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In 1793, America's first Patent Act was implemented, and the Patent Office (USPO) was established. Its curator, Thomas Jefferson, believed that the monopolies that would result from this act were necessary evils that would help make sure that "ingenuity should receive a liberal encouragement." (1) He never would have imagined that 200 years later, society would be in a serious debate over the ability to patent human beings.
In 1985, the USPO decided that all plants, seeds and plant tissues could be patented. Furthermore, in 1987, all living organisms, including animals could be patented. The exclusion of human beings by the Patent Commissioner acknowledged that an ethical issue did exist; nevertheless, body parts, fetuses and embryos are all capable of being patented. (2)
The NIH did not discover DNA or the genome, yet they can take credit for "inventing" a part of it.
The National Institute of Health (NIH has sought patents for DNA fragments from the human genome. Dr. Craig Venter, the man responsible for the sequencing of these fragments, admits that he "still has no idea what it does." (3) The fact that these fragments are currently useless demonstrates the hastiness of NIH and the ignorance of the Patent Office. NIH is not willing to take the time to discover a use unless they are ensured an economic incentive for it. As Dr. Ian Malcolm said, in "Jurassic Park," "You stood on the shoulders of geniuses to accomplish something as fast as you could, and before you even knew what you had, you patented it, packaged it and now you're selling it." (4) The NIH did not discover DNA or the genome, yet they can take credit for "inventing" a part of it.
In 1984, moore sued, claiming that everyone has a right to their own body parts...in 1990, the California Supreme Court denied that people have such rights to their bodies.
In 1976, a Seattle businessman named John Moore was treated for a rare form of leukemia at UCLA. The doctors there removed rare "hairy cell leukemia" cells from his spleen. Although Moore signed a standard consent form allowing research on his organ, he was not informed of the commercial value of it. From these cells, the doctors developed antibacterial and cancer-fighting proteins and went on to patent them. (1) They are valued at more than $3 billion. (5) In 1984, Moore sued, claiming that everyone has a right to their own body parts, and that he should be awarded a share of the profits. However, in 1990, the California Supreme Court denied that people have such rights to their bodies (1). Ned Hettinger explores the rationale that people are "naturally entitled to the fruits of their labor." The Lockean rationale, similarly: "I made it and hence it is mine; it would not have existed but for me." (6) These are the grounds for granting a patent, and, under these rationales, the doctors should not have been granted one. They did not make or create these cells. Had it not been for John Moore, these doctors would not have been able to develop anything at all.
... The United States had sought U.S. and European patents on a virus from the cells of a 26-year old Guaymi Indian woman from Panama without her knowledge.
In 1993, the Rural Advancement Foundation International (RAFI) found that the United States had sought U.S. and European patents on a virus from the cells of a 26-year old Guaymi Indian woman from Panama without her knowledge. Interest in this community strengthened when the NIH discovered that members had a unique virus that may be helpful in AIDS and cancer research. Upon discovery of the activities of the NIH, the Guaymi General Congress protested. The United States ended up withdrawing the NIH's application. However, this incident would not prevent them from trying again. (5)
Soon after, the United States applied for two more patents in the U.S. and in Europe. They were interested in cells from peoples of the Solomon Islands and Papua New Guinea. Once again, citizens of these communities protested. The reply came from then-Secretary of Commerce, Ron Brown. He stated, "Under our laws, as well as those of many other countries, subject matter relating to human cells is patentable and there is no provision for considerations relating to the sources of the cells that may be the subject of a patent application." (5) In this statement, Brown implied that who and where the human material comes from is irrelevant, and that their protests were futile. This event helped unite several South Pacific Island nations. In March, 1995, the Department of Health and Human Services was granted a patent by the United States Patent Office for the Papua New Guinea Human T-lymphotrophic virus. This was the first human cell line from an indigenous population to be patented. A proposal from the group of nations that included Papua New Guinea established their sovereign space as a "patent-free zone." Subsequently, the United States, once again, abandoned their patent in 1996.
The journey to Tristan da Cunha, often called the world's loneliest island, demonstrates how far these "explorers" would go to find a potential discovery or invention. In April of 1997, Dr. Noe Zamel, a University of Toronto medical geneticist, journeyed by a South African navy ship to this remote island in the middle of the Atlantic Ocean. He was supported by Sequana Therapeutics of La Jolla, California in the hope of finding genes responsible for asthma. Around half of the island's 300 residents suffer from asthma. From 270 blood samples, his team located two "candidate genes." Until these findings are patented, though, the company is refusing to release any information to any other researchers in this field. They are, thus, accused of putting money in front of finding a cure that would benefit society. This is one example of how much companies are dependent on the patent system to protect their financial interests. (5)
Recently, a U.S. company named Biocyte was awarded a patent by the European Patent Office. This patent applied to all human blood cells from the umbilical cord of a newborn that are used for therapeutic purposes. These cells are a vital part of marrow transplants. Because this patent is so broad, though, Biocyte has the ability to refuse all blood cells from the umbilical cord to anyone who won't pay the fee. Even more ludicrous is the fact that the only reason Biocyte received the patent was because they were able to isolate the cells and deep-freeze them. They did nothing to change or alter them. (5)
Similarly, a company named Systemix was given a patent by the United States Patent Office on all human bone-marrow cells. Again, nothing was altered or changed. We are starting to see a trend where not only does the "invention" not have to be useful, but it doesn't have to be novel, either. (6)
... Abolitionists argued that every human being had an intrinsic value. Therefore, humans cannot be made the property of another human being.
A massive, five year, $35 million project called the Human Genome Diversity Project seeks to discover all genetic diversity in order to find genes that may be helpful in the development of new drugs. It is run by Dr. Luigi Luca Cavalli-Sforza, a population geneticist and professor at Stanford University and financed by the National Institutes of Health. In order to find these genes, the team will take blood samples, human tissues and hair root from over 10,000 people from 722 indigenous communities. At a cost of $2300 per sample, this $35 million project is more than the per capita GNP of any of the poorest 110 countries. (7) The continuing threat of extinction of these indigenous communities increases the urgency of documenting the genetic makeup of these peoples before they too become extinct. Since 1900, 90 out of the 270 Brazilian indigenous communities have become extinct and more than two-thirds of the remaining communities have less than 1000 members.
The targets of this project are spread out somewhat evenly around the world. There are 165 targeted communities in Africa; 212 in Asia; 114 in South America; 101 in Oceania; 107 in North America; and 23 in Europe. In a letter to the National Science Foundation, Tadodaho, chief Leon Shenandoah of the Council of Chiefs of the Onandaga Nation protested, "Your process is unethical, invasive and may even be criminal. It violates the group rights and human rights of our peoples and indigenous peoples around the world. Your project involves the very genetic structures of our beings." (2) In one example, the community of people from Limone in Italy possesses a gene that codes against cardiovascular disease. This has led to the ambush of this community by Swedish and Swiss pharmaceutical companies and the University of Milan taking blood samples and applying for patents. (7) Have we taken this too far or are the benefits that could potentially come from these patents worth it?
When we examine the justification of human patenting, we are determining whether or not we value human beings intrinsically. Going back to the nineteenth century, abolitionists argued that every human being had an intrinsic value and "God-given rights." Therefore, humans cannot be made the property of another human being. This argument is valid, but more and more, we are justifying human patents by saying that patents are necessary for the development of anything, even medical treatments and cures derived from human material. We cannot deny that if a cure for cancer is found in the genetic makeup of a human, medicine will greatly benefit from this knowledge. Will the person from whom the genes are taken from benefit at all? The problem is that if we patent a human being, we are disregarding that person's intrinsic value. However, if we do not, we may be giving up an opportunity to save lives. What do we value more? Religious leaders have taken a unanimous stand on the immorality of patenting human life. In May of 1995, a coalition of more than 200 religious leaders, representing every Protestant denomination, Catholicism, Judaism, Islam, Buddhism, and Hinduism, united in the opposition to patenting human genes, organs, tissues and organisms. They did not express opposition to "process" patents to create transgenic life forms, but they concluded that, "Either life is God's creation or a human invention, but it can't be both." (2) The fact that hundreds of religious leaders from almost all faiths took the same side in this debate says a lot about how religion interprets this issue. (2)
In may of 1995, a coalition of more than 200 religious leaders united in the opposition to patenting human genes, organs, tissues and organisms.
The ownership of a human being by another human being seems preposterous even to modern society yet human patenting has become a frightening reality. From the companies that seek patents to the individuals being sought, the potential for medical breakthroughs is great. How we go about developing these breakthroughs and how we reward them depends on how we value human life. The protests of John Moore and the peoples of New Guinea, Tristan da Cunha and many other indigenous communities around the world have successfully exposed the controversy. Is society prepared to view human life as a mere commercial value? On the other end of the spectrum, the patenting of human life encourages invention and the potential of a medical breakthrough is directly related to this patent system.
From "Jurassic Park," Dr. Ian Malcolm responds to an explanation by one of the scientists about controlling the sex of the dinosaurs to ensure that the dinosaurs did not breed. He says, "If there's one thing the history of evolution has taught us, it's that life will not be contained." We continue to view nature as something we have control over and can manipulate. However, we are now allowing ourselves to be controlled and manipulated. Will the history of evolution prove right? Only the future will tell.
Works Cited
1. Bereano, PL. Body and Soul: The Price of Biotech. Seattle Times Aug 20, 1995: B5. Online. Internet. Oct. 21, 1998.
2. Bereano, PL. Patent Pending: The Race to Own DNA. Seattle Times Aug. 27, 1995: B5. Online. Internet. Oct.21, 1998.
3. Botkin, Jeffrey R. & Maxwell J. Mehlman. Access to the Genome: The Challenge to Equality. Washington, DC: Georgetown University Press, 1998.
6. Hettinger, N. (1995) Patenting Life: Biotechnology, Intellectual Property, and Environmental Ethics Boston College Environmental Affairs Law Review 22: 267-305.
4. Jurassic Park. Dir. Steven Spielberg. Perf. Sam Neill, Laura Dern, Jeff Goldblum and Richard Attenborough. Universal, 1993.
3. Kiley, TD. (1992) Patents on Random Complementary DNA fragments? Science 257: 915-18.
7. Office of Technology Assessment. Genetic Technology: A New Frontier. United States of America: Westview Press, Inc., 1982.
7. Rural Advancement Foundation International. RAFI Communique May. 1993. Online. Internet. Oct. 21, 1998.
9. Rifkin, J. The Biotech Century: Human Life as Intellectual Property. The Nation 13 April 1998. Online. Internet. Oct. 21, 1998.
10. United States Constitution. Article I, Section 8.
11. United States. Cong. Senate. Subcommittee on Patents, Copyrights and Trademarks. The Genome Project: The Ethical Issues of Gene Patenting. 102nd Cong., 2nd sess. Washington: GPO, 1992.