A Continuous Quantitative Theory of Sex, Gender and Sexuality

In this post, I will be sketching an idea that I have been toying with for some time. It connects to recent discussions in queer theory, criticism of so-called heteronormativity and suggestions about introducing a "third sex". My basic take is that I am sympathetic to this direction of thought, but I find it to be vulnerable to the same sort of criticism that it usually wields against its intended target. Therefore, I present a skeleton version of a theory of sex, gender and sexuality that would avoid this problem. I would like to stress that I make no claim to originality – too preoccupied with my duties as manager and researcher in various projects, I have had no time to thoroughly scan the gender theoretical and biopolitical debate for suggestions of the sort I here try to describe. If you know of one – I'm quite happy to be alerted!

1. Background

At least since Judith Butler's questioning of the sex-gender distinction, the sex categories as naturally given and the ensuing wave of so-called queer theory (but really the tendency can be found already in Mary Wollstonecraft's classic A Vindication of the Rights of Women from 1792), there has been a wave of proposals for refining the taxonomies used for classifying people in terms of sex/gender/sexuality. Whatever one may think of Butler's style of writing, and her philosophical underpinnings (I, for one, is not a big fan), it is hard to resist her central point: Just as gender (i.e. social norms and expectations attached to sexual classification) is a social phenomenon informed by normative assumptions open for questioning, our classifications of each other in terms of sex and sexuality are (collectively) chosen as a response to a normative assessments of surrounding conditions - natural as well as social – that may be questioned. Moreover, our perceptions of what natural and social circumstances there are and whether or not we can change them are often mistaken and, when correct, open for revision in light of, e.g., technological development.

This, of course, is not to deny that given a specific taxonomy of, say, sex, certain people will belong to sex-category A, B or C whatever they or other people may think about it – in that sense sex-category membership may well be an "objective" fact (I choose to square-quote this term mainly because it is used in so many, often not very clarified senses). In another (stronger) sense, however, such membership need not be objective (or as some would like to have it, "essential"), since (a) it may be possible for people to change class (e.g. by transsexual surgery), and (b) we may adopt another taxonomy with completely different classes without losing our ability to truthfully describe the world. On my read, what Butler's point boils down to is that this choice of taxonomy is not given by nature and rests on certain perceptions of circumstances and normative assumptions that may all be critically assessed. Now, among some queer theorists or queer theoretically inspired activists, it sometimes sounds as if this embedded normativity implies some sort of "anything goes" position. This is a mistake. Butler's as well as the queer theoretical basic take is social constructivist, according to which certain facts are determined by variable social factors (familiar examples of such facts are, e.g., the facts that a dollar bill is money, that some street has a certain name, that homosexuality is not a disease, and so on). This does not imply that there are no grounds for critically assessing those factors from a normative standpoint. E.g., it was such an assessment that eventually led to the 1973 abolishment of homosexuality as a diagnostic category in psychiatry. What it implies is, rather, that any suggestion as to what taxonomies to apply in order to create a basis for determining social facts, needs to be backed up by arguments, some of which need to be normative. Getting from that idea to the "anything goes" position would require a whole package of peculiar metaethics demonstrating that normative issues can in no way be assessed rationally. That, of course, would also include such positions on social justice normally wielded or assumed by gender or queer theorists. Any such metaethical theory would be highly controversial and, in fact, most developed metaethical theories today acknowledge that a warranted such theory needs to be able to account for the apparent possibility of rational argument on ethical and other normative issues.

2. The Third Sex/Gender Idea

Apparently, it is also such considerations of social justice that motivate recent suggestions of trying to introduce in contemporary Western societies a "third" gender or sex. The idea is, basically, that there are many people who suffer harm and injustices due to not fitting current socially endorsed taxonomies of gender, sex or sexuality and that this fact provides a reason for introducing a richer palette of categories in these respects. That is, it is not given that the addition of one extra category would be enough. In 1993, Anne Fausto-Sterling famously suggested that five sex-categories would be needed. Anthropological and sociological research has revealed that around the world and through history there are plenty of examples of socially endorsed gender/sex/sexuality taxonomies applying three, four, five or even more categories. The harm and injustices referred to include enforced genital surgery, enforced psychological conditioning, socio-economic discrimination, parent-, teacher- and peer-group degradation, and so on. The recent wave of queer theory has particularly held out the effects on the self-image, self-respect and social identity of people not fitting well into the established taxonomy.

Now, basically, I find the general tendency of this reasoning to be quite sound. How we choose to (publicly) categorise each other in a society needs to be based on sound ethical grounds and the cases highlighted by the effects on people of rigid sex/gender/sexuality taxonomies being endorsed by society reveal that there are ethical reasons for considering revisions of the current societal stance on this matter. In fact, these reasons seem to hold more or less no matter what exact minimally plausible basic ethical theory is applied – all such theories support the principle that we should not harm or force people, or treat them unequally, unless there is a good reason for it. And there seems to be no good reason for society to enforce any particular rigid sex/gender/sexuality taxonomy – in fact, most such enforcements seem to be arbitrary and based mainly on unreflected habit or custom. Note that, even with a very rich taxonomy, restrictive views in sexual ethics – such as the one advocated in official Roman Catholic doctrine – are possible to formulate. Sexual ethical views, however, are about which sex/gender/sexuality types in any taxonomy that can morally engage in what sexual acts. Ergo, they provide no reason for enforcing a public taxonomy that harm people – at best, they support the claim that a plausible such taxonomy should include the types they speak about. This, however, is compatible with having a taxonomy that contains many other categories as well.

3. Criticism of the Third Sex/Gender Idea

However, plausible as this direction of thought may seem, it still rests on the assumption that a good and just society should enforce some public taxonomy of sex/gender/sexuality categories. I agree that such a need may seem apparent as long as we avoid looking beyond the attitudes and needs of people created by the fact that our societies enforce such taxonomies. As long as such an enforcement is the case, people will have the need of adjusting to the fact that their society recognizes and endorses certain categories of people in terms of sex, gender and sexuality, but not others. However, this actually exposes a fundamental weakness of the third sex/gender suggestion – namely that whatever taxonomy is publicly enforced, some people will be forced to accommodate to it in spite of not really fitting any category. That is, the third sex/gender idea seems to be vulnerable to similar criticism as the one motivating this idea in the first place.

This vulnerability is due to the feature of the third (fourth, fifth...) sex/gender idea that it shares with the traditionally Western taxonomy of two sexes/genders the property of being a classic qualitative taxonomy, built on the binary notion of membership/non-membership of some of a number of classes (sets). As a consequence, if you don't fit into any of the classes, you basically have no sex/gender.

4. The Idea of a Continuous Quantitative Theory

The basic contrast between the just described type of taxonomy and a continuous quantitative theory is the following. The classic qualitative taxonomy is made up by a number of qualitatively defined sets (in the technical sense). If an entity meets the criteria for being a member of some such set, it is such a member and if not, it isn't. Another way of expressing this is that, according to this sort of taxonomy, the variable sex/gender/sexuality has a finite number of so-called attributes (or values). A continuous quantitative theory, in contrast, relate entities not to the membership/non-membership of a collection of sets, but to what values they attain on a number of continuous variables or dimensions. These variables/dimensions may (and in the present case, should – see below) be manifold, and (most important), they have an infinite number of attributes/values. The easiest way of expressing this is to say that, for any such variable, a random entity may attain any value between two whole numbers, such as 0 and 1 (or 0 and 100, or....). An example of continuous variables are, e.g., the various established scales for temperature. 

Now, to have a theory of sex/gender/sexuality built according to this blueprint, we obviously need to select and describe what variables are to be included and what determines what values various entities attain on these variables. If we are going to avoid the objection against the classically qualitative sex/gender/sexuality taxonomies, as indicated, the number of such variables need to be quite high. Moreover, it is quite likely that most of these variables will describe micro- or sub-structures of the human body or behavioural repertoire, rather than those sorts of "middle-sized" features focused on in the traditional type of taxonomies. To specify what determines the value that an entity attains on any such variable, some qualitative ingredients are needed – just as when, on the Cecius scale, we define 100° as the point to which, e.g., a certain amount of mercury contained in a tube of a certain perimeter rises when this tube is placed in boiling water in a certain atmospheric pressure for a minimal amount of time. However, we need not go that far – we can simply say that the value on another (or several other) continuous variable(s) determines the value of the variable we focus on – just as the average speed of molecules of a substance determines its temperature.

So, let us take the example of sex to begin with. The starting point is that sex is to be seen not as a collection of sets or a discrete or binary variable, but as a continuous one. Let us therefore first assume: Sex = the property of attaining a value on the variable S [0.....1] – where the block parenthesis describes the range of values possible for this variable.

It now follows that there is an infinite number of sexes that a being may have. One may be 0.23, another 0.00000043, yet another 0.7 – and so on. This, however, tells us nothing about what determines such values. So let us consider some seemingly plausible suggestions of the types of variables that may perform this function. What sex a being has depends on (among other things):

a) The size and shape of certain cell-types assembled in (and inside) the genital area (examples would be, e.g., the presence of a uterus or a penis or a clitoris of a certain size and shape, but less clear examples also have ample room to determine what sex one belongs to).

b) The production-level of certain basic bodily substances (hormones, various gene-products)

c) The presence of certain combinations of genetic components (here, we may also take into account how much these components are present and activated in relation to the entire cell-mass).

I'm sure that several other variable types may be thought of, but these three seem to be obviously related to our common sense notions of what sex-membership may be about. Remember also that these are variable types – under each of them we may have a very large number of actual variables, the values of which influence the sex of a particular being. So, already here – the theory is quite rich, flexible and full of nuances. In any case, to have a complete theory, one thing is obviously missing: We need some sort of formula for how values on the variables under a)-c) in various combinations translate to a value on the variable S. One way of starting to approach this issue would be to postulate the following:

If a being attains the value of 0 on every variable influencing the value of S, then this being's value on S = 0.


If a being attains the value of 1 on every variable influencing the value of S, then this being's value on S = 1.

That is, in these two cases, the being's sex is 0 and 1 respectively. Other than that, however, I will not here propose any further specification. It suffices to note that there is an infinite number of values of S onto which various combinations of values of the relevant variables in between the two extreme cases mentioned above may be mapped.

On the basis of a theory of sex of this type, we may then go on to formulate similar theories of gender and sexuality. So, in the case of gender, we would have a continuous variable where sex-membership and various behavioural and attitudinal variables determine what gender a being has. In the case of sexuality, both the sex and gender theories may be combined with variables regarding things as erotic attraction, tendency to fall in love, willingness to engage in sexual activity, and so on, in order to determine values on a continuous quantitative variable of sexuality. When we're done, a person's answer to questions in this are may look like this (all these numbers are here taken out of thin air, of course):

What sex are you? – 0.4371

What gender are you? – 0.1435

What is your sexual orientation? – 0.867

Moreover, every person will have a belonging and an identity in all of these dimensions! 

5. Objections and Reflections

Obviously, according to the theory just outlined, no one will be a man or a woman, no one will be masculine or feminine and no one will be hetero-, bi- or homosexual. Such crude categories may be linked to the theory by those who find it important, though, by arbitrarily selecting certain intervals of the values on the variables of sex, gender and sexuality. However, the theory does not imply any such linkage to be either true/correct or false/incorrect – these are additions to the fabric of reality regarding sex, gender and sexuality that are not themselves parts of that reality. They are, at best, linguistic tools that some people may feel important to use. But, it may be asked, isn't this a substantial cultural cost?

The answer to this question depends on how it is framed. First, remember that the continuous quantitative theory has a major advantage from an inclusion, identity and recognition perspective: there is a place for everyone, just as they are. Second, remember that I have never proposed that society should impose this theory, or that we should switch to it in one go. I acknowledge that our perception of our sex, the social roles and ideals we attach to it and our sexual leanings and preferences are important ingredients in life and, since the rigid qualitative taxonomies in these areas have been around for so long, just casting them off would probably be painful and difficult to achieve in a coordinated manner. However, these are questions about method, not about whether or not, if we managed to start looking at the world through the spectacles of the continuous quantitative theory, would have a better world. I claim that we would, at least in the respect that our culture would be more inclusive and fair. How we get there is a practical question that the theory by itself does not answer.

Also, remember that all moral ideas today entertained with respect to sex, gender and sexuality may be readily formulated on the basis of the continuous quantitative theory, they just have to be reformulated a bit. So for example a moral ban on sex between adults and children would simple be expressed as the ban on the acting out of sexuality x – y (where "x –y" signifies the interval of values on the sexuality variable capturing the preference of engaging in the behaviour that is banned). In laws, education, et cetera, we may want to express it in more simpler terms, using crude category terms such as "child" and "adult", but as mentioned that is perfectly possible to do on the basis of the continuous quantitative theory. But, in fact, the more exact formulation would in fact make more clear what's so wrong about sexual molestation of children – since the values of the variables determining this sexuality would describe in stark detail what is involved in such activities.

However, let me share this guess. If we were successful in changing our theoretical-cultural spectacles in the way indicated, I suspect that many norms and values surrounding sex, gender and sexuality that we hold in a more or less habitual or culturally inherited way would actually start to lose their attraction to many people. For example, the idea that men shouldn't really wear bras, women's dresses, and so on in public (a very common idea, in spite of the populatrity of drag shows, Dame Edna and such). This since, I suspect, when formulating this opinion through our new spectacles, we see more clearly that, at best, this is a phenomenon among many that happens not to agree so well with our personal aesthetic preferences. This is no different to, e.g., food we happen to not like, houses or streets we find ugly or repulsive, and so on. There is nothing deeper than that and we are helped to see that by the theory, since it doesn't trick our intellect with apparent (but false) opposites, like "man" and "women's". This, of course, is just one example of very many.

Bad Arguments on All Sides in the European Embryonic Stem Cells Legal Circus, part 2

So, this is the second part of a post begun a few days ago. I'll repeat the bare bones of what it's all about:

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".

In my former post, I analysed the proposal of ECJ judge Bot in quite negative terms – concluding it to be a covert attempt to smuggle into European case law legally unsupported and controversial views on the moral status of embryos. However, I also stressed that the many faults of that proposal did not imply that the idea of patenting embryonic stem cell lines is a very good one. To get to the reasons why that is so, I'll now have a look at the response to Bot's proposal from the embryonic stem cell research crowd.

April 27, BBC reported that leading European researchers in the embryonic stem cell field have protested against judge Bot's proposal in a letter to Nature. According to this report, the researchers make three arguments against the proposal – two of a pragmatic nature, and one factual. The pragmatic arguments are that a patent ban on the basis suggested by the judge would imply a disparaging moral message about embryonic stem cell researchers and their activities, and that the ban would undercut investor interest in research on stem cell based therapies, which is now entering the stage of clinical trials. I'll get back to these arguments in a moment.

 The factual argument is that, contrary to what the judge seems to assume, therapeutic procedures involving the use of embryonic stem cell lines would in fact not imply any "industrial use of human embryos". This since the lines are already in existence and that, therefore, all that is needed for the continued use of them is the proliferation of the cell lines themselves. For sure, once upon a time, a number of embryos were destroyed to create these lines, but once that was done any further destruction of embryos is unnecessary. Now, while this argument seems to be sound and valid as regard the particular patent application of Brüstle, it is limited as a response to the principled claims made by judge Bot in his proposal. What the factual argument implies is that this proposal may not apply to Brüstle's application and possible other applications for about 100 cell lines already in existence. However, if the proposal was to pass the ECJ, it would seem to apply to all future attempts to secure patent protection in conjunction with the launching of attempts to produce new embryonic stem cell lines. That is, the factual argument may perhaps get Brüstle and a number of other potential patent applicants in the stem cell field off the hook, but it would allow judge Bot's main idea that producing stem cell lines through the destruction of embryos equals the exploitation of mass murder for organ trafficking purposes to pass into European case law. So, let's move over to the two pragmatic arguments.

Both these arguments seem to me rather weak as they stand. First, if the judge were right about the moral status of embryos according to European law (which he is not, see part 1, but that is not argued by the researchers), sending a disparaging moral message about embryonic stem cell researchers would not seem misplaced. In other words, this argument presumes an argument to the effect that Bot's claim regarding the moral and legal status of embryos is mistaken, but no such argument is given by the researchers.

Second, it is highly debatable if it is actually true that patenting of stem cell lines is either a necessary or a sufficient form of commercial protection for private investors to be attracted to funding the development of stem cell based therapies. What these investors need are patents guaranteeing the exclusive commercial rights to the product ensuing from such research and development, that seems to be true. However, while patenting of cell lines might provide such protection in some cases, they need not do so in all cases – it all comes down to what the product turns out to be. If the product involves using said cell lines, there will be protection. However, the product may also turn out to be a procedure not involving the use of any cells at all (rather, these cells have been a research tool for discovering mechanisms which the product – e.g. a drug – is able to manipulate). More important, even when the product in fact would involve using the cell line in question, the cell line is not identical to the product – the product is the entire procedure in which the cell line is used. In other words, what is necessary is to patent that procedure (insofar as it meets the criteria for European patent protection). This, however, is compatible with having the cell lines themselves unprotected, and thus freely available for use by others for other purposes, such as important basic research.

This brings me to why I actually strongly oppose the idea of allowing patents for all stem cell lines – be it embryonic or adult. First, stem cells are not inventions, they are naturally occurring phenomena – just as (non-synthetic) genes are. The mere fact that the cells have been moved from their original location inside an embryo or the body of an adult doesn't change that. If I move a flower found in the forest into my garden, the flower has not thereby been transformed into a human invention. I may claim, of course, that my garden or the entire flowerbed is my invention – but that does not imply anything about the flower itself. Likewise, if I happen to have developed a unique method for moving the flower, that method is my invention, but the flower is not, wherever it happens to be located as a result of using the method. So, once again, in analogy, while it makes sense to allow patents for various procedures involving stem cells, or whereby stem cells may be transformed into useful products, this does not imply that the patenting of the cells themselves is warranted.

In addition, as we have seen, whatever procedures that may be coming out of stem cell research, it can have its (pragmatically) necessary commercial protection without having any cells or cell-lines patented (unless, of course, all processes are already in the public domain). In fact, granting patents for cells or cell-lines would, in fact, be a disservice both to society and to medical research. Just as we have seen so many nasty examples of in the case of patent on genes in the US, awarding commercial exclusivity rights with regard to "stuff" rather than processes and procedures leads to the result where research and innovation is halted rather than stimulated. The only benefit of such patents befall those individual parties owning the patent and while it may be understandable that, as a friend of mine put it, potential landowners endorse the idea that they may bar parts of the commons for their own private enjoyment, it is hard to see why society should allow – let alone assist – them in realising that ambition.

This brings me to my final point, which is connected to the fact that the ones that seem most enthusiastic about the idea of patenting cells and cell-lines are themselves belonging to a group – representing a field – that I just claimed have the most to loose from having such patents granted. It is actually rather strange to have esteemed scientists and research institutions cheering at the notion of making (a) medical research more difficult and expensive, and (b) thus less likely to produce new breakthroughs (using the resource of stem cells and cell lines). Perhaps they have been blinded by the false idea that cell or cell-line patents are a necessary evil if innovative therapies are to ensue? Or is it perhaps, that they happen to be sitting on some of these precious cell-lines and have let the prospect of making a buck shield their mission as scientists? The gene patent morass in the US has for sure exposed enough of the latter, but there is still time for the European stem cell science community to demonstrate that they are, in fact, better in that respect.

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.