Can We Learn to Incentivize Morality?: a Discussion of Biotechnology on an International Level

• Citation: Vol. 34 No. 3
• Publication year: 2020

Can We Learn to Incentivize Morality?: A Discussion of Biotechnology on an International Level

Shannon M. Patrick

CAN WE LEARN TO INCENTIVIZE MORALITY?: A DISCUSSION OF BIOTECHNOLOGY ON AN INTERNATIONAL LEVEL

Introduction

Four letters: A, T, C, and G. Those four letters represent the nucleic acids that build humans.¹ From the time we are conceived until the day that we die, those four letters control our life. We have altered fruits, and we have changed animals. What if you are next?

The technology is here, and it is happening. The question of whether we should alter the human genome is no longer something we can ignore because we lack the capabilities. Germline cells are the cells in the body that reproduce.² So, any changes to those cells are passed on to future generations.³ CRISPR-Cas9 is a tool used to edit the genome in a "faster, cheaper, and more accurate" way than ever before.⁴ It allows for the genetic manipulation of DNA. As a result of CRISPR-Cas9, the international community has had strong debates over the manipulation of germline cells.⁵ Would the world tolerate genetically modified babies?

In 2018, the world welcomed Lulu and Nana into the world.⁶ A scientist, He Jiankui, claims to have used the CRISPR technology to edit these two Chinese girls' genomes to decrease their risk of contracting HIV.⁷ The claim prompted serious uproar within the scientific community.⁸ Jennifer Doudna, one of the biochemists who helped to develop the CRISPR technology, stated that "[t]his work is a break from the cautious and transparent approach of the global scientific community's application of CRISPR-Cas9 for human germline

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editing."⁹ But, is there a problem if it is just a small change to help prevent a deadly disease?

Editing the human genome in a way that can be passed down to subsequent generations has been considered off-limits until now.¹⁰ There are two main rationales behind this historical restriction. First, even the smallest mistake in germline editing could have catastrophic effects on future generations as the change is passed down.¹¹ Second, even if we are able to ensure no mistakes are made, once we begin playing this game it "open[s] the door to 'designer babies.'"¹² The consequences of using CRISPR-Cas9 in this manner raise concerns that germline editing is "an extremely premature and questionable experiment in creating genetically modified children" and that "this amounts to unethical and reckless experimentation on human beings, and a grave abuse of human rights."¹³ So we are concerned, and it is happening already. Is there anything we can do about it?

Let us take it one step further. What if the scientists who edit embryos want to protect their creation and process with a patent? A patent is a legal protection for a product of human ingenuity.¹⁴ A patent owner gains a property right to an invention from the government in exchange for certain disclosures.¹⁵ The patentee secures the right to exclude others from "making, selling, offering to sell, using, or importing the invention" during the patent term.¹⁶ If we allow patents on edited embryos and the human genome we give someone a property right over part of a human being.¹⁷

This controversy is just one of many that infiltrates the discussion of biotechnology, but those who create and invest in biotechnology want rights that will be protected.¹⁸ Biotechnology involves "techniques for using the properties

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of living things to make products or services."¹⁹ The field and the desire for patent protection are not new phenomena; they go back more than two hundred years.²⁰ As the biotechnology industry flourished, society craved the benefits of the technology without always anticipating the prospective consequences.²¹

Patent protections are not transnational because patents are territorial and only valid in the jurisdiction(s) of grant or registration specified by national law.²² In formulating a way to cope with any moral concerns, each jurisdiction opted for an individualized approach.²³ Thus, when a scientist goes to the local patent office and wants to patent the methods of editing embryos and the edited embryos themselves, the grant of a patent will depend in part on where the scientist files the patent application.

No global patent exists today.²⁴ Despite that truth, moral concerns are not constrained by the jurisdictional borders of patent laws.²⁵ Globalization facilitated the swift spread of technology internationally.²⁶ In responding to the technological dissemination, one country may decide that moral concerns outweigh the benefits of patenting a particular biotechnology, but that unilateral action is insufficient to phase out the fears on an international level because of the limited reach of patent rights. The patent right serves as a reward for genuine innovation and an incentive to continue innovating. ²⁷ Unless the actors across the international community decide that giving such a reward is not worth the risk of facing the morality concerns then, an inventor can simply choose to patent

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their invention in a jurisdiction without heightened morality considerations. The worldwide development of biotechnology fosters the need to revisit how morality and patent laws can work together if society determines that an invention is not worth the risk.

This Comment argues that the time has come to incorporate morality concerns into patent deliberations so that society has a mechanism should it decide a technology should not be pursued. First, this Comment will examine some of the moral concerns behind biotechnology and why these concerns are important on an international level. Second, it will discuss how the United States and Europe have approached patenting biotechnology through their national patent systems, with a focus on cases that relate to humans. Finally, this Comment will propose a solution that involves a new international recommendation that will affect how national and regional patent office's approach morality both individually and as part of the international community.

I. A DISCUSSION OF MORALITY CONCERNS

The discovery of DNA by Watson and Crick in 1953 laid the groundwork for an impressive new field of technology—biotechnology.²⁸ In the 1970s, when biotechnology really came into its own, the general public feared that the classic story of genetically modified humans in Brave New World would become a reality. ²⁹ Because these new technologies exploit biological processes, the field faces tough moral concerns.³⁰ These moral issues include scientists concerns about human safety, clashes with religion, and animal cruelty.³¹

The moral issues surrounding biotechnology are particularly important in the face of patent protection.³² It is important to understand that not all biotechnology carries moral unease.³³ In fact, the field has the potential to improve the life and health of everyone on the planet,³⁴ but the fact remains that a patent on the human genome would give someone a property right in a part of

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a human being.³⁵ Despite being less concerning to some people, a patent on any biological process gives a person ownership over some lifeform. Society needs a venue for their opinions about the future of this type of innovation to be recognized.

Scientific abilities have far surpassed the ability to use biological processes with technology.³⁶ Therefore, the question for the society is not "can we?" The question is "should we?" And if so, where do we draw the line? Finally, who makes these decisions? These questions are not limited in the way that patent rights are limited, but rather, affect a number of different countries and even have the potential to affect all living beings.³⁷ It is within these questions that the moral objections to biotechnology lie.

In its most basic form, morality is defined as "the rightness, or wrongness of an action."³⁸ We each individually determine which actions we consider to be right or wrong. The subjective nature of morality creates issues for legal determinations because morality can depend on the person, the place, or the time an issue is considered. Humans are constantly changing over time, leading to society's viewpoint changing.³⁹ People can de-sensitize themselves to information or shift their viewpoints based on inherent selfishness.⁴⁰ For these reasons, specific legislation creates its own issues because it confines a moral determination to an ever-changing landscape of convictions.⁴¹

Biotech patents tend to generate one of two main moral objections "(1) objections to a patent based on concerns about the morality of practicing the patent's underlying subject matter . . ., [and] (2) objections to a patent based on concerns regarding the morality of allowing anyone to limit the practice of the patent's underlying subject matter."⁴² Both objections cover different concerns about the biotech industry, and both are equally important in an overall discussion of morality and biotechnology.

Morally controversial objections that are directly concerned with inventions underlying subject matter include objections to human cloning or animal

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chimeras.⁴³ These types of inventions create a host of concerns among societies because they involve changing the fundamental nature of a living creature to create something new, or copied. The objections towards a patent's underlying subject matter can stem from a variety of different sources or concerns.

Usually, people consider the concerns around human DNA first because that directly affects them. For human DNA specifically, concerns work around the fact that each nucleotide sequence is responsible for "our individual traits."⁴⁴ Beyond that, DNA is directly responsible for building what we see when we look in the mirror. Patenting human DNA has already been prohibited in a variety of countries.⁴⁵ However, at least in the United States, an inventor can still obtain a patent over cDNA.⁴⁶ Although the court found...