The Problems of Biobanking and the Law of Gifts

Abstract

The practice of biobanking is of major importance to biomedical research in modern Western economies. However, biobanking is troubled by a number of ethical and legal concerns including issues of consent, control and privacy. Recent developments in the networking of biobanks and the sharing of samples and data have exacerbated these issues. This paper outlines these problems and then examines how they can be understood through the law of gifts. Much of the debate on how tissue is donated to biobanks has occurred without reference to the law of gifts. This is most probably due to the res nullius rule, which, until recently, has prevented unprocessed human tissue from being considered an object of property. But recent changes to the common law’s approach to human tissue now invite a reconsideration of the role that gifts law can play in tissue banking (and tissue donation more generally). This paper will proceed on the assumption that tissue which has not been subject to work and skill may nevertheless be held as property and that the decision to donate to a tissue bank can be treated as an example of a legally recognised gift. The paper begins with an example of tissue banking and the legal and ethical issues which it raises. Most prominent amongst these difficulties is the focus on tissue banking on informed consent, a doctrine originally designed to deal with negligence advice and bodily interferences in medical treatment and research. While understandable, the focus on informed consent has created a number of problems particularly in areas of unspecified research, unanticipated findings and privacy. The chapter then moves to reviewing the basic law of gifts by examining the elements of gifts in both law and equity and the requirements for conveying them. The chapter also explains the law’s capacity to recognise different conditions in gifts that limit the also creates the possibility of conditional dispositions which allow for donors to maintain some rights over the tissue, with the possibility of a form of interest which would enable the donor to regain possession and control of their tissue if here was a breach. This paper argues that an application of the law of gifts is a flexible and useful way of reconceptualising the ethical and legal difficulties of biobanking.