Patentability of human enhancement: from ethical dilemmas to legal (un)certainty

Abstract

Emerging technologies are paving the way for future revolutionary advances in science that may open the possibility to change the very anthropological definition of human being. This mere possibility has lead to ethical interrogations concerning the nature and boundaries of human nature and our relationship with science and technology. Meanwhile the Law has faced the challenge of reflecting on the legitimacy to legislate and whether the existing legal framework is appropriate to address the ethical concerns that emerging technologies bring fourth. It is a delicate balancing act between human dignity, autonomy, non-discrimination, equality, and justice. Anchored in this background, this work is a reflection on the role of European Patent Law in this debate. The European Patent system contains rules designed to prevent the grant of patents concerning inventions that do not conform to the prevailing ethical standards – article 53 (a) European Patent Convention. Thus, in a sense European Patent Law was entrusted with a regulatory function. However, not only such construction is objectionable in abstract terms, as new technologies pose growing challenges to its effectiveness. Several issues require clarification. This article will begin by analyzing the concept of human enhancement and proposing for the current patent law analysis purposes its replacement with a more neutral term and narrow definition. The ethical questions surrounding these technological advances and prospects will be reviewed from a legal perspective, by framing such ethical considerations as human rights and general principles of law. Building upon the previous considerations the third part of this article will consider the patentability of such technologies in Europe. (Less)