Biotechnology and the challenge of property: Rethinking property rights in dead bodies, body parts, and traditional knowledge

Biotechnological advances have in turn posed many challenges to the law of property, whose concepts were largely formulated in the period pre-dating most modern biotechnological applications. Thus, questions arise as to the relevance and implication of property concepts for new forms of technology and innovations utilizing the human body parts, biologic raw materials and products. Certain cultures and legal systems may be offended by the application of property concepts to the human body and parts. Religious, spiritual, economic, and technological considerations largely influence discussions and debate on the application of property law to the human body. But in addition to advances in technology, older technology or traditional knowledge also poses challenges to the law of property. In other words, modernity as well as antiquity challenges property. Traditional knowledge, including folklore, folk agriculture, and folk medicine, were generally regarded or presumed as being outside the contemplation of conventional property and intellectual property law. Modern biotechnology has made possible the scientific and industrial use of new or uncommon raw materials in the production of goods and services that have implications for human health, well-being, and the creation of wealth. For instance, the human body and its parts are used by biotech companies in the production of biomedical goods and services, and in academic and commercial research. Parts of the human body are used in transplant operations, fertility treatments, and medical education. Biotechnology has also converted some medicinal plants, mainly from developing countries, and associated traditional knowledge into useful pharmaceutical compounds and products. Paying serious attention to some of the above issues may warrant a special response of property law to meet the valid demands of important segments of our global community, whether they are biotech companies, scientific researchers, public and private institutions, or indigenous peoples and developing countries. But property would more readily respond to the challenges posed by advances in technology, economic and cultural dynamics of any society, and issues raised by the protection of TK, if it is evolutionary, flexible, and capable of continuous adaptation to changing needs and circumstances. Thus, this dissertation attempts to show that in contemporary legal scholarship, 'property' is increasingly used as a flexible and evolutionary legal concept in contradistinction to its classical tangible conception and these features have made it possible to deploy property to some areas that were not within its original contemplation, such as human body, body parts and TK. The flexibility and evolutionary characteristic of property has contributed to useful analytical legal discourses. In this dissertation, I examine some of the challenges posed to the law of property both by advances in modern biotechnology utilizing the human body and parts of it and by the issues raised in the protection of traditional knowledge. Specifically, I analyze the extent to which the flexibility and evolutionary nature of property is capable of accommodating certain innovations and knowledge, for instance, biotechnological products and raw materials: human body parts and traditional knowledge. I recommend the adoption of a limited property framework with respect to the human body and its parts, and sui generis regime for traditional knowledge.