Kruti Kachhwaha
Class of 2023 | Institute of Law, Nirma University
Rashi Choudhary
Class of 2023 | National Law University, Jodhpur
Image by fergregory from iStock
Introduction
Cryogenic preservation of human beings is an attempt to convert the fantasy of immortality into a reality. The process of cryogenic preservation involves preserving legally dead bodies in a manner that the integrity of the brain activity and cell structure can be maintained.
Once declared legally dead, the body is put through a process that cools it down to temperatures below -130 degrees celsius and is further injected with chemicals and solutions that would preserve the organs.
Thus, once the body reaches the desired temperature, it is stored in a container filled with liquid nitrogen, where it rests and waits, hoping for future revival. The goal is to preserve the individual’s physical structure and essential organs until such time when advanced medical technologies can restore their health and consciousness.
Like any other developing technology, cryogenic preservation and the subsequent hope of revival of human beings, raises crucial legal and ethical issues. It is a controversial and speculative field with ongoing scientific, legal and ethical debates surrounding its feasibility and implications.
The process is often considered as and ‘ambulance to the future’ but raises multiple questions spanning diverse legal domains such as euthanasia, property, criminal, and civil laws. Among these issues, the question of patentability stands as a prominent concern, raising its own set of intricate legal considerations.
This article focuses on the issues surrounding patent eligibility of cryogenic preservation of humans.
The Principle of Morality Exclusion
The Principle of Morality Exclusion plays a crucial role in patent law across different jurisdictions. The TRIPS Agreement allows member states to exclude certain inventions from patentability if it is necessary to protect public order or morality. The general practice is to deny patent protection to those inventions, exploitation of which would be against morality and public order, no matter how novel and useful they are.
However, a controversy revolves around the question of how morality should be perceived and what standards are to be applied by inventors, patent examiners, advocates and judges.
Essentially, how would morality be interpreted in the patent regime. How would one establish morality? And at what point in time, the inquiry is relevant? What would happen in cases where an invention was granted protection and after a few years it becomes immoral? Such questions constantly come up in the Patent and morality debate.
Exclusion of Human Body Rule and Cryogenic Preservation of Human Beings
When considering cryogenic preservation of human beings, whether obtaining a patent for this technology would be immoral is subjective due to ethical considerations. It could be seen as immoral because of concerns about the sanctity of human life, human dignity, or the possible exploitation of vulnerable people during the cryopreservation process. On the other hand, proponents might argue that cryogenic preservation, if successful, could offer individuals the opportunity to be revived and potentially contribute to society in the future.
If viewed from a utilitarian perspective, where the potential risks entailed are to be compared with the usefulness of the invention, cryogenic preservation could seem to be a significant development for the society. But if conventionally accepted ideas of mortality and the sanctity of human life are considered, the morality of the process becomes questionable.
The exclusion of the human body rule in patentability is a critical aspect to consider in the context of cryogenic preservation. The exclusion of human body rule states that the human body, through its various stages of formation and development, cannot be patented. This rule is based on the principle that the human body and its parts should not be subjected to exclusive ownership or commercial exploitation.
Cryogenic preservation involves the preservation of the human body/brain, and the question arises as to whether this falls within the scope of the human body exclusion.
The controversy that arises here is whether a frozen human body/brain undergoing a transition from life to death should be considered to be isolated from the human body. If yes, then there’s a chance that a related invention can be a subject of the patent system; otherwise not. The new understanding of life and death is slightly different. It is not just two sides of a coin. Rather, process of life to death is considered to be a process of gradual transition. And it is this transitional process on which the hopes of revival rely. Cryogenic process freezes or pauses the dying process with the hopes of future revival. Since according to this understanding death is not instant, doctors still have time to successfully save a person’s life by using cryogenic processes that pause dying.
Correlating Exclusion of Human Body Rule with Principle of Morality Exclusion
The principle of morality exclusion is a fundamental principle in patent law that prohibits the grant of patents for inventions that are considered immoral or against public order. The exclusion of human body rule is a specific limitation that prohibits the patenting of human organisms in their natural state.
This rule is based on the notion that human beings, as living entities, should not be subject to exclusive ownership or commercial exploitation. It reflects ethical concerns about commodifying human life or treating the human body as an object of property. A major controversy that arises in the cryogenic preservation process is whether it raises questions related to morality and public order. On one hand, it can be argued that cryogenic preservation is a process involving the preservation of a deceased human body or brain and is essentially an attempt to patent or claim ownership over the human body, which is ethically and legally problematic.
On the other hand, proponents of patentability may argue that cryogenic preservation is not directed towards the human body per se but rather towards the process of preservation and potential revival of biological material for scientific and medical purposes. Hence, the focus is on a process patent rather than a product patent.
Therefore, even after the application of exclusion of human body rules, the debate remains unresolved, due to the application of the principle of morality exclusion.
India and the Exclusion of Human Body Rule
In India, the exclusion of the human body rule is enshrined in Section 3(b) of the Patents Act, 1970. It provides that inventions which are contrary to morality and public order or that are likely to cause prejudice to the life or health of humans, animals, or plants are not considered patentable. An invention, the use of which is against well accepted and settled social, cultural and legal norms of the society are not considered patentable. For example, cloning of human beings. The purpose of the provision is to prevent exploitation and commercialization of the human body and it emphasizes the importance of preserving human dignity and integrity.
In India, patenting inventions related to life forms, particularly human beings, isn’t much explored and cryogenic preservation of human beings would potentially raise similar ethical and moral questions as discussed above. Patenting inventions so deeply connected to the human body could fall under section 3(b) prohibition and be considered against the sanctity of the human body.
Conclusion
The process of cryogenic preservation of human beings presents a captivating yet controversial endeavor, aiming to bridge the gap between mortality and immortality. Success in cryogenics would be a significant development in the field of science. However, it also brings to the forefront a series of legal questions that cannot be overlooked. A number of bodies have been preserved with the hopes of revival and many more are signing up for it. With some scientists projecting the possibility of achieving the first successful case of cryogenic preservation by 2040, it becomes crucial to promptly address the associated legal issues.
Since cryogenics is a relatively new field, it may face challenges in gaining acceptance in India. The cryonics research institute was established in West Bengal. It was established with a dedicated plan to explore cryonics techniques in India. However, progress in cryogenic preservation has been slow in India due to government regulations, financial constraints and limited infrastructure and research support. As the field evolves, these issues could be addressed through awareness and policy development.
The existing patent framework may require careful examination and potential adjustments to accommodate the unique aspects of cryogenic preservation. As discussed earlier, cryogenics raises complex ethical considerations regarding the patentability of human life, the boundaries of patent eligibility, and the interpretation of morality within the patent system. The morality of using cryogenics must be considered, as well as the implications of its commodification, exclusivity and the immorality of preceding research.
There is a need to balance patent law and human rights. To ensure that the legal framework keeps up with advances in cryogenics and facilitates scientific progress, it may be essential for policymakers, legal experts, and scientists to engage in ongoing dialogue and collaborative efforts to determine the most appropriate legal framework. Collaboration between scientific and legal experts should be encouraged to gain a comprehensive understanding of the scientific and ethical dimensions of cryogenic preservation.
By proactively addressing the legal questions and possible gaps related to cryogenic preservation in advance, we can make sure that the growth of this field is supported by a strong and clear legal system that encourages responsible innovation and takes into account ethical concerns.
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