Article written by Tamiko M. Lee on gene patenting and related legal issues.

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Genetics, Gene Patenting the Cause of Myriad Legal and American Bar Association Adopts Criminal Justice,
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Ethical Complexities
ABA President-Elect Stephen N. Zack Receives Gavel
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Predictive genetic testing and gene patenting may sound like something from “ A Brave New World,”
but these seemingly science-fiction issues have become the basis for recent headlining litigation,
Nanette R. Elster, director of the DePaul College of Law’s Health Law Institute, told audience members
at an ABA Annual Meeting program in San Francisco.
Miranda Waivers Can be Based on Faulty Warnings,
D u r i n g “ Myriad Genetics: A New Roadmap to Patenting Genes?” expert Kayhan Parsi, associate and Courts May Never Know
professor of Bioethics & Health Policy at the Neiswanger Institute for Bioethics and Health Policy, Loyola The Perception of a Post-Racial Society and Its Real
University, highlighted the innumerable benefits of gene testing for society, including informed family Effects on Law and Policy
planning and early identification of medical conditions. Despite the benefits, there are downsides, and
Lawyers’ Smart Phones Left at Courtroom Door
Myriad Genetics has taken gene testing a step further with gene patenting.
Quiver with Volume of Calls
Prior to the March 2010 ruling, Myriad Genetics’ decade-old patent on BRCA-1 and BRCA-2 —two genes
closely associated with breast and ovarian cancer—that company was the only laboratory breast cancer
patients could rely on for testing. For years, this monopoly kept cancer victims at a serious
disadvantage. A number of legal issues are raised by patenting: insurance discrimination, prevention Birmingham Lawyer Jennifer (Ginger) M. Busby is
of informed consent and employment discrimination—hiring, firing or conditioning employment based New Chair of American Bar Association Tort Trial &
on genetic information. Insurance Practice Section
Silicon Valley Law Partner Stephen S. Wu Is New
As part of the panel discussion, Elster challenged the ethics of gene patenting, particularly when labs Chair of American Bar Association Science and
are discriminatory in the insurances they accept, preventing access to care for thousands. She posed Technology Section
the question: “ If it’s possible to patent a gene and we’re all made up of genes, is it possible to patent an
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entire person? Shouldn’t those genes belong to all of us?”
Litigator Wm. T. (Bill) Robinson III President-Elect
Dr. Bernard Lo, a medical ethics expert, also weighed in on the dilemmas caused by gene patenting:
“ Patients are being forced to make life-altering decisions based on one opinion.”
Only 35 states had laws that protect employees from discrimination based on genetic information until
the passing of the Genetic Information Non-Discrimination Act in May 2008, which prohibits insurance
companies and employers from discriminating on the basis of information found through genetic
testing.
Failure to Fund Our Justice System Means Failure
The program closed with a quote from George Bernard Shaw: “ Science never solves a problem without
to Maintain Our Democracy, Warns President Zack
c r e a t i n g 1 0 m o r e .” Overturning the patents that Myriad Genetics held on genes BRCA-1 and BRCA-2
August 10, 2010
eliminates at least one of those problems for science and technology lawyers. However, that resolution
is temporary. United States District Court Judge Robert W. Sweet in New York ruled in the Myriad
Genetics case earlier this year, but it is being appealed. In addition, what the ruling means to future
bioethics cases remains to be seen.
Learn More About: Annual Meeting 2010, Health Law Disaster Preparedness is Key to Preserving Our
Tags: genetics, medical ethics, patent Justice System, Says Zack
August 10, 2010
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