The Myriad Decision: Affirming Human Dignity in Patents, with a Word of Caution

by Josh Carlson:

The Myriad decision, a.k.a. the DNA Patent Case, is a victory for human dignity. It reaffirms self-ownership and discourages incentives to experiment with embryonic stem cell research.

June has been a bit of a rough month for conservatives in light of some of the Supreme Court’s decision(s).  However, as dark as things seem, there are some reasons to not be totally discouraged.

DNA Strand For example, in Association for Molecular Pathology v. Myriad Genetics, Inc., the Supreme Court dealt with the (perhaps not-so-difficult) question of whether natural DNA was patentable subject matter.  In holding that natural DNA could not be patented, the Supreme Court again affirmed the basic premise of § 101 the U.S. Patent code, which is that “[l]aws of nature, natural phenomena, and abstract ideas are not patentable.”

By holding this, the Supreme Court, knowingly or not, ended up affirming human dignity in at least two ways.  The first way is that this (theoretically) makes screening for this particular gene less costly and thus much more accessible to the general public.  The second way is that a person’s DNA cannot be turned into a commodity for the marketplace, something which also relates to the hot topic issue of embryonic stem cell research

The first reason can easily be seen.  For example, recently, Angelina Jolie had a double mastectomy because she found out she had the gene—the very gene in debate in Myriad—that made it far more likely that she would get breast cancer.  While I am not saying that one should necessarily go that route, nonetheless, it does empower people by letting them plan ahead instead having to adjust on a moment’s notice.  More simply, “Forewarned is forearmed.”

The second reason is a bit more subtle, but it is a logical one.  If one is able to patent a person’s DNA purely by being able to isolate it, then a person’s DNA can be owned by someone else.  This leads to the very uncomfortable implication that a person can be, to some extent, owned by another.

Obviously, it is arguable that the 13th Amendment would prevent this danger from occurring in the first place.  Even so, the principle that mere discovery of things of nature not being patentable helps reinforce the purpose of the 13th Amendment.  As one U.S. Representative pointed out, the ruling “confirms that people — not private companies — own their genes.”

Furthermore, while I am no expert in the field of genetics or of science in general, the Myriad decision may affect the hot topic of embryonic stem cell research.  One reason for the continued support of embryonic stem cell research, despite its many failures, is money, or more accurately, the worship of money.  According to my research, embryonic stem cells, if successful in providing cures, could be patentable subject matter.  In contrast, adult stem cells, which have a good track record of providing cures, including growing a new windpipe, cannot be patented.  Thus, there is a monetary incentive to try and develop cures through embryonic stem cells and not adult stem cells.

However, the Myriad case has made it clear that merely isolating DNA cannot be patented because DNA is a product of nature.  Likewise, it makes sense that isolating an embryo cannot be patented either by the same rationale.  Even if one were to accept the idea that the embryo was not a distinct human being from the mother, but merely part of the woman’s body, there is less incentive to pursue embryonic stem cell research simply because that also is a product of nature.

I must, however, address one major caveat; this does not necessarily affect all areas of embryonic stem cell research.  Specifically, Myriad also held that synthetic DNA, (i.e. cDNA) is patentable.  There are many ways to get an embryonic stem cell, including simply harvesting embryonic stem cells from donors and cloning.  While donated embryonic stem cells may be affected by Myriad, cloned embryonic stem cells might still be patentable because there is an argument that cloned cells are created by people, not products of nature (I’m not saying this is correct, only that the argument is there).  Thus, there still is an incentive to pursue this (highly unethical and still unsuccessful) avenue of research.

Despite this caveat, the Myriad decision affirms human dignity and conservative values.  That is something to be glad about, even when things are down for conservatives.

 

Josh Carlson is a 2013 law school graduate from the University of St. Thomas School of Law in Minneapolis, MN.  He graduated from Bethel University in 2010 with a B.A. in Business and Political Science.  He is currently studying for the Minnesota Bar.

3 Comments

  1. My favorite part is where you say you aren’t an expert in any science, but then have no problem saying that embryonic stem cell research is unsuccessful. As of yet, there have been 2 US clinical trials of treatments directly related to stem cells, one was cancelled due to funding and the other is ongoing. Beyond that, the research has significantly impacted how a number of disorders are viewed in other areas of treatment. Your statement of “unsuccessful” is likely more related to your belief that it is “highly unethical” (also a dubious claim given that highly unethical things are rarely controversial) and not actually related to the impact of any research that has been conducted.

    Plenty of stem cell research would properly fall into the “general research” category which, generally speaking, industry supports very little. Not allowing patents from that research will probably have very little impact on those results.

    • Josh Carlson says:

      Regarding my answers, this is based on the research I have done. But here’s one reason indicating it hasn’t been successful: http://www.nytimes.com/2009/03/10/science/10lab.html. I didn’t say it never would be successful ever, only that my research indicates it hasn’t compared to adult stem cells.

      As far as the ethical concern I raise, well, if human life begins at conception (i.e. egg + sperm), then there definitely is an issue there, because that means that humans are being used as a commodity.

      Cheers. 🙂

  2. Make no mistake, I absolutely understand why you might say that it is unethical. However, note that you used a conditional in your statement of why it is unethical so there is an understood “and I think life begins at conception” in your statement. The AMA, for instance, would disagree (hence “controversial” being a more apt description than “unethical.”)

    The age of your source betrays what really is happening here: confirmation bias. It is absolutely no wonder that areas of general research that are funded by the federal government advance more quickly than areas of general research that are not funded by the federal government. Beyond that, a more recent article by the same author also in the NYTimes that comes up before the article you posted in any unbiased search on the NYTimes database talks about more research that has been done including the eventual disappointment that the regressed adult stem cells are not quite the same:
    http://www.nytimes.com/2011/10/06/science/06stem.html

    With this in mind, I would wager that you did not do unbiased research to determine whether or not embryonic stem cell research is successful or promising. Rather, since abortion is unethical because life begin as conception and much embryonic stem cell research occurs on embryos after conception, you want to be able to say unequivocally that embryonic stem cell research is as unethical as abortion. However, this gets into messy questions of ethics like “Is it ethical to kill one person to save five people?” Instead of dealing with the messy question, the shortest distance between two points is to simply specifically search for articles that say that embryonic stem cell research hasn’t done anything and cite that as evidence of being “unsuccessful”, removing the “five saved people” from the question.

    For a very up-to-date look at where embryonic stem cells are now, take a look at this article (if you can find it… unfortunately it is not open access):
    Schwartz, S et al. (2012). “Embryonic Stem Cell Trials for Macular Degeneration: Preliminary Report.” Lancet. January 23
    It is the preliminary results of the only clinical trial of embryonic stem cells to date and the findings are described as “promising”, not “unsuccessful”.

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