Last October I wrote an essay about the decision of the European Court of Justice to deny a patent to the German neuroscientist Oliver Brüstle who had developed a method for turning human embryonic stem cells into neurons which could then be transplanted into patients with diseases such as Parkinson’s. The Court had decided that no patent could be valid on a process that involved the destruction of an embryo; such a patent was subversive of ‘human dignity’ and hence ‘immoral’ and contrary to ‘public order’. I was critical of the Court’s decision, and equally so of Greenpeace, the organization that had brought the case before the Court:

If the court judgment is difficult to fathom, the attitude of Greenpeace is even more so.  So hostile has the organization become to ‘big science’ that it is happy to line up with some of the most reactionary and obnoxious groups in Europe and jeopardize vital medical research… It is about time we stopped indulging theologians and Luddites in the absurd myth that they occupy the moral high ground. They don’t. They are using moral norms drawn from dogmatic and reactionary visions of life to prevent the practical alleviation of human suffering.

A version of that post was published in the Swedish newspaper Götesborg-Posten. Greenpeace took umbrage at my criticism of the organisation, and its Swedish campaign director Patrik Eriksson wrote a reply, to which I responded. I am publishing here Eriksson’s reply to my original essay (translated into English) together with my response.

‘Greenpeace stands up in defence of free and independent science’

In response to  Kenan Malik’s essay in Göteborgs-Posten, in which he accuses the environmental group Greenpeace of opposing stem cell research, we want to make clear our views. First, I want to state clearly that Greenpeace is not opposed to stem cell research. We do not regard embryonic stem cell research as unethical. Nor do we take a stand as to whether or not a cluster of non-predetermined cells, so-called stem cells, should be regarded as a human being, and, thus, we are not opposed to the destruction of stem cells. Greenpeace is a religiously and politically independent organization, and does not support socially conservative arguments as Kenan Malik  claims.

Access to embryonic stem cells is essential for scientists looking for a cure for severe diseases, such as multiple sclerosis or other neurological conditions. The issue at hand, however, is the risk that patenting of human embryos could lead to commercial exploitation of the human body. This is banned under the European Union Patent directive (98/44, Art.6), as well as in many individual countries and in the UN Convention on Human Rights and Biomedicine, dated 4th April, 1997. Malik paints a picture where patents are a prerequisite for science. This is a skewed view of reality. On one hand, patents can protect those who invest in medical research and manufacturing of remedies. But these are far from the only tools available – trade secrets, for example, can be maintained without patents. On the other hand, patents might become an iron wall excluding a majority of scientists searching for similar remedies but lacking the patent owner’s privileged access. Publicly funded scientists will then be forced to spend taxpayers’ money to buy access to data owned by private interests. As a consequence, a patent would impede progress.

Kenan Malik clearly did not understand what the challenge was about, nor the results of the court judgment. Because of the challenge to Brüstle’s patent, the European Court of Justice was forced to create a framework for what should be considered as acceptable in the relationship between science and patents. For science, just as for any activity, there must be a clearly defined set of rules and a framework, so that research can be conducted in a way that is acceptable for society. Such frameworks are nothing new or controversial, but have for a long time been a characteristic of medical research in particular. In addition, there has been a long-standing demand for a distinct framework for science, both from the pharmaceutical industry and the scientific community. So it is good that the European Court of Justice has been forced to revise the rules and regulations for patents based on stem cell research and make its standpoint clear.

This is, in other words, all about establishing limits for what a company should be able to patent, not about science as such. We strongly object to Malik’s accusations that Greenpeace is ‘hostile to big science’, his attributing to us certain alleged ‘moral’ views that we have never held, as well as claims that we have raised objections against the destruction of stem cells or embryos. So let us be explicit: Greenpeace stands up in defence of free and independent science. The challenge to Oliver Brüstle’s patent application is based on the belief that human cells should not be commercialized or exlusively owned by private companies. This does not mean that stem cell research as such is a bad thing.

Patrick Eriksson
Campaign director, Greenpeace

‘I am unsure whether Greenpeace is being naïve or disingenuous in so distorting the facts’

My thanks to Patrik Eriksson for his response to my essay on the European Court of Justice ruling on patents deriving from embryonic stem cell research, and on Greenpeace’s unfortunate role in the affair. I am unsure, however, whether he is being naïve or disingenuous in so distorting the facts to make his case.

Eriksson suggests that Greenpeace took up this case because ‘of the risk that patenting of human embryos could lead to commercial exploitation of the human body’. If  Oliver Brüstle had been attempting to ‘patent human embryos’, I, too, would have opposed him. As I observed in my original essay, I disapprove of patents on natural processes or entities.  In fact, Brüstle was attempting to patent not an embryo, nor even a cell, but a laboratory process, a method of generating neurons from human embryonic stem cells.

Suppose Brüstle had patented a technique to produce neurons from adult, rather than embryonic, stem cells. Would Greenpeace have objected? Unlikely. The key issue, therefore, is not that of patents but that of the legal and moral status of embryos, and of cells that derive from them. And that was the question upon which the Court primarily focused.

Under European law, patents must ‘safeguard the integrity and dignity of the person’ and not damage ‘public order or morality’. Patenting a process relating to cells derived from human embryos can undermine ‘the integrity and dignity of the person’ only if such cells in some sense possess ‘the integrity and dignity of the person’. The judges ruled that they do. Every fertilised egg, they insisted, must be recognized as an entity whose ‘human dignity’ had to be protected. They, therefore, banned any patents on scientific techniques that involve the destruction of embryos. The court, in other words, was not defending human dignity or civil liberties. It was insisting that the moral status of a handful of invisible, undifferentiated cells should be the same as that of a real, living human being. That, to me, is immoral, and deeply damaging to both human dignity and civil liberties.

It is disingenuous of Eriksson to suggest that Greenpeace does not ‘take a stand as to whether or not a cluster of non-predetermined cells, so-called stem cells, should be regarded as a human being.’  It could not have brought this case if it did not believe that such cells possess ‘human dignity’.  Indeed, in the press release that Greenpeace produced after the European Court ruling, its International Senior Campaigner Lasse Bruun is quoted as saying that the ruling had ‘strengthened the protection of human life against commercial interests’. The press release concludes by insisting that the court decision will not affect medical progress because ‘in recent years, researchers have found alternative methods for obtaining stem cells, without the need to destroy human embryos’.

The question of whether medical research will be affected is a matter for debate. I, like many others, believe it will. What is clear, though, is that, contrary to what Eriksson says, what truly troubles Greenpeace is ‘the need to destroy human embryos’. In this Greenpeace shamefully lines up with the some of the most reactionary voices in Europe.

Kenan Malik

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  1. Totally agree with you on the reactionary position of Greenpeace in this issue. It is funny that now they try to hide their anti-ES sience position as an anti-patenting one. They clearly objected patenting a procedure that had to be applied to ES cells because in their view it was inmoral to “patent human life” and that is trying to equate an embryo with a human life in terms of legal rights.
    The European Court ruling, on the other hand, went even further by banning patenting of anything that involves using cells that derived from “something” that could “potentially” give rise to a whole human being, not just fertilzed eggs at the blastocyst stage, which is shocking because with current technology where to we set the limits?!

    • I agree that in banning any patent on any process that involves not just embryos but cells that may have originated from embryos, the Court went much further than previously, and set a dangerous precedent.

  2. Gabriel Andrade

    “…The court, in other words, was not defending human dignity or civil liberties. It was insisting that the moral status of a handful of invisible, undifferentiated cells should be the same as that of a real, living human being. That, to me, is immoral, and deeply damaging to both human dignity and civil liberties”.

    Why is it immoral to say that a bunch of cells has the same status as a fully developed human being? Because it is a FACT that that a bunch of cells does not have a nervous system that makes it suffer, unlike real living human beings. And, it is a fact that the CONSEQUENCES of doing away with stem cell research are very damaging. After all, it seems you do need a scientist to tell you what is moral and what is not, facts and values are not easily differentiated, and consequences matter a great deal… (This is obvioulsy about our previous discussion).

    • Gabriel, I have been following your arguments – I am not sure you are able to make any convincing point regarding moral choices being related to facts. Science may undoubtedly inform moral choices and potential consequences, but they cannot alone justify a moral position. You still need to argue what consequences you are going to value over others… that seems to always imply a value statement, not a factual one.

      • Gabriel Andrade

        You represent the position of Kenan (and most philosophers), I represent the position of Sam Harris and a few others. Basically, ethics is about happiness; good is pleasure, evil is pain. What is moral? Whatever causes pleasure and avoids pain. Can science answer these questions? I believe it can. You know that recommending the ingestion of cocaine is immoral and recommending exercise is moral, because science tell us the former is harmful, the latter is beneficial.
        Perhaps this is a simplistic example, and most moral questions are very tough, many variables are involved, as you rightly mention. But, the fact that these questions are hard doesn’t mean they do not have an answer. Sam Harris asks “how many fish are in the ocean?”. Perhaps we shall never know. But, this question is empirically verifiable, and in principle, science could tell us what the answer is.
        Ultimately, pleasure and pain may be quantifiable (Human Development Index is a start). And, once it is quantifiable, we may sum up what actions add up to more or less happiness. So, what consequences to value over others? Well, you should take into account all consequences, and make a balance. If you attempt to quantify them, you will eventually realize that some actions are more beneficial than others and, hence, more moral… or, so I think for the time being, I might change my mind…

    • It would best to have this discussion not in this thread, but in the one on the nature of moral judgments. I think, though, Gabriel, that the problem is your Manichean view of the issue. You seem to assume that people must either accept moral judgments as simply facts and as driven solely by consequences, or that they must ignore facts and consequences in making moral judgments. As I have explained several times in the other threads, facts and consequences are hugely important. But they cannot be the sole criteria by which we make moral judgments. As for your championing of Sam Harris, even by consequentialist standards his is a threadbare argument. You use categories like ‘good’, evil’, ‘pleasure’, ‘pain’ etc and assume such categories can simply be scientifically defined. That is an assumption not a fact, and moreover an assumption not backed by facts.

  3. Justiniano Liebl

    Again Kenan, as a “believer” in the Catholic Church, I enjoyed this article by you an “atheist and non-believer” as you wrote me.

    I tend to go along with your thinking regarding embryonic stem cell research.

    Despite what many people claim and write, the RCC has never “infallibly defined” the time when a human person becomes present in a zygote, embryo or fetus. In the words of recently deceased Padre Bernard Haring, during his life known of as the “Prince of Catholic Moralists”, simply because “it is not within the competence of the Church”. So we have THE MOOT QUESTION: Just WHEN IS A HUMAN PERSON PRESENT in the result of human fecundation or conception?

    Today the science of bio-ethics considers that only until about 12 weeks after conception is there sufficient substantive density to sustain the presence of a human person. In the jargon of Catholic Moralists, there is sufficient acceptance of this thesis to make it a solid probable opinion that can be safely followed in forming moral judgments.

    Among those who write or speak in the RCC today (at least in the United States of North America) there is a good amount of hanky panky with words that ultimately prove simply to be begging the question. “Human life” after conception subtly morphs into “human being” or into “human person” or into “baby”.

    “Human life” is not necessarily “human person”. A human hand accidentally amputated can be scientifically preserved with its human life apart from the human person and then medically re-integrated to the human person. Today medical science implants organs with human life from one human person into another human person. It is the “human person” that has human dignity and human rights. Embryonic stem cells are definitely human life, but scientifically far from being human persons, with human rights.

    Justiniano de Managua

  4. andreling

    An idea: perhaps Greenpeace is not as naieve or disingenous as you propose. From what I have read of your exchanges with Greenpeace some tenuous leaps are being made about small phrases with ambiguous meaning. The realities of legal systems are such that there are a limited number of channels through which particular outcomes can be achieved. Personally, I am opposed to both patents in general and, all the more so, to patenting processes for manipulating life. I don’t particularly care whether it is a lifeform or a laboratory process, I quite simply am opposed to patenting. In the case of life-forms, however, it might also be worth noting that we are dealing with a technology that is both ambiguous in its ramifications and potentially has vast positive benefits. Now, assuming that I want to oppose the patenting of such a technology for whatever reasons I might have, my only recourse is to fall back on the existing legal framework and the opportunities it presents. As such, I will make strategic use of the law to push through an agenda that I believe in, calling on whatever ‘phrases’ help me to achieve my goal, however tangential they may be to primary concern. I cannot very well enter a court of law and insist that as I am opposed to patenting (e.g. in the medical industry) this particular patent should be withheld. I’m not saying that Greenpeace necessarily have the right intentions, merely suggesting that the strategic use of legal frameworks by activist organisations is best understood with sensitivity to the constraints that these frameworks generate. More concern might be directed at the judges who reached this particular conclusion and the grounds on which they did so, rather than Greenpeace per se.

    • I’m not sure I buy your argument about Greenpeace’s motives, but let us assume for the moment that Greenpeace was indeed more cynical than naïve or disingenuous. Would that affect my criticism? Not one bit. First, because you don’t enforce social or political change by pretending to be doing something else. I’m one of these old-fashioned people that believe that the way to challenge patent law, and indeed to challenge any social wrong, is by openly campaigning to win support for your cause.

      Secondly, what you called the ‘strategic use of the law’, and the ‘calling on whatever “phrases” help me to achieve my goal’, is in fact the institutionalization of a reactionary view of embryo rights and of human dignity, a view that can hold back medical research and condemn thousands to longer illnesses or earlier deaths. As many pro-life and religious groups are now beginning to argue, if the patenting of a process that involves the destruction of embryos is ‘immoral’ and contrary to ‘public order’, should not those processes themselves also be seen as such? And is that the road that Greenpeace – and you – want us to go down?

      Finally, the argument that concern should be directed at the judges rather than at Greenpeace seems to me highly dubious. I am indeed critical of the court judgment, and explained why in my original essay. But it was Greenpeace that brought the case, and made the argument upon which the judges ruled. Far from this mitigating their guilt, in my eyes it ensures that the primary responsibility rests at their door.

  5. “…based on the belief that human cells should not be commercialized or exlusively owned by private companies.”

    This may be something of shock for the IVF industry, medical research companies etc. all of whom own both human cells and commercialize them. Not to mention blood banks or companies researching a cure for cancer or diabetes.

    “Kenan Malik clearly did not understand what the challenge was about”

    Perhaps not, although I suspect he did, but he certainly understood the end result and the implications based on the ruling that your organisation heralded as a victory. If you actually support science then you may have won this battle but you have lost the war.

    “Nor do we take a stand as to whether or not a cluster of non-predetermined cells, so-called stem cells, should be regarded as a human being”

    Perhaps, sir, you really should.

  6. G’Day! Kenanmalik,
    Thanks for the above, Research involving induced pluripotent stem cells (iPSCs) is making rapid advances. But research using embryonic stem cells (ESCs) continues to be critically important. Reprogramming adult cells using a cocktail of transcription factors restores a primitive pluripotent state. But reprogrammed cells are significantly different from the pluripotent cells of the embryo’s inner cell mass. Many of these differences have yet to be determined. It would be a grave mistake at present to believe that reprogrammed cells can substitute for pluripotent cells derived from embryos. Both lines of work need to continue.

  7. Chris Wallis

    I find it strange that Greenpeace should object to a patent on a process of general benefit, and offer ‘trade secret’ as an acceptable alternative. The whole point of a patent is that it makes the idea public, and therefore available to stimulate further research by others, protecting only commercial exploitation. A trade secret has to be kept under wraps to be effective.

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