Is It Right or Is It Useful? Patenting of the Human Gene, Lockean Property Rights, and the Erosion of the Imago Dei

Article excerpt

Collection of blood at American Red Cross blood banks. Donation of a kidney to save the life of a beloved brother. Implantation of fetal brain cells into Parkinson's patients. Extraction of stem cells from newly re-defined "pre-embryos." Insertion of human genes into precisely developed strains of laboratory mice. Artificial insemination with the sperm of an anonymous donor. Cutting hair to make wigs for cancer patients. Replacement of a diseased heart with the healthy heart of a recently deceased accident victim.

All these are instances of the use of parts of the human body. Some are heroic. Others are sinister. Each of them touches on the question of what it means to be human. Is a human being more than a body? Do we own our selves? Or, to whom or what does the human body belong?

These legal, ethical, and social issues are inextricably intertwined with the decoding and patenting of the human genome. The international cooperative race to map the human genome and its ahead-of-schedule completion have already set the legal course. Although initially funded largely by the U.S. government, the Human Genome Project attracted investment by other nations, pharmaceutical companies, and biotechnology firms. Millions of research dollars have been spent based on the legal protection afforded by exclusive rights via gene patents. Are these patents ethical? The issue can be examined from a variety of perspectives. This essay will compare the general approaches in Europe and the U.S., with particular attention to arguments for and against patenting the gene.

The American constitutional experience has been shaped in great measure by the philosophy of John Locke. The fruit of this philosophy will be weighed against the biblical doctrine of man1 as imago Dei. It is evident that the more we learn about the material of man, the less we understand about the nature of man.

The Human Genome Project and Patenting

History of the Human Genome Project

The Human Genome Project (HGP) project was conceived in 1990 as a public initiative coordinated by the U.S. Department of Energy and the National Institutes of Health. Its goals were to identify all the genes in human DNA (approximately 30,000 genes); determine the sequences of the three billion chemical base pairs; store the information in databases; improve tools for data analysis; transfer the technologies to the private sector; and address the ethical, legal, and social issues raised by the project.2 Commercial interests-biotech firms and pharmaceutical companies-jumped on board several years later, eager for the prospect of profits from new drugs and diagnostics.3

A working draft of the entire human genome sequence was announced in June 2000, and analyses were published in February 2001, two years ahead of schedule. The final map will not be an exact match for the DNA of any individual. Anonymous individuals donated male sperm and female blood to the library. The DNA of about ten to twenty individuals, male and female, was the primary source, but neither the donors nor the scientists know whose DNA was actually used.4

Although millions of dollars are being spent on identifying genes and gene fragments, it is but a fraction of what is required to determine gene function and develop and test drugs and diagnostics. There are enormous costs and risks in the process, costs that cannot be borne by public funding alone. Businesses will not commit capital to research and development if they cannot reap the profits of success. Discoveries and innovations can be protected as trade secrets (until a competitor figures out another or better process) or by patenting. Patenting raises ethical issues, but none as intense or potent as the patenting of a living organism-the building blocks of life.

European and American Ethical Viewpoints

The European and American ethical discussions follow one of two approaches: deontological or consequentialist. …