Bad Arguments on All Sides in the European Embryonic Stem Cell Legal Patenting Circus, part 1

I have been commenting generously on what I see as the most profound folly of the legal debates and proceedings concerning (a) embryonic stem cell research (here, here, here, here) and (b) patenting of genes and similar things (here, here, here) in the USA. Might be that I have thus come off as a rather smug European and maybe I was – in any case, here's an apparent redeemer for that. I will do this piece in two parts, starting with the chronological beginning of the story.

In March, Nature News reported, a judge at the European Court of Justice (the decisions of which are binding for all EU member countries) named Bot (forename unknown) brought forth the proposal that patenting embryonic stem cell lines would be unlawful, since they have been produced through a process involving the destruction of embryos. Thus, the judge argued, (as reported by Nature News) "they are tantamount to making industrial use of human embryos", which (quoting the judge) would be contrary to "ordre public and morality". The proposal follows a motion made by Greenpeace to repeal a patent application made by German researcher Oliver Brüstle. The European court is expected to make a ruling "in a couple of months".

I read through the proposal of the judge today (you can download it via the link above) and was actually stunned by its content. Seldom have I seen such an ill-conceived, poorly researched and structured chain of reasoning (I'll soon explain why) provided by an esteemed legal official and expert. And, as if that wasn't enough, it turns out that the foundation of the whole argument is – hold your breath! – an analogy between producing pluripotent stem cells through embryo research and the mass murder that took place in former Yugoslavia, where some victims were harvested for organs intended for transplantation. In spite of being a basic (as in unsupported) premise of the argument, the reasoning revealing this assumption is made very late in the text, just before the judge goes on to summarise his conclusions.

So what, you may wonder, is the judge doing in all those pages before that? Well, actually, mostly irrelevance (a totally misplaced and longwinded discussion about how totipotent cells compare legally to embryos ending with the judge concluding that it has no bearing on the matter at hand) and smashing in doors that have been wide open for at least two decades while holding himself out as some sort of intellectual pioneer; such as "proving" that the term human embryo signifies all stages of the human organism from conception (or the completion of a nuclear transfer – so-called therapeutic cloning) until the implantation is completed. The purpose of these exercises in futility seem to be to "prove" that the production of pluripotent embryonic stem cells involves the destruction of human embryos. Surprise!

So, how does the argument proceed from that stage? To answer this question, we need to backtrack a bit to the many places in the just related discussion where the judge underscores that he will not make any claim on morality that deviates from any law or received public opinion of any of the EU member states. The judge ponders whether the strategy of his argument should....

....be that we ask in what respect the precursor of life deserves less protection than that in which it will naturally result?
82.    Put in this way, the question would then refer to a solution directly inspired by philosophical or religious considerations and would therefore seem impossible to formulate in a way which is acceptable to everyone.
83.    This will not be my approach.

This he must say, since this is how the European legislation regarding embryos is constructed – e.g. in the Council of Europe Convention on Human Rights in Biomedicine: While stating that the human being in all its stages is to be legally protected, it leaves open to member states to legislate on the nature and extent of that legal protection. And since said legislation indeed varies from the very conservative to the very liberal as regards embryo research, the judge rightly draws the conclusion that a valid legal argument on the European level cannot be based on any assumption regarding the legal or moral standing of the human embryo.

So, then what is his basis? This, it turns out, is a clause in European patent law (present in most if not all such laws worldwide) stating that a patent application that otherwise meets all requirements can be denied on the ground that it regards something that is contrary to "ordre public and morality". In layman's tongue: popularly well-established and widely shared custom or moral views. But, of course, it is now that trouble begins for real – for what well-established and widely shared European customs or moral views might he invoke in the case of patenting embryonic stem cell lines? It is at this stage that the judge starts a chant about the wide European consensus on the absolute moral horror of the mentioned events in former Yugoslavia that – to much surprise – is directly turned into a conclusion about embryos:

104. The pluripotent stem cell in the present case is removed from the blastocyst which, as I have previously defined, itself constitutes an embryo, that is to say one of the stages in the formation and development of the human body which the removal will destroy.
105. The argument put forward to the Court at the hearing, that the problem of patentability which hinges on the removed cell, the way in which it has been removed and the consequences of such removal do not have to be taken into account seems unacceptable, in my view, for reasons connected with ordre public and morality. A simple example will illustrate my remarks.
106. The current judicial activity of the International Criminal Tribunal for the former Yugoslavia shows us, obviously subject to the presumption of innocence, that in the course of those events prisoners were killed in order to remove organs for trafficking. If, rather than trafficking, there were experiments which resulted in ‘inventions’ within the meaning of the term in patent law, would they have had to have been recognised as patentable on the ground that the way in which they were obtained was outside the scope of the technical claim in the patent?
107. Such blinkered thinking cannot result in a solution acceptable to the greatest number.
108. Consequently, even though the claims under the patent did not specify that human embryos are used for the exploitation of the invention, when they actually are, the patentability of such an invention must be excluded.

 In other words, the whole argument can be summarised as follows:


1. A European patent application must be denied if it concerns something in opposition to popularly well-established and widely shared custom or moral views throughout Europe.
2. To approve patent for a procedure that involves or presumes actions similar to the killing of prisoners in former Yugoslavia for the purpose of organ trafficking would be in opposition to popularly well-established and widely shared custom or moral views throughout Europe.
3. The removal of pluripotent cells from embryos involves the destruction of said embryos, and thus of human bodies.
4. THEREFORE: The removal of pluripotent cells from embryos involves an action that is in opposition to popularly well-established and widely shared custom or moral views throughout Europe.

But of course, the conclusion does not follow from the premises. Here is the missing premise needed for such an outcome:

The destruction of the human bodies of embryos is morally similar to the killing of prisoners in former Yugoslavia for the purpose of organ trafficking according to popularly well-established and widely shared custom or moral views throughout Europe.

However, this claim is false, so even if the premise was to be included in the argument, this argument would be unsound. What is more, the judge cannot include this premise on pains of violating his own earlier statement that his argument will not be based on any particular view of the moral status of embryos not shared throughout Europe. Even worse (for the judge), would he to drop that constraint on his own argument and simply make the claim that the destruction of human bodies in the form of embryos is morally similar to the killing of prisoners in former Yugoslavia for the purpose of organ trafficking, he would make a claim that is invalid in European law, since it assumes a particular view of the moral importance of embryos (they are as important as adult human beings) that member states enjoy the right to deny in their own legislation.

So, in conclusion, behind the carefully constructed smokescreen of page after page of trivialities and irrelevancies, the argument made is a textbook of elementary logical, legal professional and scholarly errors. In totality, though, it is even worse: it is a judge that gives the impression of trying to smuggle into European case law the statement that destroying embryos in research or for medical purposes is morally on a par with murdering adult human beings for the purpose of organ trafficking. And this while he is fully aware that this statement contradicts current European law, since he willingly acknowledges the difference between member states as to embryo and stem cell research legislation. The only alternative explanation I can see is that this judge is extremely bad at his job.

In either case, the esteemed position of the judge as Advocate General at the European Court of Justice is less than well deserved. None of this, however, means that I am in favor of the idea of patenting human embryonic stem cell lines. On the contrary – and in part 2, I will present my case for that view through a critical scrutiny of the reactions of stem cell researchers to the judge's proposal.