The law governing an “individual genome” (the genetic material and information extracted from a single person) in the United States has two key shortcomings. First, it adopts an absolute conception of ownership, permitting only one entity to claim ownership over an individual genome—either the person from whom it was extracted or someone else, such as researchers and law enforcement officials. Consequently, the law fails to represent and protect the legitimate concurrent ownership interests of multiple entities stemming from, e.g., personhood, labor, and possession. Instead, it prioritizes one interest at the expense of another. Second, the law fails to accommodate the multifaceted and relational nature of an individual genome. An individual genome consists of both genetic material and genetic information; involves personal, familial, and collective aspects; and has varying degrees of excludability and subtractability. The law, however, does not consider these characteristics together.
This Article offers a new legal framework, “Genetic Property Governance,” which is a form of collective ownership over an individual genome that balances the generation of social and economic benefits with the need to prevent severe individual and social harms. This framework embraces the idea of an individual genome as a commons, incorporating a liberal account of property and reconciling conflicting interests via two principles, proportionality and reasonableness. Overall, under Genetic Property Governance, an individual genome is a shared enterprise that reflects multiple interests and characteristics to yield just and productive outcomes.
