A landmark decision by the European Court of Justice this week marks a step forward in legal recognition of the special dignity of the human embryo. It settled a long-simmering legal battle by ruling that research involving the destruction of embryos cannot be patented.
Specialists in human embryonic stem cell research were furious. "This is a devastating decision which will stop stem cell therapies use in medicine. The potential to treat disabling and life threatening diseases… using stem cells will not be realised in Europe," said Professor Pete Coffey, of University College London.
The decision does not prevent scientist from experimenting on human embryos, but they will not be able to patent their work in the European Union, making it difficult to commercialise their work. "This unfortunate decision by the Court leaves scientists in a ridiculous position," fumed Professor Austin Smith, of Cambridge University. "We are funded to do research for the public good, yet prevented from taking our discoveries to the market place where they could be developed into new medicines. One consequence is that the benefits of our research will be reaped in America and Asia."
The ruling came as no surprise in the light of previous decisions. At the centre of the dispute is a 1998 biotechnology directive from the European Union which states unequivocally that no patents should be granted if their "commercial exploitation would be contrary to 'ordre public' or morality", in particular, "uses of human embryos for industrial or commercial purposes".
The directive did not mention human embryonic stem cells, as the technology had not been developed at that stage. But in 2005, a resolution of the European Parliament declared that "the creation of human embryonic stem cells implies the destruction of human embryos and... therefore the patenting of procedures involving human embryonic stem cells or cells that are grown from human embryonic stem cells is a violation".
Oliver Brüstle, a leading German stem cell scientist who holds a patent on neural cells produced from human embryonic stem cells, was on the losing side of the lawsuit. His view was that the directive had not defined what an embryo is. He believed that an "embryo" comes into being 14 days after fertilisation. Since his embryonic stem cells were taken from five or six day old embryos, they could not be banned by the directive.
But this line of reasoning seems to have made no impression. The court supported a common sense understanding of an embryo and declared that "any human ovum must, as soon as fertilised, be regarded as a 'human embryo' if that fertilisation is such as to commence the process of development of a human being".
Furthermore, according to the directive, human biological material deserves to be treated with dignity. The court quoted the directive:
"Although it seeks to promote investment in the field of biotechnology, use of biological material originating from humans must be consistent with regard for fundamental rights and, in particular, the dignity of the person."
The European ruling sharply contrasts with a similar case brought by US researchers James Sherley and Theresa Deisher which challenged Federal funding for hESC research because it involved the destruction of embryos. After an epic legal battle over the meaning of words in the relevant legislation, a court found in July that the destruction of embryos could not be funded but that the use of embryonic stem cells could. The different result underscores significant cultural differences between the US and Continental Europe over the significance of "human dignity".
The intriguing feature of the EU case is that the "usual suspects" in Australia and the US -- the Catholic Church and other Christian groups -- were not involved. In fact, issues like "sanctity of life" and the "humanity of the embryo" did not emerge in the case.
Instead, two different currents were at work in sweeping aside Brüstle's arguments: the fear of reducing human life to an industrial product and the suspicion that scientists want to evade oversight and control by democratic institutions.
Brüstle's foe was Greenpeace International. Its campaigns include protests against whaling, deforestation, pollution, nuclear power -- and "radical demands" leading to the commercialisation of human life. It expressed fears that a "widespread embryo industry" might develop as a result of his research. This is consistent with its opposition to other forms of genetic manipulation, like genetically engineered foods.
Furthermore, ever since the atrocities of the Nazi era, Europeans, and Germans in particular, have been much more reluctant to trust scientists to do their research in pursuit of a higher social good without a clear and rigorous ethical analysis.
As a result, the German establishment welcomed the decision. The president of the German Medical Association, Frank Ulrich Montgomery, said that the ruling protected life from commercial interests and in any case, scientists can work with ethically uncontroversial adult stem cells. The German Research Minister, Annette Schavan, said that it was clear that "that scientific interests do not come before human life."
In the US and the UK, scientists adopt a more pragmatic, trust-me-I'm-a-scientist approach. As Robin Lovell-Badge, of the UK National Institute for Medical Research, commented, "the moral imperative" is not respecting embryos, but the utilitarian goal of "maximising the likelihood of benefits to patients". It's not language which would impress Greenpeace.
Or even the Financial Times Deutschland, which editorialised that:
"We have agreed not to use human corpses for purposes that are lucrative, efficient or pragmatic. These are the societal boundaries in which scientists, companies and investors operate. One could complain that goes against research, note the resulting competitive disadvantages, and threaten an exodus. Or one can accept it and work within the boundaries to which we have agreed."
Perhaps the most significant feature of the court's ruling is that it flags a convergence of interests between Greens who want to restrict scientists from meddling with the environment and pro-lifers, who wants to stop them from medding with unborn human life. This has been a consistent theme from the Vatican in recent years. As Benedict XVI said in 2009:
"The degradation of nature is closely linked to the cultural models shaping human coexistence: consequently, when 'human ecology' is respected within society, environmental ecology also benefits… The book of nature is one and indivisible; it includes not only the environment but also individual, family and social ethics. Our duties towards the environment flow from our duties towards the person, considered both individually and in relation to others."
By and large the Greens support abortion, on which the Catholic Church is unlikely to compromise, so at best the two sides will be reluctant allies. But in the long-term, the case of Greenpeace v. Oliver Brüstle foreshadows a joint campaign to resist scientific encroachment upon the "human ecology".