Article 1, Section 19 of the Texas Constitution provides that “[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Texas Constitution Article 1, Section 17 provides in part that “[n]o person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person….”

The rights to life, liberty, and property are all intrinsically connected to an individual’s rights in his or her own genetic material. This is a property consideration that neither the Framers of the U.S. nor Texas Constitutions could have considered. Nevertheless, the writings of our foundational thinkers on liberty lay a philosophical foundation for property rights in DNA. As John Locke wrote in Two Treatises on Government:

…[E]very Man has a Property in his own Person. This [nobody] has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his.

At its core, the right to property in the West has always been predicated on an individual’s right to enjoy, use, or distribute personal possessions as the individual best sees fit. Although human beings have always been in literal possession of their own genetic code, there has been no true ability to make use of or even understand this ownership right until very recent decades. In the modern period, however, this emerging technological field could potentially bestow property advantages – including the creation of wealth – on the owner of genetic material.

DNA is unique to a particular individual. No two people’s DNA is the same; even identical twins may have slight differences in their genetic code. It follows that one particular DNA sample might be more suited for a particular purpose, e.g. cancer research, than another, which in turn suggests that DNA has an intrinsic value. Texas law is silent on ownership of one’s own DNA.

In explaining the increasing need for a legal system establishing an ownership right in DNA, an analysis in the Suffolk University Law Review stated:

The average human loses between forty and one hundred strands of hair every day. Humans make one liter of saliva each day. In a lifetime, the average human sheds about forty pounds of skin. Hair, skin, and saliva are just a few ways in which individuals leave behind traces of their identity in the form of deoxyribonucleic acid (DNA). DNA has become an irrefutable method for identifying a person. In essence, humans are constantly leaving traces of their identity everywhere they go…

Access to a person’s DNA provides a dangerously intimate blueprint of a person’s body… Easy access to DNA exposes an individual’s most private and intimate information to the world. As genetic information becomes increasingly easy to obtain, it renews the timeless debate over precisely which circumstances trigger an individual’s right to privacy.

The story of Henrietta Lacks indicates the need for establishing an ownership interest in DNA. Ms. Lacks was 31 years-old when she died of cervical cancer. Doctors removing her tumor cells discovered that the cells were capable of thriving in a laboratory setting. In the 62 years since her death, Henrietta Lacks’ cells have been studied more than 74,000 times and have yielded countless scientific discoveries. It was not until 1973, 22 years after Ms. Lacks’ death, that her family learned her DNA was being studied all over the world. The family objected to the use of Henrietta’s DNA genome without their consent and struggled for years to reach an accord with the scientific community. Finally, in August 2013, the National Institute of Health (NIH) worked out an agreement with Henrietta’s surviving family, which gives the Lacks family some say as to how the DNA data is used for research. Officials at the NIH now admit they should have contacted the Lacks family when researchers first applied for the grant to sequence the genome.

In 1990, the California Supreme Court issued the landmark decision in Moore v. Regents of University of California, 51 Cal. 3d 120, in which the court held that an individual has no right to the profits from the commercialization of a cell line produced from his discarded body parts. Mr. Moore was found not to be entitled to any of the profits from the commercialized cell line because he had failed to exercise any vested property rights in his cells prior to ceding them to the laboratory. However, in regards to this case, a Stanford Law Review article, Whose Body Is It Anyway?, states,

“Cells separated from the human body are tangible property that must, as an initial matter, belong to someone. They cannot simply spring forth as tangible property of a lab or a researcher without having been the property of anyone else prior to that point. The logical person for initial ownership of cells is the person from whose body the cells originated.”

The Federal Government and state governments have begun inching towards tacit recognition of genetic property rights. Federal law has recognized the importance of creating rights relating to genetic information. The Genetic Information Nondiscrimination Act (GINA) was enacted by Congress in 2008. This act prohibits discrimination based on genetic information in health coverage and in employment.

Many Texas statutes already acknowledge the confidential nature of genetic information. Examples of this confidential acknowledgment can be found in the Texas Insurance Code, the Texas Occupations Code, and the Texas Labor Code. Additionally, the Texas Family Code includes an implicit recognition of a person’s property right in regards to his or her genetic material, acknowledging that individuals may donate their genetic material for the purpose of assisted reproduction.

Federal courts have also protected genetic material in Texas. For example, a 2009 lawsuit filed in federal court resulted in a settlement with the Texas Department of State Health Services (DSHS). That case was filed after the discovery that legally collected blood samples of more than five million newborn babies were retained for research without parental consent. Although legislation allowing DNA sample retention for research eventually passed, all samples collected before the law was passed were destroyed, unless parental consent was later obtained, in accordance with the settlement. While the case was settled and, therefore, has no precedential value, it demonstrates the importance of updating Texas’ law to provide explicit rights in genetic material.

It is increasingly critical for states to take action to defend an individual property right in citizens’ own genetic code. As the Stanford Law Review notes:

[W]e are fast approaching the point at which just about anyone can have property rights in your cells, except you. In addition, with some alteration, anyone can have intellectual property rights in innovations related to the information contained therein, but you do not.

Some states have taken legislative action to define DNA ownership. At least four states — Alaska, Colorado, Florida, and Georgia — have all passed laws declaring some form of property ownership in one’s own DNA.

1. Alaska: “[A] DNA sample and the results of a DNA analysis performed on the sample are the exclusive property of the person sampled or analyzed.” Alaska Stat. § 18.13.010(a)(2).
2. Colorado: “Genetic information is the unique property of the individual to whom the information pertains.” Colo. Rev. Stat. Ann. § 10-3-1104.7(1)(a).
3. Florida: “[T]he results of such DNA analysis, whether held by a public or private entity, are the exclusive property of the person tested, are confidential, and may not be disclosed without the consent of the person tested.” Fla. Stat. Ann. §760.40(2)(a).
4. Georgia: “Genetic information is the unique property of the individual tested.” Ga. Code Ann. § 33-54-1(1).

The statutes listed above are generally narrow in scope. Only Alaska’s statute expressly includes DNA samples as personal property. Alaska passed this law without a single vote against in either legislative chamber (34-0 in the House, and 20-0 in the Senate). In explaining the need to pass such a law, Alaska’s Senate submitted a letter of intent explaining that:

The Legislature finds that recent scientific breakthroughs in decoding DNA samples have the potential of disclosing the probable medical future of individual families’ bloodline when samples are collected, retained and disclosed without consent. The Legislature has determined that such disclosure may lead to harm of an individual and their blood relatives,including discrimination in areas such as employment, education, healthcare and insurance. Concern exists that the current laws regarding collection, retention or disclosure of DNA information are inadequate and steps should be taken to protect genetic privacy, property interests and information derived from samples.

Texas could be on the vanguard of DNA property rights, including the right to control the purposes for which ones’ DNA is used. It is clear that updates are necessary, as the biotechnology industry has been steadily expanding across the United States. As of 2010, there were 1,605,533 biotech jobs in the country, growing by 6.4% in the preceding decade. Texas alone has 89,610 jobs within 3,556 firms. It has also been ranked recently among the top five states as one of the country’s leaders in biotechnology employment. DNA is used in multiple ways throughout the biotech industry. For example, DNA is sequenced in biomedical labs, and even used by environmental technology companies to test for pathogens in food and water.

The Legislature should pass legislation that clearly recognizes an individual’s property right in his or her DNA by adding Chapter 45, Property Interests in Biological Material, to the Texas Property Code. This would be consistent with the subsequent recommendations protecting the use of personal information and data by state agencies and private corporations.