Embryonic Stem Cell Patents: European Law and Ethics by Aurora Plomer and Paul Torremans (eds)
| Published date | 01 May 2010 |
| Author | Roger Brownsword |
| Date | 01 May 2010 |
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00805-1.x |
REVIEWS
Aurora Plomer and PaulTorremans (eds), Embryonic Stem Cell Patents: European
Law and Ethics
,Oxford: Oxford University Press, 2009, 433 pp, hb d75.00.
A dozen years ago, in a special issue of the Review (see (1998) 61 MLR 593), an
attempt was made to anticipate the signi¢cance of the work then underway in
human genetics for various ¢elds of law (for example, for criminal law, medical
law, family law, intellectual property law, and so o n). At that time, it was thought
that,following the sequencingof the human genome, and withthe identi¢cation
of key genetic markers for various diseases (and, possibly, for behavioural charac-
teristics), human genetic pro¢les would be a critical resource for employers and
insurers as well as for reproductive decision-makers. To some extent, the fear that
the availabilityof human genetic information would provoke a new kind of dis-
crimination hasabated as we have begunto appreciatethe complexity of thegen-
ome and its interactions with the environment. In other respects, though, little
has changed. For, in the1990s,it was the patentabilityof inventive workin human
genetics that ¢rst showed on the legal radar; and, today, it is the patentability of
human embryonic stem cells and their derivatives that gives rise to some of the
most acute legal di⁄culties.
In Europe, the most recent focus for these di⁄culties has been theWisconsin
Alumni Research Foundation (WARF) case decided by the Enlarged Board of
Appeals (EBA) at the European Patent O⁄ce in November 2008. Stated shortly,
the particular legal question inWA R F was whether the human embryonic stem
cells ¢rst isolated (in 1998) by JamesThomson and his team should be excluded
from patentability on moral grounds. However, there is much more to this than a
narrow IP question; and for those who want to ponder the broader issues (both
legal and ethical) arising in and around theWA R F decision, the 14 papers in the
Plomer and Torremans collection are essential reading.
What are the principal issues? Let us start with the headline ethical question:
namely, is it ethical to use human embryos as research tools?In Europe (as around
the world), there is no agreed view on this matter. Some contend that it is cate-
gorically wrong to treat human embryos this way. Typically, the argument opens
by taking it as axiomatic that it is wrong tocompromise humandignity; then it is
contended that the use of human embryos as a research toolçthis involving the
commodi¢cation, or the commercialisation, or thei nstrumentalisation of human
lifeçis just such adignity-compromising act.The contributors to the collection
hold no brief for this view (see, in particular, the pieceby A.M.Vien). At the other
pole, there are those who argue that we cannot do wrong to a human embryo
because it does not have rights, or that responsible researchers do not dowrong
because the fruits of their research are likely to show a net utility. Pragmatically,
many settle for the view that this kind of research is ethically permissible
r2010The Authors. Journal Compilation r2010The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2010)73(3) 510^522
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