Owning the Genome: A Moral Analysis of DNA Patenting

Chapter 6

INTRODUCTION This chapter will examine and critique an important deontological challenge to DNA patenting, namely, the objection that DNA patents violate human dignity. We have already seen how members of the “Joint Appeal against Human and Animal Patenting” compared DNA patenting to slavery , while many critics have objected to treating human beings (or their parts) as marketable commodities (Rifkin 1998; Andrews and Nelkin 2000). Kimbrell (1997) launches a particularly vociferous condemnation of the commodification of all biological materials, including DNA. I will let his words speak for themselves: The patenting of human genes by government and private corporations could create a unique and profoundly disturbing scenario. The entire human genome, the tens of thousands of genes that are our intimate common heritage, would be owned by a handful of companies and governments. (Kimbrell 1997, 228) We are now in the early stages of adding the human body, its parts and processes, to the list of commodities that are subject to the laws of supply, demand, and price. The body is not a commodity. It is not a manufactured product intended for consumption. . . . The new techniques in biotechnology . . . are now leading to the commodification of the body. . . . Animals are being genetically mutated, often cruelly, in order to make them better products or factories for the 93 6 DNA Patents and Human Dignity production of valuable human genes and chemicals. And corporations are poised to gain patent ownership of all human genes and valuable cells. (Kimbrell 1997, 330–31) Although Andrews and Nelkin are more circumspect than Kimbrell in their analysis of DNA patenting, they also are concerned about the threat to human dignity posed by patenting: In the current genetic gold rush, patients and the public are losers. Costs of genetic diagnostic tests have skyrocketed and research has slowed. But more tragic is the shift in the cultural value of people. No longer valued as active producers of the product, they have become the raw material itself. . . . That human beings would be perceived as raw materials was predicted twenty years ago in a brief filed in the Chakrabarty case. (Andrews and Nelkin 2001, 63) The European Commission also weighed in on this issue when it stated that the EPC may refuse to patent an invention that infringes on the rights of the person or violates human dignity (European Commission 1998). As noted in chapter 3, the EPC has a public morality clause that allows the agency to refuse patents that are against the public morality. There has been considerable discussion among members of the EPC about what types of biotechnology patents would be against the public morality (Crespi 2000). Directive 98/44 of the European Parliament and Council declares that patents on processes for cloning human beings, processes for modifying the germ-line of human beings, and uses of human embryos for commercial purposes would be against the public morality (European Parliament and Council 1998). The main moral objection to these types of patents is that they would violate human dignity by treating people as manufactured goods or commercial products (Knoppers, Hirtle, and Glass 1999). In chapter 3 I also noted that the Council for Responsible Genetics opposes DNA patenting in its Genetic Bill of Rights. In the preamble of this document, the Council states that manipulation of human genes threatens human rights and dignity (Council for Responsible Genetics 2000). During his unsuccessful presidential campaign, Green Party candidate Ralph Nader used gene patenting as yet another example of how corporations have run amok and have commercialized things that should not be for sale, including human beings (Nader 2000). Thus, many different critics, scholars, consumer advocates, religious leaders , and some scientists have argued that DNA patents violate human dignity. On the other hand, scientists, patent attorneys, and business leaders have found it hard to understand why people would think that DNA patents violate human dignity (Evans 1999). If DNA is a chemical compound, then how 94 Owning the Genome could DNA patents pose a threat to human dignity? A patent on DNA should pose no more of a threat to human dignity than a patent on isolated and purified insulin, growth hormone, or genetically engineered clotting factors. However , since DNA encodes genetic information, it is no ordinary macromolecule . As we noted in the previous chapter, some people regard the human genome as our common heritage. As we shall see in this chapter, some people regard the human genome as intimately...