Owning Human Genes

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.

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  1. Ownership, like rights, is something we confer by social agreement. In practice we come into this world and into a ready formed society and so take on the rights, and responsibilities, already conferred or imposed upon us, and we acquire ownership of stuff in accordance with other rules of that society. But basically, it’s all up for grabs, politically; and politically corporations have political power and enforce their views on us.

    So I don’t find any of the philosophical issues you cover as counter arguments either way at all interesting when compared to the simple practical consequences:

    http://whyevolutionistrue.wordpress.com/2013/04/16/genes-should-not-be-patented/

    It doesn’t seem to matter what one thinks about rights and ownership, can you really offer anything, from any version of morality (God given, objective, evolutionary biological derivative, simple opinion) that makes gene ownership ‘moral’, given this practical perspective?

    In that context, if anyone is seriously concerned about corporations acquiring ownership of their genes by political/economic power plays then they would do well to consider the issues raised by http://www.wolf-pac.com/. It goes way beyond ownership of genes alone.

    Patents have a term, a lifetime. Perhaps when it comes to medicine, and perhaps generally, this needs to change. I can understand a research company wanting to recoup its research expenditure, and to some extent that should be allowed, if only to continue to encourage research. Perhaps the patent systems needs to include some notion of this – say, limiting patents to a term, or to some predetermined level of return on investment, whichever comes sooner. So, there is still profit to be made on investment, but we can start to see the benefits from competition sooner, instead of being held hostage to this ‘profiteering’.

  2. I suggest one small legal-slash-fact amendment. Ownership of in place oil & gas is almost always controlled by agreement — there’s no law of nature involved.

    It is typical of oil & gas leases that the mineral rights owner owns all the product below the surface, and a share of production is ceded to the oil company at the well head (or first point of measurement). Nonetheless your argument holds. At the same time, we might expect that the person-source of some genes might negotiate to retain some portion of the revenue that arises.

  3. We’re not talking about companies owning physical property, like the genes in your body and mine. We’re talking about a kind of intellectual property.

    We already generally accept the concept of intellectual property, in the form of patents and copyright. But what is patentable are inventions, not discoveries. As far as I’m aware (and I have little knowledge of the specific subject) companies are not trying to patent inventions, i.e. specific ways of using particular genes. They are trying to patent the genes themselves. What does that actually mean? Presumably it means the right to stop anyone else from doing anything with the specific gene in question (without permission from the patent-holder). That seems to go far beyond the present concept of a patent.

  4. Either way, physically or intellectuelly it should be called theft and intrapment if its taken without true knowledge and consent.

  5. From Ron’s first link

    “, but what should be patented is the diagnostic process, not the gene itself. Others can—and have, in the case of cystic fibrosis—developed and patented tests without patenting the gene, so several companies offer diagnosis for that gene.”

    This statement seems more in agreement with standard practice in the pharmaceutical/biotech industry. To develop any medicine, costs a balk park average of 1-2 billion dollars and ~ 10-15 years of research. But companies own the particular drug, not the gene or mechanism of action of the drug. Other companies can develop competing drugs, even thought this is economically risky.
    Myriad position seems abusive and it is confusing why they have support from the industry. Having said that a patent law system is critical to foster investments in research and the development of new medicines. These laws should assure that the enterprise is reasonably profitable.

  6. JJM,

    You nicely present the problem: the patent system serves an important role in encouraging R&D but the misuse of patents can do considerable harm.

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