# Moore v. Regents of University of California > California Supreme Court · July 9, 1990 · 51 Cal. 3d 120 URL: https://www.frixlaw.com/law-library/cases/9791319 ## Case - **Full name:** JOHN MOORE, Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA Et Al., Defendants and Repondents - **Court:** California Supreme Court - **Decided:** July 9, 1990 - **Citations:** 51 Cal. 3d 120; 271 Cal. Rptr. 146; 793 P.2d 479; 15 U.S.P.Q. 2d (BNA) 1753; 16 A.L.R. 5th 903; 1990 Cal. LEXIS 2858 - **Precedential status:** Published - **Opinion:** Concurrence by Arabian - **Judges:** Panelli, Arabian, Broussard, Mosk - **Cited by:** 379 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9791319 ## How later opinions describe it (automated extraction) - holding that in obtaining a patient’s consent to a procedure, “a physician must disclose personal interests unrelated to the patient’s health, whether research or economic, that may affect the physician’s professional judgment” - holding patient, whose treating physician utilized patient’s cells in research and development of new cell line without disclosure, was entitled to bring action for improper performance of medical procedures either without informed consent or in breach of fiduciary duty - noting, in holding that patient did not hold ownership interest in cells after they left his body, that "the novelty of Moore's claim demands express consideration of the policies to be served by extending liability rather than blind deference to a complaint alleging as a lega… - noting that "the concept of property is often said to refer to a bundle of rights that may be exercised with respect to that object--principally the rights to possess the property, to use the property, to exclude others from the property, and to dispose of the property by sale… - recognizing, however, that a hospital may be vicariously liable for a supervised physician's violation of that physician's own fiduciary duty to the patient ## Opinion text ARABIAN, J., Concurring. I join in the views cogently expounded by the majority. I write separately to give voice to a concern that I believe informs much of that opinion but finds little or no expression therein. I speak of the moral issue. Plaintiff has asked us to recognize and enforce a right to sell one’s own body tissue for profit He entreats us to regard the human vessel—the single most venerated and protected subject in any civilized society—as equal with the basest commercial commodity. He urges us to commingle the sacred with the profane. He asks much. My learned colleague, Justice Mosk, in an impressive if ultimately unpersuasive dissent, recognizes the moral dimension of the matter. “[Ojur society,” he writes, “acknowledges a profound ethical imperative to respect the human body as the physical and temporal expression of the unique human persona.” (Dis. opn. of Mosk, J.,post, p. 173.) He concludes, however, that morality militates in favor of recognizing plaintiff’s claim for conversion of his body tissue. Why? Essentially, he answers, because of these defendants’ moral shortcomings, duplicity and greed. Let them be compelled, he argues, *149 to disgorge a portion of their ill-gotten gains to the uninformed individual whose body was invaded and exploited and without whom such profits would not have been possible. I share Justice Mosk’s sense of outrage, but I cannot follow its path. His eloquent paean to the human spirit illuminates the problem, but not the solution. Does it uplift or degrade the “unique human persona” to treat human tissue as a fungible article of commerce? Would it advance or impede the human condition, spiritually or scientifically, by delivering the majestic force of the law behind plaintiff’s claim? I do not know the answers to these troubling questions, nor am I willing—like Justice Mosk—to treat them simply as issues of “tort” law, susceptible of judicial resolution. It is true, that this court has not often been deterred from deciding difficult legal issues simply because they require a choice between competing social or economic policies. (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 719-723 [ 254 Cal.Rptr. 211 , 765 P.2d 373 ] (cone, and dis. opn. of Kaufman, J.).) The difference here, however, lies in the nature of the conflicting moral, philosophical and even religious values at stake, and in the profound implications of the position urged. The ramifications of recognizing and enforcing a property interest in body tissues are not known, but are greatly feared—the effect on human dignity of a marketplace in human body parts, the impact on research and development of competitive bidding for such materials, and the exposure of researchers to potentially limitless and uncharted tort liability. (See Danforth, Cells, Sales, & Royalties: The Patient's Right to a Portion of the Profits (1988) 6 Yale L. & Pol’y Rev. 179, 195; Note, Source Compensation for Tissues and Cells Used in Biotechnical Research: Why a Source Shouldn't Share in the Profits (1989) 64 Notre Dame L. Rev. 628 , 634.) Whether, as plaintiff urges, his cells should be treated as property susceptible to conversion is not, in my view, ours to decide. The question implicates choices which not only reflect, but which ultimately define our essence. A mark of wisdom for us as expositors of the law is the recognition that we cannot cure every ill, mediate every dispute, resolve every conundrum. Sometimes, as Justice Brandéis said, “the most important thing we do, is not doing.” 1 Where then shall a complete resolution be found? Clearly the Legislature, as the majority opinion suggests, is the proper deliberative forum. Indeed, a legislative response creating a licensing scheme, which establishes a fixed rate of profit sharing between researcher and subject, has already been *150 suggested. (Danforth, supra, 6 Yale L. & Pol’y Rev. at pp. 198-201.) Such an arrangement would not only avoid the moral and philosophical objections to a free market operation in body tissue, but would also address stated concerns by eliminating the inherently coercive effect of a waiver system and by compensating donors regardless of temporal circumstances. The majority view is not unmindful of the seeming injustice in a result that denies plaintiff a claim for conversion of his body tissue, yet permits defendants to retain the fruits thereof. As we have explained, the reason for our holding is essentially twofold: First, plaintiff in this matter is not without a remedy; he remains free to pursue defendants on a breach-of-fiduciary-duty theory, as well as, perhaps, other tort claims not before us. Second, a judicial pronouncement, while supple, is not without its limitations. Courts cannot and should not seek to fashion a remedy for every “heartache and the thousand natural shocks that flesh is heir to.” 2 Sometimes, the discretion of forbearance is the better part of responsive valor. This is such an occasion. Bickel, The Least Dangerous Branch (1962) page 71. Shakespeare, Hamlet, act III, scene 1. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9791319. Public record. Not legal advice.