Tissue Ownership After Delivery Under Excised Tissue Doctrine

Most people assume they own their own bodies. The law says otherwise the moment tissue leaves it. Under a common-law principle called the excised tissue doctrine, a placenta, a cord blood sample, or a surgically removed organ becomes legally "no one's thing" at the instant of separation, regardless of how recently and how naturally that separation occurred. The rule, rooted in an ancient doctrine of unowned things, has quietly structured biospecimen research for decades. Understanding how it operates at delivery is the difference between directing a child's birth tissues and watching a hospital default take over.

The doctrine's prevailing authority comes from Moore v. Regents of the University of California, a 1990 California Supreme Court decision that held individuals do not have an ownership interest in their cells after they are removed from their bodies. The court reasoned that excised cells are legally and factually distinct from the person who produced them, and further distinct from any research product later derived from those cells. Moore is a California decision, not federal law. Yet because no federal court has directly contradicted it, its reasoning dominates nationally by default, and hospital policies and consent forms in every state follow it.

The court's holding rested on two explicit rationales that continue to frame every subsequent dispute. First, excised tissue stands apart from the person who generated it, a legal fiction that treats biological material as categorically different from the body it came from. Second, courts must balance patient autonomy against the value of socially useful research, and that weighing has consistently tipped toward research. The stakes are not abstract. The patented cell line developed from John Moore's spleen tissue was worth an estimated $3 billion, a figure that clarifies what the doctrine actually protects and for whom.

How Moore, Greenberg, and Washington University v. Catalona built the current framework

Three landmark cases together define who ends up holding rights in excised tissue and how consent language makes that transfer legally irreversible. Moore established the foundational rule by denying John Moore any property interest or share of profits from the cell line developed from his spleen, which was removed at UCLA and commercialized by his physicians without his knowledge. The court ruled that the patented product was an invention, not the donor's tissue, a distinction that severed any claim Moore might have had to the downstream value of his own biological material.

Greenberg v. Miami Children's Hospital Research Institute extended the doctrine in 2003. Families who voluntarily donated blood and tissue for Canavan disease research lost their property interest in the samples, but the court upheld a separate unjust enrichment claim on their behalf. The court's language was unusually direct: the property right in blood and tissue "evaporates" once voluntarily given to a third party. The annual royalties from the Canavan disease gene patent reached an estimated $375,000, none of it flowing to the families whose tissue made the discovery possible.

Washington University v. Catalona completed the framework by clarifying the role of consent documents. Where informed consent forms characterized donations as gifts to the institution, and where those forms operated together with the university's material transfer agreements and intellectual property policies, the institution became the lawful owner. Donors could not later direct transfer of their samples elsewhere. The cumulative rule that emerges from these three cases is precise: the informed consent document is the operative instrument by which ownership passes from individual to institution, and once signed, the donor relinquishes all rights including any profits generated from the tissues.

The asymmetry this framework produces is structural, not incidental. Researchers and institutions can hold property rights in excised human cells through material transfer agreements and patents, but the source individual holds none. Robin Feldman's Stanford Law Review analysis names the situation directly: just about anyone can have property rights in your cells, except you. The doctrine's reach extends even into criminal law. The maximum prison sentence for violating prohibitions on human fetal tissue transfer is not more than 10 years, evidence that the legal system takes institutional control of human tissue seriously even as it denies the source any equivalent stake.

Why birth tissues sit in an especially contested legal space

Birth tissues do not fit neatly into a framework built around surgical biopsies and research donations. The placenta and cord blood introduce complications that the original doctrine never anticipated, and that complication begins with a basic question of who the tissue belongs to. A German legal analysis cited in the research concludes that cord blood belongs to the child, not the birthing parent, but the newborn cannot participate in legal transactions, so parents must act as legal representatives to protect the child's interests. This dual-claimant problem means the entity most capable of asserting a property claim is also legally incapable of doing so.

The placenta's status is even murkier. There is no single definition of the placenta under federal law. It occupies a gray zone between the birthing parent's tissue and the newborn's organ, and no federal statute governs placenta ownership directly. Section 289g-2 of Title 42 prohibits the sale of fetal tissue for valuable consideration, but its applicability to a placenta at delivery is not settled. That ambiguity leaves the matter to what one legal analyst calls a "hidden form of placenta law," a patchwork of state statutes, hospital policies, and individual clinical decisions where outcomes can vary by delivery location and by who is on duty.

The hospital default is the practical consequence of this ambiguity. When parents take no proactive step, hospitals categorize the placenta as medical waste, a classification that allows them to transfer it to procurement organizations and medical product companies. Texas is one of a small number of states, including Hawaii, that currently has a standard form for releasing the placenta to a parent. The form specifies the placenta is for personal use only and cannot be sold, and a mother will not be allowed to take the placenta home if infectious disease tests show certain results. That a single state's standardized release form is noteworthy underscores how exceptional it is that any state has reached this point at all.

What the Lacks estate litigation reveals about the doctrine's practical limits

The multiplying settlements obtained by the Lacks estate signal that the excised tissue doctrine's grip on commercial outcomes is weaker in practice than it appears on paper. Henrietta Lacks's cells were taken without her knowledge or consent in 1951. HeLa cells became the first immortal human cell line and enabled breakthroughs from polio vaccine development to cancer and gene research. Until recently, none of the profits reached the Lacks family. That pattern now appears to be changing through a series of resolutions that do not repudiate Moore but find a way around it.

The estate reached a 2023 settlement with Thermo Fisher Scientific on confidential terms, followed by a confidential settlement with Novartis Pharmaceuticals in late February 2026 and a resolution with Viatris in March 2026. None of these settlements constitutes an admission of liability. What they signal collectively is that the litigation risk associated with biospecimen research has risen substantially, even when property-rights claims remain foreclosed. The Ultragenyx case remains active, with the estate alleging the company used HeLa cells as a "factory" for gene therapy products without consent. A federal district court in Maryland rejected a motion to dismiss in May 2024, allowing the unjust enrichment claim to proceed to trial if not settled.

The legal significance of this shift is specific. Conversion claims, which assert property rights in excised tissue, remain foreclosed under Moore. Unjust enrichment theories do not require proving ownership. They require proving that an institution profited inequitably from tissue obtained without meaningful consent. That distinction opens a path that Moore did not close. Depending on the outcome of these cases, the legal landscape for biospecimen research in the United States could change drastically, potentially requiring new consent mechanisms that prioritize autonomy and return control of biospecimens to their sources.

The reform argument: why the current framework is inequitable for birthing parents specifically

Modern biotechnology has transformed birth tissues from medical byproducts into commercially valuable raw materials, making the equity gap between institutional gain and parental rights sharper than the general doctrine ever anticipated. A 2026 Duke Law Journal note by Christina Moss argues that the human placenta has moved from medical waste to a lucrative commercial resource used in cosmetics, pharmaceuticals, and other industries. Moss proposes amending the National Organ Transplant Act to expressly exclude placentas from its scope, a reform that would align federal law with the modern bioeconomy and affirm women's rightful stake in the economic value of the materials their bodies produce.

The structural asymmetry is the core of the critique. Institutions can legally sell processing services and derived products. The birthing parent who produced the underlying material cannot claim any share of that value once the tissue is classified as waste or donation. Feldman's analysis frames the general problem: defendants see nothing abnormal in their exclusive control of a plaintiff's excised tissue, nor in patenting a living organism derived from it, while insisting the plaintiff can own nothing. For birth tissues specifically, the stakes are higher and more gendered than in the general tissue-rights debate, because the tissue in question is produced uniquely by the birthing parent's body during an event that is otherwise intensely personal.

The strongest counterargument comes from jurisdictions that prefer the language of custodianship over ownership. Some Australian and Canadian authorities argue that stewardship honors patient autonomy without commodifying the body, a framing that carries real ethical weight. Critics note, however, that this language still leaves institutions holding practical control. Custodianship without enforceable rights is indistinguishable from the status quo for the birthing parent, who gains the vocabulary of respect but loses nothing of the underlying asymmetry.

The two paths parents can take before delivery — and what each one means legally

Parents retain the ability to direct what happens to birth tissues only if they act before delivery, because the doctrine and the hospital default together foreclose most options after the fact. For cord blood, there are two distinct paths. Private cord blood banking preserves ownership of the baby's cord blood, which is stored exclusively for the family's use and cannot be accessed by the public. This is the one context in which a proactive parental decision fully preserves a property-like interest, and private banking companies make that option straightforward to arrange before the due date.

Public cord blood donation works differently. Parents who donate to a public bank do not retain ownership. The cord blood is made available to any patient in need of a transplant, and the consent document at donation is the operative legal transfer. Donation is a meaningful choice with real public benefit, but it is exactly what the doctrine treats it as: a gift that extinguishes the donor's claim. Cord tissue is a separate category from cord blood. Banking options exist, but parents should understand that consent language in banking agreements governs what the banking institution may do with the sample beyond family storage.

The placenta presents a harder problem. Outside of Texas, which has a standard release form, there is no standardized mechanism. Parents who want to take the placenta must request it in advance and navigate hospital-specific policies, and the outcome can depend on the institution and the clinician present at delivery. The window for decision is narrow in every case. Once delivery occurs and the hospital categorizes tissue as waste, or the parent signs a donation consent without reading it, the doctrine has already operated. There is no mechanism to reclaim ownership after the fact. Informed consent documents are the critical instrument in both paths, and language stating that a donation is a "gift" with all rights transferred to the institution is legally sufficient to extinguish any future claim, including profit-sharing.

What parents should ask and confirm before arriving at the delivery room

Because the law will not protect birth tissue rights by default, the only protection available to parents is preparation made before labor begins. That preparation starts with reviewing all consent documents presented during prenatal care and at hospital admission, looking specifically for language transferring ownership of biological materials, designating tissues as gifts, or authorizing research use. What a parent signs in a prenatal appointment can determine what happens in the delivery room, and the time to read those documents carefully is before labor, not during it.

Parents should ask the delivering institution directly about its placenta release policy, whether it has a standard request or release form, and what infectious disease testing results would prevent release. For cord blood, the decision to bank privately or donate publicly should be made in advance, with enrollment or donation registration completed before the due date, since banking kits must be at the delivery location. For cord tissue, parents considering banking should confirm the agreement language and understand what the institution may do with the sample beyond family storage. If the goal is placenta return for personal use, for cultural, nutritional, or other purposes, the request should be put in writing in the birth plan and confirmed with clinical staff before labor. A verbal request made during delivery may not be honored.

State law provides the outer boundary. In states with no placenta-release statute, hospital policy is the operative rule. In Texas, the standard form and its infectious disease conditions govern. The underlying legal reality does not change with preparation. The doctrine still operates. But informed consent, prior arrangements, and written requests are the only tools that direct tissues toward the family's chosen path before the default takes over. Legal clarity, not alarm, is the point. Parents who understand the doctrine are not helpless. They are operating in a system where inaction defaults to institutional control, and action before delivery is the corrective.