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The "Designer Baby" Patent: Why the Patent System Should Not Regulate Science

October 9, 2013
23andMe received criticism this week from a few bioethicists in the journal Genetics in Medicine, regarding a patent titled “gamete donor selection based on genetic calculations.”   The ethicists write,  “Selecting children in ways such as those patented by 23andMe is hugely ethically controversial… We believe the patent office made a serious mistake in allowing a patent that includes drop-down menus from which to choose a future child’s traits... At no stage during the examination of the patent application did the patent office examiner question whether techniques for facilitating the ‘design of future human babies’ were appropriate subject matter for a patent.”

The ethical quandary of providing technology to the public allowing them to select genetic traits that a couple would like to have in their child requires careful consideration by ethicists, physicians, families, and policy makers around the world.  While some parents may want to select away from serious genetic diseases that occur at birth (rather than aborting a fetus inflicted with such traits), others may merely want to choose what eye or hair color they want their baby to have.  While I don’t think these bioethicists are suggesting that all scientific inquiry in this area should cease, they are clearly suggesting that the government should step in to regulate or limit commercial products that may offer these services.

Instead of encouraging relevant stakeholders to engage in this important public debate about appropriate government regulation or voluntary medical guidelines, these bioethicists used this opportunity to argue that the problem is in the patent office.  Unfortunately, the authors leave safe logical ground and reveal a fundamental misunderstanding of how patent law works.

The patent office does not regulate science, nor should it.  The patent office does not regulate what should or should not be available on the market.  The patent office does not make determinations based on what an invention might be used for, or consider ethical implications relating thereto.  Rather, the function of the patent office is to administer the patent law by providing a time- and scope-limited right to exclude others from making, using, or selling a new and useful invention, with several exceptions and limitations I will not go into here.

The grant of a patent doesn't grant anyone a right to market any particular product.  Instead of focusing their criticism on the patent system, these bioethicists would be better off engaging with the scientific and medical community on how best to ensure that advances in technology are used in an ethical manner.