Human Tissues in the ‘Public Space’: Beyond the Property/Privacy Dichotomy

During the past twenty years human biological materials have become increasingly important for research as well as for therapeutic uses and related commercial exploitation. The scientific and regulatory conditions for their procurement, testing, processing, preservation, storage and distribution have been reflected upon widely and developed in both the civil law and the common law domains. In the normative puzzle taking place around the biobanking of human biological materials and information, the basic legal perspectives underlying most normative analyses remain anchored to the concepts of autonomy – also conceived of as privacy -- and property. The former has been primarily developed in Europe, the latter in the U.S. Both are showing some failures, while the normative picture as a whole appears inadequate. This contribution explores the main existing legal frameworks for biological materials, both in the U.S. and EU contexts, and the potential for reconciling individual and collective dimensions in biobanking through a participatory approach.