The law of gifts, conditional donation and biobanking

Abstract

Tissue banks are critical to research efforts into the causes and treatment of many diseases. Biobanks are created from donated tissue but property concepts have not played a major role in understanding methods of the collection and use of tissue. Little work has been done to study the proprietary dimensions of these gifts primarily because of the influence of the res nullius rule. Instead, the primary focus of studies has been the concept of informed consent, but this has proven to be problematic. This article examines how the law of gifts can help to resolve these difficulties. It argues that the concept of conditional donation is a more useful way to understand and explain how tissue can be donated to biobanks. The article also suggests ways that conditional donation could be regulated so as to balance the needs of researchers and the concerns of donors.