Ethics and Patenting of Transgenic Organisms: Introduction and Overview

Gary E. Varner

Assistant Professor of Philosophy
Research Associate, Center for Biotechnology Policy and Ethics
Texas A&M University
College Station, TX 77843-4355

[published September 1992]

This symposium was planned to begin with conceptual and theoretical issues, progressing through a description of the contemporary status quo to consideration of ethical arguments for changing (or sticking with) the status quo, and ending with a roundtable discussion involving all of the presenters. The program began with two philosophers, Edwin Hettinger of the College of Charleston and Paul Thompson of Texas A&M, considering the conceptual issue of whether or not transgenic organisms are the sort of thing which one can legitimately be said to own. Both had previously published related discussions. In his paper, “Owning Varieties of Life,” Hettinger argues that it is a mistake to treat genetically altered living organisms as simply another class of human inventions patentable under the same rules and justifications as any other invention. He suggests that the nonexclusive nature of the subject matter of intellectual property makes life patents prima facie irrational and gives us a reason to prefer public funding as the mechanism to stimulate genetic innovation. Thompson’s paper, “Concepts of Property and the Biotechnology Debate,” develops three philosophical alternatives for interpreting and evaluating property claims. Criteria that evaluate property claims in terms of natural characteristics of goods provide one approach; criteria that are based upon productive labor provide a second. The most widely discussed category is the third, which takes a property right to be a legal fiction justified in terms of its ability to produce social utility. Historically, philosopher John Locke’s work on property has been extremely influential, and Locke makes use of criteria from each of the three categories. Thompson’s paper reviews Locke’s ideas, and extends each of the three approaches to the discussion of biotechnology.

The second portion of the program was designed to describe the legal and economic status quo. Martin L. McGregor, a patent attorney with the Houston firm of Baker and Botts, which handles biological patent applications for the Texas A&M University System, surveyed the hurdles currently facing attempts to patent transgenic organisms in the United States and the ways universities, corporations, or individuals seeking patents can overcome these hurdles. Because McGregor spoke from hand-written notes, only the abstract he submitted ahead of time is reproduced here. Judith I. Stallmann, an agricultural economist from Virginia State University, was scheduled to speak next, assessing the economic impacts of the Patent Office and related regulations on the biotechnology industry. Stallmann became ill and was unable to present at the symposium, but the paper on which her presentation would have been based is reproduced here.

The final set of presentations turned to ethical considerations, both the beliefs of the public and original arguments by speakers as to how the status quo ought to be changed. This segment included an overview of research done on public attitudes towards agricultural biotechnology, a consideration of animal rights issues, and a feminist/environmental critique.

In “Public Perceptions of Agricultural Biotechnology: An Overview of Research to Date,” Texas A&M sociologist Donald Albrecht notes that precious little research is currently available on public attitudes towards biotechnology specifically. Working from studies comparing public attitudes towards science in general, Albrecht considers various reasons for public skepticism towards biotechnology specifically, and recommends that more detailed research be done, in order better to understand public apprehensions.

In “What Obligations Have Scientists to Transgenic Animals?,” Iowa State University philosopher Gary Comstock develops and defends an animal rights view and considers its implications for genetic engineering. Comstock uses a fanciful example to make a point. Suppose that it were possible to create, through a single application of genetic engineering, a biological egg-laying machine, a chicken with a nervous system too crude to support consciousness, but still capable of maintaining respiration, circulation, etc. Because such a “bird” would (by hypothesis) be incapable of consciousness, no animal rights considerations would be raised by her development, if such a non-conscious “bird” could be achieved in a single “generation” through genetic manipulation. However, Comstock argues, experience to date with the creation of transgenics indicates that many dysfunctional, but conscious, organisms would have to be created along the way to successfully producing a non-conscious “bird.” So, Comstock concludes, a commitment to animal rights sometimes forces us to eschew biotechnical research with morally innocuous goals because the means of achieving those goals would themselves involve violations of animals’ rights.

In her presentation to the symposium, titled “Why it is Difficult to be an Ethical Biotechnologist,” Martha Crouch, a microbiologist in the Department of Biology at Indiana University, mentioned Comstock’s chicken example. Crouch said that she would object to such a transmogrification of the chicken even if it raised no concerns about animal rights. Crouch said that from an ecofeminist perspective, she objects to the general distancing of ourselves from our food, to which modern agricultural technologies in general, and biotechnology in particular, have contributed. To produce an egg-laying machine like the one Comstock describes would be an extension of the factory farming already characteristic of the poultry industry. Crouch argued that the most intimate interaction each of us has with another organism is the act of eating him, her, or it. To consume only packaged food from the grocery or to treat the organisms we eat like machines is to deny those organisms the dignity of being individual living organisms. Crouch argued that this lack of respect for the individuals we eat is part of a general pattern, present in sexism, racism, and other forms of social oppression, a pattern of denying or ignoring the nature of other individuals.

Crouch discussed at length a second area of ethical concern independent of the animal rights question. She argued that biotechnical innovations are ill-suited to the development of sustainable agricultural systems because of the technical infrastructure necessary to support biotechnological innovation and because of their tendency to reduce crop diversity while being relatively input intensive. Crouch’s presentation to the symposium was extremely eloquent, and even impressed many who disagreed dramatically with her conclusions. Crouch was not reading from a text, which could be reproduced here. However, she provided an edited version of a paper covering many of the same issues, which is included.

Neither Comstock nor Crouch explicitly addressed patenting in their presentations, but during the discussion period each drew out the implications of their views. Insofar as encouraging the patenting of transgenics furthers reliance on unsustainable agricultural practices, Crouch thinks it unwise to encourage patenting of any organisms. Comstock argues that because an animal rights view would extend moral standing only to conscious animals, the genetic engineering of non-conscious organisms like plants presents no special problems from an animal rights perspective. However, where conscious organisms are involved (and presumably the lion’s share of agricultural animals — primarily mammals and birds — are conscious) a commitment to animal rights requires us not to develop genetically engineered animals, whose conscious lives would be worse off because of the ways they have been modified. Insofar as allowing patents on transgenics encourages genetic engineering, which might have these results, Comstock argues that the patenting of “higher” transgenic animals (like mammals and birds) is to be discouraged.