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RABBI DR. A. YEHUDA WARBURG
 The Ownership and Marketof Human Tissue
Te sale o human tissue
1
shares many characteristics with standard market exchanges, and the participants in suchtransactions have interests that ft into the rubric o property rights. Te purpose o this essay is to analyze how property interests in human tissue are treated in American law and con-temporary Halakhah.
American Law
Human Tissue: Property Interest or Privacy Interest?
Recent decades have seen the emergence o a medicalprocess known as in vitro ertilization (IVF), a orm o repro-ductive technology that enhances an inertile couple’s abil-ity to procreate. In IVF, eggs are surgically retrieved rom a  womans ovaries and ertilized in a laboratory with the spermo her husband or a donor. Subsequently, this preembryo, orextra-corporeal embryo, is implanted into the uterine wall tobring about pregnancy. Te implantation o too many preem-bryos may create multiple births, and couples thereore otenconsider cryopreservation, a procedure that reezes the unused
1 As used here, the term “human tissue” includes any organs, tissues, uids,cells, or genetic material within the human body, except or waste productssuch as urine and eces.Rabbi Dr. A. Yehuda Warburg serves as a dayan in the Hassidic, ModernOrthodox and Yeshiva communities o New York and New Jersey. He re-ceived his rabbinic ordination rom the Rabbi Isaac Elchanan TeologicalSeminary and earned his doctorate at the Hebrew University Faculty o Law.
 
Verapo Yerape 
200
preembryos or uture use.IVF and cryopreservation pose questions with respectto ownership and disposition o these preembryos. Is a rozenpreembryo to be viewed as property? Can preembryos be legal-ly discarded? I they are discarded and a couple advances a sub-sequent claim or the rozen preembryos, do the parents have a cause o action against the clinic that physically destroyed thepreembryos?Te case o 
Del Zio v. Presbyterian Medical Center 
2
re-sulted rom the frst known attempt to perorm IVF. o bypassMrs. Del Zio’s damaged allopian tubes, the Del Zios agreedto participate in an experimental procedure in which the hus-band’s sperm and the wie’s egg were mixed. A physician atthe medical center, upon becoming aware o the existence o the created preembryos, ordered them destroyed without con-sulting the Del Zios or their physician. Te Del Zios sued orconversion
3
and emotional distress due to the loss o this re-productive material. Te court’s instructions to the jury werethat a determination or either the emotional distress claim orthe conversion claim was su cient to award damages. Conse-quently, although the jury awarded damages based upon theiniction o emotional distress, the judge surmised that the jury may actually have concluded that damages or the con-version claim were included in the damages awarded or emo-tional stress. It is thus unsurprising that some legal commenta-tors viewed this decision as recognition o rozen preembryosas property.
4
 
2
Del Zio v. Presbyterian Medical Center 
, 74 Civ. 3588 (S.D. N.Y. Nov. 14,1978).3 Conversion is defned as “[a]n unauthorized assumption and exercise o the right o ownership over goods or personal chattels belonging to another,to the alteration o their condition or the exclusion o the owner’s rights;”
Black’s Law Dictionary 
300 (5
th
ed., 1979).4 Kathryn Lorin, “Alternative Means o Reproduction: Virgin erritory orLegislation,44
La. L.
 
Rev 
. (1984), 1641, 1670; Michelle F. Sublett, “Fro-zen Preembryos: What are Tey and How Should the Law reat Tem?,” 38
Cleveland St. L. Rev 
. (1990), 585, 598-9; John Robertson, “Reproductive
 
201
Te Ownership and Market o Human issue 
A second case involving the ownership o a cryopre-served egg is
York v. Jones 
.
5
Te couple in this case underwentthree IVF procedures at a clinic in Virginia. Ater the thirdailure, one o the preembryos was rozen or uture use. Subse-quently, the couple decided to undergo treatment at a dierentclinic in Caliornia. Despite repeated requests rom the Yorks,the Virginia clinic reused to transer the preembryo, and thecouple thereore sued in court. Although the parties had signeda cryopreservation agreement that precluded the clinic romretaining the preembryos, the clinic argued that the agreementdid not allow transer o the preembryo to another clinic. Tecourt disagreed and noted that the pre-reeze agreement had es-tablished a bailor-bailee relationship, which imposed upon thebailee an obligation to return the bailment – that is, the preem-bryo – should the Yorks desire to use the preembryo to initiatepregnancy at another acility. By construing the agreement as a bailment contract, the court, ollowing in the ootsteps o 
Del  Zio
, clearly recognized the Yorks’ property interest in the rozenpreembryo.
6
 In short,
Del Zio v. Presbyterian Medical Center 
and
York v. Jones 
construe preembryos as property; however, theholdings ail to elucidate what this classifcation means
.
It cer-tainly seems overly simplistic to equate body parts with tan-gible property or physical possessions.
7
 
echnology and Reproductive Rights: In the Beginning: Te Legal Status o Early Preembryos,” 76
Va. L. Rev 
. (1990), 437, 459, 515-17; Judith Fischer,“Misappropriation o Human Eggs and Preembryos and the ort o Con-version: A Relational View,” 32
Loyola o  
 
Los Angeles 
 
Review 
(1999), 381,394. C. Deborah Walther, “‘Ownership’ o the Fertilized Ovum in Vitro,”26
Fam. L. Q 
. (1992-1993), 235, 240.5
York v. Jones 
, 717 F. Supp. 421 (E.D. Va. 1989).6 Ibid., 424, 427. In the event o divorce, the agreement provided that theownership o the preembryos would be determined in a “property settle-ment.”7 Tere are certain similarities, such as thet and larceny laws, which areapplicable to their misappropriation. See ibid., 489; John Robertson, “As-sisted Reproductive echnology and the Family,” 47
Hastings 
 
L. J.
(1996),911, 919.

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