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Master Dash’s ruling touched on an area of medical law long in dispute in the United States but rarely adjudicated in Canada until now. Since at least 1990, American courts have generally held, controversially, that patients give up any rights they might have to their tissue once it has been excised. (In the most famous case, the tissue of a woman named Henrietta Lacks was taken and used, without her knowledge, or the knowledge of her family, in the development of everything from the polio vaccine to gene mapping.)

In Canada, though, the issue “has never been squarely dealt with” in the courts, according to an analysis published in the Canadian Medical Association Journal in 2013. That’s one of the reasons Dash’s ruling is considered so interesting. Though it dealt with one very specific case and it came on a preliminary motion in a provincial court, it is nevertheless precedent setting. “It is Canadian case law that calls human tissue personal property,” Mr. Caulfield said. “And I think that’s significant.”

It could also have important commercial ramifications in the long term. With the rise of stem cells and genetic pharmaceuticals, personal medical data is becoming more and more of a commodity. “You have all these cell lines that are going to become increasingly valuable,” Mr. Caulfield said. “And there’s going to be increasing interest in who controls” them.

As for the Piljak case itself, though Master Dash did rule the liver was personal property, he rejected the defendants’ attempt to sample it, on largely technical grounds. Under the terms of his ruling, the defendants could re-file their motion and take another crack at the sample.

Reached Thursday, lawyers for both the Piljak estate and the defendants declined to comment.

National Post

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