Patent law could create an "ethical thicket" around human genome editing that ultimately discourages access to "germline editing" -- changing sperm and egg to create designer children -- in countries such as China, Greece, Mexico, Spain, and Ukraine, say researchers.
The World Health Organisation has explored international governance tools for human genome engineering, but as long as individual countries are allowed to set and enforce their own policies, the possibility of people engaging in medical tourism to other countries to circumvent domestic prohibitions remains a risk, the researchers said in a paper published by the Journal of the American Medical Association.
"A lot of policymakers and medical practitioners are concerned with some of the genomic editing technologies out there, specifically with technologies that focus on allowing parents to pick and choose their children's height, eye color, skin tone, and the like," said Jacob S. Sherkow, Professor of Law, at the University of Illinois Urbana-Champaign at Illinois.
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The paper outlines the role of patent law to regulate the medically and ethically dubious practice of heritable human genome editing.
While there's already a trend in the US toward patenting human heritable germline-editing technology, it could be especially important for countries where patent laws and regulatory systems surrounding gene-editing technologies diverge, Sherkow said.
"Some countries have strong patent protections but weak regulatory protection, while other countries are the opposite," Sherkow said. "Using patent protections that are granted in countries that otherwise have a weaker regulatory system -- we think that's an economically sensible and politically feasible path forward."
However, as a strategy, it's not a silver bullet but a hurdle to trip up bad actors, Sherkow said.
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"It's not a complete solution by any means, as it relies on private interests to police the social harms of a private activity," he said.
"But patents present an opportunity to combine the tools of commercialization and ethical behavior in a manner not readily available in other enforcement mechanisms, especially given the disparate international regulation. So this is a particularly important moment to consider ethical governance by patent, and we think it's a pretty significant arrow in the regulatory quiver," Sherkow noted.
