Moore v. Regents of the University of California represents the seminal case regarding the protection of genetic material. In this case, the California Supreme Court held that patients do not retain property rights in their excised genetic material; instead, informed consent laws serve as genetic material’s only protection. Many states have accepted the Moore court’s decision not to extend property rights to genetic material, and most states choose to protect genetic material through informed consent alone. Moore and informed consent do not adequately protect genetic material, creating unjust results in which “donors” of genetic material have little to no recourse against researchers that may seek to exploit them. Moreover, the two most commonly advanced solutions to this lack of protection for genetic material— privacy law and property law—are each often proposed exclusively of the other, allowing researchers to profit off of discarded surgical materials to the detriment of patients. These loopholes have led to two notable victims of genetic exploitation: John Moore of the Moore case and Henrietta Lacks. This Comment uses these two highly publicized victims of genetic material exploitation to argue that Moore is an outdated and erroneous decision. It then builds on previously advanced arguments for a combined privacy-and-property law approach to genetic material protection, advocating for a solution that more appropriately addresses the complexities of genetic material. This proposed approach ultimately entails an intersection between privacy, property, and tort law in the area of technical battery, which would preserve both patients’ rights and the sense of self that accompanies genetic material.
Meaningless DNA: Moore’s Inadequate Protection of Genetic Material,
Dick. L. Rev.
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol127/iss1/10