The full text of this Book Review may be found by clicking the PDF link below.
How much is a kidney worth? An ounce of breast milk? Genetic material from an individual facing a Parkinson’s diagnosis? In today’s America, it depends on who is selling. One might think that such body products are beyond value or that their value depends on the individual characteristics of the supplier. But under existing American law and practices, what matters more is whether the seller is also the supplier of that body product, or whether the seller is another entity, such as a pharmaceutical company, hospital, or biobanker.
Under existing American law, for instance, an individual may not sell her kidney for “valuable consideration.” Nor may an individual direct that her body be sold for profit to a medical school after her death. Yet a medical school receiving such a donation is free subsequently to sell that body to a peer institution, in whole or in part (p. 245).
A similar disparity in payment arises when human breast milk is at issue. Payments for breast milk are not illegal, but they are often frowned upon — and where such payments do occur, they may stand in stark disparity to the payments received by others in the body-product supply chain. Consider, for instance, the business model of Prolacta Bioscience. Through a network of twelve national, regional, and local milk banks, Prolacta Bioscience encourages breastfeeding mothers to donate milk their own infants do not need. Up until last year, Prolacta did not pay these women for their milk, assuring them that “[b]reast milk donors report a sense of satisfaction knowing they are providing their milk to help premature or sick infants.” Indeed, a Prolacta-sponsored website continues to explain that “[t]he current practice in North America is to accept breast milk donations without compensating the mother.” Even now, Prolacta and its affiliated milk banks offer payment of only up to one dollar per ounce of shipped breast milk — and they insist that this payment is merely an “expense reimbursement.” Meanwhile, the milk banks “receive payment from Prolacta Bioscience for the milk they collect.” And having acquired human breast milk with little or no compensation to its supplying mothers, Prolacta processes, fortifies, and sells that milk to hospital nurseries for as high as $180 or more per ounce.
This virtual exclusion of supplying bodies from the chain of compensation extends beyond medical treatment into the realm of medical research. In January 2015, 23andMe, a provider of direct-to-consumer genetic analysis, announced high-profile data-sharing arrangements through which multiple pharmaceutical companies will gain access to the full genetic profiles of thousands — and in some instances, hundreds of thousands — of 23andMe’s customers. While the financial details of a deal 23andMe struck with Pfizer are unknown, another pharmaceutical company, Genentech, agreed to pay 23andMe ten million dollars upfront, with additional payments of up to fifty million dollars should the research prove good for business. The ultimate providers of all that genetic information, however, will not be paid for the use of their genetic information.
Moreover, while 23andMe customers are permitted to broadly consent to or refuse participation in all “23andMe Research,” they have no ability to consent to some, but not all, research studies that might use their genetic information. Indeed, as 23andMe enthusiastically notes, “[o]n average, a customer who consents to research contributes to over 230 studies.” Still, these body-bank suppliers exercise more control over their genetic information than many. Often, in research settings, the sources of body products may not even have the opportunity to refuse participation, as their consent will never be sought.
The cases of bodies and organs, breast milk, and genetic information are in many ways importantly distinct. They arise under significantly different legal regimes and social conventions. They differently preclude or allow the body-product supplier to consent to the subsequent sale of their body parts to others.
And yet treatment of each body product echoes a common theme and difficulty. In each of these instances, bodies and body parts either legally or effectively have been reduced to the status of nonproperty in the hands of the individuals from whom they come. Yet the same bodies and body parts are most certainly property — and valuable property at that — in the hands of all who follow, including medical and research institutions, private biobanks, and other businesses. In other words, in America, bodies and body parts are not property, except when they are.
Endless ink has been spilled debating whether those who provide body products for medical or research uses should be entitled to compensation, in a free market or otherwise. In many instances, prohibitions have been deemed necessary to protect both suppliers and recipients: Suppliers, because they may be of limited economic means and may therefore be exploited to participate in efforts not otherwise consistent with their wellbeing or desires. Recipients, because payment may “crowd out” otherwise altruistic donors and leave only poor suppliers who are more likely to have and to hide a negative medical history. Indeed, in the ordinary telling, the history of America’s prohibition on property in the body (at least for the sources of those bodies and their parts) can be traced back to a single book, Professor Richard Titmuss’s The Gift Relationship, which argued that paying blood donors led to poorer quality blood.
But in her recent book, Banking on the Body, Professor Kara Swanson reveals a more complicated story, one in which the body bank arose as “more than a mere metaphor” (p. 238). Swanson surveys the history of the body bank, which began with blood but went on to shape American law and nonlegal norms governing many forms of body-product exchange. In exploring this history, Swanson invites readers to consider “how to move beyond the body bank and the legal straitjacket that is its legacy to focus on the ends of body product exchange rather than the means” (p. 243).
Part I of this Review assesses the major contributions of Swanson’s book, namely Swanson’s account of the concept of the body “bank” from its origins in 1937 to the present day. In the course of this history, Swanson makes two more profound points. First, her historical account reveals that, for many years, paid blood sellers were not persons to fear or the desperate poor we worry about today. Second, Swanson demonstrates that compensated “donors” offered benefits to medical professionals — and body-product recipients — not available with altruistic donors. In light of this history, Swanson closes with a call to reconsider the prohibition on payments for body products, concluding that historical experience establishes that “[b]ody products are property” (p. 243).
Swanson briefly recognizes that the history of the biobank impacts the way in which interests in body parts are constructed, not only for purposes of medical treatment, but also for research (pp. 244–45). Swanson invokes the case of John Moore, in which the Supreme Court of California famously refused even to recognize a patient’s property interest in the cells taken from his body and subsequently used in research without the patient’s knowledge (pp. 244–45). But Swanson says little more on the subject. This Review picks up where Swanson leaves off. Part II establishes that the use of body products in research is relevant to Swanson’s tale, for the use of body products in research and in clinical care are inextricably linked and discussions in both contexts about payment for body products are often animated by similar concerns.
Finally, Part III moves beyond Swanson’s historical account of the clinical body bank, demonstrating that the research realm offers both productive solutions and degrading depersonalization not yet seen in the medical market in body products. The research realm may provide guidance for “how to appropriately regulate body products as a type of property currently exchanged in many ways for many purposes” (p. 243). A shift toward greater parity between body-product producers and others in the supply chain need not entail a market-free zone or a free market. Rather, policies and lived experiences in research body banking offer property or quasi-property regimes that embrace the civic property approach for which Swanson advocates. Already there are the seeds of such developments in some clinical settings as well. In addition to guidance, however, the research realm sounds a note of caution. Its practices hint at further alienation of body products from their sources, to which the clinical body bank may yet succumb in the name of progress.
Ultimately, this Review concludes that Swanson’s book serves a critical function by providing a rich account of how the United States ended up with the body banking system it has, even if Swanson herself does not delve deeply into how that history informs and differs from that of biobanking for research. In tandem with the complementary experiences of research body banking, Swanson’s work makes plain that treating body products as nonproperty — but only for their sources — disserves both medical and research practices by inflicting injury on the ethical and effective governance of body banks. Doubtless, Swanson’s work will inspire other scholars to question whether the body banking system we have now accurately reflects our values, rather than just the circumstances of history.
* Assistant Professor, University of Baltimore School of Law; J.D., Yale Law School; A.B., Princeton University. Many thanks to Gregory Dolin, David Jaros, members of the UB/UM junior faculty workshop, and the participants of the Biobanking Eggs and Embryos for Research workshop for their helpful comments on this project. Thanks also to the editors of the Harvard Law Review for their insightful suggestions and corrections throughout the editing process. All errors are my own.