By Wesley J. Smith, J.D., Special Consultant to the CBC
A few months ago, as noted here, a European Court magistrate ruled that embryonic stem cell research (ESCR) products are not patentable because they are an industrial use of the human embryo, which is not permitted under European law. Since then, the usual advocacy push back has furiously commenced in science journals, among politicians, and from people with degenerative conditions.
Case in point, an article in the Telegraph with the typically ludicrous title, “Should the European Court be Allowed to Dash My Hope of a Cure?”, which is nonsense, since as everyone who reads my writings knows, ESCR is not THE ONLY HOPE! We are supposed to be daunted in gainsaying this appeal to emotion over law because the author is ill. But that would be condescending, so push back I will. First, Alasdair Palmer pulls out the same very tired and mendacious playbook used here in the USA whenever ESCR is debated. From the column:
[The judge] seems to think stem cells are equivalent to embryos, and that embryos are entitled to the same respect and dignity as fully formed human beings. But stem cells are not embryos. They have the potential to become them, but then so does almost every cell in your body – including the thousands that you slough off every time you scratch your scalp or pick your nose.
Nonsense. That is not a legal view, it is a moral assertion. Moreover, as we will see below, the judge ruled that stem cells are not embryos (which is true).
The judge has to apply the law. The sophistry about every cell being capable of becoming an embryo is the old junk biology gambit that has to do with SCNT human cloning, in which a nucleus from a cell is used — with an enucleated egg — to create an embryo asexually. That doesn’t mean each of our cells is a potential embryo. If one wants to use the analogy, it means that each of our cells is a potential sperm.
Back to Palmer:
Even if stem cells were embryos, the next step of Mr Bot’s argument would still be legally invalid. Embryos are not, in law, entitled to the same respect and dignity as human beings. If they were, abortion would have to be classed as infanticide.
More misdirection. The judge applied the law of patents as they relate to embryonic life, not to abortion or the value of a born human being. Besides, whether one agrees or disagrees, abortion is legal as a matter of the woman’s personal autonomy. In ESCR no woman is being forced to do anything with her body, so that issue is irrelevant. It is just thrown in to create an emotional reaction in those who are pro choice against the judge.
Back to Palmer:
What, then, is the basis for Mr Bot’s claim that it must be unethical to derive a patent from research that has involved stem cells? The answer is that his legal claims seem to me flimsy: what he has are his own ethical convictions, which are no doubt important to him, but surely cannot and should not be the basis for European law.
No, Bot was not imposing his own moral views. Rather, as he should have, he applied specific European statutory law to determine what European law is in this particular fact situation. From the original decision:
The concept of a human embryo applies from the fertilisation stage to the initial totipotent cells and to the entire ensuing process of the development and formation of the human body. That includes the blastocyst.
– Taken individually, pluripotent embryonic stem cells are not included in that concept [of the embryo] because they do not in themselves have the capacity to develop into a human being.
Accurate biology! Back to the decision:
– An invention must be excluded from patentability where the application of the technical process for which the patent is filed necessitates the prior destruction of human embryos or their use as base material, even if the description of that process does not contain any reference to the use of human embryos.
– The exception to the non-patentability of uses of human embryos for industrial or commercial purposes concerns only inventions for therapeutic or diagnostic purposes which are applied to the human embryo and are useful to it.
How novel. A decision based on accurate science and how the law, as written, applies.
The ESCR debate generally is an ethics and not a science debate. But whether ES cells or products derived from them are patentable are purely legal issues based on statutory law — and that should not rest on the purported commercial impact of the proper legal analysis or the moral views of proponents or opponents of ESCR.
If the European Union believes ESCR is so important that it must trump existing patent law, pass legislation so doing. But don’t expect a judge ignore the law because you think the purpose is overriding. That’s how the rule of law is destroyed.
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