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207
R. DR. A. YEHUDA WARBURG
The Ownership and Market of Human Tissue
The sale of human tissue
1
shares many characteris-tics with standard market exchanges, and the participantsin such transactions have interests that
t into the rubric of  property rights. The purpose of this essay is to analyze how property interests in human tissue are treated in Americanlaw and contemporary 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.R. Dr. A. Yehuda Warburg serves as a dayan in the Hassidic, Modern Or-thodox and Yeshiva communities o New York and New Jersey. He receivedhis rabbinic ordination rom the Rabbi Isaac Elchanan Teological Semi-nary and earned his doctorate at the Hebrew University Faculty o Law,
 
Verapo Yerape 
208
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
 
209
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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