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A Hard Sell for European Scientists

By Michael Cook

A milestone case in the European Court of Justice sheds light on opposition to human embryo research.

“Medicine thrown into crisis by stem cell ruling” was the dramatic headline in the British newspaper The Independent after a landmark ruling from the European Court of Justice in October. “This is a devastating decision which will stop stem cell therapies’ use in medicine,” said Prof Peter Coffey of University College, London. “The potential to treat disabling and life-threatening disease commonly using stem cells will not be realised in Europe.”

The occasion for these lamentations was a ruling from the European Court of Justice in Luxembourg on 18 October that bans the patenting of inventions based on human embryonic stem cells (hESCs). Although patents already granted involving hESC stem cell lines are still valid, even these could be threatened.

Stem cell scientists around the world were appalled. Prof Martin Pera of the University of Melbourne said that the news would not directly affect Australian researchers, but it would have a chilling effect when hESC research looks very promising. “Clinical trials of cell therapeutics derived from embryonic stem cells are already underway in the United States for spinal cord injury and macular degeneration, and more are on the way,” he said.

However, the ruling came as no surprise in the light of previous decisions. At the centre of the dispute is a 1998 biotechnology directive from the European Union which states unequivocally that no patents should be granted if their “commercial exploitation would be contrary to ordre public or morality”, in particular “uses of human embryos for industrial or commercial purposes”.

The directive did not mention hESCs, as the technology had not been developed at that stage. But in 2005 a resolution of the European Parliament declared that “the creation of human embryonic stem cells implies the destruction of human embryos and... therefore the patenting of procedures involving human embryonic stem cells or cells that are grown from human embryonic stem cells is a violation”.

Oliver Brüstle, a leading German stem cell scientist who holds a patent on neural cells produced from hESCs, contended that the biotechnology directive allows the patenting and use of embryonic cells before the 14-day mark.

But his argument seems to have made no impression. The court declared that “any human ovum must, as soon as fertilised, be regarded as a ‘human embryo’ if that fertilisation is such as to commence the process of development of a human being”.

The European ruling sharply contrasts with a very similar case brought by US researchers James Sherley and Theresa Deisher, which challenged Federal funding for hESC research because it involved the destruction of embryos. After an epic legal battle and linguistic ju-jitsu, a court found in July that the destruction could not be funded but that the use of stem cells could.

The intriguing feature of the EU case is that the “usual suspects” in Australia and the US – the Catholic Church and other Christian groups – were not involved. In fact, issues like “sanctity of life” and the “humanity of the embryo” did not emerge in the case.

Instead, a different dynamic was at work: the fear that human life is being treated as an industrial product by scientists who want to evade oversight and control by democratic institutions.

Brüstle’s foe was Greenpeace International. It argued that human life had to be protected against “radical demands” leading to its commercialisation. It expressed fears that a “widespread embryo industry” might develop as a result of his research.

Ever since the atrocities of the Nazi era Europeans, and Germans in particular, have been much more reluctant to trust scientists to do their research in pursuit of a higher social good without a clear and rigorous ethical analysis. In June, a director of Greenpeace and several EU MPs asked scientists to respect “clear ethical limits” in a letter published in Nature about the Brüstle case.

However, in the “Anglo-Saxon” world, scientists adopt a more pragmatic trust-me-I’m-a-scientist approach. As Robin Lovell-Badge of the UK National Institute for Medical Research commented, “the moral imperative” is not respecting embryos but the utilitarian goal of “maximising the likelihood of benefits to patients”. It’s not language that would go down well across the Channel.

The case of Oliver Brüstle versus Greenpeace is a reminder that opposition to embryo research is not necessarily religious. Not everyone trusts scientists to work selflessly for the public good.

Michael Cook is editor of the internet bioethics newsletter BioEdge.