‘Abandonment’ and the Acquisition of Property Rights in Separated Human Biomaterials.

This paper offers a critique of the concept of ‘abandonment’ when utilised in relation to separated human biomaterials. In the absence of the recognition of even limited property rights in the human source of such materials, the author contends that utilising abandonment is meaningless and misleading. Absurd consequences need not result from recognition of such limited property rights and indeed most cases of purported abandonment of human tissue are more akin to voluntary transfers. Describing such transfers in terms of abandonment obscures questions as to the agency and the scope of the fiduciary duties of medical professionals and researchers. Income rights in such materials are more appropriately determined in reference to normative questions concerning creator incentives, not by reference to abandonment. A framework that clearly identified when and in whom original property entitlements in the body vest, would help remove any subsequent conceptual confusion about the subsequent loss, transfer or abandonment of these entitlements