A Feminist Analysis for a Campaign to Stop Gene Patenting

In my remarks today I want to focus on the issue of framing. I am particularly interested in how we might frame a campaign against gene patents in order to generate a broader international campaign and coalition against gene patenting. Most of the attention so far has been to address U.S. efforts against gene patents. Mobilization in the U.S. tends to focus on the patenting of human genetic material. But I want us to think about how efforts in the U.S. might be linked to other global campaigns against patent ownership. In my own work in South Africa I find that patent law struggles focus more broadly on the patenting of naturally occurring genetic and biological material from humans, animals, as well as plants. Given this, how do we begin to think about generating a diverse international coalition? One strategy that I find useful is to consider a feminist analysis of patent law struggles. Thus the question that I want to start with is:

How might a feminist analysis contribute to an international campaign to end gene patenting?

Why is this important? Because a feminist analysis enables use to see structures of power. It unveils how our laws and institutions structure hierarchal relations of gender, race, and indigeniety. And an understanding power can help us work through the obstacles, tensions, and possibilities for building broad coalitions against gene patents.

I became interested in this question when I started following the ACLU case against breast cancer gene patents. I was intrigued at how patent law was framed as an issue of women’s rights and women’s health. Mobilization against gene patents in the U.S. has been framed as an issue of patient health, and the ACLU expertly brings gender to the forefront. The ACLU case however is merely a starting point in thinking about how patent law involves complex gendered social relations. There are other ways in which gender matters to a discussion of patent law.

But how does it matter? For one, we might consider how women’s bodies and minds have become storehouses for potential patentable subject matter. Women, in their interactions with biomedical institutions and fertility clinics, are compelled to “donate” their oöcytes, cells, and DNA for research and commercialization of patented inventions. In particular, Indigenous and Native women have been obliged to give over their DNA, blood, and human tissue, as well as valuable knowledge regarding medicinal plants. There is also a broader issue to keep in mind. That is the fact that under conditions of what we academics call biopolitics, women are primarily responsible making health care decisions, and thus utilizing patented medical inventions, to care for themselves and their families. This is not to say that men’s bodies are not a matter of concern. Human bodily tissue and Indigenous knowledge is additionally extracted, commercialized, and patented from men as well and they also may participate in caretaking roles. But patent law impacts men and women’s lives in different ways, given the variable mechanisms of power structuring their lives. Recognizing these hierarchal relations of power enables us to understand more clearly the effects of gene patents.

Generating a feminist analysis though is not easy. Patent law impacts various men and women differently across social relations of gender, race, class, ethnicity, indigeneity, nation, and citizenship. Some groups of women benefit from patented medical inventions, albeit in limited way, while others contribute to their development with no benefits in return. One way to think through this complexity is to focus on what forms of labor are being performed. Gene patenting is not only about information, property, and ownership, but it is also about labor. It is about how women’s reproductive and intellectual labor is deployed, extracted, and constrained in the pursuit of patentable invention.

Let me give you two examples.

First, in terms of the ACLU case, patent law limits the healthy lives of women who are susceptible to breast cancer. They are asked to supply breast cancer tissue, genetic material, family medical histories, and to take advantage of genetic testing. In return, they receive valuable genetic information, for themselves and their family, about their chances of getting breast cancer. Yet, as the ACLU case argues, women would have access to even more information and testing if gene patents were impermissible and scientists were free to utilize BRCA1 and BRCA2 genes for further research. Thus the argument is that gene patents must be found invalid because they limit women’s access to a full range of health care options.

Yet, the ACLU case is constrained by the legal arguments it must make. It is unclear that an end to patents on breast cancer genes would in fact lead to better options for women in treating breast cancer. Furthermore, women will still be faced with making health care decisions for their families with inadequate access to resources such as health insurance and health education.

Gene patents however are not the only patents that impact the health and well being of women. A second example can help us to think differently about how we frame our focus on “patient health.”

In my work in South Africa, I have learned how the patenting of plant material derived from Indigenous knowledge impacts the lives and health of Indigenous women and their communities. Some indigenous women are compelled by researchers to divulge their knowledge of local medicinal plants, which they have cultivated for generations. Their knowledge then assists researchers in patenting and commercializing local plant material. As a result, local plants may become vulnerable to large scale harvesting, which threatens to endanger the plant species. This means Indigenous women no longer have access to the plant resources needed to care for their families and they fear that if they use the plants they will be breaking the law.

There are different ways to politically respond to this patenting of plants. The community in South Africa that I work with decided not to challenge the patent. They did not have the money or resources to make such a challenge. Instead they negotiated a benefit sharing agreement with the patent owners to receive a portion of profits derived from the patented invention. The agreement promised a potential revenue stream and would be placed in a Trust for the benefit of Indigenous communities. Yet, similar to the ACLU case, the benefit sharing agreement is also constrained. Members of the Indigenous communities I spoke with explained that they may receive some financial benefit, but possibilities for strengthening the health and well being of their communities remain limited because stronger rights to self-determination, for example to land, resources, education, and political representation are not extended.

These two examples are very different. Human tissue versus plant material. Medical testing versus ethnopharmacology. They are also structured by dissimilar legal systems such as U.S. Patent Law versus the international law on Access and Benefit Sharing. Yet, each patent law struggle is constructed through and by complex gendered social relations. Women are conducting novel forms of reproductive and intellectual labor within bioeconomies by supplying the raw material for making patented inventions. They are then compelled to utilize patented technologies (or monies received from them through benefit sharing) to care for their families, but the problem is that they are given limited resources and support in which to do so, and stronger legal and political rights are not extended.

In conclusion, what can we learn from this feminist analysis? What additional questions does it raise for building an international campaign and coalition against gene patenting? For now I will just offer two.

One question is how can we think differently about our framing around patient health? I would suggest that maybe our conception of health should be broader. It should address how gene patents can  effect the health of individual patients as well as communities. It should also recognize how a healthy physical body depends not only on access to medical care, but also to strong political, legal, and social rights.

A finally a second question is how does a U.S. emphasis on the patenting of human genetic material limit our coalition efforts with other groups who are concerned with the patenting of plants and deploying alternative responses to gene patents? I would urge us to think more critically about how our domestic efforts may contradict or conform with international efforts.

Finally, in terms of outputs, I would like to see a one-page policy statement directed towards women’s rights organizations that explains what the stakes are for women rights to health and well being. Reaching out to other women’s rights organizations globally can help us to imagine and build a broader coalition.