The Immortal Life of Henrietta Lacks (46 page)

Ellen Wright Clayton, a physician and lawyer who is director of the Center for Biomedical Ethics and Society at Vanderbilt University, says there needs to be a “very public conversation” about all of this. She says, “If someone presented a bill in Congress that said, ‘As of today, when you go to the doctor for health care, your medical records and tissue samples can be used for research and nobody has to ask you’—if the issue were stated that bluntly so people could really understand what’s happening and say they’re okay with it, that would make me more comfortable with what we’re currently doing. Because what’s happening now is not what people think is going on.”

Lori Andrews, director of the Institute for Science, Law and Technology at the Illinois Institute of Technology, wants something more drastic: she has called for people to get policymakers’ attention by becoming “conscientious objectors in the DNA draft” and refusing to give tissue samples.

David Korn, vice provost for research at Harvard University, argues that giving patients control over their tissues is shortsighted. “Sure,” he says, “consent feels nice. Letting people decide what’s going to happen with their tissue seems like the right thing to do. But consent diminishes the value of tissue.” To illustrate this, Korn points to the Spanish flu pandemic. In the 1990s, scientists used stored tissue samples from a soldier who died in 1918 to re-create the virus’s genome and study why it was so deadly, with hopes of uncovering information about the current avian flu. In 1918, asking that soldier’s permission to take tissues for this kind of future research would have been impossible, Korn says. “It was an inconceivable question—no one even knew what DNA was!”

For Korn, the consent issue is overshadowed by a public responsibility to science: “I think people are morally obligated to allow their bits and pieces to be used to advance knowledge to help others. Since everybody benefits, everybody can accept the small risks of having their tissue scraps used in research.” The only exception he would make is for people whose religious beliefs prohibit tissue donation. “If somebody says being buried without all their pieces will condemn them to wandering forever because they can’t get salvation, that’s legitimate, and people should respect it,” Korn says. But he acknowledges that people can’t raise those objections if they don’t understand their tissues are being used in the first place.

“Science is not the highest value in society,” Andrews says, pointing instead to things like autonomy and personal freedom. “Think about it,” she says. “I decide who gets my money after I die. It wouldn’t harm
me
if I died and you gave all my money to someone else. But there’s something psychologically beneficial to me as a living person to know I can give my money to whoever I want. No one can say, ‘She shouldn’t be allowed to do
that
with her money because
that
might not be most beneficial to society’ But replace the word
money
in that sentence with
tissue
, and you’ve got precisely the logic many people use to argue against giving donors any control over their tissues.”

Wayne Grody, director of the Diagnostic Molecular Pathology Laboratory at the University of California, Los Angeles, was once a fierce opponent of consent for tissue research. But after years of debating people like Andrews and Clayton, he’s become more moderate. “I’m pretty convinced that we should go the extra mile to have a good and complex consent process,” he told me. Still, he can’t imagine how it would work. “These tissues enter a pipeline of millions of other samples,” he said. “How are you going to distinguish, well, this patient said we can study colon cancer; the next one said we can do anything we want, but we can’t commercialize it. I mean, do they all have to be color-coded?” Regardless, Grody stresses that questions of consent should apply only to the collection of future samples, not the millions already stored, including HeLa. “What are we going to do,” he says, “throw them all out?”

If the issue of consent isn’t addressed, Robert Weir, founder of the biomedical ethics center at the University of Iowa, sees only one outcome: “Patients turn to law as a last resort when they don’t see their participation being acknowledged.” Weir favors fewer lawsuits and more disclosure. “Let’s get these things on the table and come up with legal guidelines we can all live with,” he says. “Because going to court is the only other option.” And court is where these cases often end up, particularly when they involve money.

     
W
hen it comes to money, the question isn’t
whether
human tissues and tissue research will be commercialized. They are and will continue to be; without commercialization, companies wouldn’t make the drugs and diagnostic tests so many of us depend on. The question is how to deal with this commercialization—whether scientists should be required to tell people their tissues may be used for profit, and where the people who donate those raw materials fit into that marketplace.

It’s illegal to sell human organs and tissues for transplants or medical treatments, but it’s perfectly legal to give them away while charging fees for collecting and processing them. Industry-specific figures don’t exist, but estimates say one human body can bring in anywhere from $10,000 to nearly $150,000. But it’s extremely rare for individual cells from one person to be worth millions like John Moore’s. In fact, just as one mouse or one fruit fly isn’t terribly useful for research, most individual cell lines and tissue samples aren’t worth anything on their own. Their value for science comes from being part of a larger collection.

Today, tissue-supply companies range from small private businesses to huge corporations, like Ardais, which pays the Beth Israel Deaconess Medical Center, Duke University Medical Center, and many others an undisclosed amount of money for exclusive access to tissues collected from their patients.

“You can’t ignore this issue of who gets the money and what the money is used for,” says Clayton. “I’m not sure what to do about it, but I’m pretty sure it’s weird to say everybody gets money except the people providing the raw material.”

Various policy analysts, scientists, philosophers, and ethicists have suggested ways to compensate tissue donors: creating a Social Securitylike system in which each donation entitles a person to increasing levels of compensation; giving donors tax write-offs; developing a royalty system like the one used for compensating musicians when their songs are played on the radio; requiring that a percentage of profits from tissue research go to scientific or medical charities, or that all of it be funneled back into research.

Experts on both sides of the debate worry that compensating patients would lead to profit-seekers inhibiting science by insisting on unrealistic financial agreements or demanding money for tissues used in noncommercial or nonprofit research. But in the majority of cases, tissue donors haven’t gone after profits at all. They, like most tissue-rights activists, are less concerned about personal profits than about making sure the knowledge scientists gain by studying tissues is available to the public, and to other researchers. In fact, several patient groups have created their own tissue banks so they can control the use of their tissues and the patenting of discoveries related to them, and one woman became a patent holder on the disease gene discovered in her children’s tissues, which lets her determine what research is done on it and how it’s licensed.

Gene patents are the point of greatest concern in the debate over ownership of human biological materials, and how that ownership might interfere with science. As of 2005—the most recent year figures were available—the U.S. government had issued patents relating to the use of about 20 percent of known human genes, including genes for Alzheimer’s, asthma, colon cancer, and, most famously, breast cancer. This means pharmaceutical companies, scientists, and universities control what research can be done on those genes, and how much resulting therapies and diagnostic tests will cost. And some enforce their patents aggressively: Myriad Genetics, which holds the patents on the BRCA1 and BRCA2 genes responsible for most cases of hereditary breast and ovarian cancer, charges $3,000 to test for the genes. Myriad has been accused of creating a monopoly, since no one else can offer the test, and researchers can’t develop cheaper tests or new therapies without getting permission from Myriad and paying steep licensing fees. Scientists who’ve gone ahead with research involving the breast-cancer genes without Myriad’s permission have found themselves on the receiving end of cease-and-desist letters and threats of litigation.

In May 2009 the American Civil Liberties Union, several breast-cancer survivors, and professional groups representing more than 150,000 scientists sued Myriad Genetics over its breast-cancer gene patents. Among other things, scientists involved in the case claim that the practice of gene patenting has inhibited their research, and they aim to stop it. The presence of so many scientists in the suit, many of them from top institutions, challenges the standard argument that ruling against biological patents would interfere with scientific progress.

Lori Andrews, who has worked pro bono on all of the most important biological ownership cases to date, including the current breast cancer gene suit, says that many scientists have interfered with science in precisely the way courts always worried tissue donors might do. “It’s ironic,” she told me. “The Moore court’s concern was, if you give a person property rights in their tissues, it would slow down research because people might withhold access for money. But the Moore decision backfired—it just handed that commercial value to researchers.” According to Andrews and a dissenting California Supreme Court judge, the ruling didn’t prevent commercialization; it just took patients out of the equation and emboldened scientists to commodify tissues in increasing numbers. Andrews and many others have argued that this makes scientists less likely to share samples and results, which slows research; they also worry that it interferes with health-care delivery.

There is some evidence to support their claim. One survey found that 53 percent of laboratories had stopped offering or developing at least one genetic test because of patent enforcement, and 67 percent felt patents interfered with medical research. Because of patent licensing fees, it costs $25,000 for an academic institution to license the gene for researching a common blood disorder, hereditary haemochromatosis, and up to $250,000 to license the same gene for commercial testing. At that rate, it would cost anywhere from $46.4 million (for academic institutions) to $464 million (for commercial labs) to test one person for all known genetic diseases.

The debate over the commercialization of human biological materials always comes back to one fundamental point: like it or not, we live in a market-driven society, and science is part of that market. Baruch Blumberg, the Nobel Prize-winning researcher who used Ted Slavin’s antibodies for hepatitis B research, told me, “Whether you think the commercialization of medical research is good or bad depends on how into capitalism you are.” On the whole, Blumberg said, commercialization is good; how else would we get the drugs and diagnostic tests we need? Still, he sees a downside. “I think it’s fair to say it’s interfered with science,” he said. “It’s changed the spirit.” Now there are patents and proprietary information where there once was free information flow. “Researchers have become entrepreneurs. That’s boomed our economy and created incentives to do research. But it’s also brought problems, like secrecy and arguments over who owns what.”

Slavin and Blumberg never used consent forms or ownership-transfer agreements; Slavin just held up his arm and gave samples. “We lived in a different ethical and commercial age,” Blumberg said. He imagines patients might be less likely to donate now: “They probably want to maximize their commercial possibilities just like everyone else.”

All the important science Blumberg has done over the years depended on free and unlimited access to tissues. But Blumberg says he doesn’t think keeping patients in the dark is the way to get that access: “For somebody like Ted who really needed that money to survive, it would have been wrong to say scientists could commercialize those antibodies, but he couldn’t. You know, if someone was going to make money off his antibodies, why shouldn’t he have a say in that?”

Many scientists I’ve talked to about this issue agree. “This is a capitalist society,” says Wayne Grody “People like Ted Slavin took advantage of that. You know, the way I see it is, if you think of doing that on the front end, more power to you.”

The thing is, people can’t “think of doing that on the front end” unless they know their tissues might be valuable to researchers in the first place. The difference between Ted Slavin, John Moore, and Henrietta Lacks was that someone told Slavin his tissues were special and that scientists would want to use them in research, so he was able to control his tissues by establishing his terms
before
anything left his body. In other words, he was informed, and he gave consent. In the end, the question is how much science should be obligated (ethically and legally) to put people in the position to do the same as Slavin. Which brings us back to the complicated issue of consent.

Just as there is no law requiring informed consent for storing tissues for research, there is no clear requirement for telling donors when their tissues might result in profits. In 2006 an NIH researcher gave thousands of tissue samples to the pharmaceutical company Pfizer in exchange for about half a million dollars. He was charged with violating a federal conflict of interest law, not because he failed to disclose his financial interest or the value of those tissues to the donors, but because federal researchers aren’t allowed to take money from pharmaceutical companies. His case resulted in a congressional investigation and later a hearing; the possible interests of the patients, and their lack of knowledge of the value of their samples, wasn’t mentioned at any point in the process.

Though the judge in the John Moore case said patients must be told if their tissues have commercial potential, there was no law enacted to enforce that ruling, so it remains only case law. Today the decision to disclose this information is up to the institution, and many choose not to tell patients. Some consent forms don’t mention money at all; others come right out and say, “We may give or sell the specimen and certain medical information about you.” Others simply say, “You will receive no reimbursement for donating tissue.” Still others embrace confusion: “Your sample will be owned by [the university]. … It is unknown whether you will be able to gain (participate in) any financial compensation (payment) from any benefits gained from this research.”