The European Court of Justice (ECJ) “was wrong to weight in on the definition of a human embryo”, according to an editorial on this week’s issue of Nature (15 December 2011). The editorial refers to ECJ’s ruling of last October that banned the patenting of inventions based on embryonic stem cells (see also the relevant Neurostemcell article about the verdict).
The ECJ’s decision (an “error of judgment”, says the editorial’s title) was the outcome of a legal dispute that began when Greenpeace challenged a patent granted in 1999 to German researcher (and Neurostemcell Principal investigator)
for a method of producing neural progenitor cells from embryonic stem cell lines. The organization invoked the ‘ordre public’ clause in the EU’s Directive on the Legal Protection of Biotechnological Inventions, which states that inventions whose commercial use could lead to a breach of morality cannot be patented, and uses the commercialization of the human embryos as an example.
The court effectively stepped over the line that separates the interpretation of law, which is its responsibility, from the creation of law, which is the job of parliaments and governments- Nature
Brüstle argued that his invention was based on embryonic stem cell lines that have been established in the laboratory years ago and can be legally obtained, and did not use embryos. But the ECJ ruled that embryonic stem cell lines are equivalent to human embryos since they originate from fertilized eggs and therefore Brüstle ‘s patent represented a forbidden use of human embryos and contravened the ordre public clause.
According to Nature, the ECJ “exceeded its competence” by issuing “a de facto legal definition of a human embryo, [...] with shoddy reasoning and without appropriate legal references”. The ECJ, says the editorial, ”chose not to confine its analysis to the patent context, but took it upon itself to define the term ‘human embryo’ generally (and in the broadest possible way), and to assess the surrounding moral environment”.
In the case of ambiguous law, a court should go back and ponder the intention of the law-makers. From its brief justification in Brüstle v. Greenpeace, the ECJ seems not to have done that. -Nature
Nature suggests that the European Parliament and the EU Council should “tighten its loose language on the legal definition of a human embryo in terms of patenting” to steer away from the “confusion created by the ECJ”.
“In the case of ambiguous law, a court should go back and ponder the intention of the law-makers. From its brief justification in Brüstle v. Greenpeace, the ECJ seems not to have done that, ” says the editorial.
The same issue of Nature features a full story about Brüstle case written by senior European correspondent Alison Abbott.