A Philosopher's Blog

Owning Genes

Posted in Business, Ethics, Law, Medicine/Health, Philosophy, Politics by Michael LaBossiere on April 17, 2013
Human genome to genes

Human genome to genes (Photo credit: Wikipedia)

While it sounds a bit like science fiction, the issue of whether or not human genes can be owned has become a matter of concern. While the legal issue is interesting, my focus will be on the philosophical aspects of the matter. After all, it was once perfectly legal to own human beings—so what is legal is rather different from what is right.

Perhaps the most compelling argument for the ownership of genes is a stock consequentialist argument. If corporations cannot patent and thus profit from genes, then they will have no incentive to engage in expensive genetic research (such as developing tests for specific genes that are linked to cancer). The lack of such research will mean that numerous benefits to individuals and society will not be acquired (such as treatments for specific genetic conditions). As such, not allowing patents on human genes would be wrong.

While this argument does have considerable appeal, it can be countered by another consequentialist argument. If human genes can be patented, then this will allow corporations to take exclusive ownership of these genes, thus allowing them a monopoly. Such patents will allow them to control the allowed research conducted even at non-profit institutions such as universities (who sometimes do research for the sake of research), thus restricting the expansion of knowledge and potentially slowing down the development of treatments. This monopoly would also allow the corporation to set the pricing for relevant products or services without any competition. This is likely to result in artificially high prices which could very well deny people needed medical services or products simply because they cannot meet the artificially high prices arising from the lack of competition. As such, allowing patents on human genes would be wrong.

Naturally, this counter argument can be countered. However, the harms of allowing the ownership of human genes would seem to outweigh the benefits—at least when the general good is considered. Obviously, such ownership would be very good for the corporation that owns the patent.

In addition to the moral concerns regarding the consequences, there is also the general matter of whether it is reasonable to regard a gene as something that can be owned. Addressing this properly requires some consideration of the basis of property.

John Locke presents a fairly plausible account of property: a person owns her body and thus her labor. While everything is initially common property, a person makes something her own property by mixing her labor with it. To use a simple example, if Bill and Sally are shipwrecked on an ownerless island and Sally gathers coconuts from the trees and build a hut for herself, then the coconuts and hut are her property. If Bill wants coconuts or a hut, he’ll have to either do work or ask Sally for access to her property.

On Locke’s account, perhaps researchers could mix their labor with the gene and make it their own. Or perhaps not—I do not, for example, gain ownership of the word “word” in general because I mixed my labor with it by typing it out. I just own the work I have created in particular. That is, I own this essay, not the words making it up.

Sticking with Locke’s account, he also claims that we are owned by God because He created us. Interestingly, for folks who believe that God created the world, it would seem to follow that a corporation cannot own a human gene. After all, God is the creator of the genes and they are thus His property. As such, any attempt to patent a human gene would be an infringement on God’s property rights.

It could be countered that although God created everything, since He allows us to own the stuff He created (like land, gold, and apples), then He would be fine with people owning human genes. However, the basis for owning a gene would still seem problematic—it would be a case of someone trying to patent an invention which was invented by another person—after all, if God exists then He invented our genes, so a corporation cannot claim to have invented them. If the corporation claims to have a right to ownership because they worked hard and spent a lot of money, the obvious reply is that working hard and spending a lot of money to discover what is already owned by another would not transfer ownership. To use an analogy, if a company worked hard and spent a lot to figure out the secret formula to Coke, it would not thus be entitled to own Coca Cola’s formula.

Naturally, if there is no God, then the matter changes (unless we were created by something else, of course). In this case, the gene is not the property of a creator, but something that arose naturally. In this case, while someone can rightfully claim to be the first to discover a gene, no one could claim to be the inventor of a naturally occurring gene. As such, the idea that ownership would be confirmed by mere discovery would seem to be a rather odd one, at least in the case of a gene.

The obvious counter is that people claim ownership of land, oil, gold and other resources by discovering them. One could thus argue that genes are analogous to gold or oil: discovering them turns them into property of the discoverer. There are, of course, those who claim that the ownership of land and such is unjustified, but this concern will be set aside for the sake of the argument (but not ignored—if discovery does not confer ownership, then gene ownership would be right out in regards to natural genes).

While the analogy is appealing, the obvious reply is that when someone discovers a natural resource, she gains ownership of that specific find and not all instances of what she found. For example, when someone discovers gold, they own that gold but not gold itself. As another example, if I am the first human to stumble across naturally occurring Unobtanium on an owner-less alien world, I thus do not gain ownership of all instances of Unobtanium even if it cost me a lot of money and work to find it. However, if I artificially create it in my philosophy lab, then it would seem to be rightfully mine. As such, the researchers that found the gene could claim ownership of that particular genetic object, but not the gene in general on the grounds that they merely found it rather than created it. Also, if they had created a new artificial gene that occurs nowhere in nature, then they would have grounds for a claim of ownership—at least to the degree they created the gene.

My Amazon Author Page

Enhanced by Zemanta
About these ads

6 Responses

Subscribe to comments with RSS.

  1. T. J. Babson said, on April 18, 2013 at 6:21 am

    Mike, exactly what does it mean to “own” a gene? Are you talking about patenting some sort of gene therapy?

    • WTP said, on April 18, 2013 at 8:58 am

      Do you notice a glaring lack of direct references or footnotes in many, if not most, of Mike’s posts? Rather than address actual facts, he likes to keep things as loosey-goosey as possible.

    • Michael LaBossiere said, on April 19, 2013 at 10:30 am

      That is an excellent and very important question.

      Patenting a gene therapy method could be seen as comparable to patenting any treatment. However, the sort of gene ownership I am focusing on is the ownership of the gene itself. That is, having a patent on the gene as one would have a patent on a paperclip.

      • T. J. Babson said, on April 19, 2013 at 10:33 am

        All of us have genes. Are you saying that by living we will all be infringing on someone’s patent? I’m confused.

        • Michael LaBossiere said, on April 19, 2013 at 4:45 pm

          As you should be. Gene ownership is a confusing thing.

          As you indicate, if a gene could be patented, this would lay the legal groundwork for gradually advancing laws in which patent holders could claim to own parts of us-perhaps we’d have to pay royalties for using “their” genes. As you might guess, some see this as a reductio ad absurdum against gene patents for naturally occurring genes.

          • WTP said, on April 20, 2013 at 8:48 pm

            Reducto ad absurdum good, slipper slope bad. Mike can see a problem with laying legal groundwork for something he doesn’t like, thus it’s RaA. But if he’s in favor of a change in standard operating procedure, any similarly based argument is dismissed without consideration as an always fallacious slippery slope. Sophistry.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 2,040 other followers

%d bloggers like this: