Tissue Retention - Legal Aspects

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From:Medilex123@aol.com (by way of histonet)
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In a message dated 12/23/99 13:22:37 GMT Standard Time,
mikek@mail.saimr.wits.ac.za writes:

> It all boils down to the question of "who's tissue/organ is it anyway" once
> it has been removed from the body. Does it in theory, still belongs to the
> patient (can a blood donor ask for his 'pint" back?) or is it the property
>  of the Histopathology Lab to do with as they see fit?

With regard to ownership of tissues, the UK the legal position is becoming
settled. Lawfully obtained tissue belongs to the laboratory in those cases
where the lab has applied skill or effort in such a manner that the tissue is
changed, (eg musuem preparations), and this  probably applies to blocks and
slides too (R v Kelly 1997). It also applies to blood as this has been
processed in some way, so a donor is unlikely to be able to sue for
conversion or theft against the organisation which (lawfully) took their
blood, but, if someone takes the blood from the organisation without
permission then that person is guilty of theft because the organisation owns
the blood.
Tissues removed post mortem and held in formalin belong to no-one (ie are not
capable of being owned) (Dawson 1996). However, there is an old Australian
Supreme Court case which suggests that tissues (in the actual case, a fetus)
should be returned to any person who has a greater right of possession than
the current possessor (Doodeward v Spence). Therefore,  if a patient wants
the return of his/her amputated foot it is probably legally wise to allow
possession to return to the patient.
UK decisions are not binding in other jurisdictions but common law states may
find them persuasive.
The problem in the UK has been one of "informed consent" and ethics, rather
than ownership. We know what we mean by "tissues". It is a general catch-all
term. I rather think that the lay public have been shocked to find that the
word can mean an entire organ rather than just a biopsy sized piece.

Glyn Woodward (LLB, FIBMS)

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