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Deleso A. Alford

Excerpted from: Deleso A. Alford, Hela Cells and Unjust Enrichment in the Human Body, 21 Annals of Health Law 223 (2012)(65 Footnotes)


Henrietta Lacks is buried Clover, Virginia. She achieved fame and immortality in the world of science. In 1951, Johns Hopkins Hospital harvested the tissue of Ms. Lacks, a 31-year-old African American woman diagnosed with cervical cancer to mass produce HeLa cells. The money derived from her cell line produced wonders and scientific breakthroughs in technology, biology and medicine which far exceeds that reflected in the published literature, because it is the reference cell in so many research laboratories.

Ms. Lacks - raced by social construction and gendered by biology for all mankind stood at the crossroads of public health care (circa 1951) - in an apartheid state of reality in the United States and ploughed back into medicine. The biological uniqueness of her cells allowed scientists and researchers to benefit society as a whole. In this essay, I place Ms. Lacks' parts (tissue cells) back into her body to raise a claim of unjust enrichment.

I discuss the ongoing debate as to whether the ownership of cells is a legally protected interest. I explore historical facts and apply them to eke out justice for Ms. Lacks and her descendants. I sketch the elements for unjust enrichment under Restatement (Third) of Restitution and Unjust Enrichment (2011). The new restatement offers an opportunity to re-visit the unauthorized taking of and profiting from Ms. Lacks' cell line. Even if it does not fit expressly within the definition of unjust enrichment, it fits within the purpose and goals of the concept.