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Is it ethical to patent people?
By Lori Andrews
Chicago Tribune
November 9, 2003
[Lori Andrews is a law professor at Chicago-Kent College of Law and the
director of the Institute for Science, Law and Technology at the Illinois
Institute of Technology.]
The U.S. Supreme Court has ruled that "anything under the sun made by man"
is patentable. But what if that something "made by man" is a human embryo?
Congress is about to vote on the vexing issue of whether human embryos can
be patented. This obscure question of patent law will have a profound impact
on the type of society our children will grow up in. If patents on human
embryos are allowed, then biotech companies will market babies with certain
traits just like Perdue markets chicken or Ford markets sport-utility
vehicles.
Already, the U.S. Patent and Trademark Office issues patents on animals that
have been genetically engineered to have certain traits. DuPont Co., for
example, has a patent on mice with cancer genes. As a result, DuPont is
entitled to collect a royalty fee from any scientist who wants to create
such a mouse to undertake cancer research. This obviously deters some
scientists from launching important medical research because of the fees
involved.
Even genetically engineered pets can be patented. Yet the very idea of
patenting a living organism leads to absurdities. If I buy a dog that has
been genetically enhanced to have a shinier coat and she runs off and,
without my knowledge, has a litter with some neighborhood mutt, I would owe
a royalty fee to the holder of the patent for every puppy who inherits the
shiny coat.
The day may come when human embryos, like those of animals, will be
genetically enhanced. Scientists might put a gene in to protect the
resulting child against breast cancer or other diseases. Or scientists
might choose a more cosmetic approach -- adding a gene to protect against
baldness or to assure that the child has blue eyes. If a company is granted
a patent on human embryos free of breast cancer, then -- under the patent
law -- any couple who wanted their embryo to be free of breast cancer would
have to pay whatever the company charged. Patent law gives companies a
20-year monopoly on the patented invention.
The problems of such an approach are already apparent with human gene
patents. Myriad Corp. has a patent on the human genes that predispose some
women to breast cancer. Since the company has a monopoly, it can charge
whatever it wants to women who seek genetic testing for breast cancer.
Currently, Myriad charges a whopping $2,580 for the test.
Already, the American Bar Association's Section on Intellectual Property is
racing to analyze the legal issues that might occur with patents affecting
human reproduction. In particular, the ABA lawyers are concerned with poor
people who might not be able to afford to have children if they would owe
royalties to patent holders every time they procreated.
Wisely, the U.S. Patent and Trademark Office has thus far refused to issue
patents on human embryos. In July, the U.S. House of Representatives
approved an amendment to an appropriations bill that would ban patent claims
on "human organisms" (so that there would not be patents on embryos, or
children or adults). But before it can become law, the U.S. Senate must pass
it as well.
The Senate will likely consider the amendment within the month, but --
surprisingly -- the outcome is uncertain. The trade organization of biotech
companies, BIO, is lobbying strongly against it. BIO claims that the law
would interfere with embryo stem cell research. That is just a smoke screen.
The amendment (which was introduced by Rep. Dave Weldon (R-Fla.), who also
is a physician) would in no way interfere with embryo stem cell research.
Methods to create embryo stem cell lines would still be patentable, as would
therapies developed from them.
What, then, is BIO's real agenda? Perhaps where others of us see smiling
babies, BIO sees dollar signs. With more than 4 million births a year in the
United States, the market for genetically enhanced embryos might be as
lucrative as that for Prozac or Viagra.
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