Public Umbilical Cord Blood Banking and Charitable Trusts

Abstract

Umbilical cord blood (UCB) is the blood from foetal and maternal circulation in the placenta and umbilical cord. This blood is rich in haematopoietic stem cells. These cells have the capacity for self-renewal, proliferation and differentiation—developing into all of the mature blood cells and maintaining bone marrow function throughout life. Since the late 1980s, haematopoietic stem cells collected from UCB have been successfully used in haematopoietic stem cell transplantation (HSCT) to treat leukaemia or bone marrow failure syndromes, as an alternative source of stem cells to those obtained from bone marrow or peripheral blood1. As a result, many societies have heavily invested in public banking of cord blood units to provide them as a resource for treatment and research. The chapter examines the nature of public cord blood banking (with a particular focus on the Australian experience) and the notions of ‘stewardship’ and ‘custodianship’ that have been a feature of other accounts of biobanking. Since 2009 a number of common law decisions have recognised the possibility that the res nullius rule (which prevents unprocessed human tissue from being considered an object of property) may be relaxed. Some scholars have begun to examine how notions of stewardship and custodianship might work within a property law framework. Following the work of Winickoff and Winickoff, this chapter will argue that donations of UCB (and tissue more generally) are best regarded as charitable gifts and that public UCB banks might be re-imagined as charitable trusts. The chapter begins by reviewing the history of UCB banking (with a focus on the Australian experience) and the concepts of tissue stewardship and custodianship that are a feature of public biobanking. The chapter then reviews the law of charity and sets out its basic elements. The final part of the chapter applies charity law to public UCB banks, arguing that charity law provides a legal framework for understanding the nature of the steward/custodian relationship in the context of UCB donation.