ABC v Thomson Medical Pte Ltd and others, Singapore Civil Court of Appeal  SGCA 20 – read judgment
It is a trite reflection that law should change with the times but every so often we see the hair-pin bends in law’s pursuit of modern technology. This case from Singapore about reproductive rights and negligence in an IVF clinic is just such an example. As the judge said at the outset, the need for the law to adjust itself to the changing circumstances of life is clearest in the area of medical science,
where scientific advancement has made it possible for us to do things today which would previously have been unimaginable a few decades ago. This has brought untold prosperity to many, and hope to those who previously had none; but it has also given us greater capacity for harm.
The Appellant, a Chinese Singaporean, and her husband, a German of Caucasian descent, sought to conceive a child through in-vitro fertilisation . The Appellant underwent IVF treatment and delivered a daughter, referred to in the judgment as “Baby P”. After the birth of Baby P, it was discovered that a serious mistake had been made: the Appellant’s ovum had been fertilised using sperm from an unknown Indian third party instead of sperm from the Appellant’s husband. It turned out that the clinic had processed two semen specimens inside one laminar hood at the same time and failed to discard the disposable pipettes that had been used after each step of the IVF process. This had resulted in a baby being born on 1 October 2010, whose DNA did not match her father’s. Continue reading
M.R. and D.R.(suing by their father and next friend O.R.) & ors -v- An t-Ard-Chláraitheoir & ors  IESC 60 (7 November 2014) – read judgment
The definition of a mother, whether she is “genetic” or “gestational” for the purpose of registration laws was a matter for parliament, not the courts, the Irish Supreme Court has ruled.
At the core of the case was the question whether a mother whose donated ova had resulted in twin children born by a surrogacy arrangement should be registered as their parent, as opposed to the gestational mother who had borne the twins.
The genetic mother and father sought her registration as “mother” under the Civil Registration Act, 2004, along with a declaration that she was entitled to have the particulars of her maternity entered on the Certificate of Birth, and that the twins were entitled to have their relationship to the fourth named respondent recorded on their Certificates of Birth. Continue reading
Association for Molecular Pathology et al v Myriad Genetics Inc, et al, United States Supreme Court 13 June 2013 – read judgment. The headlines are misleading. Myriad Genetics has lost some, but not all of its patent protection as a result of this final ruling in the long running litigation concerning the company’s BRCA 1 and BRCA 2 breast cancer gene patents. According to the American Council on Science and Health, the Court’s decision is
a groundbreaking moment in the history of biotechnology, and a case that will surely rank among the most noteworthy biomedical decisions of our time.
I have posted here, here and here on previous stages in the Myriad patent case, in the United States and Australia, so will not set out the facts again (although for anyone who is interested, the Supreme Court judgment provides a superbly clear explanation of the molecular biology underlying the issues). Continue reading
Cancer Voices Australia v Myriad Inc 13 February 2013 – read judgment
Another battle in the war against gene patenting has been lost, this time in Australia.
The US litigation is still ongoing, with the US Court of Appeals for the Federal Circuit upholding Myriad’s patents on DNA sequenced in the laboratory: see my post on that judgment. On 30 November 2012, the US Supreme Court announced that it would hear an appeal in the Myriad case. The US law in relation to the patentability is therefore not likely to be settled until the Supreme Court reaches it own decision on the issue.
This Federal Court ruling in Australia has now endorsed the government’s rejection of calls for an outright ban on the patenting of genes by ruling that isolated nucleic acid (including isolated DNA and RNA) is patentable. Continue reading
Meiklejohn v St George’s Healthcare Trust  EWHC 469 (QB) – read judgment
Richard Booth of 1 Crown Office Row acted for the claimant in this case. He is not the author of this post.
There is no doubt that medical diagnosis and therapy are struggling to keep pace with the genetic information pouring out of the laboratories and sequencing centres. And the issue of medical liability is being stretched on the rack between conventional treatment and the potential for personalised therapy. Treatment of disease often turns out to be different, depending on which gene mutation has triggered the disorder. However fine tuned the diagnosis, it may turn out to be profoundly wrong in the light of subsequent discoveries.
This is perhaps an oversimplified characterisation of what happened in this case, but it exemplifies the difficulties facing clinicians and the courts where things go wrong, against the backdrop of this fast-moving field of scientific endeavour. Continue reading
Updated: The Supreme Court has now ruled on this case, rejecting Bowman’s appeal: see judgment. On Tuesday 19 February, the US Supreme Court heard opening arguments in the latest stage of the battle between a 75 year old farmer and the agri-giant Monsanto, over whether patents on seeds — or other things that can self-replicate — extend beyond the first generation of the products. The dispute in Bowman v Monsanto goes to the heart of the debate over the patenting of living organisms. This of course is also at the centre of the Myriad breast cancer gene litigation which I covered here.
The case is fascinating not just because it exposes the limits of patent law in an era of fast-growing biotechnology, but because it seems to speak to the concerns of the anti-GM lobby – the stranglehold of big corporations over farmers, the fear of transgenic organisms themselves and their consequences for agriculture. But Green woo about the dangers of genetically engineered crops will not find judicial endorsement in this litigation, despite the multiple briefs filed in support of Bowman, attacking GM technology. This is an inquiry into the reality or otherwise of patenting nature, not the morality thereof. As The Atlantic summarises it:
It’s a story about technology and innovation and investment, about legal standards and appellate precedent and statutory intent, about the nature of nature and how the law ought to answer the basic question of who owns the rights to the seeds of planted seeds. Continue reading
The late US law Professor Paul Miller reflected recently that Beethoven, Stephen Hawking and Elton John were examples of individuals whom, if they had been tested for serious genetic conditions at the start of their careers, may have been denied employment in the fields in which they later came to excel.
Earlier this month the Association of British Insurers announced the latest extension on the moratorium on the use of genetic test results for insurance purposes. But is this “Concordat” sufficient protection? Genetic technologies are becoming increasingly available and profound questions are arising in relation to life and health insurance and employability as genetic screening becomes cheaper and widespread.
According to the Human Genetics Commission (HGC)
The advent of cheap whole-genome sequencing, and greatly reduced costs for genetic tests in general, will provide the platform for genetic testing to be used for novel and unpredicted purposes. (Report on The Concept of Genetic Discrimination, Aril 2011) Continue reading