14 - Germline Modification of Human Embryos, Patents and the Limits of Markets: Rethinking Equality, Human Diversity and the Question of Innovation Funding

Summary

While US patent law remains agnostic regarding morality issues, in Europe the patentability of processes for modifying the germline genetic identity of human beings is prohibited on moral grounds. The question is whether this provision will soon be open to interpretation as CRISPR, a new gene editing tool, means pressure may come to rethink the contour of legal concepts in light of beneficial applications. The chapter argues for banning patents claiming processes modifying the germline genetic identity of human on the basis of social justice considerations. I argue in particular that germline modification techniques will be too costly for public health systems to afford. Other technologies such as PGD give future parents the possibility to choose healthy embryos, and the preference for a genetically-related child will be dismissed if the modification is too expensive, as public health systems face difficult resource-allocation dilemmas. It will be unacceptable to allow patents if the inventions will only benefit well-to-do classes and create a system of competition between private clinics for costly therapies and services, including potentially off-label use of relevant technologies. The piece concludes with alternative possibilities for funding innovation as solutions to the problems described in the chapter.