HeLa’s Immortal Cell Lines

The development of “immortal” cell lines led to major improvements in research and experimentation; unlike most cells, these cells do not die of old age.  Immortal cell lines are significant because of their ability to grow indefinitely and to survive being divided and shared; these traits allow scientists to engage in more productive research.  Scientists created the first immortal cell line, dubbed HeLa, almost 60 years ago, in the 1950s.  Since then, scientists have used HeLa cells to develop the polio vaccine, as well as drugs that treat Parkinson’s disease and leukemia.  Scientists even sent cells from the line into space to aid in research on the effects of zero gravity on human tissue.  Overall, scientists have produced more than two thousand pounds of these cells, the sales of which have generated millions in profits.

The Personal Side to the Story

Recently, renewed interest in this cell line has focused on its origin rather than its results.  In this case, scientists named HeLa cells after the patient in whom they first found them: Henrietta Lacks.  Lacks suffered from a particularly virulent strain of cervical cancer and, after unsuccessful radium treatment, died in 1951 at Johns Hopkins Hospital, Maryland.  Without Lacks’ knowledge or consent, her doctor shared a sample of her tumors with a researcher, Dr. George Gey, intent on developing an immortal cell line.  With Lacks’ tumor cells, the researcher succeeded in making the line that led to medical advancements and high profits.

This behind-the-back cellular research and development story has recently become the subject of controversy.  “Tissue rights” scholars now question whether or not patients should retain any control over cells removed from their body.  Currently, cells be bought and sold without the patients’ permission, but tissue rights advocates suggest that these often-unwitting donors deserve a share in the profits their cells eventually reap.

Complicating the issue is the fact that some believe Henrietta Lacks’ story to primarily be a “case of a black woman whose body had been exploited by white scientists.”  The contrast between her children and grandchildren’s continued poverty and the vast profits made from commercializing the HeLa cell line heightens the feeling that the scientists responsible cheated Lacks and her family.  Also troubling is the fact that researchers continued to collect genetic material for the purposes of HeLa cell development from these family members long after Lacks died, under the guise of routine cancer screening diagnostics.

Legal Complications

Given the current state of the law, the Henrietta Lackses of the world have a hard argument to make if they believe they deserve a share of the profits.  In a similar case in the 1980s, researchers removed the spleen of John Moore as part of his leukemia treatment.  Recognizing the unique scientific and financial potential of Moore’s particular cancerous cells, his doctor promptly developed a cell line from the extracted lymphocytes, patented the line, and licensed it for hundreds of thousands of dollars.  The doctor also gathered samples of Moore’s blood and other tissue on future visits; he told Moore’s that his continued health depended upon such testing but did not reveal that he was keeping the samples to aid in his research.  The resulting cell line, Mo, now has a market value of around $3 billion.

When Moore discovered these lucrative results he sued for his share of the profits. The California Supreme Court, however, rejected his suit, holding that Moore did not have a property interest in the cell line developed by his doctor and that his rights to privacy and dignity were sufficiently protected by the doctrine of informed consent.  The court also pointed out that certain laws seem designed to prevent patients from retaining their organs after their removal.  The court did concede, however, that the doctor’s financial motives should have been disclosed to Moore.

The current regime is one where tissue or cell samples removed from a person’s body are tissues or cell samples in which that person has no property rights.  Today, patients who undergo surgery often sign forms that specify whether any removed tissue may be used for research purposes.

Looking Ahead

The nagging feeling that scientists and doctors treated Henrietta Lacks and John Moore unfairly remains.  It can be unsettling to know that doctors have hundreds of thousands of dollars worth of incentives to operate on or take samples from their patients.  Moreover, as Lacks’ family knows, once tissues have been excised from our bodies, the feeling that they are part of us can remain; the immortal HeLa cell line will always be Henrietta Lacks to her family.

This article focuses on one of, and perhaps the most important of, these issues: ownership in a virtual world.

The New Frontier

The parameters of what constitutes an MMORPG  are ill-defined, and the category itself houses a nearly innumerable listing of sub-genres distinguished only by arcane and often community-constructed differences. It is safe, however, to assume that the core elements an MMORPG revolve around player choice; MMORPGs invariably allow creation of a personalized and unique identity or avatar, in-game item collection or creation, and social interaction on a grand scale. MMORPGs of this type are popular – Activision Blizzard’s MMO, World of Warcraft, boasts millions of subscribers – and they are myriad. They have working economies and currencies complete with, through the magic of “gold farming” (paying people to earn in-game money on one’s behalf), exchange rates into Yen, Dollars, and Euros.

As the above suggests, the cornerstone of any online gaming experience is identity, here a construct roughly defined by the juxtaposition of a player’s quasi-physical avatar (referred to thus because of its bridging function between the virtual and the real, the player model a graphical representation anchoring an online identity to the game space) with their online actions, reputation, and inventory. The current regime seems generally satisfied with persistent developer control of that identity; after all, this provides a simple solution to policing and enforcing terms of use in the form of the wholly justifiable at-will banning and account termination that follows from such an ownership structure. EULAs (end user license agreements) serve as the legal backbone to this, relying upon contract law to essentially codify the status quo in a game-by-game fashion.

Scholars, however, are beginning to question the continued durability of such an arrangement. The most immediately pressing crack in the developer-control dam is perhaps also the most tangible: ownership rights with respect to items acquired. While nearly all MMORPGs offer a selection of “things to do,” including occupations, “player vs. player” (or “PvP” as it is colloquially known) sport and combat, and attending holiday events, the clearest and most developed method of character progression, and therefore the most elemental piece of the identity jigsaw, is the acquisition of items, or “loot.”

The Importance of Loot

Why is loot so important? The answer to this becomes obvious once one realizes that a newly looted shield provides more than a cosmetic improvement. Indeed, it provides more than even a boost to a player character’s statistics; it directly contributes to the uniqueness of that player’s identity. It is a status symbol, a way to differentiate, a trophy, an accomplishment. Loot is critical to the experience, critical to what constitutes “living” in the virtual landscape. While unchecked materialism is often subjected to derision in the physical world, such materialism currently serves as the very foundation of the virtual.

Loot and the law

Legally, however, this loot is essentially unprotected. A developer or administrator (a super-identity charged with keeping order in the virtual world) can strip a player’s inventory at-will, loot can be “ninja’d” (stolen off of an enemy’s corpse by a group member without going through previously agreed upon loot sharing procedures), and guild banks (shared storage spaces for online groups) can be emptied by unscrupulous guild leaders. There are literally no repercussions outside of reputational loss to any of these actions. Generally, if something you have “owned” is taken from you, however unjustly, the legal system will not provide a remedy.

This is the way things are, but is this the way things should be? Consider that it can take hours to organize and lead a dungeon adventure, and such organization often includes the formation of what are, basically, oral contracts with respect to responsibilities, loot sharing, and more. Additionally, it often takes days of in-game time for each individual member of that group to prepare. Each must progress through multiple phases of “gearing up” (acquiring preliminary items and armor), “leveling up” (improving a character’s abilities through completion of various objectives), and meta-gaming (educating oneself on game mechanics and enemy strategies). Players indirectly pay for the items they acquire using real money, via both subscription fees and the up-front purchase price of the game. Some scholars believe that these very characteristics, comparable to easy-to-understand real-world concepts like “paying for something” or “earning something,” may justify fashioning legal protections akin to those found in real-life property and contract cases.

Beyond the fundamental fairness concerns raised above, there are also questions of practicality plaguing proponents of developer-control. While EULAs can – and currently do – regulate player-to-developer interactions, there is no institutional framework in place to handle looting rights with respect to player-to-player scenarios. Without a background set of legal principles governing loot control, the resolution of loot disputes either depends upon a developer’s arbitrary, unguided, and procedurally insecure case-by-case judgment (the typical “solution” provided by EULA attempts to regulate player-to-player disputes, arbitrary because said EULA logically cannot preemptively codify answers to every possible dispute) or, as is more often the case, does not occur at all. Individual contracting with every potential player in the virtual world is, for obvious reasons, impossible.

Yet, simply extending real-world property rights into the virtual domain may not be the best solution. For example, characteristics fundamentally unique to their virtual nature, such as the collective use of a single avatar by groups or the possession of multiple avatars by an individual, may preclude the direct application of real-life rights to these online identities. Moreover, legal approaches too restrictive or too reminiscent of the real-world may undermine the escapism that most gamers find so initially captivating, and may apply pressure on potential developers to create games in other genres (or not at all). Players have made various stabs at solving these problems themselves, e.g., through creative use of reputational loss and pseudo-currencies, often nicknamed “Dragon Kill Points” or DKP, divvied out by agreement and based upon participation and good behavior. Unfortunately, these systems are limited by their inability to deal with actors unwilling to submit to continued group scrutiny. Taken to their logical conclusion, these systems can thus encourage the proliferation of insulated groups, fostering elitism and undermining the spirit of the online gaming community.

What can be done?

Virtual worlds are facing old problems but require new solutions. Thankfully, it is precisely in the uniqueness of these worlds where such solutions may be found. Indeed, the intrinsic mutual exclusivity of these realms vis-à-vis the real world and other virtual worlds lends them an experimental quality. Can these virtual worlds be used to test out new legal rules and regimes? With significantly more limited ramifications than those sure to follow from adopting broad reforms or innovations in the real world, as well as millions of players ready to serve as test subjects, the answer may be yes.

For additional reading: New York Law School: State of Play Volume 49 (a collection of scholarly articles by legal experts discussing the developing state of the virtual landscape)