Life vs TNCs - and TNCs win

The European Parliament has now legalised the patenting of animals, plants, human genes, cells and other parts of the human body.

by Chakravarthi Raghavan

THE European Parliament has voted to adopt the report of the Parliament's Legal Affairs Committee on the proposed EC directive, modifying European Patent Law to legalise the patenting of animals, plants, human genes, cells and other parts of the human body.

The Biotech Patent Directive which accepted the report of the Parliament's Legal Affairs Committee (called the Rothley Report, after its chairman) was carried by a majority of 378 for, 113 against and 19 abstentions.

The life-patenting issue goes back to the EU's Executive Commission and the European Council of Ministers and, unless the Council of Ministers changes the Parliament's proposal, the patenting of animals, plants and human genes, cells and other parts of the human body will be legal in Europe.

Only a few small modifications were made to the recommendations of the Legal Affairs Committee - requiring plant and animal patent applications to specify their geographical origin and show that 'the material has been used in accordance with the legal access and export provisions in force in the place of origin.'

And, in the case of patents on human materials, the name and address of the person in question have to be given and the voluntary and informed consent of the person from whom the material has been taken has to be proved.

This may be an improvement of sorts (difference between six and half-a-dozen?) on the situation in the US, where, in the words of Andrew Kimbrell, a patent expert, a veritable Human Body Shop is now in the making. Says Kimbrell, 'As government agencies refine the legal and technical means to patent numerous life-forms and untold thousands of human genes and cells.... if it is not stopped, the patenting juggernaut will continue to transgress into life in all its forms.'

'Legislation' by the judiciary

The US situation has come about through 'legislation' by the judiciary - interpretations of the patent law to extend the frontiers, first in the Chakrabarti case, and then in the John Moore case. In this last mentioned case, the court decided that a patient, whose body parts or tissue had been removed, could not claim 'property rights' over them, and that genes and cell-lines developed out of them could be patented. However, the court found that the doctors and others involved in removing these parts had a 'fiduciary duty' to the patient. Hence a physician, in getting the patient's consent for a medical procedure to remove the body parts, tissue, etc - patients undergoing surgery etc routinely sign a consent form allowing disposal of cancerous tissue removed from their body - to satisfy his 'fiduciary duty' must disclose his close personal interest in the matter, unrelated to the treatment of the patient. And as a further 'development', in 1991 patents were granted on human stem lines.

European and other environmental groups had been lobbying European parliamentarians over the last few weeks prior to the vote (when the Legal Affairs Committee's report became known) to reject such patenting, but the NGO lobby proved no match to the well-financed lobbying of the bio-tech industry of both Europe and the United States, as well as the views of the EC Commission favouring the modified directive.

Disappointed and angry EU-NGO groups see the EU Parliament's decision as a set-back not only for Europeans, but for the rest of the world, particularly the local communities and indigenous peoples in the Third World struggling for sustainable and equitable conservation and use of biodiversity.

'This is bad news not only for us in Europe, but for everybody - anywhere in the world - struggling for the sustainable and equitable conservation and use of biodiversity by local communities and indigenous peoples,' says Henk Hobbelink, Director of the international NGO based in Spain, 'Genetic Resources Action International' (GRAIN).

Full-fledged life patent system

The new legislation, he points out, would allow biotechnology companies to go into the Third World's fields and forests, come back home with valuable genetic resources and patent them in Europe.

GRAIN says the environment lobby obtained a modification in that farmers in the European Union are allowed to replant patented seed, but only the smallest farmers are to be exempt from payment of royalties for this act.

For the rest, says GRAIN, the EU is heading for a full- fledged life patent system, on a par with what the biotech companies and the US government have been asking for.

'There is still a possibility,' says GRAIN, 'that some EU governments and corporations will not be satisfied, and that therefore the directive will return for discussion to the European Parliament. Also, there is also still a lot of debate that could be expected at the national level since domestic legislation will have to be modified.'

But the EU Parliament's vote, says GRAIN in its assessment, 'is clearly a major step back' for those fighting the privatisation of life.

It has major implications beyond Europe in that the EU member-states are now likely to stop supporting Third World countries and groups fighting global monopoly rights to exclude patenting of plants and animals under the WTO-TRIPs agreement.

This particular provision of TRIPs is up for revision in 1999. Until now, TRIPs allows WTO members to exclude plant and animals from patentability (as long as they provide for some effective sui generis systems for plant varieties).

The USA is already lobbying for the deletion of this right, and without the active resistance of Europe, this small loophole for developing countries is likely to be lost in 1999.

Mutual back-scratching

There have been reports that the EC Commission is willing to support the US in its drive to get this provision deleted from TRIPs, provided the US would support the EC over changes in TRIPs on geographical appellations of origin for wines and spirits.

GRAIN however draws some comfort from the impressive opposition that has been put up by civil society in and outside Europe, against all of this - with hundreds of organisations signing declarations and resolutions against the patenting of life forms, and carrying the issue to the mass media to highlight the controversy, and the existence of a serious problem.

Major Europe-based international and national NGOs, in a joint press release at Strasbourg, said the EUP vote 'demonstrates a deplorable lack of democratic responsibility' by the European Parliament.

The MEPs voted against the expressed concerns of virtually all sectors of European civil society, to allow patents on life for the sole benefit of the large biotech companies.

Churches of all faiths, doctors, medical associations, patients, farmers, animal and plant breeders, developing countries, environmentalists, animal welfare groups and many others have in the past months expressed their strong opposition to the notion of patenting life forms.

But the MEPs have chosen to ignore these statements by their electorate and 'instead have succumbed to the threats and unproven promises of the transnational industry'.

This vote, the NGOs said, will add to the mistrust of the European public towards European institutions and will strengthen the impression that the European Union is only a Union of the European Industries rather than a Union of the European Peoples.

Dr Ricarda Steinbrecher, geneticist and spokesperson for the Women's Environmental Network, says the MEPs 'sold out' to the pharmaceutical and biotech industry, ignoring the advice of high-ranking scientists, doctors, genetic centres, independent patients' groups and whole scientific bodies, by deciding to declare genes are 'inventions', and that human body parts, plants and animals can be patented.

'There is something utterly wrong with our democratic process when only those who spend millions of pounds on lobbying are heard, leaving NGOs, charities and individuals without a chance,' she added.

As a result of the vote, says Dr Abby Munson, Campaign Director of the Genetics Forum, 'with one hand the EU agrees to protect animals as sentient creatures formalised by the new protocol to be attached to the treaty of Amsterdam, yet with the other hand they take away protection by voting for the biotech Patent Directive. MEPs have just sold our animal kingdom to the highest bidder.' - CR (TWR No. 84, August 1997)

Chakravarthi Raghavan is the Chief Editor of the South-North Development Monitor (SUNS) from which the above article first appeared.