Legal Frameworks for Benefit Sharing: From Biodiversity to Human Genomics - Benefit Sharing - page 52

knowledge associated with non-human genetic resources has been passed down
from one generation to the next, implying efforts of education.
The possibility of private ownership in bodily materials has not been devel-
oped, particularly in legal frameworks and systems, where a clear dichotomy
exists between the ownership of human tissues and human tissue-related inven-
tions, which are usually at stake when it comes to sharing benefits from human
biological resources (Andanda 2008 ).
The dichotomy is based on the well-established legal principle that 'a thing
which the legal system does not recognise as susceptible to ownership (a thing
which is res extra commercium ) will not be deemed an asset in that legal system'
(Weisman 1993 ). The situation is compounded by the law's, particularly pat-
ent law's, 'traditional “proprietary” distinction between law and nature' (Pottage
1998 : 749). Consequently, the settled legal position is that the object of a patent
is to protect a technical disclosure rather than the proprietary rights of physical
objects such as human tissues, organs or parts thereof. As a consequence, the prop-
erty ownership argument has not found favour as a basis for benefit sharing with
biological resource donors and there is currently no agreement within philosophy
and law on how to move forward (Simm 2007a : 11).
In addition, Chadwick and Berg have identified two practical problems associ-
ated with sharing economic benefits with human resource donors. First, it takes a
long time for a viable product to emerge and the beneficiaries for such products
may not easily be reached at that stage. This problem, however, applies equally
to benefit sharing in the context of the CBD. Second, benefit sharing could be
seen as an attempt to buy people off, so they argue that the standard approach in
research ethics, namely to protect individuals from harm, should not be replaced
by a benefit-sharing model (Chadwick and Berg 2001 : 320). This ethical argument
against benefit sharing with the donors of biological resources is intriguing. We
have already discussed the problem of undue inducement (see Chap. 2 ) and shall
return to it in a later chapter (see Chap. 8 ) .
It is interesting to note here, however, that the recommendation that all human-
ity share in and have access to the benefits of genetic research can be used to dis-
credit the property argument as a basis for benefit sharing. The logical argument
in this regard could then be: if all humanity shares in such resources, then there is
no basis for the individual resource donors to lay claim to the benefits just because
their resources have been used. A problem arises when one discusses the potential
for exploitation, of course. In this context, one has to ask whether the act of donat-
ing samples does not entitle donors to share benefits on the basis of 'justice in
exchange', assuming benefits are derived to which they have no access.
It may be argued that the HUGO statement can be used to support benefit shar-
ing based on the notions of common property and distributive justice. 16 This
approach might work in developed countries, where most people have access to a
16 See a further explanation of the two notions in part 3.6 of this chapter, particularly where
article 12(a) of UNESCO's Universal Declaration on the Human Genome and Human Rights
(UNESCO 1997 ) is discussed.