Titularidad y disposición de los materiales biológicos procedentes del cuerpo humanoestudio comparado entre España, Estados Unidos y Puerto Rico

Abstract

Scientific and technological advances have enabled structures, tissues and fluids removed from the human body to become subject of scientific research lending to the development of products for the treatment of human illnesses. Historically, there has been a ban to profitable transactions involving materials sourced from the human body. As a central point, this paper proposes that the attributes of biological materials, physically detached from the human body, conform goods whose natural entitlement belongs to the person from whom they are sourced. It maintains that the flexibility inherent of the property law framework allows for the classification of human biological materials as a special category of goods. The underlying premise of this argument resides in that because it is closely tied to the individual’s autonomy, the person has the authority to freely dispose self-body elements; provided there is no harm to others, self-inflicted impairment or diminishment to the functionality of the human body. Today’s globalized world allows a fluid exchange of knowledge and technology; developments in one country affect others. For its wider significance, this issue involves the pressing task of performing a comparative review of models followed by multiple jurisdictions with special attention to Spain, the United States and Puerto Rico. Against this context, we examine the evolution of the human rights, resulting, among others, from the scientific advances that serve as foundation to new scheme of individual’s participation on the benefits obtained from bodily materials. We conduct an extensive review of constitutional bodies, regulations, and intercontinental case law, in addition to institutions that steer the reshaping of property rights to adjust to a new social context...