Patenting stem cell technology legally ‘immoral’ in Europe

By Legal Eagle

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.


  1. Movius
    Posted October 20, 2011 at 4:39 pm | Permalink

    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.

  2. Posted October 20, 2011 at 5:20 pm | Permalink

    Greenpeace are brilliant entrepreneurs of licensed virtue. They are selling warm inner glow and they do it very well.

  3. Mel
    Posted October 20, 2011 at 6:42 pm | Permalink

    Greenpeace is my least favourite environmental organisation by a long shot. Maybe part of the problem is that the organisation is completely undemocratic.

  4. Posted October 20, 2011 at 7:03 pm | Permalink

    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.

    teratomas have been reported to contain hair, teeth, bone and, very rarely, more complex organs such as eyes, torso, and hands, feet, or other limbs

    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.

  5. Posted October 20, 2011 at 9:03 pm | Permalink

    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

    People’s behavior in relation to objects depends on whether they are owned. But how do people judge whether objects are owned? We propose that people expect human-made objects (artifacts) to be more likely to be owned than naturally occurring objects (natural kinds), and we examine the development of these expectations in young children. Experiment 1 found that when shown pictures of familiar kinds of objects, 3-year-olds expected artifacts to be owned and inanimate natural kinds to be non-owned. In Experiments 2A and 2B, 3–6-year-olds likewise had different expectations about the ownership of unfamiliar artifacts and natural kinds. Children at all ages viewed unfamiliar natural kinds as non-owned, but children younger than 6 years of age only endorsed artifacts as owned at chance rates. In Experiment 3, children saw the same pictures but were also told whether objects were human-made. With this information provided, even 3-year-olds viewed unfamiliar artifacts as owned. Finally, in Experiment 4, 4- and 5-year-olds chose unfamiliar artifacts over natural kinds when judging which object in a pair belongs to a person, but not when judging which the person prefers. These experiments provide first evidence about how children judge whether objects are owned. In contrast to claims that children think about natural kinds as being similar to artifacts, the current findings reveal that children have differing expectations about whether they are owned

  6. Patrick
    Posted October 21, 2011 at 7:50 am | Permalink

    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….

  7. Adrien
    Posted October 21, 2011 at 8:21 am | Permalink

    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.

  8. Adrien
    Posted October 21, 2011 at 9:29 am | Permalink

    But using “immorality” as a criterion for what is and what is not legitimate is kind of worrying to me.


    I share the concerns of such as Greenpeace but I’ve been aware some time of the dangers of their screwiness.

  9. Jonathan D
    Posted October 21, 2011 at 10:11 am | Permalink

    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.

  10. Posted October 22, 2011 at 11:31 pm | Permalink

    There’s quite a good write-up here:

    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.]

  11. Posted October 23, 2011 at 7:54 am | Permalink

    Kenan Malik has got stuck into the decision.

  12. TerjeP
    Posted October 26, 2011 at 5:03 am | Permalink

    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.

  13. TerjeP
    Posted October 26, 2011 at 5:04 am | Permalink

    Dave – what do children make of territory? (ie land rights).

  14. kvd
    Posted October 26, 2011 at 7:11 am | Permalink

    And I wish there were other extant hominids for comparison

    Why are you discounting Collingwood supporters?

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