I found this book frustrating and disappointing, much as I wanted to like it. The topic is unimpeachably important, and some good things were promised by Hoppe’s conference papers on two European Commission projects in which I also took part. Unfortunately, that promise has largely failed to materialise in this book. While I am sympathetic to Hoppe’s overall argument that we need to afford some form of property rights in tissue, once it has left the body, to those who donate the tissue as well as those who use it subsequently, I do not feel that he has made a coherent case.

Hoppe claims that he has developed a novel approach to unresolved legal issues concerning property in the body, one rooted in the law of equity in England and Wales. He argues that equity possesses the flexibility to deal with the manifest inadequacy of the traditional common-law approach to property in tissue excised from the body – essentially, that there is no such thing, and therefore no legal protection for tissue donors in such cases as Moore Footnote ¹ and Greenberg.Footnote ² I yield to none in my indignation at these injustices, but I fail to see that Hoppe’s elaboration of the concept of equity – only delivered in the final chapter, at the abbreviated length of four pages – provides more than a superficial ‘solution’.

Other scholars, including Karen Gottlieb (Reference Gottlieb and Weir1998), David Winickoff (Winickoff and Winickoff, Reference Winickoff and Winickoff2003) and Andrea Boggio (Reference Boggio2005), have already gone a very long way in developing equity-related concepts such as the charitable trust as a model for biobanks, but Hoppe does not acknowledge their specific, pragmatic and detailed contributions. Instead he contents himself with the very vague assertion that applying notions drawn from the law of equity would assure ‘fairness’ and ‘justice’ – terms which remain unexplored and undefined, although Hoppe is sometimes quick to condemn other writers for coming to premature conclusions and for failing to explain their underpinning assumptions.

The book is likewise prone to sweeping and unsupported assertions, such as Hoppe’s claim: ‘Further, it is quite clear that any market for human tissue would be a seller’s market’ (p. 30). At the very least, that blanket assertion is debatable, if not downright wrong. Although there is growing demand from buyers, the American market for human eggs to be used in IVF has recently swung towards being a buyer’s market, in the face of the recession (Darnovsky, Reference Darnovsky2008). There are now more women volunteering to ‘donate’ than there are buyers, with corresponding pressure on women to take dangerous risks of ovarian hyperstimulation and to ‘hype’ their intelligence, beauty and athletic ability on the ubiquitous agency websites (Kramer, Schneider and Schultz, Reference Kramer, Schneider and Schultz2009). On a global scale, egg sellers in Eastern Europe and other poorer countries have minimal control over the terms and conditions, let alone the profit margins, at which their eggs are sold on to wealthy Western buyers (Dickenson, Reference Dickenson2009; Waldby and Cooper, Reference Waldby and Cooper2008). This ‘purchase of fertility from poor women in the developing world’, as Cathy Waldby and Melinda Cooper call it, is too unequal in information and power to be characterised as a seller’s market.

Similarly, Hoppe states that defining when a particular tissue can rightfully be taken as ‘waste’ poses few practical or policy problems, although it may involve interesting academic questions. He says on p. 23:

Although Hoppe does not mention umbilical cord blood banking ‘services’ to parents by for-profit firms, the question of whether cord blood is waste is a highly charged practical and political issue. These cord blood ‘banks’ routinely claim that they are merely processing and storing surplus blood that would otherwise be thrown away. However, two Royal College of Obstetricians and Gynaecologists reports (2001 and 2006) and a large body of medical literature (e.g. Downey and Bewley, Reference Downey and Bewley2009; Edozien, Reference Edozien2006) take the position that the child actually needs this so-called ‘waste’ blood, with about 30 percent of total blood volume lost to the baby if the cord is clamped and ‘tapped’ for blood to be stored. Similarly, those who favour legalisation of payment for eggs in the UK sometimes argue that unneeded ova would be excreted in the menstrual cycle and so are mere ‘waste’ – although the procedure needed to obtain them in usable form involves fifty to sixty hours of a woman’s time and labour, along with well-documented risks.

In the Moore case, the California Appeal Court remarked perceptively that the ‘extraordinary lengths’ to which Dr Golde had gone in luring Moore back to give specimen after specimen demonstrated that he certainly didn’t regard Moore’s tissue as mere waste, although their reasoning was overruled by the state Supreme Court. The $3 billion cell line developed from this so-called detritus was hardly regarded as ‘junk’ by Golde and his employers. In the area of human tissue for use in the new biotechnologies, definitions of ‘waste’, like definitions of ‘justice’ and ‘fairness’, are political battlegrounds.

With an implicit but unsupported libertarian stance, Hoppe largely misses the complexities of the political and economic issues around the commodification of the human body. That slant is obvious in his assertion on p. 63 about ‘political responses’ such as the Human Tissue Act 2004: ‘It is a fact that they often represent mere lip service to the public and create new problems and hinder the work of researchers more than a retention of the status quo would have done.’ Actually no, it’s not a fact, it’s an opinion: one to which Hoppe is certainly entitled, but not the knock-down argument he wants it to be.

Exploitation is another of those politically charged issues whose complexities the book oversimplifies. Hoppe states repeatedly that the judges’ ostensible concern in Moore was to protect tissue donors from being exploited, which he views as paternalistic and hypocritical. This charge might be quite telling if that was indeed the judges’ real concern, but there is very little evidence of that attitude in the Moore judgments. Quite the reverse: Moore was depicted as the exploiter rather than the exploited, holding scientific research to ransom by greedily demanding a share of the proceeds.

Exploitation is a difficult and important issue: I would certainly have welcomed a lengthier and more subtle analysis of it, whether or not couched in the conventional libertarian framework which – contrary to Hoppe’s assertions – dominates academic discussion as well as public policy in the UK. Instead, once again this book left me feeling quite frustrated by its tendency to skate over complex arguments. That sense of frustration was heightened by Hoppe’s organisational scheme: in my view it would have been better to have introduced the precise claims of bioequity as a ‘new property class for human material’ much earlier on than at p. 155 (of 163 pages in the text itself, excluding bibliography and index), and to have avoided what often felt like scattered digressions from the central argument about ‘Equity, the common law’s virtuous twin’ (p. 141).

There is a salient inconsistency in that argument. Hoppe uses the recent Yearworth caseFootnote ³ – in which several men were able to claim property rights in their stored sperm, which had been negligently damaged by the hospital that held the samples – to assert that the common law is finally seeing the light in recognising that there can be property in tissue removed from the body. He writes on p. 115: ‘[I]t is clear from this judgment that the courts’ doors are opening for a contemporary, modern and appropriate analysis of property rights in relation to human tissues, cells and body products.’ Then the evil twin, the common law, isn’t so bad at heart after all? Whether this judgment really augurs massive change, however, remains to be seen. Once more Hoppe fails to take economic factors into account: Yearworth differs radically from the Moore, Greenberg and Catalona Footnote ⁴ cases in that no commercial interests were involved, no university research income, no pharmaceutical firms, no lucrative patents.

The book’s greatest strength is the title pun, ‘bioequity’, with its potential to mean both property stakes in human tissue and the application of the law of equity in this domain. Hoppe does not actually draw out the first part of the pun, so perhaps I am reading something in that he does not intend. I hope he does: along with ‘biocapital’ (Waldby and Mitchell, Reference Waldby and Mitchell2006) and ‘biopower’ (Agamben, Reference Agamben1998), ‘bioequity’ is a useful and memorable phrase, a well-coined term to give us purchase on the new response required from the law to the increasingly fraught relationship between human tissue, property and biotechnology.