Friday, 3 March 2017

The content of right of ownership on bodily material in Russia

Recently I made couple of posts on the controversial question whether tissues and cells are property according to current Russian law concluding with affirmative answer.  I'd like to continue developing this idea, diving into the problem of starting point of their existence as well as the content of the owner's right. 

When the new chattel starts to exist?

Before thinking about how right of ownership on biosamples is limited in favour of third parties and, in particular, the progenitor, the content of the right should be talked about as nobody have discussed it in respect of Russian legislation yet. Given that a subject matter of any property right is a material thing (which is definitely true for Russian law), until dissection of tissue (cells) from a body there is no separate object and thus no right upon it.[1] For this reason the separation of the sample from the body cannot be considered as analogy for fruits and fructiferous thing (art. 136 of the Civil Code) as a body of a living human being is certainly not a ‘thing’.
So the dissection is a moment when a new chattel is created and according to art. (1) 218 of the Code the owner of the new object is the one who creates it ‘for oneself’. When the separation is made by the progenitor, for example, at home, he or she thus becomes an owner unlike the case when a medical institution through its personnel does it. The latter either must consider biosamples as waste and destroy it or should preserve them from rotting by putting ‘work and skill’. Whatever the conservation technique would be, it is always done in the interests of the medical entity (for scientific, educational or other reasons) but not ‘for the patient’. 
Moreover, as biosamples require essential skills for their preservation, one should remember a 'processing rule', which provides that whoever the owner of the raw material was, the new thing made of it would belong to a bona fide converter given that the work and skill value overtopped that of raw material significantly (art. (1) 220 of Civil Code). In the current issue unless the tissues and cells are preserved, they must be destroyed as medical waste and thus they have ‘negative’ price. However, their preservation converts them into pieces of scientific, educational and probably commercial value falling exactly within the scope of the cited art. of the Code. As ‘raw material’ can give no financial benefit, the patient cannot claim any compensation for its use. That means that a new chattel is created by a medical institution, which makes it for itself, and thus should be considered as its primary owner.
In other words, when biosamples are collected at come they prime facie belong to a donor, while being dissected in a medical body they become the property of the institution.

The content of property rights on biomaterial

Russian law traditionally considers the ownership as a brunch of primarily three abilities namely to possess, to use and to dispose of a thing. To possess means to have economical power over something, which is usually argued to be a matter of fact and not a right enforceable against anyone else. It seems entirely clear that any owner can possess bodily material in this sense.
As we discussed above, in absence of general prohibition an owner can also dispose of the samples with some limitations provided by specific acts of legislation. It should be repeated that all these restrictions are set for ‘donor – donee’ relationship so the latter can truly free alienate the tissues and cells either for consideration or gratuitously. That leads to a conclusion that an owner can either destruct these objects as waste or create a new thing out of them, for example, an educational exhibit.
The dominant approach to ability to use as a part of the ownership right is that ‘usage’ means possibility to obtain gains out of functions of the object as they commonly understood and applied in turnover. For example, to use a car means primarily to drive it while its keeping in one’s yard is argued to be mere possession. Thinking about ‘usage’ of biosamples in that sense faces inevitably difficulties, as there are no common views on their functions.
Although over thousands of years people have being studied human body, just recently (from historical perspective) genetics have made possible to read the entire genome out of a single cell, even dead one. Big data technologies help to compare thousands of genomes to let scientists extract new information out of them as well as find totally new ways of its application in medical or pharmacy purposes. Absence of common view on how bodily material is to be used can lead one to thinking that its function depends on the contract it was transferred upon.  For example, if medical intervention was aimed remove a tumor – is should be destructed, the blood taken for biochemical analysis should not used for any other research and so on.  This view is emotionally backed with a wish to give a progenitor maximum protection, limiting usage of one’s cells as much as possible.
However this approach is arguably wrong for several reasons in Russian law.
First of all, ownership on tissues and cells is restricted without any lawful ground while international law as well as national legislation consider ownership as just the same pillar of public order as human’s freedom or body integrity. Art. 17 of the Universal Declaration of Human Rights provides that ‘Everyone has the right to own property alone as well as in association with others’ so ‘No one shall be arbitrarily deprived of his property’. Art. 1 of the first additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms entitled every natural or legal person ‘to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law’. On this basis art. 35 of Russian Constitution guaranteed property protection and stated that only federal law may restrict right of ownership in order to protect the fundamental principles of public order, morals, health, rights and lawful interests of other persons, national defence or security. So to restrict one’s right on bodily material some legal grounds should be found in order to evaluate whether they aimed to protect above-mentioned purposes. However, as I have said before, current Russian legislation contains none universal restrictions so we must not invent one.
Secondly, without any legal ground or justification the approach limits the owner’s freedom to receive and impart information (art. 19 of the Universal Declaration of Human Rights, art (1) 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms), and it should be specifically mentioned that any restrictions provided to protect confidential information are regarded as exclusions from this universal freedom (art. (2) 10 of the European Convention). To develop these basic ideas art. 29 of Russian Constitution proclaimed the freedom of ideas and speech, including the right to freely look for, receive, transmit, produce and distribute information by any legal way while art. (1) 44 of the Constitution guaranteed to everyone the freedom of scientific and technical creativity. In this context the prohibition for collection, keeping or dissemination of information without one’s consent (art. (1) 24 of the Constitution) shall be considered as the restriction of the freedom to speak and to create just the same way as it is viewed in the rest of the Globe. As any exclusions must not be construed expansively, in a case of doubt freedom to speak should prevail privacy. Applying these reasons to the problem in question we should infer the right of an owner to freely obtain genetic information out of bodily material as well as keep and distribute these information with respect to limitation set in the law of privacy. However, it is this freedom to extract information of the cells that constitutes the essence of the ability to use biosamples in the modern world so, to put it in other words, to regard the right to obtain genetic information means to regard the right to use tissues and cells universally. 
Then, not only doesn’t the criticised approach protect the progenitor from infringement of her privacy, but leads to them directly because limiting the owner’s right to use, it doesn’t limit the right to dispose. So nothing prevails the owner from transferring the sample to a third party to make a survey that was arguably banned for him or her personally. That means that formalities and restrictions could make the owner distribute biosamples to skirt the problem thus raising the risk of privacy interference.
Moreover, a donor cannot control the criticised restriction so the only way to enforce it would be to further develop bureaucracy, which shall be avoided in any case. Otherwise the limitation would become a formality too easy to skirt.
Finally, the approach would contradict the basics of the national health legislation. I mean that a medical institution rarely can state in the contract an exact purpose of research it collects biosamples for, so in vast majority of cases it would be impossible to use bodily materials. In the USA, Australia and European Union the same problem was thoroughly discussed in terms of narrow, broad or blank consent and as was shown above the current legislation in the EU, for instance, provides quite flexible solution. To restrict usage of bodily material further than it is done in developed counties means nothing else but to hinder medical research in Russia that is obviously contrary to aims of the current legislation.
In essence all these arguments result in the conclusion that owners of bodily material can use it universally, for any purposes they wish unless otherwise directly provided by law (all these restrictions will be discussed below), for example, it can be used in scientific or educational projects, as part of biobanks collections or for deriving cell lines.

[1] The controversial question whether there is a property right on one’s own body should be set aside here, for current legislation the answer is clearly negative.