Patenting Life: Yes

An item I had once thought to be a theological non-issue has over the last year been built up into a pseudo-issue, namely, gene patenting. Despite my meager protestations to the contrary, this non-issue has become a public issue of growing consequence not only for the scientists and lawyers among us but also for the religious community.

A theological bomb was dropped on May 18, 1995 at a press conference in Washington, D.C. in which a group of religious leaders”who claim to have collected signatures of nearly 180 individuals representing eighty different faiths or denominations”called for a ban on the patenting of human genes and genetically engineered animals. Advance press leaks led to a front-page story in which the New York Times (May 13, 1995) described the event as “a passionate new battle over religion and science.” Along with Jeremy Rifkin, who heads the Foundation on Economic Trends, the signers of the Joint Appeal Against Human and Animal Patenting included Rabbi David Saperstein, Director of the Religious Action Center of Reform Judaism; Abdurahman Alamoudi, Executive Director of the American Muslim Council; Wesley Granberg-Michaelson, Secretary General of the Reformed Church in America; Richard D. Land, President of the Christian Life Commission of the Southern Baptist Convention; and Kenneth Carder and Jaydee Hanson of the United Methodist Church. “By turning life into patented inventions,” said Rifkin, “the government drains life of its intrinsic nature and sacred value.”

During the last year the controversy has begun to take form. Two scientific groups, the Human Genome Organization and the Council for Responsible Genetics, have both taken stands against patenting knowledge of naturally occurring DNA sequences. Under the leadership of Audrey Chapman and Mark Frankel, the American Association for the Advancement of Science in Washington is attempting to broker the discussion between the scientific community, the U.S. Patent and Trademark Office, the biotechnology and pharmaceutical industries, and the religious leaders who issued the Joint Appeal. President Clinton is now in the process of appointing a fifteen-member National Bioethics Advisory Commission with two agenda items: the rights of human subjects in research and, you guessed it, gene patenting.

My concern here is by no means simply to defend the practice of patenting intellectual knowledge of the human genome or new life forms. The larger issue is this: when religious leaders enter into this public debate they should employ sound theology combined with a minimal understanding of the science and an accurate knowledge of just what is and what is not patentable. Unfortunately, the theologians tied to the Joint Appeal coalition flunk when measured by these criteria.

The Joint Appeal begins with a clear theological affirmation:

We, the undersigned religious leaders, oppose the patenting of human and animal life forms. We are disturbed by the U.S. Patent Office’s recent decision to patent human body parts and several genetically engineered animals. We believe that humans and animals are creations of God, not humans, and as such should not be patented.

The nicest thing I can say about this is that it affirms God’s creation. Beyond that, it is nonsense. It artificially separates divine creation from human creativity. It inadvertently cedes the natural world to functional naturalists such as Jeremy Rifkin, who has no stake in the religious traditions represented. Rifkin, whose foundation orchestrated the Joint Appeal press event, takes as his mission the “resacralization of nature.” In theological contrast, Christians and Jews believe in a holy God who creates a world out of love, asks us to love this creation, and asks us to be stewards of our God-given creativity to make this world a better place. Nature itself is not sacred. God is. There is no theological warrant for leaving nature unaltered and leaving a giant portion of the human race to suffer from debilitating diseases that might be overcome by the advance of genetically based medicines.

Rabbi David Saperstein, one of the coalition leaders, stated at a meeting I attended that we are creatures of God living in God’s creation and that it is our responsibility to reduce human suffering and thereby make the world a better place. Now, that’s good theology in my book. Why is it ignored by the Joint Appeal?

By ignoring sound theology the Joint Appeal is blessing an anti-science and anti-technology philosophy with a vague religious baptism. The New York Times quoted Richard D. Land, one of the key signatories of the Joint Appeal, describing “altering life forms, creating new life forms, as a revolt against the sovereignty of God and an attempt to be God.” Quite the contrary, such scientific advance in the service of reducing suffering is a healthy exercise of human creativity.

In addition to unsound theological reasoning and a failure to see how scientific research and medical development can serve our stewardship of creation, the Joint Appeal works with misleading assumptions regarding what can and cannot be patented. The U.S. Patent and Trademark Office does not patent things that exist naturally, such as the human genome. It grants intellectual property rights on human ingenuity that meets three criteria: novelty, non-obviousness, and utility. What is invented is patentable. What already exists in nature is not. Nor, despite widespread propaganda to the contrary, does the PTO patent human beings or body parts. No persons get patented. This would violate the U.S. Constitution’s proscription against slavery. Rather, the PTO grants patents for cell lines and even genomes of transgenic animals that are used in biological research for the purpose of developing medical therapies for genetically based diseases such as cancer, heart disease, cystic fibrosis, Alzheimer’s, Huntington’s, Wilson’s Syndrome, and eventually perhaps four thousand other diseases. Such patents draw venture capital for this extremely risky and expensive process of research and development. This is an area of ethical concern, to be sure, and one that deserves careful and informed deliberation by our religious leaders. It does not deserve categorical dismissal.

My deepest regret is that our religious leaders are looking at the smoke and missing the fire. The advance of genetic research is about to ignite a firestorm of new social and ethical problems in our society, and we need to enlist our best theological minds to analyze those problems.

What are the ethical issues that genetics research will ignite or fuel? First is the threat of genetic discrimination. The development of tests for genetic predispositions to disease may identify an expanded category of pre-existing conditions. Because medical care is connected to private insurance and to employment, we can expect thousands if not millions of people to discover suddenly that they are uninsurable and hence unemployable. This could create a new underclass”a genetic underclass”to add to the thirty-five million people already inadequately covered by medical insurance. If religious leaders want to show ethical concern regarding the implications of genetics, here is a problem crying out for immediate attention.

Genetic discrimination will be closely followed by numerous other problems such as selective abortion. As prenatal testing expands, we can forecast wholesale aborting of fetuses that do not meet genetic standards. This will be more than a moral issue for the parents in question. We can expect the insurance industry to demand abortion for potentially expensive babies. The result is likely to be market-driven eugenics. There is also the knotty question of moral and legal responsibility for antisocial behavior for which some individuals have a genetic predisposition. If it can be shown that some persons are genetically predisposed toward alcoholism, aggression, or violence, will society consider them culpable for their actions? What will the courts do when those having committed crimes claim innocence on the grounds that “my genes made me do it”? And how will the logic of responsibility for our behavior help us to understand the implications of the 1993 discovery of what is possibly the “gay gene”?

Other ethical conundrums include the controversy over somatic therapy versus germ line intervention. Should we engage in genetic engineering that will influence the evolution of future generations? Finally, the scientific and legal communities are, as we have noted, already wrestling with the patent issue. On these matters, scientists and even the White House might appreciate some considered deliberation and ethical insight offered by theological thinkers. But if religious leaders are genuinely interested in taking up ethical issues facing our society over genetic research, they must realize that the agenda will be long, serious, and complicated.

Ted Peters , editor of dialog, teaches Systematic Theology at Pacific Lutheran Seminary and the Graduate Theological Union in Berkeley, California. He served as Principal Investigator for a research project at the Center for Theology and the Natural Sciences on “Theological and Ethical Questions Raised by the Human Genome Initiative.”