Moore v. Regents of University of California

793 P.2d 479, 51 Cal. 3d 120, 271 Cal. Rptr. 146, 15 U.S.P.Q. 2d (BNA) 1753, 16 A.L.R. 5th 903, 1990 Cal. LEXIS 2858

• Court: California Supreme Court
• Decided: July 9, 1990
• Docket: S006987
• Status: Published

Opinions

Opinion

PANELLI, J.—

I. Introduction

We granted review in this case to determine whether plaintiff has stated a cause of action against his physician and other defendants for using his cells in potentially lucrative medical research without his permission. Plaintiff alleges that his physician failed to disclose preexisting research and economic interests in the cells before obtaining consent to the medical procedures by which they were extracted. The superior court sustained all defendants’ demurrers to the third amended complaint, and the Court of Appeal reversed. We hold that the complaint states a cause of action for breach of the physician’s disclosure obligations, but not for conversion.

II. Facts

Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action. Accordingly, we assume that the complaint’s properly pleaded material allegations are true and give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context. (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 702 [263 Cal.Rptr. 119, 780 P.2d 349]; Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58]; Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170 [164 Cal.Rptr. 839, 610 P.2d 1330, 9 A.L.R.4th 314].) We do not, however, assume the truth of contentions, deductions, or conclusions of fact or law. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713 [63 Cal.Rptr. 724, 433 P.2d 732].) For these purposes we briefly summarize the pertinent factual allegations of the 50-page complaint.

The plaintiff is John Moore (Moore), who underwent treatment for hairy-cell leukemia at the Medical Center of the University of California at Los Angeles (UCLA Medical Center). The five defendants are: (1) Dr. David W. Golde (Golde), a physician who attended Moore at UCLA Medical Center; (2) the Regents of the University of California (Regents), who own and operate the university; (3) Shirley G. Quan, a researcher employed by the Regents; (4) Genetics Institute, Inc. (Genetics Institute); and (5) Sandoz Pharmaceuticals Corporation and related entities (collectively Sandoz).

Moore first visited UCLA Medical Center on October 5, 1976, shortly after he learned that he had hairy-cell leukemia. After hospitalizing Moore and “withdrawing] extensive amounts of blood, bone marrow aspirate, and other bodily substances,” Golde¹ confirmed that diagnosis. At this time all defendants, including Golde, were aware that “certain blood products and blood components were of great value in a number of commercial and scientific efforts” and that access to a patient whose blood contained these substances would provide “competitive, commercial, and scientific advantages.”

On October 8, 1976, Golde recommended that Moore’s spleen be removed. Golde informed Moore “that he had reason to fear for his life, and that the proposed splenectomy operation . . . was necessary to slow down the progress of his disease.” Based upon Golde’s representations, Moore signed a written consent form authorizing the splenectomy.

Before the operation, Golde and Quan “formed the intent and made arrangements to obtain portions of [Moore’s] spleen following its removal” and to take them to a separate research unit. Golde gave written instructions to this effect on October 18 and 19, 1976. These research activities “were not intended to have . . . any relation to [Moore’s] medical . . . care.” However, neither Golde nor Quan informed Moore of their plans to conduct this research or requested his permission. Surgeons at UCLA Medical Center, whom the complaint does not name as defendants, removed Moore’s spleen on October 20, 1976.

Moore returned to the UCLA Medical Center several times between November 1976 and September 1983. He did so at Golde’s direction and based upon representations “that such visits were necessary and required for his health and well-being, and based upon the trust inherent in and by virtue of the physician-patient relationship . . . .” On each of these visits Golde withdrew additional samples of “blood, blood serum, skin, bone marrow aspirate, and sperm.” On each occasion Moore travelled to the UCLA Medical Center from his home in Seattle because he had been told that the procedures were to be performed only there and only under Golde’s direction.

“In fact, [however,] throughout the period of time that [Moore] was under [Golde’s] care and treatment, . . . the defendants were actively involved in a number of activities which they concealed from [Moore] . . . .” Specifically, defendants were conducting research on Moore’s cells and planned to “benefit financially and competitively ... [by exploiting the cells] and [their] exclusive access to [the cells] by virtue of [Golde’s] ongoing physician-patient relationship . . . .”

Sometime before August 1979, Golde established a cell line from Moore’s T-lymphocytes.² On January 30, 1981, the Regents applied for a patent on the cell line, listing Golde and Quan as inventors. “[B]y virtue of an established policy . . . , [the] Regents, Golde, and Quan would share in any royalties or profits . . . arising out of [the] patent.” The patent issued on March 20, 1984, naming Golde and Quan as the inventors of the cell line and the Regents as the assignee of the patent. (U.S. Patent No. 4,438,032 (Mar. 20, 1984).)

The Regent’s patent also covers various methods for using the cell line to produce lymphokines.³ Moore admits in his complaint that “the true clinical potential of each of the lymphokines . . . [is] difficult to predict, [but] . . . competing commercial firms in these relevant fields have published reports in biotechnology industry periodicals predicting a potential market of approximately $3.01 Billion Dollars by the year 1990 for a whole range of [such lymphokines] . . . .”

With the Regents’ assistance, Golde negotiated agreements for commercial development of the cell line and products to be derived from it. Under an agreement with Genetics Institute, Golde “became a paid consultant” and “acquired the rights to 75,000 shares of common stock.” Genetics Institute also agreed to pay Golde and the Regents “at least $330,000 over three years, including a pro-rata share of [Golde’s] salary and fringe benefits, in exchange for . . . exclusive access to the materials and research performed” on the cell line and products derived from it. On June 4, 1982, Sandoz “was added to the agreement,” and compensation payable to Golde and the Regents was increased by $110,000. “[Throughout this period,. . . Quan spent as much as 70 [percent] of her time working for [the] Regents on research” related to the cell line.

Based upon these allegations, Moore attempted to state 13 causes of action.⁴ Each defendant demurred to each purported cause of action. The superior court, however, expressly considered the validity of only the first cause of action, conversion.⁵ Reasoning that the remaining causes of action incorporated the earlier, defective allegations, the superior court sustained a general demurrer to the entire complaint with leave to amend. In a subsequent proceeding, the superior court sustained Genetics Institute’s and Sandoz’s demurrers without leave to amend on the grounds that Moore had not stated a cause of action for conversion and that the complaint’s allegations about the entities’ secondary liability were too conclusory. In accordance with its earlier ruling that the defective allegations about conversion rendered the entire complaint insufficient, the superior court took the remaining demurrers off its calendar.

With one justice dissenting, the Court of Appeal reversed, holding that the complaint did state a cause of action for conversion. The Court of Appeal agreed with the superior court that the allegations against Genetics Institute and Sandoz were insufficient, but directed the superior court to give Moore leave to amend. The Court of Appeal also directed the superior court to decide “the remaining causes of action, which [had] never been expressly ruled upon.”

III. Discussion

A. Breach of Fiduciary Duty and Lack of Informed Consent

Moore repeatedly alleges that Golde failed to disclose the extent of his research and economic interests in Moore’s cells⁶ before obtaining consent to the medical procedures by which the cells were extracted. These allegations, in our view, state a cause of action against Golde for invading a legally protected interest of his patient. This cause of action can properly be characterized either as the breach of a fiduciary duty to disclose facts material to the patient’s consent or, alternatively, as the performance of medical procedures without first having obtained the patient’s informed consent.

Our analysis begins with three well-established principles. First, “a person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 242 [104 Cal.Rptr. 505, 502 P.2d 1]; cf. Schloendorff v. New York Hospital (1914) 211 N.Y. 125 [105 N.E. 92, 93].) Second, “the patient’s consent to treatment, to be effective, must be an informed consent.” (Cobbs v. Grant, supra, 8 Cal.3d at p. 242.) Third, in soliciting the patient’s consent, a physician has a fiduciary duty to disclose all information material to the patient’s decision. (Id., at pp. 242, 246; see also Stafford v. Schultz (1954) 42 Cal.2d 767, 777 [270 P.2d 1]; Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 635 [178 Cal.Rptr. 167]; Berkey v. Anderson (1969) 1 Cal.App.3d 790, 805 [82 Cal.Rptr. 67]; Bowman v. McPheeters (1947) 77 Cal.App.2d 795, 800 [176 P.2d 745].)

These principles lead to the following conclusions: (1) a physician must disclose personal interests unrelated to the patient’s health, whether research or economic, that may affect the physician’s professional judgment; and (2) a physician’s failure to disclose such interests may give rise to a cause of action for performing medical procedures without informed consent or breach of fiduciary duty.

To be sure, questions about the validity of a patient’s consent to a procedure typically arise when the patient alleges that the physician failed to disclose medical risks, as in malpractice cases, and not when the patient alleges that the physician had a personal interest, as in this case. The concept of informed consent, however, is broad enough to encompass the latter. “The scope of the physician’s communication to the patient . . . must be measured by the patient’s need, and that need is whatever information is material to the decision.” (Cobbs v. Grant, supra, 8 Cal.3d at p. 245.)

Indeed, the law already recognizes that a reasonable patient would want to know whether a physician has an economic interest that might affect the physician’s professional judgment. As the Court of Appeal has said, “[c]ertainly a sick patient deserves to be free of any reasonable suspicion that his doctor’s judgment is influenced by a profit motive.” (Magan Medical Clinic v. Cal. State Bd. of Medical Examiners (1967) 249 Cal.App.2d 124, 132 [57 Cal.Rptr. 256].) The desire to protect patients from possible conflicts of interest has also motivated legislative enactments. Among these is Business and Professions Code section 654.2. Under that section, a physician may not charge a patient on behalf of, or refer a patient to, any organization in which the physician has a “significant beneficial interest, unless [the physician] first discloses in writing to the patient, that there is such an interest and advises the patient that the patient may choose any organization for the purposes of obtaining the services ordered or requested by [the physician].” (Bus. & Prof. Code, § 654.2, subd. (a). See also Bus. & Prof. Code, § 654.1 [referrals to clinical laboratories].) Similarly, under Health and Safety Code section 24173, a physician who plans to conduct a medical experiment on a patient must, among other things, inform the patient of “[t]he name of the sponsor or funding source, if any, . . . and the organization, if any, under whose general aegis the experiment is being conducted.”⁷ (Health & Saf. Code, § 24173, subd. (c)(9).)

It is important to note that no law prohibits a physician from conducting research in the same area in which he practices. Progress in medicine often depends upon physicians, such as those practicing at the university hospital where Moore received treatment, who conduct research while caring for their patients.

Yet a physician who treats a patient in whom he also has a research interest has potentially conflicting loyalties. This is because medical treatment decisions are made on the basis of proportionality—weighing the benefits to the patient against the risks to the patient. As another court has said, “the determination as to whether the burdens of treatment are worth enduring for any individual patient depends upon the facts unique in each case,” and “the patient’s interests and desires are the key ingredients of the decision-making process.” (Barber v. Superior Court (1983) 147 Cal.App.3d 1006, 1018-1019 [195 Cal.Rptr. 484, 47 A.L.R.4th 1].) A physician who adds his own research interests to this balance may be tempted to order a scientifically useful procedure or test that offers marginal, or no, benefits to the patient.⁸ The possibility that an interest extraneous to the patient’s health has affected the physician’s judgment is something that a reasonable patient would want to know in deciding whether to consent to a proposed course of treatment. It is material to the patient’s decision and, thus, a prerequisite to informed consent. (See Cobbs v. Grant, supra, 8 Cal.3d at p. 245.)

Golde argues that the scientific use of cells that have already been removed cannot possibly affect the patient’s medical interests. The argument is correct in one instance but not in another. If a physician has no plans to conduct research on a patient’s cells at the time he recommends the medical procedure by which they are taken, then the patient’s medical interests have not been impaired. In that instance the argument is correct. On the other hand, a physician who does have a preexisting research interest might, consciously or unconsciously, take that into consideration in recommending the procedure. In that instance the argument is incorrect: the physician’s extraneous motivation may affect his judgment and is, thus, material to the patient’s consent.

We acknowledge that there is a competing consideration. To require disclosure of research and economic interests may corrupt the patient’s own judgment by distracting him from the requirements of his health.⁹ But California law does not grant physicians unlimited discretion to decide what to disclose. Instead, “it is the prerogative of the patient, not the physician, to determine for himself the direction in which he believes his interests lie.” (Cobbs v. Grant, supra, 8 Cal.3d at p. 242.) “Unlimited discretion in the physician is irreconcilable with the basic right of the patient to make the ultimate informed decision . . . .” {Id., at p. 243.)

Accordingly, we hold that a physician who is seeking a patient’s consent for a medical procedure must, in order to satisfy his fiduciary duty¹⁰ and to obtain the patient’s informed consent, disclose personal interests unrelated to the patient’s health, whether research or economic, that may affect his medical judgment.

1. Dr. Golde

We turn now to the allegations of Moore’s third amended complaint to determine whether he has stated such a cause of action. We first discuss the adequacy of Moore’s allegations against Golde, based upon the physician’s disclosures prior to the splenectomy.

Moore alleges that, prior to the surgical removal of his spleen, Golde “formed the intent and made arrangements to obtain portions of his spleen following its removal from [Moore] in connection with [his] desire to have regular and continuous access to, and possession of, [Moore’s] unique and rare Blood and Bodily Substances.” Moore was never informed prior to the splenectomy of Golde’s “prior formed intent” to obtain a portion of his spleen. In our view, these allegations adequately show that Golde had an undisclosed research interest in Moore’s cells at the time he sought Moore’s consent to the splenectomy. Accordingly, Moore has stated a cause of action for breach of fiduciary duty, or lack of informed consent, based upon the disclosures accompanying that medical procedure.

We next discuss the adequacy of Golde’s alleged disclosures regarding the postoperative takings of blood and other samples. In this context, Moore alleges that Golde “expressly, affirmatively and impliedly represented .. . that these withdrawals of his Blood and Bodily Substances were necessary and required for his health and well-being.” However, Moore also alleges that Golde actively concealed his economic interest in Moore’s cells during this time period. “[Djuring each of these visits . . . , and even when [Moore] inquired as to whether there was any possible or potential commercial or financial value or significance of his Blood and Bodily Substances, or whether the defendants had discovered anything . . . which was or might be . . . related to any scientific activity resulting in commercial or financial benefits . . . , the defendants repeatedly and affirmatively represented to [Moore] that there was no commercial or financial value to his Blood and Bodily Substances . . . and in fact actively discouraged such inquiries.”

Moore admits in his complaint that defendants disclosed they “were engaged in strictly academic and purely scientific medical research . . . .” However, Golde’s representation that he had no financial interest in this research became false, based upon the allegations, at least by May 1979, when he “began to investigate and initiate the procedures . . . for [obtaining] a patent” on the cell line developed from Moore’s cells.

In these allegations, Moore plainly asserts that Golde concealed an economic interest in the postoperative procedures. Therefore, applying the principles already discussed, the allegations state a cause of action for breach of fiduciary duty or lack of informed consent.

We thus disagree with the superior court’s ruling that Moore had not stated a cause of action because essential allegations were lacking. We discuss each such allegation. First, in the superior court’s view, Moore needed but failed to allege that defendants knew his cells had potential commercial value on October J, 1976 (the time blood tests were first performed at UCLA Medical Center) and had at that time already formed the intent to exploit the cells. We agree with the superior court that the absence of such allegations precludes Moore from stating a cause of action based upon the procedures undertaken on October 5, 1976. But, as already discussed, Moore clearly alleges that Golde had developed a research interest in his cells by October 20, 1976, when the splenectomy was performed. Thus, Moore can state a cause of action based upon Golde’s alleged failure to disclose that interest before the splenectomy.

The superior court also held that the lack of essential allegations prevented Moore from stating a cause of action based on the splenectomy. According to the superior court, Moore failed to allege that the operation lacked a therapeutic purpose or that the procedure was totally unrelated to therapeutic purposes. In our view, however, neither allegation is essential. Even if the splenectomy had a therapeutic purpose,¹¹ it does not follow that Golde had no duty to disclose his additional research and economic interests. As we have already discussed, the existence of a motivation for a medical procedure unrelated to the patient’s health is a potential conflict of interest and a fact material to the patient’s decision.

2. The Remaining Defendants

The Regents, Quan, Genetics Institute, and Sandoz are not physicians. In contrast to Golde, none of these defendants stood in a fiduciary relationship with Moore or had the duty to obtain Moore’s informed consent to medical procedures. If any of these defendants is to be liable for breach of fiduciary duty or performing medical procedures without informed consent, it can only be on account of Golde’s acts and on the basis of a recognized theory of secondary liability, such as respondeat superior. The procedural posture of this case, however, makes it unnecessary for us to address the sufficiency of Moore’s secondary-liability allegations.

As already mentioned, the superior court addressed only the purported cause of action for conversion. Because the superior court found that Moore had not stated such a cause of action, it had no occasion to address the sufficiency of Moore’s allegation that the Regents and Quan were acting as Golde’s “agent[s]” and “joint venturer[s].”¹²In a later proceeding, however, the superior court did find that the same allegations were too conclusory to state a cause of action against Genetics Institute and Sandoz.

The Court of Appeal did not hold, explicitly or implicitly, that Moore’s secondary-liability allegations were sufficient as against any defendant. The court did hold that Moore had stated a cause of action against the Regents and Quan. However, the court did not reach that conclusion on the basis of secondary liability. Instead, drawing no distinctions between the defendants, the court held simply that each defendant was primarily liable for conversion.¹³ Because no court has yet addressed the Regents’ and Quan’s secondary liability and because the superior court will need to consider other issues on remand, there is no need to address these issues at this time.¹⁴

With respect to Genetics Institute and Sandoz, the situation is slightly different. The Court of Appeal mentioned Moore’s secondary-liability allegations against these defendants but expressed no opinion as to their sufficiency. Instead, as to these defendants the court merely reversed the superior court’s order “for failure to grant leave to amend.” Our affirmance of this part of the Court of Appeal’s decision will leave Moore free to attempt, once again, to allege that Genetics Institute and Sandoz are secondarily liable for Golde’s torts.

B. Conversion

Moore also attempts to characterize the invasion of his rights as a conversion—a tort that protects against interference with possessory and ownership interests in personal property. He theorizes that he continued to own his cells following their removal from his body, at least for the purpose of directing their use, and that he never consented to their use in potentially lucrative medical research. Thus, to complete Moore’s argument, defendants’ unauthorized use of his cells constitutes a conversion. As a result of the alleged conversion, Moore claims a proprietary interest in each of the products that any of the defendants might ever create from his cells or the patented cell line.

No court, however, has ever in a reported decision imposed conversion liability for the use of human cells in medical research.¹⁵ While that fact does not end our inquiry, it raises a flag of caution. In effect, what Moore is asking us to do is to impose a tort duty on scientists to investigate the consensual pedigree of each human cell sample used in research.¹⁶ To impose such a duty, which would affect medical research of importance to all of society, implicates policy concerns far removed from the traditional, two-party ownership disputes in which the law of conversion arose.¹⁷ Invoking a tort theory originally used to determine whether the loser or the finder of a horse had the better title, Moore claims ownership of the results of socially important medical research, including the genetic code for chemicals that regulate the functions of every human being’s immune system.¹⁸

We have recognized that, when the proposed application of a very general theory of liability in a new context raises important policy concerns, it is especially important to face those concerns and address them openly. (Cf. Nally v. Grace Community Church, supra, 47 Cal.3d 278, 291-300 [declining to expand negligence law to encompass theory of “clergyman malpractice”]; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 694-700 [254 Cal.Rptr. 211, 765 P.2d 373] [declining to apply tort remedies for breach of the covenant of good faith in the employment context]; Brown v. Superior Court (1988) 44 Cal.3d 1049, 1061-1066 [245 Cal.Rptr. 412, 751 P.2d 470] [declining to apply strict products liability to pharmaceutical manufacturers].) Moreover, we should be hesitant to “impose [new tort duties] when to do so would involve complex policy decisions” (Nally v. Grace Community Church, supra, 47 Cal.3d at p. 299), especially when such decisions are more appropriately the subject of legislative deliberation and resolution. (See Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 694 & fn. 31.) This certainly is not to say that the applicability of common law torts is limited to the historical or factual contexts of existing cases. But on occasions when we have opened or sanctioned new areas of tort liability, we “have noted that the ‘wrongs and injuries involved were both comprehensible and assessable within the existing judicial framework.’ ” (Nally v. Grace Community Church, supra, 47 Cal.3d at p. 298, quoting Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 824 [131 Cal.Rptr. 854].)

Accordingly, we first consider whether the tort of conversion clearly gives Moore a cause of action under existing law. We do not believe it does. Because of the novelty of Moore’s claim to own the biological materials at issue, to apply the theory of conversion in this context would frankly have to be recognized as an extension of the theory. Therefore, we consider next whether it is advisable to extend the tort to this context.

1. Moore’s Claim Under Existing Law

(7) “To establish a conversion, plaintiff must establish an actual interference with his ownership or right of possession. . . . Where plaintiff neither has title to the property alleged to have been converted, nor possession thereof, he cannot maintain an action for conversion.”¹⁹ (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 610-611 [176 Cal.Rptr. 824], italics added. See also General Motors A. Corp. v. Dallas (1926) 198 Cal. 365, 370 [245 P. 184].)

Since Moore clearly did not expect to retain possession of his cells following their removal,²⁰ to sue for their conversion he must have retained an ownership interest in them. But there are several reasons to doubt that he did retain any such interest. First, no reported judicial decision supports Moore’s claim, either directly or by close analogy. Second, California statutory law drastically limits any continuing interest of a patient in excised cells. Third, the subject matters of the Regents’ patent—the patented cell line and the products derived from it—cannot be Moore’s property.

Neither the Court of Appeal’s opinion, the parties’ briefs, nor our research discloses a case holding that a person retains a sufficient interest in excised cells to support a cause of action for conversion. We do not find this surprising, since the laws governing such things as human tissues,²¹ transplantable organs,²² blood,²³ fetuses,²⁴ pituitary glands,²⁵ corneal tissue,²⁶ and dead bodies²⁷ deal with human biological materials as objects sui generis, regulating their disposition to achieve policy goals rather than abandoning them to the general law of personal property. It is these specialized statutes, not the law of conversion, to which courts ordinarily should and do look for guidance on the disposition of human biological materials.

Lacking direct authority for importing the law of conversion into this context, Moore relies, as did the Court of Appeal, primarily on decisions addressing privacy rights.²⁸ One line of cases involves unwanted publicity. (Lugosi v. Universal Pictures (1979) 25 Cal.3d 813 [160 Cal.Rptr. 323, 603 P.2d 425, 10 A.L.R.4th 1150]; Motschenbacher v. R. J. Reynolds Tobacco Company (9th Cir. 1974) 498 F.2d 821 [interpreting Cal. law].) These opinions hold that every person has a proprietary interest in his own likeness and that unauthorized, business use of a likeness is redressible as a tort. But in neither opinion did the authoring court expressly base its holding on property law. (Lugosi v. Universal Pictures, supra, 25 Cal.3d at pp. 819, 823-826; Motschenbacher v. R. J. Reynolds Tobacco Company, supra, 498 F.2d at pp. 825-826.) Each court stated, following Prosser, that it was “pointless” to debate the proper characterization of the proprietary interest in a likeness. (Motschenbacher v. R. J. Reynolds Tobacco Company, supra, 498 F.2d at p. 825, quoting Prosser, Law of Torts (4th ed. 1971) at p. 807; Lugosi v. Universal Pictures, supra, 25 Cal.3d at pp. 819, 824.) For purposes of determining whether the tort of conversion lies, however, the characterization of the right in question is far from pointless. Only property can be converted.

Not only are the wrongful-publicity cases irrelevant to the issue of conversion, but the analogy to them seriously misconceives the nature of the genetic materials and research involved in this case. Moore, adopting the analogy originally advanced by the Court of Appeal, argues that “[i]f the courts have found a sufficient proprietary interest in one’s persona, how could one not have a right in one’s own genetic material, something far more profoundly the essence of one’s human uniqueness than a name or a face?” However, as the defendants’ patent makes clear—and the complaint, too, if read with an understanding of the scientific terms which it has borrowed from the patent—the goal and result of defendants’ efforts has been to manufacture lymphokines.²⁹ Lymphokines, unlike a name or a face, have the same molecular structure in every human being and the same, important functions in every human being’s immune system. Moreover, the particular genetic material which is responsible for the natural production of lymphokines, and which defendants use to manufacture lymphokines in the laboratory, is also the same in every person; it is no more unique to Moore than the number of vertebrae in the spine or the chemical formula of hemoglobin.³⁰

Another privacy case offered by analogy to support Moore’s claim establishes only that patients have a right to refuse medical treatment. (Bouvia v. Superior Court (1986) 179 Cal.App.3d 1127 [225 Cal.Rptr. 297].) In this context the court in Bouvia wrote that “ ‘[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body ....’” (Id., at p. 1139, quoting from Schloendorff v. New York Hospital, supra, 211 N.Y. 125 [105 N.E. 92, 93] .)³¹ Relying on this language to support the proposition that a patient has a continuing right to control the use of excised cells, the Court of Appeal in this case concluded that “[a] patient must have the ultimate power to control what becomes of his or her tissues. To hold otherwise would open the door to a massive invasion of human privacy and dignity in the name of medical progress.” Yet one may earnestly wish to protect privacy and dignity without accepting the extremely problematic conclusion that interference with those interests amounts to a conversion of personal property. Nor is it necessary to force the round pegs of “privacy” and “dignity” into the square hole of “property” in order to protect the patient, since the fiduciary-duty and informed-consent theories protect these interests directly by requiring full disclosure.

The next consideration that makes Moore’s claim of ownership problematic is California statutory law, which drastically limits a patient’s control over excised cells. Pursuant to Health and Safety Code section 7054.4, “[notwithstanding any other provision of law, recognizable anatomical parts, human tissues, anatomical human remains, or infectious waste following conclusion of scientific use shall be disposed of by interment, incineration, or any other method determined by the state department [of health services] to protect the public health and safety.”³² Clearly the Legislature did not specifically intend this statute to resolve the question of whether a patient is entitled to compensation for the nonconsensual use of excised cells. A primary object of the statute is to ensure the safe handling of potentially hazardous biological waste materials.³³ Yet one cannot escape the conclusion that the statute’s practical effect is to limit, drastically, a patient’s control over excised cells. By restricting how excised cells may be used and requiring their eventual destruction, the statute eliminates so many of the rights ordinarily attached to property that one cannot simply assume that what is left amounts to “property” or “ownership” for purposes of conversion law.

It may be that some limited right to control the use of excised cells does survive the operation of this statute. There is, for example, no need to read the statute to permit “scientific use” contrary to the patient’s expressed wish.³⁴ A fully informed patient may always withhold consent to treatment by a physician whose research plans the patient does not approve. That right, however, as already discussed, is protected by the fiduciary-duty and informed-consent theories.

Finally, the subject matter of the Regents’ patent—the patented cell line and the products derived from it—cannot be Moore’s property. This is because the patented cell line is both factually and legally distinct from the cells taken from Moore’s body.³⁵ Federal law permits the patenting of organisms that represent the product of “human ingenuity,” but not naturally occurring organisms. (Diamond v. Chakrabarty (1980) 447 U.S. 303, 309-310 [65 L.Ed.2d 144, 150, 100 S.Ct. 2204],)³⁶ Human cell lines are patentable because “[l]ong-term adaptation and growth of human tissues and cells in culture is difficult—often considered an art. . . ,” and the probability of success is low. (OTA Rep., supra, at p. 33; see fn. 2, ante.) It is this inventive effort that patent law rewards, not the discovery of naturally occurring raw materials. Thus, Moore’s allegations that he owns the cell line and the products derived from it are inconsistent with the patent, which constitutes an authoritative determination that the cell line is the product of invention.³⁷ Since such allegations are nothing more than arguments or conclusions of law, they of course do not bind us. (Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 713.)

2. Should Conversion Liability Be Extended?

As we have discussed, Moore’s novel claim to own the biological materials at issue in this case is problematic, at best. Accordingly, his attempt to apply the theory of conversion within this context must frankly be recognized as a request to extend that theory. While we do not purport to hold that excised cells can never be property for any purpose whatsoever, the novelty of Moore’s claim demands express consideration of the policies to be served by extending liability (cf. Nally v. Grace Community Church, supra, 47 Cal.3d at pp. 291-300; Foley v. Interactive Data Corp., supra, 47 Cal.3d at pp. 694-700; Brown v. Superior Court, supra, 44 Cal.3d at pp. 1061-1066) rather than blind deference to a complaint alleging as a legal conclusion the existence of a cause of action.

There are three reasons why it is inappropriate to impose liability for conversion based upon the allegations of Moore’s complaint. First, a fair balancing of the relevant policy considerations counsels against extending the tort. Second, problems in this area are better suited to legislative resolution. Third, the tort of conversion is not necessary to protect patients’ rights. For these reasons, we conclude that the use of excised human cells in medical research does not amount to a conversion.

Of the relevant policy considerations, two are of overriding importance. The first is protection of a competent patient’s right to make autonomous medical decisions. That right, as already discussed, is grounded in well-recognized and long-standing principles of fiduciary duty and informed consent. (See, e.g., Cobbs v. Grant, supra, 8 Cal.3d at pp. 242-246; Bowman v. McPheeters, supra, 11 Cal.App.2d at p. 800.) This policy weighs in favor of providing a remedy to patients when physicians act with undisclosed motives that may affect their professional judgment. The second important policy consideration is that we not threaten with disabling civil liability innocent parties who are engaged in socially useful activities, such as researchers who have no reason to believe that their use of a particular cell sample is, or may be, against a donor’s wishes.

To reach an appropriate balance of these policy considerations is extremely important. In its report to Congress (see fn. 2, ante), the Office of Technology Assessment emphasized that “[ujncertainty about how courts will resolve disputes between specimen sources and specimen users could be detrimental to both academic researchers and the infant biotechnology industry, particularly when the rights are asserted long after the specimen was obtained. The assertion of rights by sources would affect not only the researcher who obtained the original specimen, but perhaps other researchers as well.

“Biological materials are routinely distributed to other researchers for experimental purposes, and scientists who obtain cell lines or other specimen-derived products, such as gene clones, from the original researcher could also be sued under certain legal theories [such as conversion]. Furthermore, the uncertainty could affect product developments as well as research. Since inventions containing human tissues and cells may be patented and licensed for commercial use, companies are unlikely to invest heavily in developing, manufacturing, or marketing a product when uncertainty about clear title exists.” (OTA Rep., supra, at p. 27.)

Indeed, so significant is the potential obstacle to research stemming from uncertainty about legal title to biological materials that the Office of Technology Assessment reached this striking conclusion: “[R]egardless of the merit of claims by the different interested parties, resolving the current uncertainty may be more important to the future of biotechnology than resolving it in any particular way.” (OTA Rep., supra, at p. 27.)

We need not, however, make an arbitrary choice between liability and nonliability. Instead, an examination of the relevant policy considerations suggests an appropriate balance: Liability based upon existing disclosure obligations, rather than an unprecedented extension of the conversion theory, protects patients’ rights of privacy and autonomy without unnecessarily hindering research.

To be sure, the threat of liability for conversion might help to enforce patients’ rights indirectly. This is because physicians might be able to avoid liability by obtaining patients’ consent, in the broadest possible terms, to any conceivable subsequent research use of excised cells. Unfortunately, to extend the conversion theory would utterly sacrifice the other goal of protecting innocent parties. Since conversion is a strict liability tort,³⁸ it would impose liability on all those into whose hands the cells come, whether or not the particular defendant participated in, or knew of, the inadequate disclosures that violated the patient’s right to make an informed decision. In contrast to the conversion theory, the fiduciary-duty and informed-consent theories protect the patient directly, without punishing innocent parties or creating disincentives to the conduct of socially beneficial research.

Research on human cells plays a critical role in medical research. This is so because researchers are increasingly able to isolate naturally occurring, medically useful biological substances and to produce useful quantities of such substances through genetic engineering. These efforts are beginning to bear fruit. Products developed through biotechnology that have already been approved for marketing in this country include treatments and tests for leukemia, cancer, diabetes, dwarfism, hepatitis-B, kidney transplant rejection, emphysema, osteoporosis, ulcers, anemia, infertility, and gynecological tumors, to name but a few. (Note, Source Compensation for Tissues and Cells Used in Biotechnical Research: Why a Source Shouldn’t Share in the Profits (1989) 64 Notre Dame L. Rev. 628 & fn. 1 (hereafter Note, Source Compensation); see also OTA Rep., supra, at pp. 58-59.)

The extension of conversion law into this area will hinder research by restricting access to the necessary raw materials. Thousands of human cell lines already exist in tissue repositories, such as the American Type Culture Collection and those operated by the National Institutes of Health and the American Cancer Society. These repositories respond to tens of thousands of requests for samples annually. Since the patent office requires the holders of patents on cell lines to make samples available to anyone, many patent holders place their cell lines in repositories to avoid the administrative burden of responding to requests. (OTA Rep., supra, at p. 53.) At present, human cell lines are routinely copied and distributed to other researchers for experimental purposes, usually free of charge.³⁹ This exchange of scientific materials, which still is relatively free and efficient, will surely be compromised if each cell sample becomes the potential subject matter of a lawsuit. (OTA Rep., supra, at p. 52.)⁴⁰

To expand liability by extending conversion law into this area would have a broad impact. The House Committee on Science and Technology of the United States Congress found that “49 percent of the researchers at medical institutions surveyed used human tissues or cells in their research.” Many receive grants from the National Institute of Health for this work. (OTA Rep., supra, at p. 52.) In addition, “there are nearly 350 commercial biotechnology firms in the United States actively engaged in biotechnology research and commercial product development and approximately 25 to 30 percent appear to be engaged in research to develop a human therapeutic or diagnostic reagent. . . . Most, but not all, of the human therapeutic products are derived from human tissues and cells, or human cell lines or cloned genes.” (Id., at p. 56.)

In deciding whether to create new tort duties we have in the past considered the impact that expanded liability would have on activities that are important to society, such as research. For example, in Brown v. Superior Court, supra, 44 Cal.3d 1049, the fear that strict product liability would frustrate pharmaceutical research led us to hold that a drug manufacturer’s liability should not be measured by those standards. We wrote that, “[i]f drug manufacturers were subject to strict liability, they might be reluctant to undertake research programs to develop some pharmaceuticals that would prove beneficial or to distribute others that are available to be marketed, because of the fear of large adverse monetary judgments.” (Id., at p. 1063.)

As in Brown, the theory of liability that Moore urges us to endorse threatens to destroy the economic incentive to conduct important medical research. If the use of cells in research is a conversion, then with every cell sample a researcher purchases a ticket in a litigation lottery. Because liability for conversion is predicated on a continuing ownership interest, “companies are unlikely to invest heavily in developing, manufacturing, or marketing a product when uncertainty about clear title exists.” (OTA Rep., supra, at p. 27.)⁴¹ In our view, borrowing again from Brown, “[i]t is not unreasonable to conclude in these circumstances that the imposition of a harsher test for liability would not further the public interest in the development and availability of these important products.” (Brown v. Superior Court, supra, 44 Cal.3d at p. 1065.)⁴²

Indeed, this is a far more compelling case for limiting the expansion of tort liability than Brown. In Brown, eliminating strict liability made it more difficult for plaintiffs to recover actual damages for serious physical injuries resulting from their mothers’ prenatal use of the drug diethylstilbestrol (DES). (Brown v. Superior Court, supra, 44 Cal.3d at pp. 1054-1055.) In this case, by comparison, limiting the expansion of liability under a conversion theory will only make it more difficult for Moore to recover a highly theoretical windfall. Any injury to his right to make an informed decision remains actionable through the fiduciary-duty and informed-consent theories.

If the scientific users of human cells are to be held liable for failing to investigate the consensual pedigree of their raw materials, we believe the Legislature should make that decision. Complex policy choices affecting all society are involved, and “ [legislatures, in making such policy decisions, have the ability to gather empirical evidence, solicit the advice of experts, and hold hearings at which all interested parties present evidence and express their views . . . .” (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 694, fn. 31.) Legislative competence to act in this area is demonstrated by the existing statutes governing the use and disposition of human biological materials.⁴³ Legislative interest is demonstrated by the extensive study recently commissioned by the United States Congress. (OTA Rep., supra.) Commentators are also recommending legislative solutions. (See Danforth, Cells, Sales, and Royalties: The Patient’s Right to a Portion of the Profits (1988) 6 Yale L. & Pol’y Rev. 179, 198-201; Note, Source Compensation, supra, 64 Notre Dame L. Rev. at pp. 643-645.)

Finally, there is no pressing need to impose a judicially created rule of strict liability, since enforcement of physicians’ disclosure obligations will protect patients against the very type of harm with which Moore was threatened. So long as a physician discloses research and economic interests that may affect his judgment, the patient is protected from conflicts of interest. Aware of any conflicts, the patient can make an informed decision to consent to treatment, or to withhold consent and look elsewhere for medical assistance. As already discussed, enforcement of physicians’ disclosure obligations protects patients directly, without hindering the socially useful activities of innocent researchers.

For these reasons, we hold that the allegations of Moore’s third amended complaint state a cause of action for breach of fiduciary duty or lack of informed consent, but not conversion.⁴⁴

IV. Disposition

The decision of the Court of Appeal is affirmed in part and reversed in part. The case is remanded to the Court of Appeal, which shall direct the superior court to: (1) overrule Golde’s demurrers to the causes of action for breach of fiduciary duty and lack of informed consent; (2) sustain, with leave to amend, the demurrers of the Regents, Quan, Sandoz, and Genetics Institute to the purported causes of action for breach of fiduciary duty and lack of informed consent; (3) sustain, without leave to amend, all defendants’ demurrers to the purported cause of action for conversion; and (4) hear and determine all defendants’ remaining demurrers.

Lucas, C. J., Eagleson, J., and Kennard, J., concurred.

1 The complaint often uses the plural “defendants” instead of referring to particular defendants. This practice sometimes results in obvious errors, such as the allegation that “defendants saw and examined [Moore] on or about October 5, 1976 and then hospitalized [him] . . . .” (Italics added.) Genetics Institute and Sandoz, for example, are not physicians, and the complaint specifically alleges that neither entity became involved until years later.

To avoid absurdity in summarizing the complaint’s allegations, we have relied on the context in attempting to discern which defendants Moore actually means. (See, e.g., Blank v. Kirwan, supra, 39 Cal.3d at p. 318 [“we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context”].)

2 A T-lymphocyte is a type of white blood cell. T-lymphocytes produce lymphokines, or proteins that regulate the immune system. Some lymphokines have potential therapeutic value. If the genetic material responsible for producing a particular lymphokine can be identified, it can sometimes be used to manufacture large quantities of the lymphokine through the techniques of recombinant DNA. (See generally U.S. Congress, Office of Technology Assessment, New Developments in Biotechnology: Ownership of Human Tissues and Cells (1987) at pp. 31-46 (hereafter OTA Report); see also fn. 29,post.)

While the genetic code for lymphokines does not vary from individual to individual, it can nevertheless be quite difficult to locate the gene responsible for a particular lymphokine. Because T-lymphocytes produce many different lymphokines, the relevant gene is often like a needle in a haystack. (OTA Rep., supra, at p. 42.) Moore’s T-lymphocytes were interesting to the defendants because they overproduced certain lymphokines, thus making the corresponding genetic material easier to identify. (In published research papers, defendants and other researchers have shown that the overproduction was caused by a virus, and that normal T-lymphocytes infected by the virus will also overproduce. See fn. 30, post.)

Cells taken directly from the body (primary cells) are not very useful for these purposes. Primary cells typically reproduce a few times and then die. One can, however, sometimes continue to use cells for an extended period of time by developing them into a “cell line,” a culture capable of reproducing indefinitely. This is not, however, always an easy task. “Long-term growth of human cells and tissues is difficult, often an art,” and the probability of succeeding with any given cell sample is low, except for a few types of cells not involved in this case. (OTA Rep., supra, at p. 5.)

3 See footnote 2, ante.

4 (1) “Conversion”; (2) “lack of informed consent”; (3) “breach of fiduciary duty”; (4) “fraud and deceit”; (5) “unjust enrichment”; (6) “quasi-contract”; (7) “bad faith breach of the implied covenant of good faith and fair dealing”; (8) “intentional infliction of emotional distress”; (9) “negligent misrepresentation”; (10) “intentional interference with prospective advantageous economic relationships”; (11) “slander of title”; (12) “accounting”; and (13) “declaratory relief.”

5 The superior court did not reach (a) any defendant’s general demurrer to the causes of action numbered 2 through 13; (b) any defendant’s demurrer on the ground of the statute of limitations; (c) Golde’s, Quan’s, and the Regents’ demurrers on the grounds of governmental immunity; or (d) Genetics Institute’s and Sandoz’s numerous demurrers for uncertainty.

6 In this opinion we use the inclusive term “cells” to describe all of the cells taken from Moore’s body, including blood cells, bone marrow, spleen, etc.

7 Health and Safety Code section 24173 is part of the Protection of Human Subjects in Medical Experimentation Act. (See Health & Saf. Code, § 24170 et seq.) The act provides maximum damages of $1,000 for negligent violations, $5,000 for willful violations, and $10,000 for willful violations which “expose[ ] a subject to a known substantial risk of serious injury . . . .” (Health & Saf. Code, § 24176.) Because the lower courts did not reach the issue, we need not determine whether the alleged research on Moore’s cells would amount to a violation.

8 This is, in fact, precisely what Moore has alleged with respect to the postoperative withdrawals of blood and other substances.

9 A related problem may arise with excessive disclosure of the risks of medical treatment. As we recognized in Cobbs v. Grant, supra, disclosure of risks in some cases can “so seriously upset the patient” as to affect the patient’s ability to weigh “dispassionately . . . the risks of refusing to undergo the recommended treatment.” (Cobbs v. Grant, supra, 8 Cal.3d at p. 246.) Under those circumstances, “[a] disclosure need not be made beyond that required within the medical community . . . .” (Ibid.)

However, we made that statement in the context of a physician-patient relationship unaffected by possible conflicts of interest. Cobbs v. Grant, supra, permits a physician acting solely in the patient’s best interests to consider whether excessive disclosure will harm the patient. Disclosure of possible conflicts of interest raises different considerations. To illustrate, a physician who orders a procedure partly to further a research interest unrelated to the patient’s health should not be able to avoid disclosure with the argument that the patient might object to participation in research. In some cases, however, a physician’s research interest might play such an insignificant role in the decision to recommend a medically indicated procedure that disclosure should not be required because the interest is not material. By analogy, we have not required disclosure of “remote” risks (Cobbs v. Grant, supra, 8 Cal.3d at p. 245) that “are not central to the decision to administer or reject [a] procedure.” (Truman v. Thomas (1980) 27 Cal.3d 285, 293 [165 Cal.Rptr. 308, 611 P.2d 902].)

10 In some respects the term “fiduciary” is too broad. In this context the term “fiduciary” signifies only that a physician must disclose all facts material to the patient’s decision. A physician is not the patient’s financial adviser. As we have already discussed, the reason why a physician must disclose possible conflicts is not because he has a duty to protect his patient’s financial interests, but because certain personal interests may affect professional judgment.

11 The record shows that the splenectomy did have a therapeutic purpose. The Regents’ patent application, which the superior court and the Court of Appeal both accepted as part of the record, shows that Moore had a grossly enlarged spleen and that its excision improved his condition.

12 Moore’s secondary-liability allegations are egregious examples of generic boilerplate: “each of the defendants was the agent, joint venturer and employee of each of the other remaining defendants, and is jointly liable for the acts of every other defendant and in doing the things hereinafter alleged, each was acting within the course and scope of said agency, employment, partnership and joint venture with the advance knowledge, acquiescence or subsequent ratification of each and every remaining defendant, and that each defendant joined together with every other defendant. . . had a fiduciary duty to the plaintiif, and each acted in concert with every other defendant in violating their [s/c] duties to plaintiff.”

Nowhere in the third amended complaint does Moore specifically allege that any defendant other than Golde knew that Moore had not received adequate disclosures.

13 As discussed below, we reject the conclusion that Moore can state a cause of action for conversion against any defendant.

14 Thus, we express no opinion on whether Moore has stated, or can state, a cause of action against the Regents for Golde’s alleged torts under the doctrine of respondeat superior.

15 The absence of such authority cannot simply be attributed to recent developments in technology. The first human tumor cell line, which still is widely used in research, was isolated in 1951. (OTA Rep., supra, at p. 34.)

16 Imposing liability for conversion is equivalent to the imposition of such a duty, since only through investigation would users of cells be able to avoid liability. “ ‘A tort, whether intentional or negligent, involves a violation of a legal duty imposed by statute, contract or otherwise, owed by the defendant to the person injured. Without such a duty, any injury is “damnum absque injuria”-—injury without wrong. [Citations.]’ ” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292 [253 Cal.Rptr. 97, 763 P.2d 948], quoting 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 6, p. 61, italics in original.)

17 Conversion arose out of the common law action of trover. “We probably do not have the earliest examples of its use, but they were almost certainly cases in which the finder of lost goods did not return them, but used them himself, or disposed of them to someone else. . . . By 1554 the allegations of the complaint had become more or less standardized: that the plaintiff was possessed of certain goods, that he casually lost them, that the defendant found them, and that the defendant did not return them, but instead ‘converted them to his own use.’ From that phrase in the pleading came the name of the tort.” (Prosser & Keeton, Torts (5th ed. 1984) § 15, p. 89.)

18 Moore alleges, for example, that “genetic sequences ... are his tangible personal property . . . .” We are not, however, bound by that conclusion of law. (Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 713.) Moreover, as already mentioned, the genetic code for lymphokines does not vary from individual to individual. (See fns. 2, ante, and 30, post.)

19 While it ordinarily suffices to allege ownership generally (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 654, p. 103), it is well established that a complaint’s contentions or conclusions of law do not bind us. (Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 713.) Moore’s novel allegation that he “owns” the biological materials involved in this case is both a contention and a conclusion of law.

20 In his complaint, Moore does not seek possession of his cells or claim the right to possess them. This is consistent with Health and Safety Code section 7054.4, which provides that “human tissues . . . following conclusion of scientific use shall be disposed of by interment, incineration, or any other method determined by the state department [of health services] to protect the public health and safety.”

21 See Health and Safety Code section 7054.4 (fn. 20, ante).

22 See the Uniform Anatomical Gift Act, Health and Safety Code section 7150 et seq. The act permits a competent adult to “give all or part of [his] body” for certain designated purposes, including “transplantation, therapy, medical or dental education, research, or advancement of medical or dental science.” (Health & Saf. Code, §§ 7151, 7153.) The act does not, however, permit the donor to receive “valuable consideration” for the transfer. (Health & Saf. Code, § 7155.)

23 See Health and Safety Code section 1601 et seq., which regulates the procurement, processing, and distribution of human blood. Health and Safety Code section 1606 declares that “[t]he procurement, processing, distribution, or use of whole blood, plasma, blood products, and blood derivatives for the purpose of injecting or transfusing the same ... is declared to be, for all purposes whatsoever, the rendition of a service . . . and shall not be construed to be, and is declared not to be, a sale . . . for any purpose or purposes whatsoever.”

24 See Health and Safety Code section 7054.3: “Notwithstanding any other provision of law, a recognizable dead human fetus of less than 20 weeks uterogestation not disposed of by interment shall be disposed of by incineration."

25 See Government Code section 27491.46: “The coroner [following an autopsy] shall have the right to retain pituitary glands solely for transmission to a university, for use in research or the advancement of medical science" (id., subd. (a)) or “for use in manufacturing a hormone necessary for the physical growth of persons who are, or may become, hypopituitary dwarfs . . .” (id., subd. (b)).

26 See Government Code section 27491.47: “The coroner may, in the course of an autopsy [and subject to specified conditions], remove . . . corneal eye tissue from a body . . .” (id., subd. (a)) for “transplant, therapeutic, or scientific purposes” (id., subd. (a)(5)).

27 See Health and Safety Code section 7000 et seq. While the code does not purport to grant property rights in dead bodies, it does give the surviving spouse, or other relatives, “[t]he right to control the disposition of the remains of a deceased person, unless other directions have been given by the decedent. . . .” (Health & Saf. Code, § 7100.)

28 No party has cited a decision supporting Moore’s argument that excised cells are “a species of tangible personal property capable of being converted.” On this point the Court of Appeal cited only Venner v. State (1976) 30 Md.App. 599 [354 A.2d 483] (hereafter Venner), which dealt with the seizure of a criminal defendant’s feces from a hospital bedpan by police officers searching for narcotics. The court held that the defendant had abandoned his excrement for purposes of the Fourth Amendment. (354 A.2d at pp. 498-499.)

In dictum, the Venner court observed that “[i]t is not unknown for a person to assert a continuing right of ownership, dominion, or control, for good reason or for no reason, over such things as excrement, fluid waste, secretions, hair, fingernails, toenails, blood, and organs or other parts of the body . . . .” (354 A.2d at p. 498.) This slender reed, alone, supported the Court of Appeal’s conclusion in the case before us that “it cannot be said that a person has no property right in materials which were once part of his body.” However, because Venner involved a criminal-procedure dispute over the suppression of evidence, and not a civil dispute over who was entitled to the economic benefit of property, the opinion is grounded in markedly different polices and has little relevance to the case before us.

29 Inside the cell, a gene produces a lymphokine (see fn. 2, ante) by attracting protein molecules, which bond to form a strand of “messenger RNA” (mRNA) in the mirror image of the gene. The mRNA strand then detaches from the gene and attracts other protein molecules, which bond to form the lymphokine that the original gene encoded. (OTA Rep., supra, at pp. 38-44.)

In the laboratory, scientists sometimes use genes to manufacture lymphokines by cutting a gene from the chromosome and grafting it onto the chromosome of a bacterium. The resulting chromosome is an example of ’’recombinant DNA,” or DNA composed of genetic material from more than one individual or species. As the bacterium lives and reproduces, the en-grafted gene continues to produce the lymphokine that the gene encodes. (OTA Rep., supra, at pp. 41-44, 158.)

It can be extremely difficult to identify the gene that carries the code for a particular lymphokine. “Since the amount of DNA in a human cell is enormous compared to the amount present in an individual gene, the search for any single gene within a cell is like searching for needle in a haystack.” (OTA Rep., supra, at p. 42.) As the Regents’ patent application explains, the significance of a cell that overproduces mRNA is to make the difficult search for a particular gene unnecessary. (U.S. Patent No. 4,438,032 (Mar. 20, 1984) at col. 2.) If one has an adequate source of mRNA—the gene’s mirror image—it can be used to make a copy, or clone, of the original gene. The cloned gene can then be used in recombinant DNA, as already described, for large-scale production of lymphokines. (Id., at col. 3.)

30 By definition, a gene responsible for producing a protein found in more than one individual will be the same in each. It is precisely because everyone needs the same basic proteins that proteins produced by one person’s cells may have therapeutic value for another person. (See generally OTA Rep., supra, at pp. 38-40.) Thus, the proteins that defendants hope to manufacture—lymphokines such as interferon—are in no way a “likeness” of Moore.

Because all normal persons possess the genes responsible for production of lymphokines, it is sometimes possible to make normal cells into overproducers. (See OTA Rep., supra, at p. 55.) According to a research paper to which defendants contributed, Moore’s cells overproduced lymphokines because they were infected by a virus, HTLV-II (human T-cell leukemia virus type II). (Chen, Quan & Golde, Human T-cell Leukemia Virus Type II Transforms Normal Human Lymphocytes (Nov. 1983) 80 Proceedings Nat. Acad. Sci. USA 7006.) The same virus has been shown to transform normal T-lymphocytes into overproducers like Moore’s. (Ibid.)

31 Schloendorff v. New York Hospital, supra, is often cited as the first opinion recognizing the concept of informed consent.

32 Although section 7054.4 occurs in a division of the Health and Safety Code entitled “Dead Bodies,’’ only the term “human remains” refers solely to cadavers. This is because section 7001 so defines it. (Health & Saf. Code, § 7001.) The additional terms “recognizable anatomical parts” and “human tissues” are not expressly defined and must be given their ordinary meanings, which are not limited to dead bodies. Surgically removed organs, such as a spleen, are both “recognizable anatomical parts” and “human tissues.” Virus-infected cells, such as Moore’s T-lymphocytes, fit reasonably within the statute’s definition of “infectious waste." (See fn. 33, post.) The broad terms used in section 7054.4, a relatively recent addition to the 1939 division on dead bodies (added by Stats. 1971, ch. 377, § 2, p. 744, and amended by Stats. 1972, ch. 883, § 4, p. 1562), reflect legislative consideration of modem needs to provide for the disposal of materials in addition to dead bodies, including used hypodermic needles and other “infectious waste” materials generated in hospitals.

33 The policy of keeping biological materials in safe hands has substantial relevance to this case. The catalog of the American Type Culture Collection, an organization that distributes cell lines to researchers, gives this warning about the cell line derived from Moore’s T-lymphocytes: Because “[t]he cells . . . contain a replication competent genome of Human T Cell Leukemia Virus II (HTLV-II) [i.e., genetic material capable of reproducing the virus] . . . , they must be handled as potentially biohazardous material under P-II [level II] containment.” (American Type Culture Collection, Catalogue of Cell Lines and Hybridomas (6th ed. 1988) p. 176.) Level II containment is a standard established by the National Institutes of Health and the Center for Disease Control for handling hazardous biological materials. The level II standard requires, among other things, the use of a biological safety cabinet when the cell line is manipulated, and the autoclaving (sterilization by heat) and disposal of contaminated materials. (Id., at p. xi.)

34 The dissent argues that the term “scientific use” in Health and Safety Code section 7054.4 excludes “commercial exploitation”; in effect, according to the dissent, the statute says “scientific use” but means “not-for-profit scientific use.” (Dis. opn. of Mosk, J., post, at pp. 164-165.) There is, however, no reason to believe that the Legislature intended to make such a distinction. Nor is the distinction likely to be meaningful or practical in this context— “a relationship of unparalled intimacy between universities and biotechnology companies . . . .” (Dis. opn. of Mosk, J.,post, atp. 171, fn. 15.) Unless research necessarily ceases to be “scientific” when directed to the development of marketable products, a proposition we cannot accept, the distinction between academic and commercial “use” of human tissues has no logical bearing on the statute, which permits all “scientific use.” Shedding no light on the Legislature’s intent, philosophical issues about “scientists bec[oming] entrepreneurs” (dis. opn. of Mosk, J., post, at p. 171) are best debated in another forum.

35 The distinction between primary cells (cells taken directly from the body) and patented cell lines is not purely a legal one. Cells change while being developed into a cell line and continue to change over time. (OTA Rep., supra, at p. 34.) “[I]t is clear that most established cell lines . . . are not completely normal. Besides [an] enhanced growth potential relative to primary cells, they frequently have highly abnormal chromosome numbers . . . .” (2 Watson et al., Molecular Biology of the Gene (4th ed. 1987) p. 967; see also OTA Rep., supra, at p. 36.)

The cell line in this case, for example, after many replications began to generate defective and rearranged forms of the HTLV-II virus. A published research paper to which defendants contributed suggests that “the defective forms of virus were probably generated during the passage [or replication] of the cells rather than being present in the original tumour cells of the patient.” Possibly because of these changes in the virus, the cell line has developed new abilities to grow in different media. (Chen, McLaughlin, Gasson, Clark & Golde, Molecular Characterization of Genome of a Novel Human T-cell Leukaemia Virus, Nature (Oct. 6, 1983) vol. 305, p. 505.)

We find it interesting that Justice Mosk, in his dissent, would object to our “summar[y] of the salient conclusions” (People v. Guerra (1984) 37 Cal.3d 385, 412 [208 Cal.Rptr. 162, 690 P.2d 635] [opn. by Mosk, J.]) of relevant scientific literature in setting forth the technological background of this case. (Dis. opn. of Mosk, i.,post, at p. 182.) This court has previously cited scientific literature to show, for example, that reports of hypnotic recall “form[ed] a scientifically inadequate basis for drawing conclusions about the memory processes of the large majority of the population” (People v. Shirley (1982) 31 Cal.3d 18, 59 [181 Cal.Rptr. 243, 723 ] [opn. by Mosk, J.]), and that eyewitness testimony can be unreliable (People v. McDonald (1984) 37 Cal.3d 351, 365-367 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011] [opn. by Mosk, J.]).

36 In Diamond v. Chakrabarty, supra, the United States Supreme Court held that a genetically engineered bacterium was patentable as a “new and useful. . . manufacture, or composition of matter” under 35 United States Code section 101. (447 U.S. at pp. 308-310 [65 L.Ed.2d at pp. 149-150].)

37 To avoid this conclusion, the dissent endorses a proposal to expand Congress’s definition of “joint inventor” (35 U.S.C. § 116) to include the human source of biological materials used in research. (Dis. opn. of Mosk, J., post, at pp. 168-169.) Because exclusive power to effect change in the law of patents lies with Congress and the federal courts (U.S. Const., art. I, § 8, cl. 8; 28 U.S.C. §§ 1295, 1338), the dissent’s criticism of the law’s present state has no legitimate bearing on our disposition of this case.

38 “ ‘The foundation for the action for conversion rests neither in the knowledge nor the intent of the defendant. . . . [Instead,] “the tort consists in the breach of what may be called an absolute duty; the act itself... is unlawful and redressible as a tort.” ’ [Citation.]” (Byer v. Canadian Bank of Commerce (1937) 8 Cal.2d 297, 300 [65 P.2d 67], quoting Poggi v. Scott (1914) 167 Cal. 372, 375 [139 P. 815], See also City of Los Angeles v. Superior Court (1978) 85 Cal.App.3d 143, 149 [149 Cal.Rptr. 320] [“[conversion is a species of strict liability in which questions of good faith, lack of knowledge and motive are ordinarily immaterial.”].)

39 “Under the current system of tissue banks, many firms have access to the tissue so the probability of efficient use of those tissues increases. . . . Presently, researchers need only ask for tissue samples, and their requests are usually granted by their own research facility, other research facilities, or tissue banks.” (Note, Source Compensation, supra, 64 Notre Dame L. Rev. at p. 635. See also OTA Rep., supra, at p. 52.)

40 As if to argue that liability for conversion could not make researchers’ predicament any worse than it already is, the dissent asserts that the exchange of cell lines among researchers is increasingly restricted by contract. (Dis. opn. of Mosk, J., post, at pp. 170-171.) However, as the Office of Technology Assessment explained in its report, this caution is “a result of concerns over patent and ownership rights, ” including “[uncertainty about how courts will resolve disputes between specimen sources and specimen users . . . .” (OTA Rep., supra, at pp. 27, 52, italics added.) Obviously, the extension of liability for conversion can only exacerbate the problem.

Moreover, the dissent’s factual premise that biological materials no longer pass freely among researchers is greatly overstated. In the most important research contexts the distribution of biological materials is still essentially unrestricted. The Office of Technology Assessment found that “[ijnformal transfers are common among researchers and universities around the country.” (OTA Rep., supra, at p. 52.) In addition, tissue repositories provide cell lines and tissue samples to any qualified researcher, either without cost or for a nominal fee. (OTA Rep., supra, at p. 53.) The availability of patent protection for cell lines actually increases the availability of research materials, since the United States Patent Office requires patent holders to make patented microorganisms available to researchers immediately after a patent issues. (See generally In re Lundak (Fed. Cir. 1985) 773 F.2d 1216, 1220-1222.) Generally available cell lines are of substantial importance not just to academic research, but to commercial research as well. Indeed, some biotechnology companies “do not use any original human tissue in research, concentrating their efforts on established cell lines instead. These companies obtain and manipulate generally available cell lines, resulting in new, unique, or improved cell lines.” (OTA Rep., supra, at p. 55.)

41 In his concurring and dissenting opinion, Justice Broussard suggests that we could extend conversion liability without threatening research by requiring the plaintiff to allege, in addition to the elements of conversion, that fraud by the physician invalidated the plaintiff’s consent. (Cone, and dis. opn. of Broussard, J., post, at pp. 157-159.) There is, however, no need to create a new cause of action. As we have already explained, the allegation that a physician concealed material facts supports a cause of action for breach of fiduciary duty under existing law.

Nor would it significantly ameliorate the threat to research to limit conversion liability to cases in which the patient’s consent was invalid. One cannot know with certainty whether a consent is valid until a lawsuit has been filed and resolved. Moreover, since liability for conversion is based on a finding that the plaintiff has a continuing ownership interest, the threat of a lawsuit against anyone in the chain of title would place the ownership of research materials in doubt.

42 In order to make conversion liability seem less of a threat to research, the dissent argues that researchers could avoid liability by using only cell lines accompanied by documentation of the source’s consent. (Dis. opn. of Mosk, J., post, at pp. 172, 173.) But consent forms do not come with guaranties of validity. As medical malpractice litigation shows, challenges to the validity and sufficiency of consent are not uncommon. Moreover, it is sheer fantasy to hope that waivers might be obtained for the thousands of cell lines and tissue samples presently in cell repositories and, for that reason, already in wide use among researchers. The cell line derived from Moore’s T-lymphocytes, for example, has been available since 1984 to any researcher from the American Type Culture Collection. (American Type Culture Collection, Catalogue of Cell Lines and Hybridomas, supra, at p. 176.) Other cell lines have been in wide use since as early as 1951. (OTA Rep., supra, at p. 34.)

43 See footnotes 21 through 27, ante.

44 Our disposition of this case makes it unnecessary to decide Sandoz’s contention that, even if Moore’s cells were personal property, the Regents took them pursuant to their statutory power of eminent domain. Under Education Code section 92040, “[t]he Regents . . . may acquire by eminent domain any property necessary to carry out any of the powers or functions of the University of California.” One of the university’s functions is to be “the primary state-supported academic agency for research.” (Ed. Code, § 66500.) We note that San-doz did not present this argument to the lower courts.

Our disposition also makes it unnecessary to consider Golde’s contention that federal patent law would preempt a holding that Moore has any property rights in the subject matter of the Regents’ patent, including the cell line. Golde bases his argument on the well-established principle that state law may not “give protection of a kind that clashes with the objectives of the federal patent laws.” (Sears, Roebuck & Co. v. Stiffel Co. (1964) 376 U.S. 225, 231 [11 L.Ed.2d 661, 667, 84 S.Ct. 784]; see also Kewanee Oil Co. v. Bicron Corp. (1974) 416 U.S. 470, 480 [40 L.Ed.2d 315, 324-325, 94 S.Ct. 1879].)