Intellectual Property: Property Rights in Biological Materials Essay

Introduction

The advent of biotechnology has prompted the enactment of measures aimed at protecting property rights to cover biological materials. The new technology has stirred raging debate on whether human beings should rival God in creating and controlling life. Parties across the divide have taken a definitive stand either to support the new technology or to decline it.

The raging debate is not baseless. Alder Hey a renowned biologist was involved in scandal for an unauthorized removal of human body tissues, and organs between 1988 and 1995. More than 850 children’s body parts discovered in Alder Hey Children’s hospital constituted the Alder’s scandal. After the discovery, a healthy board enacted property right laws to protect human parts, organs, and tissues from abuse and misuse.

The Human Tissues Act 2004 was the first law formulated to guard against abuse and misuse of human organs. The Act stipulates registration of persons handling human tissues against unauthorized persons. In the modern world, advancement in technology has increased cases of organ transplants and body organ transactions. The case of Alder scandal highlights leeway taken by the doctors to retain some organs after the patient passing over. Most doctors engage in such practice claim “presumed donor consent” to retain such organs against the family members’ consent. In return, the scrupulous doctors’ sale these organs dearly to individuals who desperately need organ transplant.

Importance of Biotechnology

The world is experiencing increase in technology both in manufacturing and communication sector. Similar trends have taken the health sector by storm. Besides attracting negative criticism, biotechnology’s role in saving lives is without question. There are hundreds of patients in the world in need of liver transplant, kidney transplant, and heart transplants among other organ transplants. Organ transplants are only possible with technology; without biotechnology, patients who need such transplants are a condemned lot. Hardiman (208) asserts that biotechnology holds untold benefits despite the many legal and moral issues surrounding its application. Dyson and Harris (11) concur that biotechnology is the only option when it comes to dealing with many health conditions.

Biotechnology has facilitated the generation of superior traits that are more disease resistant. However, most critics of biotechnology term it as “playing God” because the technology strives to produce living organisms. Using biotechnology, scientists require living organs to generate similar genes and tissue in lab whereas God is believed to create from nothing. Morally, most people argue that it is wrong to compete with God and that people should preserve the work of creation and regeneration to the creator.

Legal and Moral Issues Surrounding Biotechnology

Human cells are indispensable to creation as a source of human biologics. Dyson and Harris (57) argue that for scientist to reproduce a living cell, they require a sample to serve as the model. By itself, biotechnology lacks originality and it relies on the created beings to generate replicas. In modern world, reproduction of items or replica of another person’s design is a crime in the face of law. Controlling biotechnology is critical because left alone, malicious people may either produce harmful organisms or compromise human integrity for a fast Buick. Since biotechnology requires acquisition of a living from individuals, there are many questions with regard to the viability of the technology.

Participation in biotechnological advancement attracts exclusion on grounds of ordre public or morality. Ordre public defines generally acceptable health practices in the community. The moral aspects of life should inform any biotechnological advancement. Thus, exclusion on basis of ordre public or morality requires assessment of the effects of biotechnology to the community at large.

Moreover, the necessity to have a living cell, organ, or body tissues in any biotechnological endeavor has intensified commercialization of human parts. The drive to obtain money from sale of human organs exposes human beings to risks of exploitation. There are those who may compromise lives just for the sake of earning some money. Nonetheless, biotechnology has for long remained an academic or research oriented issue. Why such research is opposed is the obsession by some scientists with the aim of generating superior humans. Commercialization of biotechnology has really transformed the industry by exposing people, especially the marginalized groups e.g. the poor, to the risk of exploitation. The most vulnerable people are the children, unconscious patients, and the cardiac casualties who are at the mercy of doctors (Freedman 63).

Generally, it is unethical and illegal for the medical practitioners to exploit and profit from a patient’s body. If any patient should lose his or her tissue, the patient should share the profits that accrue from commercialization of his/her tissues. However, unscrupulous medical practitioners seek do not obtain the patient’s relatives consent and are not willing to share gains derived from sales of deceased body parts. This move is immoral and it reflects deep-rooted injustice to the patient and the family at large.

Property rights safeguards the right of the helpless people against such malicious practitioners. Full-grown commercialization of the human organs for biotechnology started in 1980 when the Supreme Court affected the patent rights. The Supreme Court argued that the designer invests a lot of money and time in research to develop the biotechnological product.

Dronamraju (412) asserts that transfer of biodiversity into developing countries needs to be evaluated keenly due to the ethical and legal issues involved. He further contends that developing countries are victims of exploitation and biopiracy due to deficiency in information and technological knowhow. Owing to past injustices, developing countries require proper property rights legislation to protect them against exploitation. Similarly, developing countries lack technology and knowledge to monitor and assess the consequences of adopting biotechnology (Dronamraju 413).

Human Body as Property

The term property has two dimensions: corporeal and incorporeal. Corporeal property is physical or tangible material whereas incorporeal extends to cover the legal rights recognized in a property. Thus, in its very nature, human body is a property that is both physical/tangible and has legal rights attached to it. Therefore, the human body qualifies for property rights cover. However, in the modern world, property rights cover innovative properties, works of art, and original designs. Recent adjustments in the definition of property rights allowed expansion of the definition to allow customs and law to cover properties previously not covered by property rights. Even though, what really qualifies biotechnology for property right coverage? The ability to generate living cells in otherwise unnatural means befits property right cover.

Donor and Surrogate Consent

Body parts may be donated, albeit, with the consent of the donor. In case the patient cannot give his/her consent and the doctor’s assessment reveals the patient cannot recover, surrogate consent is sufficient for body organ transfer. Surrogate consent arises when the next of keen, guardian or family member authorizes transfer or removal of the patient’s organs or tissues for research or transplant purposes. Uniform Anatomic Gift Act (UAGA) allows for body parts tissues transfer. However, the act remains silent on whether it is permissible to sell body parts. Nevertheless, UAGA recognizes human body as a property that needs protection against misuse, illicit trade, and immoral practices (Hardiman 216).

Some scholars attach ‘quasi-property rights’ to human body but fail to uphold absolute property rights. Regardless of the family members’ desires, the wish of the diseased prevails. This shows the will power of the deceased’s consent. For instance, a declaration by a diseased person to donate his or her kidney to a hospital stands despite objections presented by the family members. Thus, in absence of diseased consent, surrogate wishes are permissible in settling medical dilemma.

Increasing human organs and tissues trade indicates the presumed materiality of the human body. Blood transfusion is the most common form of body tissue transfer. However, legal analysts hold a different opinion by branding blood transfusion not as property transfer but provision of service. Depending on the agreement between the donor and the recipient, blood transfusion qualifies both definitions. In the case of Perlmutter v Beth David hospital [1952], a question of whether blood transfusion is transfer of property or provision of service arose. The ruling in the Perlmutter v Beth case was that blood transfusion is a provision of service (Bennet and Erin 94). Even with this interpretation, policies to control blood transfusion are paramount to govern hospitals operations.

Qualification Criteria

The numerous advancements in human research covering human body necessitate assessment on to determine developments requiring patent cover from the rest. Intensive research in medical field has brought about unique and differentiated properties such as new uses for old products, new methods of treatment, new drugs, biopharmaceuticals, and orphan drugs. In their very nature, these discoveries are peculiar and originate from innovative endeavors. Patents covered the discovery of DNA; however, this was a wrong move since DNA forms the epitome of every single biotechnological innovation.

Human Tissue Authority has designed measures and mechanism to narrow patent qualification criteria. Over time, the authority has developed different policies to govern patent rights to avoid errors. In the case of “union Carbide Corp V Chemical Ltd “[1999], Justice Jacob ruling paved way for future inclusion of patents rights on new and useful process in medical field (Takenaka 481). The ruling paves way for further invention and innovation in the biotechnological sector.

However, patent protection harbors numerous dilemmas. Consider a cases where MR. A successful produces a drug that treats a particular malady only. Due to huge investment and research time utilized, he decides to obtain a patent cover. Later, Mr. B discovers that high concentration of Mr. A’s product heals a different disease. Since Mr. A’s product is patent protected, Mr. B is prohibited from pursuing his search unless he obtains Mr. A’s permission or wait the expiry of patent time. This approach denies the community the right to use superior products. As a result, the Human Tissue Board created the “Method of Use Claim” to preserve the rights of consumers. Atala and Mooney (23) contend that out of a single inventor, several patents by may be issued for different of use claims. The claim of new use makes it possible for the research to develop superior use of the existing drugs. The overall effect is improvement in the welfare of the people.

Additionally, a new discovery that the chemical composition used in biotechnology was wrong grants the new discovery a selection patent. The broad definition of patent allows the community to obtain highly competitive products at fair prices. However, patent law exempts some basic medical practices such as surgery, therapy, and diagnosis. New discoveries warrant patent protection so long as their meets the above stated criteria.

Some Biotechnological developments being one of the fast growing and sensitive discoveries require patent protection. The process of designing and introducing synthetic DNA is a cumbersome process that commences with production of proteins. By extension, biotechnologists modify existing and genomic DNA by altering the position of stop code on the genome (Takenaka 23). This process requires sophisticated skills, tools and apparatus to make the entire process a success. Since the operation is not simply a treatment procedure, the law grants a successful operation patent coverage.

Deletion of existing cells is another biotechnological breakthrough that permanently eliminates regeneration of harmful proteins. The operation methodology is relative to that of surgical but the results are different. In deletion of existing DNA results to permanent change while surgical operation is a mere corrective measure. To carry out a DNA deletion requires distinction of somatic cell gene therapy from germ-line gene therapy. The somatic cell gene therapy alters the gene configuration of non-inheritable cell while the later alters the configuration of the inheritable cell. For instance, deleting defective genes in a child a child suffering from leukemia saves him from passing the defective genes to his child.

Arguments for Recognition of Property Right

Property rights protect artificially reproduced products and works of art. Although human organs are naturally produced, they face many violation and they therefore require protection by property rights. Property rights of a person’s tissues and organs enhance fairness by guarding it from unjust encroachment. Property rights preserve the patient’s trust of the health institutions. Naturally, when the trust foundation is developed, individuals increase loyalty and believe they are in safe hands. Property rights guarantee and safeguard the interests of the parties involved in the entire issue. Property rights take into account the interests of the patient i.e. his or her organs/ tissue is only transferred if he is able to give his consent (Harbiman 229).

Societal comprehension of equity and impartiality induces safeguarding of property rights. Numerous benefits result from the human biologics and therefore protecting vulnerable communities against exploitation serves justice (Sherlock and Morrey, 56). Human bodies generate economic returns by working while others generate income from creative thinking and acuity. Public figures sell their images in advertising while others trade body tissues such as blood and semen. Property rights protect individual body parts, tissues and organs against exploitation by scrupulous persons.

Conclusion

The discovery of the Alder Hey scandal championed the need to effect property rights on human bodies. The nobility of biotechnology as an agent of generating superior genes provokes massive commercialization of human parts. The alarming commercialization of human parts has provoked continued debate on the need to put in place stringent safeguards to protect human parts by property rights. The debate is marred by many contending moral and legal viewpoints. Patents protect biotechnological works from intents of greedy and malicious people who did not invest in their production. Patent protection is the reward for time and financial investment by the developer (Sherlock and Morrey 27). However, patents rights exclude some aspects of biotechnology that relates to basic treatment activities such as surgery, diagnosis, and treatment.

Works Cited

Atala, Anthony and Moneey, David, J. Synthentic Biodegradable Polymer Scaffolds. New Jersey: Sprienger, 1997.

Bennet, Rebecca and Erin, Charles A. HIV and AIDS: Testing, Screening, and Confidentiality. London; Oxford University Press, 2001.

Dronamraju, Krishna. R. Emerging Consequences of Biotechnology: Biodiversity Loss and IPR Issues. London: World Scientific publishers, 2008.

Dyson, Antony and Harrris, John. Ethics and Biotechnology. New Jersey: Routledge, 1994.

Freedman, Warren. Legal Issues in Biotechnology and Human Reproduction: Artificial Conception and Modern Genetics. Westport, CT: Greenwood Publishers: 1991.

Hardiman, Roy. Toward The Right of Commercialization: Recognizing Property Rights in The Commercial Value of Human Tissue. New Jersey: Pubmed, 1986.

Sherlock, Richard and Morrey, John. D. Ethical Issues in Biotechnology. Oxford: Rowman Littlefield Publishers, 2002.

Takenaka, Tosiko. Patent and Theory; A Hand Book of Contemporary Research. Cheltenham: Edward Elgar Publishers, 2008.