Ownership Rights in Research Biobanks: Do We Need a New Kind of ‘Biological Property’?

Abstract

This chapter first revisits the classical ongoing legal debate around ownership rights in human biological material, based on the two opposite perspectives – one that defends an absolute non-patrimonial view, denying the possibility of the existence of a property right in this field and the other that defends the existence of a property right over human bodily material and considers that denying participants in scientific research property right over their biological material may be a source of unfairness to them. Second, it analyses the consequences of the application of classical property rights to the biological material, such as the Portuguese Law does, advancing several arguments from in support of the conclusion that classical property rights do not adjust to the juridical characteristics of human biological material and its use in biobanks for research. The chapter ends up, in a third part, with a draft proposal of a new juridical construction for contemporary law, within property rights, that is, a new concept of ‘biological property’, which should be shaped by a balanced respect for both individual and scientific/society interests and a specific legal framework within property rights law that could reflect the norms of biolaw already applying in our societies to human biological material (e.g. principle of non-commercialisation and principle of informed consent). Because of its novelty and complexity the idea of a ‘biological property’ presented in this chapter is in need of further development. Only an international normative framework would be adequate to create and determine the juridical background of a new kind of property adjustable to human biological material and its significance in modern societies.