Biocolonialism, Private Property and Patents

Within the biomedical field, the human body is commodified and taxonomised in a process of biocolonialism. By biocolonialism, I mean the “continuation of the oppressive power relations that have historically informed the interactions of western and indigenous cultures, and part of a continuum of contemporary practices that constitute forms of cultural imperialism”[1]. These biocolonial practices have created this commodified view of the human body as something that can be removed from its original structure, that of a living being, and put into a process of intellectual property rights and profiteering. This creates a process of biopolitical power struggles, whereby the original owners of such body parts and biomedical material are trying claim back these things as their own from powerful multi-national corporations and Western governments alongside international governance structures who are treating human bodies as material to be commoditised and creating intellectual property regimes. This then raises questions of who owns the human body and the material that comes from the body as well as processes of biocolonialism and commodification are skewing this ownership question in favour of colonial powers. As a result of this process, the work of political activism and social movements moves power back away from the dominant power structures of biomedical leviathans and into the hands of indigenous peoples and legitimate owners of the human body. They are doing this through bottom-up activism starting with grassroots campaigns directly involving local governance structures and indigenous organisations which are fighting against the categorisation of the human body that these biocolonial agents are trying to create. They are trying to prevent the racialisation of the human body, and are opposed to biomedical taxonomies that have no relevance to the peoples whose biomedical data was used to create such taxonomies. This can be seen in the resistance by indigenous councils and NGOs to the Human Genome Diversity Project (HGDP) where Western researchers were trying to categorise biomedical data into particular racial groups that didn’t reflect the beliefs and culture of the indigenous peoples they were studying. Political activism has also been used to correct previous transgressions done on the part of biomedical research entities towards vulnerable individuals and groups. This is seen in the case of the HeLa cell line, where compensation was given to the family of Henrietta Lacks whose DNA was used to create this cell line, as well giving recognition to the fact that the cell data was that of Lacks and that it was taken without consent. This to some extent shows that social movements can have an effect on how the human body is treated and understood within biomedical research, however where these movements fail is in recognising that behind these individual cases stand power structures and regulatory frameworks that are almost fully in favour of the dominant power players. Many political activists and social movements are failing to target the underlying political structures that are at play when biomedical research codifies and categorises the human body. While social movements have created new governance structures that are challenging the current paradigm, these movements need to recognise that government, multi-national corporations and intellectual property laws are also the major drivers behind the problems that these movements are trying to correct. Without challenging these structures, social movements and activists will only achieve small changes on a case by case basis.

The governance structures at play within the realm of biomedical research create a specific power relation which almost always favours those who control such structures i.e. corporations, scientists and the state. Through this power relation, these agents are able to exploit the DNA and body parts of individuals and groups by removing said components from their genuine owners. This completely changes the relation between the human and the body, with ownership coming into dispute. Scheper-Hughes puts this into perspective, saying “Increasingly the body is a possession that does not belong to us. It is bought and sold, bartered and stolen, marketed wholesale or in parts. The professions…have been pliant partners in this accelerating commodification of live and dead human organisms”[2]. Further it puts such biomedical material into a process of extraction and commodification, whereby the material is used for purposes of profit and patenting without voluntary consent and without consideration for the impacts it has on the individual or group’s life.[3] Hoeyer shows this to be the case when body parts are used for profit-based schemes, stating “Only in the case of very few human boundary objects are people directly remunerated for supplying bodily material; usually the ‘source’ of human biological material is obscured in the process of making ‘products'”[4]. This shows that remuneration is not the norm, and that in fact body parts and DNA are regularly put into a ‘product’, redefining what a body part is and making it something purely profitable, without concern for its place of origin. Helmreich also makes this point, saying “in the age of biotechnology, when substances and promises of biological materials, particularly stem cells and genomes, are increasingly inserted into projects of product-making and profit-seeking”[5].

This fundamental redefinition of the body as a commodity to be sold and used outside of its original agency then distorts the conceptions of property that surround the body and its derivative parts. This is seen acutely in the patenting regimes found in biomedical research that create distinctive property relations. Hoeyer makes this point, “Patenting is then represented as part of a stable property structure incorporating new objects of ownership”[6], which further raises question of what these new objects of ownership are, with the answer that ownership of biomedical material is put firmly into the hands of corporate and state interests as is seen with modern concepts such as cell lines, biobanks and genome data projects, where patenting and data removal are the norm. This redefines the concept of self-ownership, this being that “each person enjoys, over himself and his powers, full and exclusive rights of control and use, and therefore owes no service or product to anyone else that he has not contracted to supply”[7] and moves control of the body into the hands of organisations and structures. This can be particularly seen in the case of the HeLa cell line. This case centred around Henrietta Lacks, who had her cells voluntarily taken for research purposes. Yet when the research created conclusive, groundbreaking results, the profit gained was not shared with the Lacks family, and the use of such cells became entangled in a mesh of patents and claims, with the HeLa cell in line now having 11,000 patents surrounding it[8]. Again, the question of ownership is stoked, with the idea that no real compensation or say on how the HeLa cell data is used shows this process of involuntary commodification.

Parallels can be seen with the Human Genome Diversity Project, where not only was there an attempt to patent the biological data sourced from indigenous peoples, there was also an attempt to racialise the results, creating categories not necessarily in keeping with the socio-cultural traditions of the peoples the HGDP wanted to work with. As explained by Reardon “critics began to highlight the ways in which Diversity Project organizers were working on a highly contested terrain that had already been defined by values, practices and ideas other than ones derived from the life sciences”[9] showing the lack of cultural understanding that the HGDP had and the fact that through a scientific discourse, the project tried to change cultural definitions of the human body that these indigenous peoples held. Overall, the present governance structures that exist within biomedical research have served to treat the human body as a commodity separate from any cultural definition of humanity. Instead it redefines the conception of the body and its parts into that of a product or saleable/patentable process, where bodily material is taken as the property of profit-making or research-based agents. However this process is beginning to be reversed with the advent of social movements and political activism, which is moving the question away from how is the body best commoditised and towards an idea of inclusiveness with those whose bodies are used and exploited.

With social movements and political activism, we are seeing a change in the discourse of biomedical research toward something of a more ethical position, particularly in consideration to cultural and social issues surrounding the use of the human body and its derivative parts. This can be seen with the rise of indigenous rights groups and their focus on the use of indigenous peoples’ DNA as well as raising issues of ownership and compensation. A specific area indigenous groups/councils have been good in using for activism has been the United Nations. For example, the Indigenous Peoples’ Council on Biocolonialism, in concert with other indigenous organisations, created the Collective Statement of Indigenous Peoples on the Protection of Indigenous Knowledge, which is attempting to create a framework for indigenous peoples to in some way control the genetic data accrued from them and “maintain and protect biologically diverse ecosystems for the collective good”[10]. Further cases are seen with the HGDP, where indigenous groups objections to the intellectual appropriation of indigenous DNA ended the project prematurely. Indigenous groups actually forced the HGDP to consider a route of coproducing both social and scientific discourses to suit the needs of the indigenous peoples being studied. As Reardon states “To move forward… project organizers would have to negotiate these entanglements, and ‘co-produce’ a natural and social order”[11]. This again shows how political movements and activists can change the dynamics of biomedical research, and create definitions of the human body that are culturally sensitive and take into account the wants and needs of the local populations. A final example of social movements changing the discourse in the case of retribution being given to Henrietta Lacks’ family in the form of some control of the HeLa cell line. As stated in the Nature article “In the end, the family decided that it wanted the data to be available under a restricted-access system similar to the NIH dbGaP database, which links individuals’ genetic make-up to traits and diseases”[12] and “A committee that includes family members will handle requests, and papers that use the data will recognize Henrietta Lacks and her kin”[13] showing that political activism within scientific research can have results that lead to changes in scientific governance structures. This is further seen in the changes in patent regimes that the Lacks case inspired. The Nature article again points out “But it will probably inform other cases, she adds. The US government is redrafting rules that govern the relationship between federally funded researchers and participants”[14] shows how researchers are now being required to work alongside their participants, instead of simply patenting the data away from its source.

This then shows an ability for political activists to create new laws and ways of doing things inside currently existing political structures. We see this particularly with the rise of “social regulation”[15], where biomedical research is being put under constraints not by powerful organisations like corporations or the state but rather by community groups and NGOs. In the Frickel et al article we can see parallels with other movements in areas such as certification movements “in which local and transnational social movement organizations work to change industry production standards and marketplace labelling”[16] and TPM-based alternative industrial movements that “Rather than seeking to reform existing industrial practices…development of alternative pathways to industrial production through new products, such as complementary medicine, organic food, or open-source software”[17]. These types of movements show how changing governance structures both within and outside such structures is possible in the realm of scientific governance, and linking it back to the case studies of the HGDP and the HeLa cell line, show how such activism can create change in biomedical research in particular. A particular example in the area of biomedicine is seen with Palestinian IVF clinics, where doctors are working with the Palestinian population (specifically working with the wives of Palestinian prisoners) to create new Palestinian families where it is difficult to do so under the Israeli occupation. This shows a different example of political activism in the biomedical field. Here Palestinian clinics and activists are simply ignoring the outside political realities and instead are constructing new forms of resistance. However, while these movements have had their successes, where they fail is in their identification of the real problem, which is the larger neoliberal governance structures that are at play, with such things as patent regimes and codified laws. These movements need to start building their own structures and create new avenues of resistance, both within current structures through reform efforts and outside such structures through the development of alternative pathways, similar to the alternative industrial movements Frickel et al described.

The development of power relations within biomedical research is itself an inevitability. The question then becomes first, of identification of these power relations, and two, their mitigation to the people whom are most affected by these processes. As Foucault states ” where there is power, there is resistance”[18], which I think is a good concept of how social movements and political activists should operate within the field of biomedicine. While social movements can have this effect, as noted previously, there issue is in the scale of this effectiveness and how it creates new governance structures or paradigms in biomedical research. For example, corporations and governments still have massive control in the area of intellectual property and how biomedical data is used, thus defining the human body in their own way, removing it from its cultural structures. While the Indigenous Peoples Council on Biocolonialism have the right idea, stating “Genetic technology is a shared issue that impacts our global environment and humanity’s collective right to self-determination”[19], they need to put such ideas into action, by not only working with the UN and governments as they currently do, but also by forming their own biomedical research teams, creating their own biobanks and circumventing the patenting process. This way they can work in and outside of the current systems. It is not like this impossible, with Frickel et al noting previously that political activists have access to things such as open source software and the Copyleft movement that allow for the decisions on what is to be done with biomedical data taken from indigenous peoples to be decided by those peoples. There also needs to be a recognition of the real issues at stake, that international regulation and patent regimes stifling the ability for indigenous organisations and activists to actually create change. As noted by Carson in the realm of political economy “In another study, Scherer found no negative effect on R & D spending as a result of compulsory licensing of patents. A survey of U.S. firms found that 86% of inventions would have been developed without patents”[20] showing that in the area of research and development, where much of biomedical research occurs, patents actually hinder progress. Social movements also need to look at working in a radical manner inside markets and research areas by moving the discourse away from pure profiteering and exploitation and towards ethical ideas of using and trading research data. Parallels can be seen with the surrogate markets in India where Pande notes ” The surrogates resist them by forging relations with the baby and the intended mother. Some surrogates emphasize the “special” quality they had that made couples choose them over all the other workers”[21] where despite being in an extremely disadvantaged position were able to circumvent the economic dichotomy they lived in by creating new governance structures. Overall, social movements and political activism need to be radical in their approach if they want to redefine the human body away from its current conception as that of corporate property that can be removed from its cultural source and used to profit.

The current corporate and state-based governance structures involved in biomedical research mean that social movements and political activists have a mountain to climb in terms changing the definition and use of the human body and its parts within this field. While there have been successes as noted in case studies such as the opposition presented to the HGDP by indigenous councils and NGOs, which led to efforts to recognise the cultural sensitivities of the areas they were studying and attempt a process of coproduction. Again with the HeLa cell line case also shows the effectiveness of social activism, with the Lacks family eventually getting recognition for the cell line Henrietta Lacks helped create. However, these movements need to recognise the structures and systems at play, such as intellectual property laws and corporate hegemony and attempt to form types of social regulation as theorised by Frickel et al as well as work outside the system by creating their own governance structures, similar to other movements in other areas of scientific, political and economic discourses. By doing this, real change can be achieved both within market and research structures and outside them through the creation of new, bottom-up structures.

[1] Whitt, L. 2009. Science, Colonialism, and Indigenous Peoples: The Cultural Politics of Law and Knowledge. 1 Edition. Cambridge University Press. 1

[2] Scheper-Hughes, N. (2014). Commodifying Bodies. Available: http://anthropology.berkeley.edu/content/commodifying-bodies-0. Last accessed 19th Apr 2015.

[3] Here I must make a rejoinder, as I personally believe that the use and sale of human body parts isn’t necessarily bad in itself, but that the governance structures surrounding it and the very real ability to exploit are what are bad.

[4] Hoeyer, K. (2007). Person, Patent and Property: A Critique of the Commodification Hypothesis. Biosocieties. 2 (3), 327-348.

[5] Helmreich, S. (2008). Species of Biocapital. Science as Culture. 17 (4), 463-478.

[6] Hoeyer, K. (2007). Person, Patent and Property: A Critique of the Commodification Hypothesis. Biosocieties. 2 (3), 327-348.

[7] Cohen, G.A (2004). The Blackwell Dictionary of Western Philosophy. Hoboken: Blackwell Publishing. 630.

[8] Watson, D. 2010

[9] Reardon, J. (2001). The Human Genome Diversity Project: A Case Study in Coproduction. Social Studies of Science. 31 (3), 357-388.

[10] Indigenous Peoples Council on Biocolonialism. (2004). Collective Statement of Indigenous Peoples on the Protection of Indigenous Knowledge Agenda Item 4(e): Culture. Available: http://www.ipcb.org/resolutions/htmls/pf2004.html. Last accessed 20th Apr 2015.

[11] Reardon, J. (2001). The Human Genome Diversity Project: A Case Study in Coproduction. Social Studies of Science. 31 (3), 357-388.

[12] Callaway, E. (2013). Deal done over HeLa cell line. Nature. 500, 132-133.

[13] Callaway, E. (2013). Deal done over HeLa cell line. Nature. 500, 132-133.

[14] Callaway, E. (2013). Deal done over HeLa cell line. Nature. 500, 132-133.

[15] Frickel et al. (2011). Science and neoliberal globalization: a political sociological approach. Theory & Society. 40, 505-532.

[16] Frickel et al. (2011). Science and neoliberal globalization: a political sociological approach. Theory & Society. 40, 505-532.

[17] Frickel et al. (2011). Science and neoliberal globalization: a political sociological approach. Theory & Society. 40, 505-532.

[18] Foucault, M. (1990). The History of Sexuality 1: An Introduction . 3rd ed. New York: Vintage/Random House. 95-96.

[19] Suzara, A. (2006). Activist Debra Harry Speaks on Indigenous Peoples’ Movement to Challenge Biocolonialism. Available: http://www.ipcb.org/publications/other_art/holyoke.html. Last accessed 20th Apr 2015.

[20] Carson, K. (2002). The Iron Fist Behind the Invisible Hand. Available: http://www.mutualist.org/id4.html. Last accessed 20th Apr 2015.

[21] Pande, A. (2010). Commercial Surrogacy in India: Manufacturing a Perfect Mother‐Worker. Chicago Journals. 35 (4), 969-992.

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