Would resurrected Neanderthals have human rights?

11 March 2013 by Rosalind English

A newsflash on the eve of the May 2010 elections was instantly eclipsed by the news of the coalition-bartering in the days that followed. But it concerned one of the most important scientific discoveries of the year, if not the century.

Evolutionary biologists at the Max Planck Institute for Evolutionary Anthropology in Germany had finished sequencing the Neanderthal genome. In the publication of their results the team pointed up the similarity between the four billion pairs of Neanderthal DNA and stretches of the human genome, suggesting  that humans and their ancient hominid cousins must have interbred some time after modern Homo Sapiens left Africa, meaning that elements of Neanderthal genome is present in non-African modern humans. The study found that 2.5 percent of the genome of an average human living outside Africa today is made up of Neanderthal DNA. 

There may be other explanations for the similarities in the Neanderthal and Homo sapiens genomes. Another study calculated that the shared DNA could have come from an earlier, common ancestor of Neanderthals and Homo sapiens. Be that as it may, it is not overdramatic to say that the discovery of the Neanderthal genome was a game changer, radically transforming the picture of our evolutionary past and removing the underpinnings for the long-accepted “out of Africa” story of modern humans.

Could we do it?

But what if we are able, in the not too distant future,  to resurrect the entire organism from the available Neanderthal DNA material, however degraded?  Decoding the Neanderthal genome meant piecing together many DNA fragments painstakingly extracted from 40,000-year-old bones. Today’s cloning techniques would not be up to the task of using this decayed material for so-called  nuclear transfer, the cloning procedure used for Dolly the sheep and many other species successfully cloned since 1999, since this procedure needs intact nuclear cells to work.  However, nuclear transfer is not the only option, as Harvard geneticist George Church proposes in his 2012 book Regenesis, discussed in the latest edition of National Geographic. Church is working on different approaches for cloning which may work for extinct animals whose cellular material is too degraded for the “Dolly procedure”. It starts with a healthy cell of a closely related species – in this case, modern humans – whose DNA is adjusted so that it matches the code of the ancient genome:

Though the techniques aren’t sophisticated or cheap enough yet to recreate a Neanderthal genome, Church thinks the idea is plausible. “Going from engineered cells to whole organism has been especially well established in mice, and [there’s] no obvious reason why it would fail in other mammals.”

Even if such proto-humans were to survive these physical challenges, what status would they have in society? Clearly they would be our closest living (or revived) relatives, but what would their status be in law? Leaving  aside the deep philosophical considerations about the status of higher apes and other intelligent animals, we may need to turn to patent law, rather than philosophy, for an answer.  It may be remembered that in the early years of the twentieth century, repeated attempts were made by the Soviet biologist Ilya Ivanovich Ivanov (amongst others) to create a “humanzee”, by uniting human genes with chimpanzee genes in various vertiginous and ultimately unsuccessful experiments. The project, which had the full blessing of Stalin, has a sound scientific basis even now: it has been shown that by heating up strands of both species’ DNA, the double helices unwind, and then the chimp strands cleave together with the human strands and vice versa, such are the similarities. The real obstacle to the experiment was more basic – the attempts to inseminate female chimpanzees with human sperm were unsuccessful, and by the time Ivanov found a human volunteer to surrogate a humanzee feotus, the male sperm donor animal died.

In 1997 Stewart Newman, a US biologist, applied for a patent on a process to mix embryonic cells from humans and chimps and gestate them in a surrogate mother.  The patent office turned the claim down in 2005 largely because the resulting organism would be too close to a human to be patentable. But another reason was that patenting a half human would violate the Thirteenth Amendment’s prohibition against slavery and owning another human. That is because a patent permits the owner to exclude others from “using” the invention.  Because “use” can mean “employ,” the US Patent office told Newman, a patent holder could prevent a person from being employed by any other — which “would be tantamount to involuntary servitude.”  A further, related reason was that such a patent would be inconsistent with the resulting “person’s” constitutional right to privacy. Since a patent allows the owner to exclude others from making the claimed invention, that invention itself would presumably not own its reproductive rights.

In fact, by seeking this patent, Newman was seeking to set a legal precedent that would keep others from profiting from any similar “inventions.”  One might say that the same objections would apply to any attempt to revive Neanderthals. But the line between what is human and what is not is becoming increasingly fuzzy, to the point of invisibility. Laboratories churn out animal/human cell hybrids and even living creatures that are part human, such as mice with human immune systems, and the patents have been readily granted.  But Newman’s case caught the Patent Office on the hop. His application did concern a process that would have produced what is called a “mosaic” – something with sufficient human cells to be much more a “person” than not. But the Newman case – and the not-too-hypothetical possibility of recreating an ancient hominid – demonstrates how far intellectual property law lags behind developments in biotechnology.

The outcome of the Newman application suggests, in any event, that a Neanderthal clone, being much closer to a human being than his potential human/chimp chimera, would be unpatentable at least in the US and by analogy in the EU. And for what it’s worth, the Max Planck team have announced that they have no plans to patent any of the genes in the Neanderthal.  So far, then, the ancient genome is up for grabs, and cloning is not banned anywhere in the world.

“Unpatentable”. Good or bad?

It follows that the resulting cloned organism would be entitled  to the full package of human rights – assuming of course that the procedure leading to its creation is carried out in a state governed by the rule of law. What would be the implications of these rights for the interactions between the “neo-Neanderthal” and the species which resurrected it?  One of the justifications for sequencing the ancient genome (an enormously expensive procedure) was its potential for curing human diseases.  The 40,000 year old genome has already disclosed important differences in the immune system of Neanderthals and humans, and there may even be the possibility of “tweaking” human biology to make it more like the Neanderthal’s genetic predisposition to code for thick, dense bones and strong muscles, a development that might treat osteoporosis and muscle wasting disorders.  Would those Neanderthal clones, equipped with the human right not to be subjected to degrading treatment, so readily give their consent to being contained and studied?  Unlikely. And the right to private life entails the right to engage with others, which would mean that a sufficiently large society of these clones would have to be produced to allow their social instincts to flourish. The right to respect for a home may entail an obligation on those responsible for their welfare to reproduce the conditions of pre-Paeliolithic Europe, and the right to personal integrity (a subset of Article 8) would be breached every time one of them succumbed to a human disease for which Neanderthals have no immunity.

Clearly, then, an ethical nightmare, but not one that will inevitably stop such biotechnology in its tracks.