Legal Dimensions in Gene Ownership

• Author: David Koepsell
• Profession: Author, philosopher, attorney, and educator whose recent research focuses on the nexus of science, technology, ethics, and public policy
• Pages: 69-87

Who Owns You?: Science, Innovation, and the Gene Patent Wars, Second Edition. David Koepsell.

© 2015 John Wiley & Sons, Ltd. Published 2015 by John Wiley & Sons, Ltd.

Legal Dimensions in Gene

Ownership

5

The Role of the Law

The law is at the very least the public expression of currently held ethical

and social norms through explicit prohibitions and requirements of behav-

iors. We tend to think of the law as reflecting more than mere desires or

whims. In most traditions, the law is founded upon some extralegal view

of morality. That is to say, legal prohibitions and punishments for murder

are founded upon some moral prohibition that precedes the existence of

the legal regime, which does not imply that morality and the law overlap

completely. There are many things that are morally repugnant that are

nonetheless not legally prohibited. Lying, for instance, is generally not

against the law (unless it is lying to the government, e.g., in court, or on

your taxes). Failing to heed a stop sign is generally not considered immoral.

But the law often represents a useful point of departure for investigating

moral and ethical issues.

The law gives us some insight into those matters that a culture or society

considers to be important, at least as represented through its legislature and

courts. Laws are enacted where public interests are deemed vital enough to

subject transgressors to punishment. Those interests that are considered most

important tend to be covered by the criminal law, while other lesser interests

and rights are covered by the civil law. Often, the law protects what we con-

sider to be “natural” rights (which I will argue later are really a priori rights).

Natural rights have included, as stated explicitly by John Locke and adopted

as slightly revised in the US Declaration of Independence, such things as “life,

70 Legal Dimensions in Gene Ownership

liberty, and property.” Much of our criminal and civil law protects, to varying

degrees, and with certain exceptions, each of these “natural” rights.

Because of the organic evolution of much of our law through the Anglo‐

Saxon common law and at various levels of federal and state government,

sometimes legal concepts emerge that embody previously implicit rights

that have never been fully worked out in public debate or through academic

discourse. This is apparently what has happened in the realm of ownership

of body parts and genes. The law, forced to grapple with an emerging new

state of affairs for which no legislative solution had yet been developed,

used older paradigms and precedents to forge a response. Part of that

response was administrative on the part of a governmental agency (the

Patent and Trademark Office (PTO)) faced with a new class of claim. Part

of the response has also been through case law developed by courts.

Our law has, at various times, dealt with issues relating to the patenting of

human tissues and products. The evolution of that law, and the reasoning

behind it, together offer us some insight into the cultural, political, and eth-

ical issues raised by schemes of ownership over human parts and products.

That reasoning illuminates also the various objections or rationales behind

the current state of the law of patenting genes. The present state of that law

is a natural place to begin to grapple with some of the philosophical issues

presented by DNA patents, as we will first explain the relevant case law

before subjecting it to some serious criticism.

Autonomy and Property

We often use terms such as liberty and autonomy as though they are definite

values or in political discourse often as rights that are inviolable. Their entry

into the Anglo‐Saxon legal lexicon has been marked by some serious practical

lapses. For instance, liberty interests, especially over one’s own body, were not

extended to large populations until well after the signing of the Declaration of

Independence and the Constitution in the United States. Witness, for example,

the existence of slavery prior to the Emancipation Proclamation and the 14th

Amendment. Witness also the fact that women have, at various times, been

treated as second‐class citizens whose autonomy over their own bodies has

been legally proscribed to various degrees, at various times, and in numerous

cultures. It is strange that in this culture of liberty, where we seek to extend the

notions of personal autonomy even beyond our borders by both diplomatic