The Inscription of Life in Law: Genes, Patents, and Bio‐politics
| Date | 01 September 1998 |
| Published date | 01 September 1998 |
| DOI | http://doi.org/10.1111/1468-2230.00177 |
| Author | Alain Pottage |
The Inscription of Life in Law: Genes, Patents, and
Bio-politics
Alain Pottage*
‘Bio-colonialism’ in New Guinea
In 1989, Carol Jenkins, an American medical anthropologist attached to the
Institute of Medical Research in Papua New Guinea, extracted a set of blood
samples from some members of the Hagahai, a small group of hunter-gatherers
living in an inaccessible mountain range: ‘I told them we wanted to see a ‘binitang’
— an insect — in their blood’.1The suspicion that this peculiar ‘insect’ existed had
arisen from research carried out by scientists from the US National Institutes of
Health (NIH), who were conducting a survey of the distribution of variants of the
HTLV-I virus in Melanesia.2In her own (retrospective) accounts of the transaction
that was taking shape, Jenkins identified herself as a disinterested intermediary,
whose primary concern was to ensure that the Hagahai received the proper
commercial or therapeutic return for their participation. Her original research
interests had little to do with the genetic properties of their blood. In a paper
describing the methods and objectives of her medical-anthropological survey,
written before these particular blood samples had been extracted, Jenkins heralded
‘a rare opportunity to document the effects of contact on a previously isolated
population in Papua New Guinea’.3Apparently, the Hagahai had avoided direct
contact with ‘globalised’ society until 1983, when the effects of various illnesses
became so severe that they came to a missionary outpost in search of assistance.
The missionaries had their own ambitions for the Hagahai, which were not
necessarily in the best interests of the health of the group,4and the first effective
measures of medical assistance arrived only when Jenkins and her colleagues
began their study. Indeed, Jenkins’ published account states that ‘the ethical
obligation to intervene with medical aid was immediately obvious to the
researchers’.5However, although the protocols of research and publication did
not exclude an active concern for the health of the Hagahai,6it remains the case
that the governing objective of Jenkins’ programme was ‘to investigate the causes
The Modern Law Review Limited 1998 (MLR 61:5, September). Published by Blackwell Publishers,
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740
* Law Department, London School of Economics.
I am grateful to the participants in a research seminar at Griffith University for their comments on a
version of this article.
1 Carol Jenkins, quoted in The Detroit News 20 April 1996.
2 Jenkins and two other members of the Papua New Guinea Institute of Medical Research were co-
signatories, together with researchers from the National Institute of Neurological Disorders and Stroke
(a branch of the US National Institutes of Health) of a letter to a medical journal describing the
isolation of the strain of the virus (Richard Yanagihara et al, ‘Isolation of HTLV-I from Members of a
Remote Tribe in New Guinea’ (1990) 323 New England Journal of Medicine 993).
3 Carol L. Jenkins, ‘Health in the Early Contact Period: A Contemporary Example from Papua New
Guinea’ (1988) 26:10 Social Science and Medicine 997, 997.
4 The missionaries’ first response was to send a helicopter bearing sweets and toys. More important, in
attempting to convert the Hagahai to a more settled, sedentary, life style, the missionaries rendered
them more vulnerable to infection by unfamiliar viruses and bacteria.
5 Jenkins, n 3 above, 1004.
6 In fact, through her publications Jenkins actively raised some of the funds needed to buy essential
vaccines and medical supplies for the Hagahai.
of their decline and to monitor the consequences of increased contact to their
biological and cultural survival’.7The extensive array of tests carried out on the
members of the group facilitated various therapeutic objectives, but they also
provided a criterion against which the course of their decline could be plotted. The
prognosis was far from encouraging. Jenkins’ research paper states, somewhat
tersely, that ‘the net population increase is negative and the Hagahai are dying
out’.8
Jenkins’ medical-anthropological publications are written in the language of
traditional ethnography; they betray none of modern anthropology’s ethical or
epistemological anxieties about the status of its objects. Medical anthropology deals
with subject profiles fashioned from parasitological surveys, mortality rates,
comparative assessments of growth rates, cranial measurements, and so on. These
techniques were entirely appropriate to the research programme, which identified
the Hagahai population as a site of epidemiological negotiation, where culture-
borne viruses and antibodies were exchanged or cancelled. The question of how
culture was reproduced, or of how ‘biology’ was bound to ‘culture’ in that process
of reproduction, was no part of this programme, whether one takes the ‘culture’ in
question to be that of the Hagahai or that of the researchers. Similarly, for the NIH
scientists the Hagahai were interesting only as the human carriers of a rare viral
strain and its correlative antigens. Both perspectives condensed the social or
cultural agency of the group into a set of biological ciphers. Given that these
reductive accounts supply the basic fabric of even the most ‘critical’ interventions,
it is not surprising that most versions of the story adopt the notion of genes as
‘patrimony’, a notion that obscures the most vital issue in the patenting of ‘life’,
namely, the question of how societies (re-)invent the distinction between the social
and the biological. In this context, it is particularly important that these processes of
(re-)invention should be made explicit, rather than being allowed to condense into
inarticulate ciphers, because the most vital aspect of biotechnology patents is their
role in forcing the re-negotiation of traditional elaborations of the distinction
between nature and culture.
The precise nature of the extracted ‘insect’ was identified in the laboratories of
the NIH, where analysis of one particular culture, taken from a young man,
revealed the existence of antibodies to a variant of the HTLV-I leukaemia virus.9
This culture was used to develop an immortal T-cell line, ‘persistently infected’
with the HTLV-I strain, which was the basis for a patent application relating to the
cell line, the infecting virus, and a set of ancillary diagnostic test kits.10 Carol
Jenkins was identified as one of the five inventors of the PNG-1 cell line, a status
which seems to have been attributed almost entirely in recognition of her role as
the agent of ‘her’ population. According to Jenkins’ account, the terms of the
7 Carol L. Jenkins, ‘Medical Anthropology in the Western Schrader Range, Papua New Guinea’ (1987)
3:4 National Geographic Research 412, 413.
8ibid 412.
9 Yanagihara et al, n 2 above.
10 ‘The present invention relates to a human T-cell line (PNG-1) persistently infected with a Papua New
Guinea (PNG) HTLV-I variant and to the infecting virus (PNG-1 variant). Cells of the present
invention express viral antigens, type C particles and have a low level of reverse transcriptase activity.
The establishment of this cell line, the first of its kind from an individual in Papua New Guinea,
makes possible the screening of Melanesian populations using a local virus strain. The present
invention also relates to vaccines for use in humans against infection with and diseases caused by
HTLV-I and related viruses. The invention further relates to a variety of bioassays and kits for the
detection and diagnosis of infection with and diseases caused by HLTV-I and related viruses’
(Abstract, US Patent Application No 05397696, assigned to the National Institutes of Health, granted
14 March 1995. The full text is available at ).
September 1998] Genes, Patents and Bio-politics
The Modern Law Review Limited 1998 741
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