' [Birth Mother] First Mother Forum: A Sweet Decision May Foretell the Ending of Patents on our DNA

Tuesday, March 30, 2010

A Sweet Decision May Foretell the Ending of Patents on our DNA

A federal judge in Manhattan on Monday (3/29/10) struck own patents on two human genes related to breast and ovarian cancer, saying that the patents--though granted for decades--were "improperly granted" because they violated a "law of nature." Hallelujah. A law violating a "law of nature"? Hmm, maybe I can think of another law that violates a "law of nature." Let us think.

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


  1. Actually, this is a major blow against adoption. While the decision was about gene patents, it opens the door to adoption issues since it uses the "laws of nature" argument.

    Currently, and of course constantly, psychology and neurology have been studying the nature v nurture question and the adoptees that are coming out and saying that they are more comfortable, seeing the similarities, the habits, mannerisms, etc., that could only come from natural parents - well, nature is winning for now.

    So, if someone was interested, with the evidence suggested here, well, adoption (in its present form) could fall under Sweet's decision and that would demand either abolishment or massive reform - including freezing the adoptive market until the details were hammered out.

    Some Pro-Adoption folks would say that it would do two or more things - 1) create a way for mothers to kill their babies (bullshite); 2) create a freeze on foster children being adopted (most fosters are never adopted); 3) leave many babies and children homeless.

    None of these arguments take into account the fact that the dirth of women being coerced into relinquishment is driving the market ever higher.

    Also, the fact that slavery was mentioned - well again, this can be applied directly to adoption.

    Something to consider - the door is open folks, can we get it together enough to get our foot in?

  2. The downside of the ALMA lawsuit was that if it got as high as the US Supreme Court and was denied, it could have invalidated all open records laws that existed. So it may have been fortunate that it died in a lower court. This is still a danger of any federal open records case; it could open them all, or seal them all. A big gamble. At least this is what I have heard.

    Also, appeal to "natural law" is a risky proposition as well, one more favored by the Right and with religious overtones that one may not want to invoke.

  3. Maybe it should be tried again-only this time against all states that have closed records-maybe it was just the wrong time in history to have sued-people are talking more now, and after what Paula Boinot did, maybe this time a lawsuit like this would get some respect.

  4. I agree with this decision: patenting genes does seem to be a kind of slavery and violates the 13th Amendment.

    But, I also agree with Maryanne: using words like "nature" or "natural" can have repercussions in legal decisions.

    Unwed mothers have been considered "deviant" and unnatural..in violation of the "natural social order."
    So, we have to consider what "natural law" is being invoked here....

  5. I've been thinking that a Federal lawsuit could be based on having no representation in the state legislature that determines whether or not you get your OBC, if you moved to another state. This is also important for those born in one state but adopted in another and the shell game that the states play with non-ID.

    Want to marry your same-sex partner? Move to one of the states that allows it. Want your OBC? Get the legislature in your state of birth to change the law even though you aren't a constituent.

  6. @Kittz: After consideration the use of nature or natural can be misconstrued. However, I must state that the "unwed mother" issue has longs since been slammed out of the shame era - since there are more and more of them - So the idea that it is unnatural has been negated. At least by the general populace.

    The issue is religion - and the hold the religious community and its "moral right" hold on the country - note I did not say the world, since most countries, with of course the noted exceptions of fanatical religious countries, are far more tolerant of different religions and most are part of a huge melting pot of religions.

    Our country is the only one that claims to be a majority of Christian - which is an outright lie. Our country is, without a doubt, a melting pot of religions, but most religions outside of Christian are ignored or treated in a lesser fashion.

    This is one of the drivers of the adoption bus - religion. The hardcore belief that a "bastard" should have two parents. And the fact that our government has allowed what the founding fathers tried to prevent - religion in government.

    Again - it aint the normal folks running that bus, but sadly most of us are too cowardly to stand in front of it for fear that there won't be enough of us out there to stop the darn thing.

    Just a thought.

  7. Lori,

    if it were only the religious folk driving the "2parent- home adoption bus" I wouldn't be so concerned, but there are many non-religious who also profess that same belief.

    some years ago,in the late 90s, I read an article about the "problem' of single parent families and the 'break-down" of the family in America. The article quoted a social researcher, David Lykkens who worked at the U of Minnesota Center for Adoption Research(don't know what it is called today.

    Paraphrasing Lykkens here: the adopted people studied had problems with adjustment due to lack of mirroring in their adoptive families, but were still better off than they would be with their biological mothers, in Lykkens' opinion.

    Lykkens said that only married couples should be allowed to raise children.

    he admitted that his opinion was 'draconian' but said that people would get used to it once they realized how much better off society would be in the long run.

    How confusing..he admitted that adopted kids had adjustment problems and losses but then brushed that all away by saying that adoption was still best for society.



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