PATENTABILITY OF GENES AND TOMORROW'S HEALTH DILEMA

In instances where for instance, body organs have been held out for commercial realization benefits, it is inevitable to meet logger heads with issues of “who owns what and why?” this is imminent because at a certain point under a surrogacy practicing environment where we see sperm banks being depots for surrogacy purposes, a vigilant activist would wish to exercise their claim by for instance seeking a benefit or compensation from commissioning parents for his/her genetic contribution . Take an example; a commissioning spouse could be known for giving birth to albinos and owing to the gene contribution of a surrogate, this fact is escaped. Can this surrogate later claim an award for their fortune occasioned upon the commissioning parents? Arguments for this are not only built in surrogacy but also owing to prevalent issue of blood sale and donation, sale of body organs, among others which could form grounds for future litigation. A question will arise on; Whether a surrogate mother or a sperm donor can attain copyright over their DNA and thus seek an award therefrom? First of all, a gene patent is the exclusive rights to a specific sequence of DNA (a gene) given by government to the patent holder . The later can be an individual, an organization or corporation who claims to have first identified the gene. Prior to 2013, about 4,300 human genes had been patented in the US. This meant that the holder of patent would dictate how the gene could be used, in both commercial settings such as clinical genetic testing and in noncommercial settings including research, from 20 years from the date of the patent . The position changed in the case of Association for Molecular Pathology v. Myriad Genetics, Inc where the supreme court of the US rejected the notion that human genes should be patented. The court rejected such patent with a view that DNA is not patentable since it is a product of nature. It is important to note that among the considerations for granting any patent is that the applicant must have created something new or added something new to the already existing. This therefore means that patent cannot be granted over a human gene since nothing new is created apart when discovering the gene. However, the court found that complementary DNA’s can be patented since there is a modification of the existing. The standpoint therefore remains that things which are products of nature cannot be patented. Patenting such would lead to monopolization of genes which would hinder research and also slow down medical results.