European Union Court of Justice Declaration on Embryonic Stem Cell Research

Yesterday, October 18, the Court of Justice of the European Union declared in the case of Oliver Brüstle v. Greenpeace that the process of removing stem cells from a human embryo, which necessitates death of the embryo, cannot be patented. However, the use of the embryo for therapeutic or diagnostic purposes which are applied to the embryo and are therefore useful can be patented.

This is an important ruling for EU state members and for the rest of the world’s law and legal systems.

Brüstle holds a 1997 patent concerning the isolation of neural precursor cells taken from human embryos. However, Greenpeace challenged the patent in the German Federal Patent Court, and the court ruled that Brüstle’s patent was invalid in so far as it covers processes for obtaining precursor cells from human embryonic stem cells. The German appellate court decided to refer Brüstle’s appeal to the European Court. The question before this court is whether the exclusion from patentability of the human embryo covers all stages of life from fertilization of the ovum or whether other conditions must be met, such as a certain stage of development must first be reached.

The European Court [decision HERE] noted that it would not decide questions of a medical or ethical nature but would address the legal questions in the case. It found that European Law excludes any possibility of patentability where the “respect for human dignity” can be adversely affected. It also found the need to understand the nature of the “human embryo” in a wide sense. The court concluded that as soon as the human egg is fertilized it must be considered a “human embryo” which is the commencement of a new human being. Moreover, in the process of parthenogenesis where the nucleus from a mature human cell is transplanted in a non-fertilized human egg whose further development is stimulated must also be classified as a “human embryo.” In short, new human life has begun.

The court also found that scientific research entailing the use of human embryos cannot access the protection of patent law. However, it noted an exception where the research is done for therapeutic or diagnostic purposes applied to the human embryo and which are useful to it such as correcting a malformation and improving the chances of its life.

The court also concluded that an invention cannot be patented where the implementation of the process requires either the prior destruction of human embryos.

While the debate over this important right-to-life issue may not be over, this is an important and encouraging development.

 

RJA sj