European Court of Justice Soon to Recognize the Right to Life From Conception Onwards?

March 10, 2011

Advocate General at the ECJ, Yves Bot, published today his opinion on a case about the legitimacy of the patentability of human embryos. The statement is clear: Cells that have the ability to develop into a human being (totipotent cells) are to be legally regarded as human beings and are thus excluded from possible patentability.

The case involves Oliver Brüstle, one of the most prominent human embryonic stem cell researchers in Germany, against Greenpeace. Mr. Brüstle had registered a patent in 1997 for a procedure that involved isolated precursor cells, which are extracted from human embryonic stem cells. Responding to Greenpeace’s claim, the Federal Patent Court of Germany revoked Brüstle’s patent insofar as it involved a procedure that used human embryonic stem cells.

The Federal High Court of Justice, before which Brüstle had appealed against the judgment, decided to suspend the legal proceedings and asked the European Court of Justice for a clear definition of the term ‘human embryo’, which is not defined in the EU directive 98/44/EG on the legal protection of biotechnological inventions . The question is whether the exclusion of patentability applies to every phase of life from conception onwards or whether additional criteria have to be met, such as reaching a certain stage of embryonic development.

In his statement, the advocate general states that it is impossible to apply a criterion that would be acceptable for all member states which would not protect the human body in all phases of its development (Art 5, 1 of the directive).

Totipotent cells have the ability to develop into a complete human being. Insofar as these cells represent the first phase of the development of the human body, they need to be legally regarded as embryos, whose patentability must be excluded. This definition includes unfertilized ova into which a cell nucleus of a mature cell has been transplanted (cloning), as well as unfertilized ova whose cell division would be triggered through a process called parthenogenesis. The definition similarly includes the blastocyst, a later stage of embryonic development (about 5 days after fertilization).

Pluripotent cells, in contrast, which can only develop into different organs but not into an entire human being, are not included in this definition. However, pluripotent cells can only be patented if they do not presuppose the destruction of the damage of an embryo. Otherwise, a biomedical invention is excluded from patentability, concludes the advocate general.

European Dignity Watch welcomes the published opinion and congratulates the advocate general for his clear and sound reasoning. The exclusion of a lucrative business that relies on embryo-patents is a strong statement on behalf of everyone’s right to life but especially of the weakest, the unborn.

The judgment of the European Court of Justice is expected for summer or autumn of this year. European Dignity Watch is confident that in its judgment, the Court will follow the solid and well-founded opinion of the advocate general.

Find here the conclusion of the advocate general Yves Bot in French and German.

ECJ Press Release in English.