In disputes over the use and possession of the human body and its parts, there has been a marked reliance on property law concepts. Judges frequently resort to the language of “ownership”, “gifts”, “donations”, “trusts” and so on, in order to resolve disputes over the use of human biomaterials. When this happens, however, we observe certain recurring mistakes. Judges and academics writing in this area have sometimes misunderstood the basic rules governing the creation and operation of property rights. We do not seek to take a stance on the normative matters at stake. Our aim is to provide an accurate account of how property law could operate when applied in the context of human tissue use. We hope to redress some misconceptions, but our bigger goal is to provide a new methodology of how to work through the various questions that must be considered when determining how to regulate human tissue, by explaining how property principles would work at each stage. In this way, we seek to enable those who wish to debate whether property principles should be applied to human tissue the means to have accurate debates.

Currently influential accounts of research use of human tissue depict biomedical science as operating in opposition to the norms and values of ‘the public’. Using historical analysis and empirical data from a qualitative study of 79 family members of a child with cancer, this article challenges such accounts of ‘the public’. Families of a child with cancer generally reported that they considered themselves to be members of a community united by a sense of common purpose, in which values and interests are shared and members of the community are to be trusted. The value of tissue for patients and families lay not so much in the way it embodied some essence of the self, as in the way it embedded them within the childhood cancer community. Historical analysis demonstrates that science and its broader ‘public’ are interdependent, mutually constitutive components of a culture, interacting and exchanging rhetoric and imagery relating to research and research materials, as well as the material itself. Rather than separate social worlds of ‘bioscience’ and ‘the public’, our evidence suggests that the childhood cancer community, in respect of the area of tissue banking for research, is much better conceived of as a hybrid. Understanding ‘the public’ and ‘science’ as a multiplicities helps clarify the existence of often competing views of tissue use.