A horrific tale most appropriate for Hallow’s Eve – on February 23, 2006 in Brooklyn State Supreme Court, four men were arraigned on a series of charges reading like Robert Louis Stevenson’s saga The Body Snatchers. Prosecutors claimed that the men, who worked for a company called Biomedical Tissue Services, had engaged in a modern form of body-snatching. A ghoulish ring trafficking in bones, tissue and other body parts illicitly harvested from corpses at funeral homes throughout New York City potentially raked in millions of dollars selling tendons and ligaments for surgical replacement and bone for dental implants and orthopedic reconstruction procedures, sources familiar with the investigation said.
It is illegal, under federal law, to sell any body parts for profit. To make the donation acceptable to tissue-processing companies, the scheme also allegedly involved the creation of forged relatives’ consent forms and phony records to change the medical condition and cause of death of the deceased.
According to the indictment, they had paid $1,000 per body to 30 or 40 funeral homes in the New York and Philadelphia areas. Then—without consent of the families of the deceased—they used scalpels, mallets, scissors, and saws to remove the organs, tissue, and bones, which they sold for transplant, research, and medical education.
The indictment also alleges that the men misrepresented the age, cause of death, and health status of the corpses. After mining the bodies for valuable parts, they sent them off for cremation. If a funeral was intended, they inserted PVC plumbing pipe in place of the bones and sewed the body back up.
The state charged the four men with crimes that included enterprise corruption, body-stealing, opening graves, unlawful dissection, and forgery. An exceptionally ghoulish example of unscrupulous business practices, the Biomedical Tissue Services scandal is also just one instance of legal problems related to the collection and distribution of human tissue. Unethical practices in the tissue industry have grown, just as the value of human tissue, from both living and dead donors, has increased dramatically in the biotech era. A single cadaver can be mined for medical and research uses—its skin is worth $36,522, its bones $80,000, its tendons $21,400, and so forth. The value of a particularly interesting human gene can be billions of dollars.
Whose Body Is It?
The legal system is beginning to address how human tissue is acquired, what it is used for, and how to protect people who receive it—whether as a transplant, a transfusion, a bone graft, an embryonic stem cell line, a gene therapy, or even a biotech pharmaceutical product.
Without a property interest in their tissue, people are not adequately protected. The legal issues are even more challenging when the tissue source (that is, the person) is dead. At the Saginaw Community Hospital in Michigan, Armando Herrera was an assistant to the pathologist who conducted autopsies. Herrera’s job was to open up the bodies and then, after the pathologist had finished work, sew them back up. But Herrera had another job: He owned and operated the Central Michigan Eye Bank and Tissue Center. So when the autopsies were over, and without informing anyone, he would remove the deceased’s eyes and sell them.
Relatives of Herrera’s deceased victims later sued, but the trial court dismissed their claims because a relative’s interest in a next of kin’s body was not a “property interest” under the Fourteenth Amendment’s Due Process Clause. The Sixth Circuit, however, was clearly troubled that people might not be protected if their bodies could not be considered property. If a woman’s husband died in a neighbor’s yard, one justice asked, should the neighbor simply be able to keep the body? To the appellate court, the answer was clear. Unanimously, the court ruled for the first time that next of kin have “a constitutionally protected property interest in the dead body of a relative.”
Most people whose tissue is mined for patentable genes do not even know they have been donors. When a person has a blood test or biopsy at a hospital, that tissue is often used for research or sold to biotechnology companies. Over 282 million archived and identifiable pathological specimens, from more than 170 million people, are currently stored in the United States.16 At least 20 million new specimens are added each year.
The unwitting recipient of a human tissue product also faces risks. In Germany, one of the prime users of surreptitiously collected tissue was Braun Pharmaceuticals, which made Lyodura, a product made with donated dura mater (brain tissue) and used to replace damaged tissue in patients. After 43 patients died of Creutzfeldt-Jakob Disease (CJD), a rare degenerative brain disorder, from dura transplants, Braun stopped distributing Lyodura. Similarly, in Britain, infertile women who received injections to help them ovulate were not told that the injections came from the pituitary glands of human corpses. Now, some of those women are dying of CJD.
Existing U.S. laws do not require doctors to tell patients if their treatments are made from body tissue, and these treatments are not subject to the same FDA approval standards that drugs and medical devices are. European law is far stricter. A European Commission document recommended that the use of certain tissue, such as dura mater and auditory ossicles, be “banned or at least limited” because valid tests are not available to ensure that the tissue is disease-free.
The creation of commercial products from human tissue has raised Frankensteinian questions about profit and property, consent and control, and ownership of the human body. In legal and social disputes over body parts, people are asking whether tissue and genes are intrinsic to the person and their humanness or, “the currency of the future,” as claimed by one modern Dr. Frankenstein, the director at pharmaceutical giant SmithKline Beecham.