Let's assume that I am the master of my fate and the captain of my soul. Can I also assume that I am the owner of my body? In fact, the question concerns not just my body, but parts of my body and even the cells and gene sequences from which it and they are made. What legal or moral rights do I have over them? The legal answer is, not many. If someone were to clone me, I could not invoke a patent over my person because I would not have been granted one.
A patent exists to protect the owners' invention from exploitation by others. How is it defined? An invention must be new. I satisfy that requirement. An invention must be fully described in the text of the patent application. I think I could manage that. An invention must be capable of industrial application (in European law) or must show some utility (under US law). Well, I worked in a factory once and I'm pretty useful. Finally, an invention must involve an inventive step. According to Tim Powell of Bristows, a law firm specialising in intellectual property, this is where my application fails. I cannot by definition be my own invention. A scientist who cloned me might make such a claim to inventiveness but I could not make it for myself.
This is no longer an abstract issue. Last April, the British patent court upheld a patent held by Amgen for a biotech product called EPO. The ruling means that the company is able to patent a gene because EPO is derived from a gene sequence that has been located and "discovered."
Without a patent you are on shaky ground even with your own body, as John Moore of Seattle has found. A few years ago his spleen was removed at UCLA's medical centre. He was asked to sign away his rights to any product obtained from it. He refused, decided to investigate and found that a patent had been filed against a cell line derived from his operation. Eleven years later the courts ruled that Moore had no property rights over his spleen.
Intellectual property is not the only defence in such cases. Moral, or human rights can be asserted also, as two well-publicised cases in Britain have shown. The Bristol Royal Infirmary inquiry and the Royal Liverpool Children's inquiry were partly about the removal of body parts without permission. As a result, amendments to the human tissue act of 1961 will recognise that parents have moral ownership of the bodies of their children. The recently passed human rights act may also have a bearing on the issue.
Lawyers in this field have few authorities to steer by and no clear-cut guidelines. The Nuffield Council on Bioethics report of 1995 says that uses of human tissue may be legitimate when undertaken for therapeutic purposes. Medical and biological research may be classed as therapeutic.
Therapeutic cloning is a case in point. The cloning of embryonic stem cells for research purposes is licensed in some cases in Britain. Last August, however, with the approval of both the Pope and George Bush, it was made a criminal offence in the US. A week later, Bush announced that the government was prepared to fund research using stem cells from embryos left over from fertility treatments "where the life and death decision has already been made." It is all very unclear.
The Pope might argue that, cloned or not, an embryo is a life and should not be tampered with. Others might counter that such embryos would not be brought to term in any case and that disposing of them is a waste of an opportunity to find cures to diseases.
In my view, Britain is right. But if it were an embryo taken from my wife and used without our consent, I might not be so sure. We need, of course, to strike a balance between human dignity and the needs of medical research. But wherever that balance is struck, do not count on owning yourself any time soon.
