Court rulings on scientific patents are usually arcane and boring and of interest only to specialists. Not so this week. On Monday, the European Court of Justice made a landmark ruling banning any patents on scientific techniques that involve embryonic stem cells. It is a ruling that could endanger research into new therapies for incurable and life-threatening diseases and one that defies basic tenets of logic, morality and justice.

The case began in the 1990s when German neurobiologist Oliver Brüstle developed a method for turning human embryonic stem cells into neurons. The cells of an adult human are highly specialised – under normal circumstances a liver cell will always stay a liver cell, and a skin cell can never become anything else. Stem cells, however, can develop into any kind of tissue – liver, skin, nerve, heart. The best source of such stem cells are tiny embryos, a few days old, called blastocysts. Researchers hope that by growing specific tissue from these cells, it may be possible to repair damaged organs in patients suffering from conditions such as dementia or blindness. Because such tissue can be grown using the patients’ own DNA, so problems of tissue rejection, so often the bane of transplants, can be sidestepped. Professor Brüstle himself was on the verge of transplanting lab-grown brain tissue into patients with Parkinson’s disease.

In 1997, Brüstle obtained a patent for his technique of creating neurons. The environmental group Greenpeace challenged that patent in court. Brüstle’s work, it claimed, was ‘contrary to public order’ because embryos had been destroyed to gather the stem cells. The case wound its way through various national courts in Germany before finally ending up at the European Court of Justice.

There has in recent years been considerable debate about the attempts by biotech corporations to patent natural processes or entities – genes, for instance. I happen to think that such patents are wrong and should not be allowed. In the Brüstle case, however, the patent was not for a natural process or entity but for a laboratory technique. And Greenpeace did not challenge it on the grounds that it was a natural process but on the grounds that stem cell research amounted to the ‘commercialization of human embryos’ and hence of human beings. In this its argument is both muddled and dangerous.

Embryonic stem cell research has long been controversial. Conservatives, theologians and pro-life groups maintain that blastocysts – clumps of cells so small that they are virtually invisible to the naked eye – are really tiny human beings. Stem cell research is immoral, they claim, because in harvesting stem cells from blastocysts, scientists are creating and disposing of human beings.

It is an argument that turns ethical reality on its head. Not only is it absurd to imagine that a barely-visible bundle of cells is a human being, but there is nothing new in creating and disposing of embryos.  It happens routinely, for instance, in IVF treatment – and medical researchers often obtain their stem cells from surplus IVF embryos.  If it is acceptable to destroy embryos in creating life, why not in saving life too?

There are no reasons to regard embryonic stem cell research as unethical. There is, however, something morally repugnant about the campaign against such research. By obstructing stem cell research, opponents may be slowing down the development of new medical treatments that could potentially save hundreds of thousands of lives, and lessen the suffering of many more.

The question of how to define an embryo, and a human being, was one of the key decisions facing the European Court of Justice. Under European law, patents must ‘safeguard the integrity and dignity of the person’ and not undermine ‘public order or morality’. ‘It follows’, the judges concluded, ‘that the concept of the “human embryo”… must be understood in a wide sense.’ Every fertilised egg, they insisted, must be recognized as an embryo whose ‘human dignity’ had to be protected. No technique arising out of research done on cells harvested from blastocysts can be patented because such a patent would be ‘immoral’ and contrary to ‘public order’. Even research in the course of which no embryo has been destroyed cannot, the court insisted, be patented if such research has made use of cell lines derived from previously destroyed embryos.

The court regards its ruling as necessary to protect human individuals from ‘commercial exploitation’. This only makes sense, however, if we accept that blastocysts are human beings. There is no logical reason that ‘safeguarding the integrity and dignity of the person’ necessitates viewing a tiny, invisible ball of undifferentiated cells as a human being. It does not ‘follow’ as the court insists, that defending the dignity of the human individual requires it to adopt a ‘wide’ definition of what constitutes an embryo. After all, what about the integrity and dignity of all those people whose lives may be ruined by a judicial interpretation that could hinder the development of life-saving or life-enhancing therapies? In adopting such a ‘wide’ definition, the judges have not simply made a legal ruling. They have taken a moral stance, too, defining an embryo and a human being in the way that a theologian or a pro-life activist might do. Not only has the court confused the legal and the moral, it has also adopted a particularly reactionary moral position.

What is particularly ironic is that while the court has banned the patenting of techniques derived from destroyed embryos, it has not banned the destruction of embryos themselves, which remains legal. If it is immoral, and illegal, to patent processes that derive from stem cell research, why is the research itself not immoral and illegal? Or, to put it another way, if the research is moral, and legal, why should the patenting of it not be so too? In fact just this point was raised by judge Peter Meier Beck in an earlier hearing in a German court. ‘If something is legally allowed’, Beck observed, ‘then it should not really be forbidden to patent it.’

If the court judgment is difficult to fathom, the attitude of Greenpeace is even more so.  So hostile has the organization become to ‘big science’ that it is happy to line up with some of the most reactionary and obnoxious groups in Europe and jeopardize vital medical research. Organizations such as Greenpeace like to present the debate about embryonic stem cell research (just as they like to do the debate about GM crops) as one between immoral scientists, hellbent on progress at any cost, and those who seek to place scientific advancement within a moral framework. But what is moral about causing unnecessary suffering by creating obstacles to medical advance?  And what can be more ethical than attempting to alleviate such suffering through the development of medical techniques?  It is about time we stopped indulging theologians and Luddites in the absurd myth that they occupy the moral high ground.  They don’t.  They are using moral norms drawn from dogmatic and reactionary visions of life to prevent the practical alleviation of human suffering. Theirs is the morality of the closed mind and the entombed heart.


  1. Nader

    This has nothing to do with morality. The EU court is trying to invalidate Japanese, Chinese and even Iranian researchers, who are far ahead of EU and US in stem cell research to own the next wave of monopolies on drugs.
    The unintended consequence could be that finally such a real blow will pulverize this archaic and immoral patent system, the last leg of capitalism.
    This opens the door for other countries to easily define other issues as immoral, such as a western artist using some melody from the east, to evade copyrights, or some patents on drugs being partly based on nature and thus invalid. I am not a lawyer but the whole patent and copyright systems is very one sides, but tenuous.
    In some sense or another other countries will find ways to ignore patents and copyrights all together, making WTO’s roll as the enforcers that much harder.
    People may finally get legitimate copies of drugs at 30¢ a dose instead of $120.
    The world will find a way to keep creative people happy and rationally compensated. It may take a decade, but it will happen. This may be the first chink in the armor of this immoral monopoly system, billions paying blood money for a simple invention or discovery of a single person.

  2. Mark

    Stem cell research is moral, but morality isn’t the point. Religion, political identity and simple pig-headedness is the point of the opposition to stem cell research. I’ve dealt with these anti-stem cell people. Hell, the former head of the Queensland Institute of Medical Research was trying to interfere with my university’s stem cell research because he’s Catholic. He’s out of the way now, but he caused problems for us.

    Broadly speaking, the reasons why people on the right (or even people on the left) oppose Stem Cell technology is threefold:

    1) Because they think the issue is linked with Abortion. Nevermind the fact that the majority of conservatives in the US would almost certainly arrange an abortion for their daughter if need arise, but they’ve spent so long, and so much energy demonizing any form of abortion, that to allow them to be destroyed for medical research would open them up to ridicule. They can’t stand that.

    2) Because admitting that an embryo is not human would open up problems with their religious definition of humanity and introduce a good old dose of nice materialism in to their lives. An embryo is, to anyone with two working eyes, patently NOT a human being. It’s a ball of cells. It’s a microscopic, tiny ball of a few hundred cells (and sometimes not even that many). But to the religious person, the embryo HAS to be a person, because it HAS to have a soul, because if the soul doesn’t magically enter the embryo when it is first created, when does it? They can’t admit that the brain is the seat of real consciousness, and they can’t just say “Well, maybe it enters the body when the brain forms”, because why would God or whatever deity they worship contrive such a convoluted scheme of ensoulment which depends on the biological development of a particular organ? So they adamantly insist that it must enter at the very moment of conception (which still doesn’t make that much sense).

    3) Because they don’t like science tinkering with life. Life, for so much of human history, was magical. It was the last bastion of magic for so many people. When physics began to explain what the sun was, or why the moon stayed in orbit, people still clung to life, pointing at it and shouting “well, your precious science can’t explain life! Neer, neer! Therefore, RELIGION”. Now science has pretty much explained what life is – it’s cells. It’s molecules. It’s replication. It’s chemistry. Very complex chemistry…. but chemistry none-the-less. It’s not magical in the super-natural sense. It’s not divine. It’s not “otherworldly”. And they can’t take that – both on the left and the right. The right want to cling to their old religions and the left want to still embrace the hippie spiritualist “Groovy-man, check out the colours” and “I want to meditate with my animal spirit, brah” nonsense. With stem-cell technology, science is finally wading its way into the “perceived” final domain of human life and the human mind. If we can manipulate it, then that means our theories on it were correct. If we can manipulate and alter and shape stem cells and life itself to our command, then that proves that our materialist philosophy WORKS. They can’t allow that – on some level, they know we are right, but by gum they are going to make damn sure as few people find out as possible. They’d rather willingly cling to an illusion than embrace the truth, and one important part of clinging to illusions is to convince those around you to also believe in the illusion. The more power science has over life, the less power religion and spirituality and all that hippie nonsense has. We’re driving in the final nail in the coffin of their superstitions – and they are naturally lashing out. They know that if GM food becomes more common, if effective stem-cell therapies become available, then the good old materialist view on life will finally be acknowledged. They will finally have to admit the truth – we’re chemicals. Protein. Lipids. Nucleic acids. We ARE a mechanism – a gooey, insanely complex, watery mechanism, but a mechanism nonetheless.

    There’s also a whole host of other reasons: Far-Lefties hate the idea of companies or “those evil scientists” having anything to do with human beings, and Far-Righties don’t like spending federal money on anything other than bigger bombs to kill yet more people they don’t like. Also, many people are ignorant. You won’t believe the amount of anti-stem cell research people who believe that an embryo is literally a tiny homunculus, a baby-in-miniature that we pluck from the womb (cackling evilly all the while of course, as lightning cracks in the background) and then toss into a blender to create stem-cell stew! That is literally what some of these people believe we do. I’m not joking. They think we’re grinding up babies. And of course, if you try to educate them, they put their hands on their ears and shout “lalalalalala, we can’t hear you!”

    But don’t worry – stem cell research will continue on. The US and the EU might oppose it, but they are not the world. And the US and the EU can hold out for as long as possible, but eventually when real treatments are made in Japan, or South Korea, or Australia, or China, or India, as they one day WILL BE, given the astounding capabilities of many of the Indian and Chinese researchers I’ve worked with, the US and the EU will have to allow it and federally fund it. And even if they don’t then – all it will take is one Supreme Court Judge’s relative to come down with a serious illness, and boom – it will get federal funding the very next day.

  3. Adam. Liverpool UK Resident.

    Well written mate. I have the postive gene for Huntingtons Disease. Greenpeace have nailed my coffin and offered me no dignity. Years of research wasted by these meddling degenerates has left me distraught and very very angry. What right have they got to choose who lives and who dies ?

    • My heart goes out to you and you have my best wishes for the future. And, yes, there is something deeply immoral about their selective arguments about protecting human dignity and human lives, and their blindness to the needs of real human beings.

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