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A recent scandal at the University of California, Los Angeles, has focused uncomfortable attention on the market in human tissues and body parts. UCLA employees were arrested for alleged trafficking in as many as 800 cadavers. The accused middleman allegedly transferred body parts from donated cadavers to a number of research institutions and private companies in exchange for large fees. Scandals over body parts are nothing new. In the 19th century, two Scotsmen, William Burke and William Hare, found the trade in corpses so profitable that they graduated to murder to provide fresh bodies to anatomists and universities. In 1999, the director of the Willed Body Program at the University of California, Irvine, was fired for selling six spines to a hospital for $5,000. And in 2002, the director of the Galveston cadaver lab of the University of Texas was fired for selling body parts to a pharmaceutical company and others. Nevertheless, each year, approximately 10,000 Americans will their bodies to science, intending to further research and help instruct doctors-to-be. Few donors suspect that their corpses will serve as an increasingly precious raw material in a profit-making industry. In the age of biotechnology, interest in “mining” the human body is certain to grow. Already, biotech advances have transformed a variety of human tissues into valuable products. For example, blood serves as the basis for immortalized cell lines for biological studies and pharmaceutical research; foreskin is used to develop artificial skin; and placenta is used to enrich shampoos and cosmetics. Despite the growing demand for body parts, however, laws regulating the trade in donated cadavers are all too limited. COMMON LAW U.S. courts have used both tort law and “quasi-property” approaches to address claims over the unauthorized handling of dead bodies. Unfortunately, they have had little success in developing a clear set of rules. Tort claims run the gamut from intentional infliction of emotional distress to intentional mishandling of a dead body, abuse of a dead body, negligent infliction of emotional or mental distress, and negligent or wrongful interference with a dead body. Theoretically, such claims can be brought by the decedent’s family member. However, the first three causes of action mentioned typically require proof that the plaintiff, i.e., the family member, was the immediate focus of the defendant’s outrageous conduct. And in some jurisdictions, the latter two claims require contemporaneous physical or pecuniary loss to permit recovery. As for property rights, whether they exist in a dead body has been debated by legal scholars since the 17th century. In the earliest recorded treatise on the topic, Lord Edward Coke stated that the burial of the cadaver amounts to burial of “ nullius in bonis” or “ the goods of no one,” a statement that laid the foundation for the general rule in Anglo-American law that human body parts cannot be property. Yet during the 18th and early 19th centuries, English cases recognized some exceptions to this rule. Out of a desire to assure that corpses were given proper disposition and due regard, U.S. courts moved somewhat closer to a property-based approach to human body parts. The American quasi-property standard grants family and friends a right to claim a corpse for burial purposes, but not for any other reason. In the 1930s, American jurists and legal scholars began debating the applicability of property law concepts specifically to cases involving wrongful conduct toward corpses. In such cases, U.S. courts today are split between those upholding the common law no-property rule and those following the quasi-property approach-with each side claiming that it controls the majority of jurisdictions. In Whaley v. County of Tuscola (1995), one of the more recent cases addressing the issue, the U.S. Court of Appeals for the 6th Circuit held that the next of kin do have constitutionally protected property rights in a deceased family member’s body. The next of kin had brought a Section 1983 action claiming that Tuscola, Mich., violated their procedural due process rights when it permitted the removal of tissue from the deceased without the next of kin’s consent. A coroner’s assistant, who also owned an eye bank, had an arrangement with the county under which he paid the county’s autopsy expenses in return for the chance to remove and sell the deceased’s corneas. The next of kin were not consulted. The 6th Circuit reversed the District Court’s dismissal of the case, holding that state law provides the next of kin with a constitutionally protected property interest in a deceased relative’s body. But even here, the appeals court left the extent of that interest unclear. STATUTORY SOLUTIONS The lack of common law clarity on the status of human body parts has caused difficulties in regulating the trade in cadaver tissues for research, commercial, or other uses. So the legislatures have stepped in. • Uniform Anatomical Gift Act. In the mid-20th century, a number of states enacted laws permitting anatomical donations from cadavers for transplants or medical research. Troublesome variations among these statutes prompted the drafting of the Uniform Anatomical Gift Act in 1968. The UAGA, which has been adopted by all 50 states and the District of Columbia, permits competent adults to make a gift of all or any part of their body, upon death, for purposes of medical education, research, or transplant. However, neither the sale of organs or other body parts, nor the transfer of donated cadavers or parts from noncommercial to commercial entities, is addressed in the law. • National Organ Transplant Act. In 1989, Congress passed the National Organ Transplant Act, which prohibits the sale of organs for transplant. However, NOTA does not address the disposition of body parts other than organs, nor does it deal with the disposition of organs for purposes other than transplant. • Individual state statutes. Some states have passed laws prohibiting commercial trade in human organs. Many of these are similar to NOTA, in that they are limited to organs transferred for transplant. But some states ban the sale of human body parts for any purpose. For example, Virginia prohibits the sale of any natural body part (except for hair, blood, and other self-replicating body fluids) for any reason. Even in the face of such laws, some body-part brokers still contend that their fees are legal because they merely cover the cost of processing and transporting the remains. Critics respond that the brokers’ fees may greatly exceed those costs. For example, a pharmaceutical company in 2002 was allegedly charged $4,000 for a box of fingernails and toenails. RESPECT AND REMEDY What happens to their toenails after death may not concern many people. But the dignity of the human body does. As one commentator has observed, the deceased “now has something more than a hope, but far less than an assurance, that his or her wishes will be carried out.” Because of biotech advances, human body parts have taken on new value for the living. Yet the law provides limited and inconsistent guidance as to their ownership, acquisition, transfer, or use. And the line between what is proper treatment of the human body and what is not has become all too blurry. This situation demands a remedy, perhaps through federal legislation. Without clearer laws, more stories about disrespect and misuse of the human body are surely inevitable. Robyn S. Shapiro is a partner in Milwaukee’s Michael Best & Friedrich, where she chairs the health care practice group. Shapiro is also director of the Bioethics Center at the Medical College of Wisconsin and a member of the American Bar Association’s Coordinating Group on Bioethics and the Law. She can be reached at [email protected].

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