Patenting gene sequences, especially concerning BRCA genes, leaves women(people) governed by “technologies of subjection” and limits their medical options

Centered on the metaphor of genes as information, the initial 2009 ACLU complaint argues that Myriad’s BRCA1 and BRCA2 patents restrict the flow of information regarding breast cancer research. Women are prevented from receiving genetic information regarding their susceptibility for the disease because testing can only be done through Myriad laboratories. The complaint points out that many women, particularly women of color, cannot afford the testing. This is because patent law provides Myriad with a temporary monopoly over breast cancer testing involving BRCA1 and BRCA2 genes, allowing Myriad to keep costs high and to be selective in the types of insurance they accept from patients. The legal com- plaint also argues that gene patents restrict information sharing among researchers, precluding them from developing alternative tests. Female patients at risk for breast cancer are unable to obtain more meaningful genetic testing, and female scientists are hindered from doing breast cancer research. Thus, women’s labor and participation (and health) in the bioeconomy is curtailed. The ACLU argues therefore for overturning genetic sequence patents and keeping them in the public domain. BRCA1 and BRCA2 gene sequences should not be patented and should remain freely available in the public domain for scientific research.

Similar arguments are made in the initial amicus briefs filed on behalf of the plaintiffs. A coalition of women’s health advocates assert that gene patents “prevent women at risk for breast cancer and ovarian cancer from obtaining the information they need about their own bodies to take steps to improve their health outcomes, and possibly save their own lives and the lives of their children.”68 Thus, they argue, it is critical that genetic sequence “knowledge and information are maintained in the public domain.”69 In developing a feminist analysis of patent law, one must think carefully how this case leaves neoliberal, biopolitical values unchallenged.

Contemporary biopolitics, as discussed above, obliges women as the primary caretakers to engage in technologies of optimization for themselves and their families. Mechanics of neoliberal, biopolitics argue that patent law is crucial for providing new medical technologies to assist women in the self-management of their health. The ACLU case disputes such claims regarding patent ownership, while leaving biopolitical assumptions intact. The ACLU complaint argues that gene sequence patents actually prevent women from making decisions regarding their health and the well-being of their families. Myriad’s patent ownership rights enable the company to maintain a monopoly control over breast cancer research and testing. Populations of women therefore become regulated differently through legal “technologies of subjection” as high costs and insurance restrictions mean that only some women at risk for breast cancer can obtain testing.70 The case therefore argues that excluding gene sequences from patentable subject matter and placing them in the public domain would promote women’s right to health by giving them alternative testing technologies and better breast cancer research. The case however does not go far enough to challenge the styles of thought driving contemporary bioeconomies. The goal of the case is to facilitate women’s access to genetic testing, thus it reinforces biopolitical obligations for women to donate bodily tissues and utilize medical technologies. Biopolitical values are thus simultaneously challenged, while also being upheld.