"No compensation" or "pro compensation": Moore v. Regents and default rules for human tissue donations.

Abstract

The much studied case of Moore v. Regents of the University of California is often considered important in property law for denying property rights in human tissue. This widespread misunderstanding of Moore has not only misplaced the legal emphasis of human tissue donations on property law instead of contract law, but has also hindered the creation of a much-needed default rule governing the issue of compensation for donated tissue. While it is possible that the majority of donors rarely consider compensation as an incentive to donate, without a legally recognized default rule the law remains blurred as to what contractual provisions apply to the exchange between donor and researcher. This Article argues that the solution is a weak default rule of no compensation that may be overridden by evidence that the parties intended otherwise.