March
1997
Editorial:
Dr. Frankenstein
By Martin Rowe
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In 1976, Coca-Cola salesman John Moore went to
the Medical Center of the University of California suffering
from a rare disease called hairy-cell Leukemia. His doctor in
this case, Dr. David Golde, recommended removing Moore's spleen.
Moore agreed and his spleen was removed. Over the next seven
years, John Moore returned to UC Medical Center, each time giving
samples of blood, skin, bone marrow and sperm which he was told
by Golde were needed to make sure he remained healthy.
During this period, Golde noticed that Moore's body was over-producing
lymphokines, important components of the human immune system. Without
consulting Moore, Golde began using samples from Moore's body to create
a culture of cells which produced these lymphokines. Realizing that
a lot of money could be made from this cell line, Golde and his research
assistant Shirley Quan got a patent for the cell line and its derivatives
and entered into commercial contracts with several companies and the
University. When Moore found out about this, he took Golde to court
so that he could financially benefit from the profits, which had totaled
up to $350,000 a year in royalties. After failing in an initial trial,
Moore appealed to the California Court of Appeal, which found that
Moore was entitled to compensation. But, on further appeal, the Supreme
Court of California found that Moore had no proprietary interest in
his removed cells. It did say, however, that Golde had breached his
fiduciary obligations by not telling Moore how he was using his cell-line.
The judgment of the Court, as related in detail in the absorbing and
informative Body Parts: Property Rights and the Ownership of Human
Biological Materials by E. Richard Gold, is essential to an understanding
of biotechnology and its implications for human and non-human animal
welfare and rights.
The majority of the Court felt that, while the human body is valuable
in more than just how much it is worth to the market-and that Golde
should have informed Moore of his commercial interests -žgranting Moore
a property right for his own body would impede research. As the majority
wrote: " 'companies [would be] unlikely to invest heavily in developing,
manufacturing, or marketing a product when uncertainty about clear
title exists.'ž"
Nevertheless, there was dissent among the judges. One opinion held
that Moore's body was his own property, and that even though it was
only tissue, Moore had a proprietary right prior to its "discovery" and
should be able to benefit financially from its use. Another argued
that other, non-economic values, such as dignity and equity, should
be considered when debating the market value of human biological materials.
Yet another opinion argued that property discourse and market value
have no role when it comes to human biological materials. Not only
did the market have no incentive to respect non-economic values, but
the conclusion that a person willing to pay the most for something
therefore is entitled to own that object simply did not reflect the
multiformity of values humans place on their bodies.
The story of John Moore and his spleen offers clear indications of
the patenting problems of biotechnology. The main judgments of courts
in biotechnology cases have so far, as Gold relates, been based on
assessments of how greatly the "discovery" concerned will impact the
market. Courts have generally insisted that the greater good for society
is contained solely in unfettered scientific research and development,
and that courts should not stand in the way of what makes that possible
-žthe investment of companies hoping for a dividend in a breakthrough
drug. The courts have also argued, disingenuously to Gold, that other
non-commercial concerns are beyond either their expertise or mandate. "It's
up to Congress to legislate or debate the bigger issues," seems their
common refrain.
While it is true that patent law is irreducibly connected to money,
commerce and property, this still begs the question of whether biological
materials should be patentable. Gold's book, ultimately to its limitation,
sticks too closely to human biological materials. As animal advocates
know, the link between human and non-human exploitation is merely a
matter of degree rather than kind; and, as is clear from the history
of patenting, the debate is not, and could not be, confined solely
to human biological material. For 100 years before 1980, a wide variety
of plant forms had been patented. That year, in a landmark case, a
court allowed for the patenting of a moving living form, a bacterium
that the court agreed could have commercial usage in oil spills. This
precedent paved the way for the patenting by two Harvard researchers
of a mouse with special cancer-producing properties known as the oncomouse.
This in turn has encouraged the "development" of other animals: cows
that produce more milk, pigs that provide leaner meat, and so on.
These developments, in tandem with the on-going, three billion-dollar
Human Genome Project (an attempt to map all 100,000 genes on the human
chromosome) and its corollary, the Human Genome Diversity Project (which
is collecting hair, blood, and cell samples from 700 threatened indigenous
communities), has left open not only the possibility of more John Moores,
but-as has already occurred-the patenting of the genome of whole peoples.
In 1993, when the Guaymi people of Panama discovered their cell line
had been patented as part of the Diversity Project, they had to apply
to then Secretary of Commerce Ron Brown and the World Trade Organization
for control over their own cell line!
In the face of this extension of property discourse into all aspects
of the organic world, it is easy to conclude that this is for greater
goods and not the greater good. It is even harder to believe that,
in spite of John Moore's success in the European courts or the revolt
of consumers against genetically-altered plants in Europe and Asia,
governmental agencies will rein in the super-dominant multinational
organizations who stand to benefit from the global application of patent
laws due to the passage of the General Agreement on Tariffs and Trade
(GATT).
Now it could be argued that commercial traffic in human bodies-whether
slavery or prostitution-forms the world's oldest and second oldest
professions. Do not John Moore's attempts to get money from his body
and the poor selling their organs to unscrupulous doctors represent
only the exacerbation of human beings' ability to commodify themselves
and others for short-term profit against their own best long-term interests?
We've always done it, so how is this different?
First of all, of course, to contradict fatalists and tyrants everywhere,
the fact that we have always done it doesn't make it right. Secondly,
we should begin to insert into all property discourse the discourse
of equity and justice and remove sentient living organisms from property
discourse altogether. And thirdly, to accept the parameters of the
above argument, what seems to be different is that this form of "bioprospecting" is
now beyond individual control. Already scientists are combing the world
and indigenous communities looking for miracle cures which are currently
unpatented and which could make them billions of dollars as well as
deny the dispossessed any possible remuneration. Moreover, as Stuart
Newman in this issue of Satya suggests, the genetic manipulation of
human embryos which are brought to term offers the prospect of an entire
individual human being "owned"žby their patenter. If that seems far-fetched,
then consider this final story. In 1988, Baylor University of Texas
filed a European patent which included the genetic alteration of a
human female who could eventually be used as a drug factory. An attorney
representing Baylor indicated that the university wanted to get in
the game quickly because "someone, somewhere may decide humans are
patentable" and wanted to make sure they had rights on the production
of any drugs which came out of the woman.
Dr. Frankenstein, I presume.
Body Parts: Property Rights and the Ownership of Human Biological Materials by
E. Richard Gold. Georgetown: Georgetown University Press (1996). 242
pages. $49.95 hbd.
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