Tuesday, March 30, 2010
A Sweet Decision May Foretell the Ending of Patents on our DNA
In a 152-page decision, Judge Robert W. Sweet of the U.S. District Court said pointed out that the whole concept of patenting a gene was no more than a "lawyer's trick," designed to circumvent the prohibition of the direct patenting of our DNA. As a result of Sweet's (we do love this guy's name) decision, seven patents were declared invalid--patents on the genes BRCA 1 and BRCA 2, whose mutations have been linked to breast and ovarian cancer, making this decision of particular interest to women.
The whole idea of patenting genes is nuts. Genes come out of nature, they were not developed in a laboratory by a modern day Dr. Frakenstein. With the patents, Myriad Genetics (and the University of Utah Research Foundation), had developed the only test to determine if individuals were carrying mutations of the genes linked to a high incidence of breast and ovarian cancers. We previously wrote about the impact of these patents on adopted people in February, noting that adoptees with no access to their family medical history were at a particular disadvantage in deciding whether or not such an expensive procedure (approximately $3,400) might be necessary.
A group of women, supported by the American Civil Liberties Union and the Public Patent Foundation at the Benjamin N. Cardozo School of Law in New York, brought the lawsuit, claiming that the patents stifled research, kept prices high and prevented women from getting a second opinion. (We do wish adopted individuals had been part of the lawsuit, because the decision might have been a wedge for the courts to consider the unjust impact of sealed original birth certificates and adoption files.) Myriad Genetics offered the only test, and no other could be developed as the company held the sole right to work with the genes in question. According to The New York Times, many in the patent industry believed the judge would uphold the patents. Quelle surprise!
Every now and then a judge come along who comes out with a decision that smacks of so much common sense backed by a simple "law of nature" that it takes your breath away, considering all the inane and unjust laws on the books.
Decades ago, in the late Seventies, adoption reformer Florence Fisher thought we could dispatch closed adoption and birth records in every state of the union with a single Supreme Court decision. It would, we hoped, wipe all the crazy-quilt identity secrecy laws off the books and return honor and identity to all adoptees. Florence's organization, the Adoptees Liberty Movement Association (familiarly known as ALMA) brought a class-action lawsuit against New York's sealed adoption records laws. The lawsuit claimed that the law violated rights found in the First, Thirteenth and Fourteenth Amendments: the right to knowledge of their natural parents, a right the Supreme Court had long recognized as within the protection of the First Amendment; the right not to be confined or controlled not only by slavery, but by "badges or incidents of slavery", contained in the Thirteenth Amendment;" and the right to privacy--which included the right to knowledge of one's origins--in the Fourteenth Amendment. (For a fuller explanation of the lawsuit, see E. Wayne Carp's Family Matters.)
Florence found a Constitutional lawyer, Cyril Means, to draft the lawsuit, funded the court case, and forward we marched, thinking we really thought we had a shot at getting the identity-stripping laws off the books and into the dark history of adoption. Certainly the court could not fail to see the merits of our argument. No such luck. The idea that adoption trumped all the rights of the individual held sway in court then, holds sway in most state legislatures today. ALMA's case was dismissed in the U.S. District Court for the Southern District of New York; and dismissed on appeal by one Judge James L. Oakes. I remember talked to Florence that night, both of us low and full of despair.
Oakes was wrong; his dismissal an abomination, as surely as the Dred Scott and Plessy V. Ferguson decisions. I pray that the time comes in my lifetime that someone will file another such court case, and that the winds of change have blown enough so that some judge, perhaps one as sensible and ethical and far-seeing as Judge Sweet can see that the time for true justice has come. Then we need not be squabbling about tenets in proposed legislation that we find reprehensible, then we need not be fighting amongst ourselves at all. Then we shall all be free.--lorraine