The Daily Mail reports that the European Court of Justice has just ruled that it is illegal to patent technological processes and treatment which use of embryonic stem cells because this constitutes ‘commercial exploitation’ which is contrary to morality:
Scientists warned the ‘devastating decision’ will stop pioneering treatments for degenerative diseases such as Alzheimer’s and Parkinson’s being developed in the UK, with potentially catastrophic consequences for the multi-million pound biotechnology industry.
The decision follows a case brought by Greenpeace in Germany against Professor Oliver Brüstle … at the University of Bonn. He filed a patent with the German government in 1997 to convert embryonic stem cells into nerve cells to help patients with Parkinson’s disease
Greenpeace challenged it and the case went to the highest court in Germany and then Luxembourg.
The resulting 10-page judgement prohibits patenting any process which involves removing a stem cell from and then destroying a ‘human embryo’ – defined as anything ‘capable of commencing the process of development of a human being.’
It states: ‘Patents may not be granted for inventions whose commercial exploitation would be contrary to morality… In particular patents shall not be awarded for uses of human embryos for industrial or commercial purpose.’
The court has ruled that patenting these processes would contradict the European law which protects human life, including embryos, on the grounds that it forms ‘commercialisation’ of human parts.
A full copy of the decision is available here.
Russell Blackford raises the question of whether we really want courts coming down on one side in these kinds of moral decisions when there are plural positions which are not yet settled in society. I agree that going to court is not really the best means to settle these kinds of very tricky moral issues (‘hard cases make bad law’ and all that…)
I was mildly surprised to see that Greenpeace was the originator of the legal action. Then again, perhaps it is not at all surprising — after all, I read that Greenpeace activists in Canberra destroyed genetically modified crops grown by CSIRO the other day.
23 Comments
I’m sure this is George W. Bush’s fault somehow…
People need to stop taking Greenpeace seriously. They don’t aid the environment at all, let alone science in general. They are just parasites upon those areas.
Greenpeace are brilliant entrepreneurs of licensed virtue. They are selling warm inner glow and they do it very well.
I’m afraid I lost any personal regard for Greenpeace about 10 or 12 years ago after some run-ins with activists who were distinctly unscientific. It also took on the characteristic of a large corporation to make profit – which was quite inconsistent with the virtues it promotes.
Greenpeace is my least favourite environmental organisation by a long shot. Maybe part of the problem is that the organisation is completely undemocratic.
It’s a /very/ tricky area. It looks like it’s possible to push stems cells from being specific (such as the stem cells that only produce one general form of tissue), along the spectrum to pluripotent or possibly even totipotent. Zapping cells with electricity is one mechanism.
Even normal tissues can become totipotent, or at least very pluripotent, with totally natural processes, such as a teratoma, where germ cells, or germ cell precursors in the ovary or testes can form any tissue at all, and at least conceivably, the formation of something at least as complex as early stages of an embryo.
So it’s not unlike the hairy bits of the Regents of UCB v the person the tissue was taken from that provided an immortal cell line.
Mel @ 4:
Agreed.
Dave @ 5 – I should have mentioned Regents of UCB! You’re right, it’s complex.
Of course, even a 3-year old can make a pretty good rule for whether something can be owned (or in this case patentable) . Natural? Cannot be owned. Man-made? Might be. Patents offices should be as discriminating. (And OK, what about ownership of natural things like dirt … or rocks … or the metals in the rocks… but that’s a whole other debate).
Artifacts and Natural Kinds: Children’s Judgments About
Whether Objects Are OwnedOnline First Publication, September 19, 2011. doi: 10.1037/a0025661
Dave, that’s brilliant. When I have taught property and come to ideas that we should ditch property, I always say, “Clearly this theorist has not seen a two-year-old who has had her security toy taken away by another two-year-old.” Some concept of property is innate in humans, I think.
The children are effectively endorsing a Lockean view of property – if you put work into transforming something, it belongs to you.
Children ALSO exhibit a slightly different view of ‘work’, as in I worked to wrest this from your helpless grasp therefore it belongs to me….
I don’t have an opinion on this particular case (yet) but I do think the use of patent law applying to biological matters is something that needs to be deeply considered. There’s a line that being crossed and those crossing it could be going somewhere scary.
Adrien, absolutely. But using “immorality” as a criterion for what is and what is not legitimate is kind of worrying to me.
There speaks a father who knows of the struggles between siblings…
Are adults really so different? Sometimes I wonder… Indeed, the notion of possessory title could be taken to reflect exactly that sentiment!
But using “immorality” as a criterion for what is and what is not legitimate is kind of worrying to me.
Indeed.
I share the concerns of such as Greenpeace but I’ve been aware some time of the dangers of their screwiness.
It seems the various conventions and EU directives require the courts to rule on the ordre public and morality. I wonder what that looks like in practice – as you say, that isn’t the best role for a court.
In this decision, though, I think it’s more straightforward, as the exclusion of uses of embryos is one of the offending cases particularly spelled out in the directive. The question was essentially whether the use of cells obtained by destroying embryos is a use of embryos. The decision may even have been different if the court did consider morality directly.
Of course, the whole issue is a bit strange, as Greenpeace and the activists seem to be concerned with the use of embryonic stem cells generally, while the laws used are aimed only at their commercial or industrial exploitation, and the direct result is only that anyone else can’t be stopped from exploiting them… Understandably, this is mostly ignored by the Daily Mail article, but I’m not sure it gives a good idea of what the consequences might be, either.
There’s quite a good write-up here:
http://www.nature.com/news/2011/111018/full/news.2011.597.html
The effect of the judgment is likely to be avoided via choice of law clauses (California is particularly popular, for some reason), although the judgment (I’ve just read it) is the usual mess of sloppy thinking one gets from the ECJ, and will probably inhibit investment in biotech in Europe to some extent (mainly through the creation of a climate of uncertainty).
In terms of the law, the general rule with EU Directives is that while they have to be implemented, that process of implementation is governed by the laws in the individual member states.
However, where there is no member state jurisprudence on the issue, or the time for implementation has passed, then the ECJ can treat a Directive like a Regulation, which has direct effect — ie, it is applied in all member states in exactly the same way, without making any allowances for differences in national law. That’s what’s happened here: see par 21 of the judgment.
More reasons to hope that when the Euro goes down in flames, it takes the whole sodding EU with it.
[Edited to add: another thing worth doing is to FOI Greenpeace to death and then use the information obtained to deprive them of charitable status, as has already happened in New Zealand.]
Kenan Malik has got stuck into the decision.
IMHO courts should tell us what is legal and what is illegal. They shouldn’t tell us what is moral and what is immoral even if morality informs their decision making.
Dave – what do children make of territory? (ie land rights).
Terje, on an anecdotal level, my daughter wouldn’t cut across a neighbour’s lawn to get to me when she was two. It seemed that she thought it was their land. Cultural or intrinsic?
As I’ve noted before, many animals have strong territoriality – I wonder if Great Apes do? And I wish there were other extant hominids for comparison although maybe the fact there’s not tells us something about territoriality?!
Why are you discounting Collingwood supporters?
Hey some of my friends are hominids, erm, I mean Collingwood supporters.
Fantastic post by Russell Blackford here at Talking Philosophy.
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