So, Who Owns You? Some Conclusions About Genes, Property, and Personhood

• Author: David Koepsell
• Profession: Author, philosopher, attorney, and educator whose recent research focuses on the nexus of science, technology, ethics, and public policy
• Pages: 165-181

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.

So, Who Owns You? Some

Conclusions About Genes,

Property, and Personhood

11

The answer to the question posed by the title of this book is clearly much

more complex than our instincts would lead us to believe. We want to believe

we are free and that our bodies and every part of us is fully our own. We want

to be owners of ourselves, unfettered by rights of others, obligations, or com-

peting ownership claims over our constituent parts. But we have not always

been so. As we have seen, there are numerous conflicting claims over our-

selves, and our bodily autonomy is a myth. Not only are we restricted in what

we may do with our lives (we may not kill ourselves legally) and our parts (we

may not sell organs), we have also been limited in the use of the information

that lies in our personal DNA. Our genes have had claims upon them, filed

in the form of patents, which restricted the use to which we might want to

put the essential molecules that compose us. “we” had been partially patented,

and those patents prohibited certain real‐world uses of the components of

our bodies. The law has enabled corporations, universities, and individuals

to lay claim to parts of you. Your tissues may be used to derive profitable

products, and you can sign away your rights to those products. Many do so

unwittingly. This is routinely done when people become human subjects in

studies. Tacked onto the consent forms of these studies are clauses that enable

the researchers to use the tissues to extract DNA and use the genes of those

subjects for any purpose at any time. Are those subjects properly informed?

Do they realize that parts of them might become patentable?

Arguably, few people know fully the extent of the rights they sign away

when they allow the use of their genetic materials to become part of existing

biobanks and their genes potentially patented and used for profits. Even

fewer realize that even if they never participate in a research study and no

166 Some Conclusions About Genes, Property, and Personhood

tissue is removed from them, the genes they share with others may still be

claimed through patents that then affect their rights to the stuff that helps

make them who they are.1

We often own things in only limited ways. Some people lease cars and

even though they might hold the title, their use of the car is restricted in a

number of ways. The same is true for mortgaged properties. The books in

their personal libraries are fully theirs, as are the DVDs and CDs they own,

but their rights over those are also limited. They may not copy or otherwise

reproduce them, and they may not perform or display them for profit

without permission of the author. They own the tokens but not the types.

The same has been true for one‐fifth of our genes. We owned the tokens but

not the types. Yet there are clear differences between works of authorship

and the complex polypeptide chains that exist in each of us and nearly every

cell of our bodies.

There are a number of ways we could criticize the practice of patenting

genes. The previous status quo contradicts prior legal precedents and under-

mines legal distinctions that were once uncontroversial and universally

accepted as well as useful, and the courts have started to rectify this. It

may be unethical to allow ownership of something that is held in common

by a community that never bargained away their rights to it. It may be inef-

ficient for the marketplace and hinder scientific research and technological

innovation. It may be immoral and akin to slavery, objectifying an essential

component of each individual and usurping our rights as persons to bodily

autonomy. It may well be some, all, or none of these are true. I think that

Ihave demonstrated a few of these and paved the way for further investiga-

tion of other more complex, more deeply philosophical issues related to

owning parts of persons. Let us consider whether and which of these possi-

bilities is well established, and which may still need further support.

Errors in the Law

As sometimes happens, the law has attempted to deal with an object that it

was ill‐prepared either scientifically or philosophically to come to grips

with, and ultimately it has attempted to fit square pegs into round holes.

Itapplied the model of intellectual property law to genes with dire and

confusing results. Because of this, and the fact that lawyers and judges

failed to consider the long‐term effects of patenting genes, as well as due

to the lack of guidance by legislatures, scientists faced some uncertainty,