Patenting human genetic material: an analysis of Western & Islamic jurisprudence

Memon, Shah Nawaz (2011) Patenting human genetic material: an analysis of Western & Islamic jurisprudence. PhD thesis, University of Glasgow.

Due to Embargo and/or Third Party Copyright restrictions, this thesis is not available in this service.
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The object of this research is to analyse the moral debates, which form the backdrop to the legal issue of patenting human genetic material. The research takes into account Western and Islamic jurisprudence to answer the research question. The moral issues are identified from the jurisprudence developed before the European Patent Office (EPO). The issues are analysed from the standpoint of Western literature and are then shifted to Islamic jurisprudence to enable the framing of policy issues for patenting human genetic material in Islamic countries, particularly Pakistan. These four research questions are: (a) Is patenting human genetic equivalent to patenting human life? (b) Is removing genetic material from embryos against morality? (c) Is patenting human genetic material a commodification of human life? and (d) Does patenting human genetic material inhibit further research?

The research argues that patenting human genetic material is not equivalent to patenting human life as there is no life in genetic material. To this end, the discussion examines the concepts of morality in Western thought, which is followed by a discussion of theories about life to determine whether there is life in genetic material. The discussion takes into account biological, vitalist and materialistic concepts of life to argue that there is no life in genetic material. It also takes into account the jurisprudence developed before the EPO to argue that genetic material does not contain a life. The issue is then looked into from an Islamic perspective. It is argued that Islam does not consider human genetic material to be a life either.

The research examined the issue of whether removing genetic material from human embryos is against morality. The Examining Division took a deontological approach in the WARF and the University of Edinburgh stem cell cases by refusing to allow the use of embryos for inventions involving the use of stem cells. The approach shifted in Appeal when the Enlarged Board of Appeal took a utilitarian approach and refused a patent on totipotent stem cells because they have the potential to develop into a human being while allowing a patent on pluripotent stem cells, which cannot differentiate into a human being. It is argued that there is evidence of the EPO’s taking utilitarian approach in many cases such as the Relaxin case, the Oncomouse case, the Upjohn mouse case and so forth; therefore, the EPO should also take the utilitarian approach to this issue, particularly for those embryos which cannot be used otherwise, i.e. embryos which are in excess after their use in in-vitro fertilisation (IVF) or after permitted abortions. Those embryos are either to be destroyed or frozen indefinitely. It is argued that those embryos could be used for therapeutic purposes. From an Islamic perspective, the discussion revealed that the test is ensoulment. An embryo does not contain a life before its ensoulment. Therefore, the Sunni tradition of Islam permits the use of embryos before their ensoulment. However, it prohibits the intentional creation of embryos for therapeutic uses. The Shia tradition of Islam not only permits the use of embryos before their ensoulment, but also permits the intentional creation of embryos for therapeutic uses provided they are used before their ensoulment.

The research also looked into the issue of whether patenting human genetic material is commodification, and if so, whether it is permissible. The discussion looks into theories of commodification to inidicate the concept of commodification in the Western perspective. In this section, the discussion covers the views on pro-commodification and anti-commodification and it is argued that the most common view is that there are some aspects of life that cannot be commodified and human genetic material is one of them. The research argues that it is commodification when human genetic material is sold, but when human genetic material is donated, it is not commodification if inventions using donated genetic material are patented. This is because economic value is not added on the genetic material but it is the price of the intellectual property contributed by the patent holder. From an Islamic perspective, it is argued that patenting human genetic material is moral provided it is given in donation and with free consent.

The discussion examined the last issue of whether patenting inhibits further research. It is argued that giving broad patents, such as giving patents on genetic material, inhibits further research. The patent on genetic material serves as a gatekeeper for upstream and downstream research. It blocks research to improve on the existing research and prevents further research that necessarily involves the use of the patented gene. Therefore, it is argued that the patent offices should avoid giving broad patents and the patent law should not allow the grant of patents on genes, but the patent should be on the use of genes so that the interests of research should not be blocked. From an Islamic perspective, it is argued that the interest of furthering research is morality; therefore, the patent offices of Islamic countries in particular should not grant broad patents.

Item Type: Thesis (PhD)
Qualification Level: Doctoral
Additional Information: Due to copyright restrictions the full text of this thesis cannot be made available online. Access to the printed version will be available once the embargo period has expired.
Keywords: Patenting Genes, Morals, Western & Islamic perspectives
Subjects: K Law > K Law (General)
Colleges/Schools: College of Social Sciences > School of Law
Supervisor's Name: Guthrie, Prof. Tom
Date of Award: 2011
Embargo Date: 9 December 2014
Depositing User: MR SHAH MEMON
Unique ID: glathesis:2011-3043
Copyright: Copyright of this thesis is held by the author.
Date Deposited: 09 Dec 2011
Last Modified: 10 Dec 2012 14:03

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