Should Animals Be Patented?

By Claudia Wallis

The first U.S. patent law, passed in 1790, protected the invention of "any useful art, manufacture, engine, machine or device, or any improvement thereon not before known or used." But are items of manufacture necessarily inanimate? Apparently not. In 1930, Congress voted to approve the patenting of new plants produced by grafts, cuttings or other asexual methods. Half a century later the Supreme Court went even further and ruled that the law would apply to genetically engineered micro-organisms, such as a new strain of bacteria designed to gobble up oil spills. In the view of the court, "anything under the sun that is made by man" could be patented.

Now the U.S. Patent and Trademark Office has taken what seems to be the next logical step. It announced this month that it "considers non-naturally occurring nonhuman multicellular living organisms, including animals, to be patentable subject matter."

That decision was regarded by the Patent Office simply as an incremental move to keep abreast of advances in biotechnology. But to some people it marked the crossing of a sacrosanct dividing line and was cause for alarm. Patenting plants and microbes are one thing, said Veterinarian Michael Fox, scientific director of the Humane Society of the United States, because "they lack the capacity to suffer." By viewing animals as mere products, he continued, "we seem to be forgetting that these are sentient beings."

Animal-rights advocates were not alone in their opposition. Others feared that the new policy might enable biotechnology companies to take control of the livestock industry, squeezing out small-time breeders and reducing the genetic diversity of farm animals. "With patents, you raise the question of who owns or controls the breeding of livestock," said Cary Fowler, program director of the Rural Advancement Fund, an advocacy group for family farmers. "Certain companies could in effect control the market."

Some theologians decried the apparent equation of God's creatures with manufactured goods. Others were afraid that the patenting of genetically altered human beings might be next, despite the fact that the Patent Office statement clearly specified "nonhuman" life. "My fear is that we will begin valuing human beings as no different from animals," said J. Robert Nelson, director of the Institute of Religion at Texas Medical Center in Houston.

The new patent controversy is just the latest in a series of ethical battles over biotechnology, the science that enables man to manipulate the genetic code. The best-known and most controversial technique used by biotechnology is gene-splicing, the insertion of foreign genes into plants, animals or microbes. Scientists have, for example, introduced rat-growth- hormone genes into the DNA of mice, resulting in larger mice, and firefly genes into tobacco plants, which then glow in the dark. Genetic engineering cannot, however, "cross" a cow with a frog to produce a new species. "The essence of a particular animal is something you don't change," explains Thomas Wagner, director of Ohio University's Edison Animal Biotechnology Center in Athens, Ohio. "A pig is a pig, and a cow is a cow. You merely enhance certain aspects of it."

While some critics of biotechnology cite it as an attempt by man to play God, most scientists view it as merely the latest example of man playing man, exploiting nature as he always has. "A dairy cow was not put on this earth to produce milk for humans," Wagner says. "It was put here to make more cows. We just adapted them to our needs." Harvard Microbiologist Bernard Davis agrees. "Genetic engineering in animals is simply an extension of domestication," he says. "Of all the technologies that man has developed, domestication probably has the best record of enormous benefits to human beings and no hazards."

Davis claims that laymen tend to exaggerate the power, and hence the potential danger, of genetic engineering, particularly when it is applied to animals. "While we can change DNA at will in the test tube, we can't change the animals," he says, simply because their genetics is so complex. Consequently, Davis concludes, "we won't be making creatures with four legs and wings."

Indeed, the goals of most genetic engineers are far more modest: leaner pigs, dairy cows that produce more milk, chickens that are resistant to infection and thus can be raised with fewer antibiotics. Though the Patent Office says it has about 15 applications for patents on genetically altered animals, important changes like these are probably ten years away from the farmyard. Says Wagner: "We need to breed, test and evaluate them in an agricultural setting."

The difficulties of this process were apparent in one experiment conducted at the Department of Agriculture's research center in Beltsville, Md. DOA scientists tried to produce a leaner pig by endowing it with a human-growth- hormone gene. The resulting animal indeed had less fat, but it suffered from some unexpected physical problems, including crossed eyes and arthritis.

While animal-rights advocates concede that conventional animal breeding has produced sickly misfits, they fear that genetic engineering will inflict greater suffering and disability. "Researchers are creating new disease complexes that I certainly couldn't treat," says Veterinarian Fox. He objects to another area of genetic engineering: the development of animals that suffer from human diseases like muscular dystrophy. Yet such creatures would be invaluable in testing new drugs for humans.

The Humane Society, eleven other animal-welfare groups and the Foundation on Economic Trends (which consists largely of Jeremy Rifkin, an implacable foe of genetic engineering) have petitioned the Patent Office to rescind its new policy. Such a reversal is unlikely. The agency's role is to encourage innovation, not to determine its ethical implications. That is the business of the Biomedical Ethics Board, which was established by Congress in 1985 but has not yet met. The board's deliberations are long overdue, says John Fletcher, chief of the bioethical program at the National Institutes of Health: "Our society is starved for creative debate on these questions."

With reporting by Andrea Dorfman/New York and Alessandra Stanley/Washington