"Gene Patents and Justice" Paper

I just finished the proofs for my paper "Gene Patents and Justice" which is forthcoming in a soon-to-be-published issue of Journal of Value Inquiry. Over the past few years I have tried to keep abreast of the fascinating, and complex, issues that arise with respect to gene patents. See, for example, the myriad of issues that are revealed via my "Google Alerts" for "gene patents" a while back.

Developing a moral analysis of gene patents is, I have found, a useful way of trying to determine what justice requires "many-things-considered". When it comes to the issue of gene patents, which values- equality, liberty, priority, etc.- should do the most work in helping us comprehend the "big picture" of the important stakes at risk here and how we can best proceed forward? Here is a sample from the paper:

Intellectual property rights over a finite number of human genes is arguably one of the most important and challenging issues facing policy makers and society in general. Nearly twenty percent of human genes are explicitly claimed as American intellectual property. This represents 4, 382 of the 23, 688 genes in The National Center for Biotechnology Information gene database (Jensen and Murray, 2005) . Patents grant the patentee with rights to exclude others from making, using, selling, offering for sale, or importing patented items for twenty years. Are such rights morally justified? Like the issue of private property in general, we can expect that libertarians and egalitarians will come to different conclusions concerning the stance they will likely take on the issue of gene patents. These conclusions will stem for the different priority libertarians and egalitarians give to the values of liberty and equality, respectively. Libertarians take property rights to be the foundation of a theory of justice; they believe that private property is a natural right. Gene patents are a form of property rights, thus gene patents should be permitted. Egalitarians, in contrast, might hold that the obvious policy to defend is one that prohibits gene patents. They may believe that our genes are part of the common heritage of humanity and thus genetic information should not be appropriated by private industries seeking to make a profit from what is collectively owned. Furthermore, egalitarians might believe that private appropriation of this information will impede our ability to ensure that all people who need genetic interventions will have access to them. The state of affairs that the egalitarian wants to avoid is that where only the rich have access to important therapies and enhancements. To permit gene patents would be to make such a state of affairs a reality.

The libertarian and egalitarian arguments are ill-equipped to help us tackle the central issue which currently dominates policy debates concerning gene patents - how robust genomic intellectual property rights should be. The theoretical position best suited for advancing serious debate about genetics and justice is prioritarianism. In order to take the issue of directly mitigating genetic disadvantage seriously, I argue we should adopt a pluralistic prioritarian position... Consideration must be given to the severity and pervasiveness of different forms of disadvantage, the costs of mitigating them, and the likelihood that the benefits of mitigation will be realised. The fundamental distributive principle that should regulate the development of new genetic technologies is the lax genetic difference principle which maintains that “inequalities in the distribution of genes important to the natural primary goods - health and vigour, intelligence and imagination - are to be arranged so that they are to the greatest reasonable benefit of the least advantaged (Farrelly, 2004).” When applied to the issue of gene patents, the lax genetic difference principle prescribes that there is a conditional moral presumption in favor of gene patents that satisfy a stringent utility requirement. Such a prescription gives due consideration to the interests of the genetically disadvantaged.

Addressing the issue of gene patents from a libertarian, egalitarian and prioritarian perspective helps to illustrate the insights, as well as the limitations, of a philosophical analysis of intellectual property rights. In addition to the weight we should accord to the values of liberty and equality, complex empirical and legal issues arise in the context of these debates, issues that philosophers may not be well suited to address. A defense of a pluralistic prioritarian theory of justice allows us to take the complexities seriously. We can begin to make some progress in terms of determining how stringent the duty to mitigate genetic disadvantage is. Unlike libertarianism, pluralistic prioritarianism provides us with an account of justice that allows us to take seriously the duty to mitigate genetic inequalities. Unlike egalitarianism, pluralistic prioritarianism allows us to balance the duty to mitigate genetic disadvantage with other competing demands of justice. Pluralistic prioritarianism does not require us to take the insular view that mitigating genetic disadvantage is the only requirement of justice. This is an important insight given the facts of pervasive disadvantage, scarcity and the important role environment plays in the development of disease and disadvantage.

Cheers,
Colin