On Patenting Transgenic Animals

By: Baruch A. Brody

Introduction

On April 7, 1987, Donald J. Quigg, Commissioner of Patents and Trademarks, announced that:

The Patent and Trademark Office now considers non-naturally occuring non-human multicellular living organisms, including animals, to be patentable subject matter within the scope of 35 USC 101.(Committee on the Judiciary, 1988: p.22)

 

Slightly more than one year later, on April 13, 1988, patent no. 4,736,866 was issued to Harvard University. It covers a new breed of genetically altered mice that can serve as a more effective model for studying how genes contribute to the development of cancer and for testing new anticancer drugs because the genetic altering results in half the females of the breed developing cancer (Wall Street J., 1988: p25).

In response to the earlier announcement, a number of bills were introduced in Congress. One (HR 3119, introduced on August 5, 1987 by Congressman Rose and others) mandated a two-year moratorium on patenting new animals while Congress studied the issues. It explicitly argued that the decision to allow such patents raises such fundamental economic, environmental, and ethical questions that it should be made by Congress, and not by the Patent and Trademark Office. Another (S 2111, introduced on February 29, 1988 by Senator Hatfield) simply banned such patents, presumably because its author judged that these questions clearly indicated that patenting is inappropriate. A series of hearing were held in the second half of 1987, but no bill actually passed both houses of Congres and became law.

The debate surrounding both the announcement of the Patent Office and the subsequent proposed legislation raised many ethical isssues. Indeed, a perusal of the testimony presented by opponents of patenting in the four 1987 hearings (Committee on the Judiciary, 1988) and in other writings produced by these opponents reveals that the language of ethics was essential to much of that opposition. This paper critically evaluates the arguments the opponents presented. It concludes that the opponents failed to make their case and that the proponents of the patenting of transgenic animals can offer strong moral defense of their position.

Moral Arguments Resting Upon Metaphysical
and/or Theological Assumptions

The most fundamental moral arguments opposing patenting employ metaphysical and theological claims as their point of departure. They raise questions about the relation between the living and the non-living, and about the relation between human beings an dthe world which they inhabit. Moral conclusions are drawn at the end of these arguments, but they begin with moral philisophical and theological claims.

There is one feature of these arguments that needs to be noted. The opponents themselves recognize that they need to do a lot more work to articulate the inchoate concerns they feel. This is why the recent statement of some religious leaders against animal patenting called for a moratorium on patenting while a process of "thoughtful reflection and judgement on these matters by churches and religious institutions, as well as by other concerned groups in our society" is carried out. All that we can do is examine the articulations of concern that have already been developed. We need to be sensitive, however, to the possibility that further articulations of reasons for opposing patenting may be forthcoming.

Shortly after the Diamond V. Chakrabarty decision in which the Supreme Court ruled that a living microorganism was patentable, Leon Kass published an important essay in which he raised a number of fundamental questions about the patenting of living organisms of any size or complexity. Here, we focus on one argument which he stated as follows:

Consider first the implicit teaching of our wise men, that a living organism is no more than a composition of matter, no different from the latest perfume or insecticide. What about other living organisms - goldfish, bald eagles, horses? What about human beings? Just compositions of matter? Here are deep philosophical questions to which the Court has given little thought, but in its eagerness to serve innovation, it has, perhaps unwittingly, become the teacher of philosophical materialism. (Kass, 1985: pp.149-50)

 

Reinforcing Kass's point was the fact that the majority in Diamond v. Chakrabarty was required to find that the organism was a composition of matter, because the statute authorizing patents refers to "any new and useful process, machine, manufacture, or composition of matter" as a patentable object, and the relevant microorganism only fell under the last phrase. This aspect of the decision was also the basis of criticism of it by a working party of the World Council of Churches (1982):

The U.S. Supreme Court decision on patenting of life forms rested upon a specific, highly reductive conception of life, which sought to remove any distinction between living and non-living matter that could serve as an obstacle to the patenting of living but unnatural organisms. (p.47)

 

This is obviously not the place to examine the great philosophical debate between materialists, who see living objects as nothing more than complexly organized matter, and non-materialists, who insist that living objects are more than that. Let us leave that question unresolved. Let us go further and agree with Kass that it would be inappropriate for society to adopt a social policy that committed us as a society to a materialistic conception of life./ Still, there is nothing in the decision to patent living things - even under current language of the patenting statute - that commits us to a materialistic conception of life. Even those who believe that living beings are more than compositions of matter believe that they are at least compositions of matter, and it is only as compositions fo matter that we patent them.

A second argument, that some of the genetic engineering being patented confuses what must be kept distinct, is found in a passage in the recent statement of religious leaders against animal patenting (Statement, n.d.). They make the following claim:

The combining of human genetic traits with animals, with the results to be patented and owned, raises unique moral, ethical, and theological questions, such as the sanctity of human worth, which must be examined.

 

A good example of what they have in mind is, of course, the introduction of genes for the human growth hormone into farm animals to produce greater growth.

The sanctity of human worth is, of course, a fundamental moral principle of our society, standing behind our belief that humans cannot be killed or mistreated, are entitled to freedom from enslavement, and so forth. Since we allow animals to be killed for food and to be owned, we do not subscrie to a similar sanctity of animal worth principle. After all, a sanctity of worth principle would seem to imply at least the following two elements: (1) the life of the entity in question is of sufficient value that it can be taken only in the most extreme circumstances (e.g. self-defense); (2) the individual is free to act as it desires, for it should not be treated as a mere means fr others to attain their ends. By killing animals for use as food, we show that we do not ascribe such significance to their lives. By allowing them to be owned by those who would raise them for use as food, as a source of various byproducts (e.g. wool), as objects to be entered in to competitions, or even as pets, we show that we are willing to treat animals as mere means to human ends. All of this is, of course, perfectly commpatible with insisting that unnecessary animal suffering should be eliminated. So our moral life, as currently constituted, rests upon that distinction between humans and animals. It would seem, then that the religious leaders see such genetic experiments as imperiling the belief in the sanctity of human worth by breaking down the barrier between humans and other animals.

Do they? If it were possible (and it isn ot possible either now or in the forseeable future) to alter genetically animals so that they had more of those capacities and features (e.g. the capacity to form moral judgements or the capacity to experience the beautiful and sublime) which we see as distinctive to humans, then we would face difficulat moral questions as to how such creatures should be treated and as to whethter we can continue to maintain a sharp divide between humans and other animals. But, of course, none of these issues is raised by farm animals who grow more because they have a gene that leads them to produce human growth hormone. Nor would they be raised by any of the genetic alterations of animals that will be produced in the foreseeable future. So in what ways do these experiments raise questions about the sanctity of human worth? And in what way does the patenting of their results imperil that belief?

We turn finally to an interconnected series of arguments about man's control over nature, mans responsibility toward nature, and the need to preserve species and protect their integrity which are probably the leading cause of mataphysical and theological disquiet about the patenting of transgenic animals and about the genetic engineering it will promote. A powerful statement of this set of issues is containged in the following testimaony of the Rev. Wesley Granberg-Michaelson, appering on behalf of the National Council of Churches, on November 5, 1987:

When the National Council of Churches has issued this statement of concern, it comes from the backgound of Judeo-Christian thinking about how we relate to the natural environment. In a nutshell that backgound says that we have a responsibility for preserving the integrity of creation, and for working with it in order to preserve its intrinsic values....the doctrine of trust in legla parlance is synonymous to what we are taling about theologically or religiously when we think about the relationship of the creation to humanity. The Judeo-Christian view says that the creation is, in essence, held in trust; there are limitations on what we can do. We have a responsiblity to see that its integrity is preserved. This background has led to legislation such as endangered species laws, animal welfare laws, laws regarding environmental quality. (Committee on the Judiciary, 1988)

There are several points which I want to make about this argument:

(1) The presentation of Judeo-Christian tradition is somewhat misleading. As John Passmore showed in his ground-breaking study, Man's Responsibility for Nature (1974), the traditional Judeo-Christian image was that of man's dominion over nature. To give but one example, Calvin repeatedly talked about the fact that Gad created all things for man's sake. It is only in recent years that the theme of man's stewardship over nature has become more predominant.

(2) The traditional idea of a steward or of a trustee is the idea of a person who manages property for the benefit of other persons (present and future) who are its owner. There is nothing in the traditional conception of stewardship or trusteeship which even suggests that the property is to be amnaged to preserve its integrity for its own sake. Property held in trust can be radically transformed by trustees if it serves the best interest of its human owners, present and future. One religious notion of stewardship is the notion that man ust treat the property he owns as a trust for those human beings who will follow in future generations and cannot over-exploit it so as to maximize his current benefit. This notion of stewardship is analogous to the legal notion of trusteeship, but it is no the notion that Granberg-Michaelson is employing. He is using the differnent notion of the steward who protects the integrity of the property for the property's sake.

(3) This radically new notion may be morally desirable, but its claims demand considerable justification, and only those who are prepared to accept its many radical implications are entitled to use it as the basis for arguing against transgenic animals and the patenting of them. This argument is analogous to some of the arguments used by some animal rights advocates in that it is based upon a radical revision in our mataphysical conception of the relation of human beings to non-human nature, and not merely on the adoption of the traditional notion of stewardship.

Conclusions

Where then do we stand? We have seen that the moral arguments normally raised against the patenting of transgenic animals fail. At most, they suggest the real need to strengthen our regulatory schemes governing research on animals and the release of transgenic animals into the wild, and the need to reconsider in a general fashion the problem of justice between countries. None of them provide us with moral reasons to oppose the patenting of transgenic animals, unless we also are prepared to adopt radically new approaches to fundamental metaphysical issues surrounding the relation of humanity to the environment and to the world of animals. There are, moreover, strong moral arguments for allowing the patenting of transgenic animals. The most mportatn of these is the consequentialist claim that such a patenting system promotes beneficial consequences by providing an incentive to create useful inventions.