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Univ. of Kentucky College of Law

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Tuesday, June 17, 2014

Human Tissue is Property in Canada

The Superior Court of Justice in Ontario recently ruled that human tissue is personal property.  The court's language:

The moving defendants have provided me with an article from the Canadian Medical Association Journal dealing with rights to access excised human tissue and in so doing make conclusions about who “owns” the tissue.[7] It notes that human tissue is excised either for diagnostic purposes/medical care or for research purposes. Diagnostic tissue, such as in the case before me, is tissue obtained in a procedure for patient care and that in accordance with regulations under the Public Hospitals Act[8] must be sent to a laboratory or pathology department  for examination and diagnosis. The sampled and processed tissue is retained as archived diagnostic tissue for a minimum of 20 years in the clinical archives of the pathology department (although excised tissue not specifically sampled is typically discarded within weeks).[9]

The authors state that it “is unquestionably true that patients own their tissue before it is excised”, and while it has never been squarely dealt with by a Canadian court, they conclude that diagnostic tissue, once excised becomes a “component of the medical record” (as required by regulation under the Public Hospitals Act)[10]. As such, “both possession and ownership are transferred to the institution” and “by virtue of it being part of the medical record, diagnostic tissue is therefore owned by the institution or hospital.” At best a patient is entitled to “reasonable access.” The authors note that their conclusion has been supported by American jurisprudence. While this is not binding on me I find the reasoning compellable and I adopt its conclusions.

This is certainly a more honest approach than the California Supreme Court took in Moore v. Regents. A link to the full opinion is here.

(Thanks to Matthew Harrington at the University of Montreal for the tip)

http://lawprofessors.typepad.com/property/2014/06/human-tissue-is-property-in-canada.html

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