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.