Communications Department

Is it ethical to patent people?

Nov 9, 2003 | Human Patenting

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.

Categories: Human Patenting