A controversial new patent for technology that allows people to choose egg and sperm donors, based on the traits they want in their prospective children, is raising questions among experts about the moral bounds of what can be patented.
The U.S. Patent and Trademark Office on Sept. 24 granted genetic testing company 23andMe’s patent application on a method for picking egg and sperm donors based on genetic calculations for certain characteristics, such as eye color or athletic prowess. The company, based in Mountain View, California, sells personal genetic testing kits to consumers.
”It’s pushing the envelope towards individualized eugenics, where people feel that they have to have a child with certain characteristics,” said Sheldon Krimsky, a professor at Tufts University who is on the board of the Council for Responsible Genetics, a nonprofit focused on the ethical implications of genetic technologies.
Others said the case raises the question whether the USPTO should play a more active role in blocking patents that are immoral or pose a threat to the well-being of society.
The USPTO did not immediately respond to a call for comment.
The patent filing by 23andMe noted that fertility centers have long provided clients with choice in reproduction, allowing them to browse through donor profiles showing qualities such as race, height, eye color and educational background. But such profiles offer only “limited insight,” the filing said.
Instead, the 23andMe technology allows clients to choose the visible traits they desire, and then it statistically analyzes the genomes of the donor and recipient, coming up with a combined score for each pair. For example, users can select for muscle performance, choosing between offspring likely to become a sprinter versus an endurance athlete.
TOE-DIPPING IN GENETICS
”Some people might say this is in some respects similar to dating websites to the extent you look for traits in somebody you want to have children with,” said Dov Fox, a law professor at the University of San Diego. But the important question, he said, is whether the accuracy from the genetic testing, albeit imperfect, makes 23andMe’s service more troubling.
In response to criticism that the patented technology threatens to usher in a new era of designer babies, 23andMe said in a statement that it does not intend to apply the technology in the context of fertility treatment. The company said when it applied for the patent in 2008, it considered that the technology would have potential applications for fertility clinics and therefore included that language in the patent.
Since then, the company said, its strategic focus has changed and now it only intends to use the technology in its Family Traits Inheritance Calculator. That tool has been offered to couples since 2009 as a “fun way” to look at what eye color their future child might have or whether the child would be able to perceive bitter taste or suffer from lactose intolerance.
”The company never pursued the concepts discussed in the patent beyond our Family Traits Inheritance Calculator,” 23andMe said, “Nor do we have any plans to do so.” Instead, it offered people “an enjoyable way to dip their toes into genetics.”
Nita Farahany, a law professor at Duke University who specializes in bioethics and the law, said that while there are ethical risks to expanding access to genetic information, the solution is not to restrict access to such information and technologies.
She commended 23andMe for helping people better understand their genomes and how to incorporate information about themselves and their partners into their decision-making.
23andMe is not the first company to use genetic testing of sperm and eggs to select for desired offspring. The New York-based start-up GenePeeks matches female sperm bank clients with potential sperm donors by filtering out those likely to produce a child with a genetic disorder.
Instead of using pre-conception genetic testing to prevent disability, however, 23andMe is also selecting for traits unrelated to disease such as eye color or muscle performance.
According to Tufts’ Krimsky, the preferred traits are likely to be those that have divided society in the past, such as skin color and body build. The technology may also encourage couples without fertility problems to choose in vitro fertilization in order to select for certain traits, he said.
Most technologies that allow for genetic selection have focused on testing the embryo or the fetus for certain characteristics, said the University of San Diego’s Fox. For example, pre-implantation genetic diagnosis has become a common service at fertility clinics, letting couples undergoing in vitro fertilization test multiple embryos for genetic disorders before deciding which one to implant. But concern about what happens to the unused embryos contributes to the moral considerations in those cases, said Fox.
The tests offered by 23andMe and GenePeeks don’t deal with that issue, Fox said, and therefore wade into uncharted ethical territory. He said the 23andMe patent highlights the need to expand the USPTO’s authority to consider ethical arguments, and to appoint an ethics officer.
Unlike in Europe, under U.S. law, moral considerations have little weight, if any, in the decision of whether to grant a patent. Under U.S. law, an inventor must show three elements to get a patent: that the invention is novel, that it is not obvious and that it has utility.
In the 1817 case Lowell v. Lewis, an invention could only meet the utility requirement if it did not damage the “well-being, good policy or sound morals of society.” However, U.S. courts have since moved away from such moral reflection, Fox said.
For example, in the 2013 case Association for Molecular Pathology v. Myriad Genetics, the U.S. Supreme Court did not consider moral implications in deciding whether human genes could be patented.
Terry Baynes, Reuters