Yesterday, 3 October, an article I wrote with three co-authors about a controversial US patent was published by the (Nature) journal Genetics in Medicine. The patent, granted last week to the Californian Direct-To-Consumer genetic testing company 23andMe, is entitled ‘Gamete donor selection based on genetic calculations’ (US Patent No. 8543339). It relates to a method by which prospective donors of ova and/or sperm may be selected so as to increase the likelihood of producing a human baby with characteristics desired by the prospective parents, the selection being based on a computerized comparison of the genotypic data of the egg provider with that of the sperm provider. The “phenotype of interest” prospective parents may have in mind can include, besides some disease-related traits, traits such as eye color, height, muscle development and personality characteristics. As quoted in the patent specification by way of example, prospective parents may indicate which of the three following choices they make: “I prefer a child with”: “longest expected life span”/“least expected life cost of health care”/“least expected cumulative duration of hospitalization.”
The press release issued by Nature on Monday 30 September quickly gave rise to several news reports. The company posted an announcement on its blog the next day, stating that the patent “relates to one of the tools we offer individuals as part of their genetic exploration. The tool – Family Traits Inheritance Calculator – offers an engaging way for you and your partner to see what kinds of traits your child might inherit from you”. However, anyone who looks at the patent and reads the claims will notice that this is not what the patent relates to. As mentioned above, it relates to a method to select gamete donors in order to achieve a child with the phenotype desired by the prospective parents. 23andMe admits that “the language of the patent extends beyond the calculator” but suggests that people need not be worried as: “At the time 23andMe filed the patent, there was consideration that the technology could have potential applications for fertility clinics so language specific to the fertility treatment process was included in the patent. But much has evolved in that time, including 23andMe’s strategic focus. The company never pursued the concepts discussed in the patent beyond our Family Traits Inheritance Calculator, nor do we have any plans to do so.”
23andMe also added that: “Applying for patents is a normal part of our business and we remain committed to our core principals [sic] of giving people access to their own genetic data, innovating the model for research and being transparent with our customers about what we are doing.” As to the first remark, it is correct that seeking patents is normal for companies in the life sciences industry and other sectors, as we mention in our commentary. However, the remark that, notwithstanding its attempts to obtain patents, the company remains committed to “giving people access to their own genetic data” is irrelevant in this context, just as it was irrelevant when 23andMe offered it as a response to its many customers who were upset by the fact that the company had sought and obtained a patent on ‘Polymorphisms associated with Parkinson’s Disease’ (US Patent No. 8187811, granted on 29 May 2012, commented upon in an article we published last year in Genetics in Medicine). Obviously, neither the Parkinson’s patent nor the gamete donor selection patent can prevent individuals from accessing their own genetic data – what matters, though, is the extent to which it prevents individuals and competitors from using the patented product or process in certain ways.
As to the comment that 23andMe remains committed to the principle of “being transparent with our customers about what we are doing”, it was striking that the Parkinson’s patent wasn’t announced to the customers until one day before the date of grant, and it is even more striking that the patent on gamete donor selection was not announced to the customers at all before the date of grant. The announcement by the company, seven days after the patent was granted, was clearly made in reaction to the flood of questions asked by the media following Nature’s press release on 30 September announcing our commentary in Genetics in Medicine.
In the tsunami of media reports on this case, some of the journalists suggest that no ethically relevant difference exists between creating children without serious diseases and creating children with particular non-disease-related traits such as eye colour, skin colour, height, etc. However, I would submit that cases of parents seeking to avoid diseases in their offspring are completely different from cases of parents seeking to achieve their own desires (e.g., a two metre tall, blue-eyed blond, none of which features intrinsically benefits the child). If the process doesn’t work, do they hand the child back as they might a car which turns out not to be precisely the right shade of red? As to the reasons why the difference is morally relevant, I would refer to Michael Sandel’s clear exposition in chapter 3 of his book The case against perfection.
Admittedly, as many of the journalists commenting on this story have remarked, the current state of the art in genetic science is not good enough to deliver all the results promised by 23andMe. However, this is not my main concern. What is at issue is that the company sought and managed to obtain this patent. Obviously, to the extent that the patent claims cover things which 23andMe has not ‘enabled’ (i.e., taught those skilled in the technological field to achieve), one might wonder why the US Patent and Trademark Office accepted that the description of the ‘invention’ was sufficient!
Some might observe that the patented technique may be aimed mainly at people trying to choose sperm and egg donors (e.g., women using sperm banks) – which they now do on the basis of a list of the donor’s general characteristics. Doesn’t this technique of “selection based on genetic calculations” merely make that information more precise, and extend it to a greater number of traits? The problem is that the patent claim is clearly broad enough to cover selection of both sperm and egg donors in relation to the same child. Were it to be offered by a Direct-To-Consumer genetic testing company, one could envisage the position of customers being asked whether they are prepared to be paid egg and/or sperm donors (which is legal in the US). In other words, those who had not previously considered egg donation in particular might have the prospect of earning thousands of dollars placed temptingly in front of them. If the technique were to be used to identify both egg and sperm donors in relation to the same child, then we really would be into the field of baby designing. The language used by 23andme, as quoted in our commentary in Genetics in Medicine, is the language of design. The main reason why designing children is ethically problematic lies, as Michael Sandel argues, precisely in the fact that it concerns attempts to control non-disease related characteristics of one’s offspring.
The technique patented by 23andMe massively extends the choice criteria, so it is not merely an extended version of current practice but rather a different practice driven by a different attitude. Admittedly, people choose mates to some extent based on their phenotypes. However, were we to primarily choose our mates as egg or sperm providers, in the hope that a particular type of child will be born to us, this would amount to an instrumentalization of both our mate and our prospective child. This is undesirable from an ethical perspective, in my view, as we should see our mates as partners rather than as mere sperm and egg providers. The technique patented by 23andme facilitates an instrumental attitude towards both one’s mate and one’s children.