Bioethical ambition, political opportunity and the European governance of patenting: The case of human embryonic stem cell science

Patenting is first and foremost a crucial component of our economic system, today. Yet, patents are also, essentially, an ‘in writing’ definition of ownership. Sheila Jasanoff (2005) notes that, in biotechnology, patents “have the effect of removing the thing being patented from the category of nature to the category of artifice - a profound metaphysical shift” (p. 204).

 “Where the patenting object involves the human embryo either directly or indirectly, this metaphysical shift can generate considerable political emotion through its engagement with a fundamental cultural symbol of human life” (Salter & Salter, p. 287). Hence, when it comes to the human body, patenting may confront significant theological and ethical opposition. In the case of Human Embryonic Stem Cell (hESC) science, the idea of ownership and commodification of the embryo has disquieted certain cultural and religious values.

Unsurprisingly then, in cases like these, the European Patent Organisation (EPO) is finding it increasingly difficult to focus solely on the technical issues of patenting. For instance, the EPO granted the University of Edinburgh a patent entitled “Isolation, selection and propagation of animal transgenic stem cells”, but this was opposed by Italy, Germany, the Netherlands, the European Parliament and Greenpeace on the grounds that it went against “ordre public [public order] and morality”, an important ethical principle of patenting law.

Such situations of cross-national valued-laden conflicts over patenting present a political opportunity for bioethics to intervene as a ‘public spokesman’ and mediator of competing interests. Already, the European Parliament has recognised that “bioethics and biological patenting are inextricably intertwined” (p. 289). Such conflicts between values of individual ownership and communal cultural values will most likely continue to emerge in patenting. There are solid grounds for believing that bioethics committees will not hesitate in seizing such political opportunities and will increasingly become an organic part of biotechnological governance.  

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