CCAR RESPONSA
New American Reform Responsa
153. Patenting Genetic Engineering*
QUESTION: May genetically engineered changes in a mouse designed for medical experiments be patented? (Arthur Gershman, Arlington VA)
ANSWER: The members of the ResponsaCommittee who discussed this question felt a high degree of discomfort with patenting changes in a living creature. The animal itself should not be patented. An animal, in contrast to a plant, possesses an additional element of the sacred, (although the medieval discussion of whether an animal possesses a soul was inconclusive, and was left to the “days of the Messiah”). Animals possess a special relationship with human beings according to our tradition.
Social policy has led to plant patents. This has protected the livelihood of individuals and made a more abundant human existence possible. However, patenting an animal leads us in a direction not conducive to respect for life. The Holocaust has made us aware of the dangers of dehumanization, the process, i.e. the genetic change, may be patented but the mouse itself should not be patented.
If we look at patents and the protection they offer within Judaism, we realize that the notion of protecting an idea or a newly created work is fairly new. There were periods in our history when the originator of a new work sought to make it seem old and thereby give it a greater acceptance. That was true of large anonymous sections of the Bible which have been added to various prophetic books, the apocryphal books and of such works as the Zohar. In modern times we have sought to protect the creative efforts of individuals. We may link this to the traditional concern for protecting an individual’s livelihood. It was always considered important to assure the livelihood of craftsmen, artisans, teachers and tradesmen in the community by limiting the access of others or prohibiting it entirely. This was carefully balanced throughout the ages with a concern for the economic well being of the community and concern about a potential monopoly which might drive prices excessively high (M B M 4.5; B B 21a; Kid 59a and commentaries; Yad Hil Zekia Umatanah 1.14; Tur and Shulhan Arukh Hoshen Mishpat 156; Meir of Rothenburg Responsa#544; etc).
Even in conjunction with “sacred” areas as the teaching and interpretation of the written and oral law, great care was exercised to protect the jurisdiction and status of rabbis and teachers. Some authorities like Isserlein and Weill permitted competition and felt that it was good for the community (Weill Responsa #151; Isserlein Terumat Hadeshen #128). Israel Isserlein made his decision on the basis of encouraging the study of Torah. Some later authorities agreed with them. Many scholars felt that the appointed rabbi of the community had a right to protect his status, both as a teacher and a judge. He could also protect the income from these and other sources (Avnei Nezer Yoreh Deah 312.37; Meshiv Davar 1 8,9; Hatam Sofer Hoshen Mishpat #21; Mayim Amuqim #70). The Shulhan Arukh and its commentaries present both points of view (Shulhan ArukhYoreh Deah 245.18 ff). This equivocation on the part of the medieval authorities was intended to encourage strong scholarly leadership.
Matters changed when the modern rabbinate became a profession and the rabbi’s livelihood depended upon services rendered to the congregation. Under these circumstances, it was forbidden to trespass on another rabbi’s territory (Moses Sofer Hatam Sofer Hoshen Mishpat #21; Yoreh Deah #32; Meshiv Davar #8). Some disagreement remained on the right of a newcomer to teach as this is a mitzvah and its fulfillment should not be denied to anyone (Elijah ben Hayim Mayim Amuqim, #70; Akiva Eger, Responsa Tanina #12; Abraham Mordecai Halevi Ginat VeradimYoreh Deah 3.7). Livelihoods were protected and the matter under discussion is related to this question.
Similarly books of prayer which were in the public domain and which could be considered part of the divine tradition were protected through copyright. So, for example, the first edition of the famous Heidenheim Mahzor printed in Roedelheim contained statements by four prominent rabbis granting a copyright. When a printer in Sulzbach proceeded to re-publish the work, a special statement warning against its purchase was issued by Pinhas Horowitz of Frankfurt (final page Heidenheim Mahzor 1832). Many responsa subsequently have dealt with copyrights. The main consideration was the effort and investment made in the work; without protection publishers would be unwilling to undertake such risks (Moses Sofer ResponsaHoshen Mishpat #41; etc). All of these instances indicate that protection of an invention is permitted and may be considered necessary as well as desirable.
We can see that the pattern of tradition intended to protect someone’s livelihood and reflected social policy. As we look at this social policy in connection with medical experiments we must always ask ourselves whether this enhances or diminishes the respect for human life and all life.
In conclusion we have many reservations about patenting an animal and would reject that concept. We also have reservations about the implications of patenting the genetic change. We would tentatively agree to patenting the process.
March 1989
If needed, please consult Abbreviations used in CCAR Responsa.