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The Roslin Institute
announced last week that it had applied to patent the method by which its
scientists had cloned Dolly the sheep. The patent, if granted, would apply to
"nuclear transfer technology" in both human and animal cells. One point of the
patent is to help fund research into cures for diseases such as Parkinson's,
Alzheimer's, cancer and heart failure.
Its other aim is to make
some money. Last May, the Roslin Institute was taken over by Geron, an American
biotech company. Geron has committed ＄32.5 million to research at the Roslin. It
wants to get its money back. Two scientists from Stanford who developed the use
of restriction enzymes, one of the fundamental techniques in biotechnology, made
about pounds 80 million out of it in the 17 years before the patent expired. So
you can see why Geron-Roslin is so keen to get its patent. There's nothing wrong
with that. Without the prospect of a return at the end of investment, no one
would ever lend money to anyone involved in bio-medical research—and given the
huge sums now required to develop a new drug, or a new diagnostic test for some
medical condition, that would mean there wouldn't be any research. It is
wonderful when people give money to worthwhile causes with no hope of personal
gain. But appealing to altruism simply won't raise the billions required to
develop and market drugs and therapies that rely on biotechnology. For that, you
have to appeal to investors' self-interest—which is why the bulk of medical
research is funded not by charities or even tax-payers but by private companies
and individuals.
The fact that biotech research depends on
patents generates profound hostility. The opposition to the patenting of genetic
sequences, cells, tissues and clones—critics call it "the privatization of
nature"—takes many forms, from a Luddite desire to stop scientific research to a
genuine, if mistaken, conviction that common ownership is always morally
preferable to private property. But all of the objections have a single root.
the sense that it must be wrong to make money out of the constituents of the
human body. They cannot be "owned" by any individual, because they belong to
everyone. There cannot be "property in people".
That is a
profound mistake. The truth is rather the opposite: there is only property in
things because there is property in people. People own their own bodies, and
that ownership is the basis of their property rights (and most other individual
rights, come to that). The problem with the law as it stands is that it doesn't
sufficiently recognize an individual's property rights over his or her own body,
and his or her entitlement to make money out of it.
The outcome
of a lawsuit in the US nearly 10 years ago defined the de facto rules governing
the ownership of human tissues, and the financial exploitation of the
discoveries that derive from them. In Moorev the Regents of UCLA the issue was
whether an individual was entitled to a share of the profits that a biotech
company made from developing drugs or treatments derived from cells that came
from his body. Dr David Golde had discovered that John Moore, one of his
patients, had a pancreas whose cells had some unusual properties that might be
helpful in treating a form of cancer. In his laboratory, Golde developed what
his called a "cell line" from Moore's cells and patented it. When Moore found
out, he sued Dr Golde for a share of whatever profits the cell line
generated.
Mr. Moore lost. The court said he had no right to any
of those profits, because he did not own the cells removed from his body.
Moreover, the court held that since "research on human cells plays a critical
role in medical research", granting property rights to the patient from whom the
cells came threatened to "hinder research by restricting access to the raw
materials".
In essence, that decision said that biotech
companies could own and make money out of human cells and tissue—but the person
from whom that tissue or cells came could not. The logic behind that decision is
bizarre. No one except the most unreconstructed communist disputes that I own my
own body. Indeed, it is only because I own my body that I can come to own
anything else independent of it, mixing my labor with something being the most
fundamental means by which I can come to own it. If cells from Mr. Moore's body
are his property, how can anyone else come to own them—unless he sells or gives
those cells to them? (778 words)