Kara Swanson on blood banks, commodification, and “de-propertization”

Please note that this post is from 2012. Evaluate with care and in light of later events.

Kara Swanson, law professor (and history of science PhD) at Northeastern University, presented a fascinating talk on blood banks at the History of Science Society 2012 meeting in San Diego. While we’ll have to wait for her book on the topic to come out, I nonetheless found enough to entertain me:

Before the 1915 — and for a while afterwards, blood transfusions were done directly from arm-to-arm, person-to-person. Blood had to be provided “on the hoof” by donors in the same room at the same time as the patient, the procedure and linkage was complex and fragile, and complication rates were relatively high for both patient and donor. The development of anti-coagulants gave doctors an alternative, allowing blood to be taken and stored for short periods of time. It also led to storage repositories for blood, repositories which came to be known by the end of the 1930s as “blood banks.” The metaphor suggested a familiar concept of deposit-and-withdrawal to people, along with a strong sense of the key importance of oversight and care that bank failures in the Depression had instilled in people.

These early systems usually paid those who provided blood, or operated on a credit-and-debit system where patients who received blood had friends and family donate on their behalf to correct the imbalance. Massive blood donation campaigns in WWII — now that blood, or at least plasma, could be sent overseas, encouraged unselfish donation of blood instead, an approach that would become the standard by the late 20th century.

Post-war, however, most blood banks increasingly commodified their blood supplies, paying donors and in turn supplying blood as a fungible product to hospitals and doctors. At the same time, product liability law in the United States was increasingly moving towards strict liability — products that caused harm were automatically considered defective, and producers and suppliers could be held liable without proof of negligence.

Although blood had become increasingly safe (blood types were well understood and blood products were labeled and tested for type), diseases like hepatitis were all-too-often transmitted during transfusions. Infected patients turned to product liability lawsuits to recover damages. By the 1960s, strict product liability had become established in the law (led by California’s Greenman v. Yuba Power Products, 59 Cal. 2d 57 (1963)), and blood banks became increasingly nervous about their potential liability to patients.

As a consequence, blood banks moved in two related directions. First, in cooperation with hospitals, they “rebranded” themselves as service providers. Blood (formerly the product) was now incidental; banks weren’t selling blood anymore, they were connecting patients and donors. Second, and relatedly, blood banks stopped paying donors for whole blood (which has more potential disease transmittal issues), and blood donation became a kind of “gift economy“: as in WWII, public-service campaigns encouraged people to donate in order to help others, and not as a means of income. Blood was increasingly “de-propertized” or “de-productized” in order (at least partly) to keep it out of the realm of strict product liability law.

This approach had become firmly entrenched in the 1970s, and continues today.

I was left wondering how much this shift was influenced by, or in turn had an influence on, the American legal conception that we have no property rights in our own bodies (Moore v. Regents of the University of California, 51 Cal. 3d 120 (1990)). That is, if cells taken from me become money-makers, I am not entitled to a share of the profits. Similarly, the United States bans the sale of organs — only voluntary donation is permitted. (Sperm, eggs, and blood are some exceptions to this general rule, although even then property rights are limited though sale is permitted.) I wonder how much influence product liability had on this outcome, especially since the prohibition is often presented in moral terms? Similarly, did moral qualms about sales of human products influence, encourage, or help the move towards blood donation as a gift economy?

I look forward to seeing Dr. Swanson’s eventual book on blood banks (and other kinds of “body banks”) — it should be fascinating.