Tuesday, March 5, 2013

#64 / Patents, Patients, And Property Rights

A March 3, 2013 editorial in the San Francisco Chronicle made this observation: "The most intuitive response to one's own tissues - that they are our personal property - is actually wrong. According to current law, people have no property rights when it comes to their own 'discarded' cells ..."

The phenomenon discussed in the editorial (the patenting of human genetic materials, and the establishment, through patent law, of a legal right for a corporation to "own" our genetic composition), is another example of our confusion about who we really are. 

In the human world, which is a world that we create ourselves, whatever the "current law" may be, that law can be changed. Unlike the "laws" of nature, which are called "laws" only insofar as they perfectly describe what will and must inevitably happen, human "laws" are subject to change, as we may choose to change them.

We can't legislate away the law of gravity, but we can legislate away any human law that may exist. Rather than being "descriptive" of what must happen, as "natural laws" are, human laws are "prescriptive," and simply make a statement about what we have decided that we want to do. Since our world is defined by the laws we establish, and then implement, and since our laws result from a process that begins with politics, we live, most immediately, in a "political world." In that human-created and "political" world, "rights" are not absolute. What we call "rights," including "property rights," are just statements about how we intend to act in various situations. And, of course, we can change our minds about that.

The genetic material that determines who we are, as human beings, is not part of the "human world" that we create. That material is part of the Natural World, into which we are born, and which we do not create ourselves. In that Natural World, "property" has no relevance. "Property" is a legally defined relationship, established by human laws, and relevant only within the human and political world that we create ourselves, and that we most immediately inhabit. 

Seeking to impose laws applicable to "property" to human beings (and to their genetic materials) is a profound error. In the United States, we rejected long ago the idea that a human being could ever be "property," bought and sold like a physical artifact. We fought a long and bloody war over that very question.

The Chronicle editorial suggests that the "current law" is wrong because our own tissues should be considered our individual and personal property - not property that can be owned by someone else. In fact, our tissues are not "property" at all. Human beings, and the genetic materials that make them what they are, individually and collectively, are not and never can be "property," because we are creatures that come to life before and outside of any human law. 

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