A lawsuit brought by the ACLU and allied groups against the U.S. Patent and Trademark Office has challenged the notion of patents on isolated native DNA sequences. The court's summary judgment in favor of the plaintiffs held that such patents covered parts of the natural world and were therefore inappropriate subject matter. The U.S. Department of Justice has now filed an amicus brief against gene patents, but in a more restricted sense than the original judgment. Specifically, manipulations as minor as producing complementary DNA from the natural sequence qualify the product as a patentable invention.
What is clear from this is that patents on genetically engineered organisms, which were designated appropriate subject matter under U.S. law by the Chakrabarty Supreme Court decision of 1980, are unlikely to come under serious legal challenge. The position of such organisms within the wider culture is also unassailed given the high penetration of GM crops in the human and animal food chains, the extensive use of transgenic mice-and soon, rats-in biomedical research, and the increasing presence of transgenic livestock in manufacturing and meat production operations. Patent protection is just one component of the drive to produce genetically engineered organisms, but it represents a strong financial motivation for (in the words of the philosopher Francis Bacon) "effecting of all things possible" in pursuit of utility and profit.
The cultural currency of transgenic animals, in particular, and the prospect of more extensive manipulation in the future, threatens a number of civilizational norms and precepts. In contrast to plants, which in their natural state exhibit wide ranging environment-dependent phenotypic plasticity, animal forms and identities are relatively stable, and are icons and constants of the visual arts and literature, particularly traditional works and those meant for children. Genetic engineering and other methods of reconfiguring animal biology, such as trans-species cloning and chimerism, inevitably blur the boundaries between different kinds of organisms, as well as between organisms and artifacts. Given the phylogenetic continuity of all animal species, this technology will inescapably come to threaten received notions of human uniqueness.
While most members of contemporary societies are willing to tolerate, or ignore, the warehousing, instrumentalization and cruelty visited on animals raised for food, research, or other human utility, the privileged status of the human body, even of those individuals defined as criminals or outcasts, has long been normative across the main political and religious spectrums. However, with the rise of religion-based states and social movements that deny the human value of outsiders, official and popular adherence to a common humanity has markedly weakened over the past decade even in modernizing societies committed to classically liberal values. Justification of torture of suspects by the highest U.S. officials, for example, unwillingness to prosecute its perpetrators or those performing grievous acts against bystanders in targeted groups, and nonchalance of the public about military methods guaranteed to kill civilians and noncombatants (in contrast, for example, to the Vietnam war era), have risen in concert with the innovations in the murderous tactics of the U.S.'s opponents.
It might seem incidental that this stark change in attitude (extending across the conservative-liberal and religious-secular divides) toward the bodily integrity of those defined as "other" has come about simultaneously with the capability to genetically engineer animals, including (absent some loose and internationally nonuniform legal prohibitions) humans. But the following contemporaneous trends should also be considered by way of context: (i) an ageing population in the U.S. and elsewhere, in need of spare body parts, is creating a demand for tissues and organs the provision of which will only occur under patent protection; (ii) such repair tissues and organs will be most useful if their sources are close to human, but most patentable if they are not exactly human; (iii) "reprogenetic" technology now permits production of human, or humanoid, individuals from stem cells derived from anonymous discarded tissues rather than any parent-associated embryos; (iv) for genetically modified organisms of human origin, the precise boundary between non-human and human is no less socially constructed than is the boundary between "us" and "them" in the political realm.
It is difficult to avoid the conclusion that as medicine becomes increasingly high-tech and personalized for those who can afford it, and the disparity in national wealth and income remains at its record levels in the U.S., there will be scientific and economic incentives to produce near-humans for research and therapy. The decline in the allegiance to a notion of human social commonality, along with the rise in the scientific understanding of human biological commonality and the means to manipulate and exploit it through, among other things, patent protection of genetically modified animals, seems to be an explosive combination.
Stuart A. Newman, PhD, is Professor of Cell Biology and Anatomy at New York Medical College and former member of CRG's Board of Directors.