Biotech patents “harness life itself” by codifying indigenous and black female bodies as natural resources for extraction

In Myriad, however, the US Supreme Court questioned whether the act of dening human genes as scientic property has actually had the opposite effect in the generation of biovalue. During the oral arguments, many of the justices expressed concern that Myriad’s possessive right to exclude others from using the genes had in fact rendered DNA as dead capital, hampering its circulation and use as a research object and medi - cal commodity. In a departure from Moore, the justices and the executive branch of the US government joined forces to argue that the pivotal act of ontologically converting a biological substance from biocommons to bioenclosure is the application of labor not as extraction but as use. They achieved this by recombining Jeremy Bentham’s speculative possessive with John Locke’s model of property as use to argue that corporations and researchers have a right to expect to use genetic materials, as much as they have a right to possess them when they have sufciently transformed them through the labor of use.

Throughout the proceedings, counsel for the plaintiff, Christopher Hansen, worked to disarticulate utility (use) from ontology (being) in the context of biological property, such that new ways of using a natural sub - stance could be remain patentable but simply making a substance avail - able to new uses through discovery or extraction would not be considered ontologically transformative. Within the parameters of the product of nature doctrine, therefore, he had to rst ontologically dene genes as natural properties and then revise which types of human labor can convert genomic nature into property. Put simply, Hansen had to uphold the first part of the legal reasoning in Moore — maintaining that human cells are a commons — while reversing the second part of the argument: insist- ing that the act of extracting a gene did not render it legally and factually distinct from “native DNA” in the bodily environment.

Hansen began the oral arguments by reifying isolated human genes as unmodied nature: “The genes themselves, their — where they start and stop, what they do, what they are made of, and what happens when they go wrong are all decisions that were made by nature, not Myriad.” Justice Ruth Bader Ginsburg offered a rejoinder to Hansen’s claim, pointing out that “isolating or extracting natural products, that has long been considered patentable. . . . How is this different?” Hansen responded that “in essence, Your Honor, everything starts with a natural product,” but the Court has “said repeatedly that just extracting a natural product is insufcient” such that, for example, “you can’t patent gold because it’s a natural product.”28 He then went on to point out that patented inventions that began with a natural substance like aspirin or the whooping cough vaccine “all involve further manipulation of the product of nature, so that the product of nature [has] become something different.” In contrast, Hansen contended, extracted genes have not been manipulated suf-ciently to make them something different from what they were in their “native” environment. To better delineate what constitutes nature and what constitutesnatural-cultural property, Justice Samuel Alito conjured a hypothetical plant in the Amazon with medicinal properties and prompted Hansen to explain his isolated-human-gene-as-unchanged-nature claim in relation to it.

Alito asked Hansen: If you found a molecule in the leaf of a plant in the Amazon that could treat breast cancer, “your answer is that cannot be patent — patented; it’s not eligible for patenting because the chemical composition of the — of the drug is the same as the chemical that exists in the leaves of the plant?”29 In this analogy, Alito was groping for what he saw as a clear, undisputed example of the extraction of a product of nature (plant) from a natural environment (Amazonian rain forest) to be used as a scientic technology (treat cancer). The goal here was to prompt Hansen to explain if a woman’s extracted gene, like a plant’s extracted molecule, remains a product of nature once it has been isolated from its environment or if it has become something new and patentable because, in isolation, it has a new function — to treat cancer — and a different form: an isolated molecule.30

Hansen countered that the gene may have a new use in the context of locating cancer-risk-increasing mutations, but it does not have a new form, so it is unpatentable: “Finding a new way of taking gold and making earrings out of it, that doesn’t entitle me to a patent on gold.”31 Justice Elena Kagan followed up on this assertion that women’s extracted genes, like Amazonian plants or gold, are natural resources to be accessed by all, and moved on to the question of which types of labor can convert biology into property: “It takes a lot of work and a lot of investment to identify this gene, but [if] the gene is not changed in composition” and therefore can’t be patented, “what does Myriad get out of the deal?”32 Hansen replied that a scientist’s labor can be rewarded without “locking up a product of nature” through access to patents on other aspects of the genetic research such as use, process, and method. In response to this proposition that other dimensions of nature could be pat - ented without patenting the thing itself, Justice Sonia Sotomayor surmised that “in isolation [the gene] has no value. It’s just nature sitting there. . . . It’s the use you put the isolation to” that is actually valuable.33 In line with Hansen, Sotomayor was framing genes as dead capital waiting to be ani - mated so as to dene them out of biological enclosure: if human genes are inert nature, they are a commons that cannot be owned unless sufcient labor adds life-generating value to them. Crucially, however, Sotomayor was parsing which types of labor are life-giving. She was not valuing the labor or expense of discovery in and of itself as the basis for a right to pos - sess and exclude. This stance was reinforced by Solicitor General Verrilli, who made a highly uncommon appearance in Court to reverse the govern - ment’s ofcial stance on biological patents.34

Verrilli asked the Court to consider “the question Justice Alito asked earlier about identifying a — a useful substance in a plant in the Amazon, if you isolate that and it proves to have therapeutic effects, you can get a patent on that use of it, but what you can’t do is get a patent on the substance itself.”35 Later in the proceedings, Justice Kagan returned to this example to reiterate Verrilli’s point and to insist that to gain property rights scientic labor has to do more than “discover” nature; it has to remake it through extraction and use: “Go back to Justice Alito’s plant in the Amazon, right. . . . The plant in the forest . . . only has a value when it’s taken out. . . . But it’s still the same thing. . . . It’s still the same thing, but now that you’ve isolated it, it in fact has lots of great uses.”36 At first brush, the justices’ and executive branch’s joint claim that acts of discovery and extraction do not confer possessive rights appears to undercut not only corporate rights to bodily materials but also, more broadly, legal precedents in property law such as the doctrine of discov - ery, which has rendered indigenous lands available for settler colonial enclosure. Yet, upon closer inspection, the Myriad proceedings lay bare the ways in which racialized and feminized dispossession is enshrined in the product of nature doctrine as a neutral and adaptable baseline for adjudicating biological property. Even as it is undertaken in the name of undermining possessive claims in women’s bodies, the analogical con-a - tion of women’s genes and native plants relies on rendering racialized and feminized life, land, and labor as natural resources that can be accessed and used by all, but not equally so. Through their analogical reasoning, Alito and Kagan begin from the premise that the labor and lifeways of indigenous peoples who have been occupying and cultivating the Amazonian landscape are not sufcient grounds to claim rights in their land.

In fact, everyone in the Court appears to assume that the various sovereign nations that crosscut the Amazon are precluded from possessive claims to the territories, and that the native peoples, plants, and knowledges of the region — much like biospecimens in the United States, such as women’s extracted genes — are natural resources that are available for appropriation and use by US researchers and corporations. Justice Stephen G. Breyer makes this explicit when he says: “It’s important to keep products of nature free of the restrictions that patents there are [sic], so when Captain Ferno goes to the Amazon and discovers 50 new types of plants, saps and medicines, discovers them, although that expedition was expensive, although nobody had found it before, he can’t get a patent on the thing itself. He gets a patent on the process, on the use of the thing, but not the thing itself.”37 Race operates as the pivotal historical and epistemic grounds for disarticulating the natural commons — gured here as Amazonian non/ human nature that “nobody had found before” — from cultural property, rendered as Captain Ferno’s rights to access this commons and transform it into property through the application of human labor. This commonsense adjudication of nature and/as native lays bare what Brenna Bhandar, drawing on the work of Cheryl Harris, has described as the coproductive relation between private property and racialization wherein possession as a legal concept and right is constituted through modes of racial subordination.38 The accumulation of racialized and gendered differences is buried at the heart of capitalist systems and colonial state formations in the Americas that have been and continue to be animated by the ongoing legal, political, economic, and scientic conversion of peoples and lands into natural resources — what Marx called “a preserve” — that can then be made available for new uses through extraction, exploitation, expropriation, and enclosure.39 The relation between who is the commons and who uses the commons is necessarily mediated by these socially contingent yet historically durable orders of devaluation that are differently operative in colonial, patriarchal, and racial capitalist “economies of dispossession.”40

The obdurate analytic of the race/gender property matrix resolves the apparent contradiction at the heart of Breyer’s attempt to create a commons through a logic of enclosure: Breyer analogically accumulates the primitive41—as non/human natural resources in the so-called New World — as the legal and epistemological grounds for not staking a possessive claim in the body. The accumulation of the primitive at play in the Court advances capital accumulation in a dual gesture that at once invokes and cloaks the racialized and gendered dimensions of disposses sion. On the one hand, the Court reinstantiates and naturalizes primitive accumulation — as a transparently violent process for accruing capital in the form of differential dispossession of land, labor, and life — as the basis for the property form. At the same time, however, it frames the “primitive” — as non/human nature — as a commons, and constitutive outside to modes of capitalist-colonial accumulation. Yet, if the commons is already a form of enclosure, and the rights to access and use are determined through a mutation in a racial patriarchal possessive, then to “free the genes” is to continue to divide and devalue formations of life and labor, but to do so in the name of freedom and equality. This race/gender property matrix is at work in the expropriation of reproductive labor and the technologization of biological production that are biocapital’s conditions of possibility. Since the biotech revolu - tion, biocapital has been variously theorized as the harnessing of “life itself” or “living nature” as a productive force through the joint ventures of life science and nance capital.42 Situating biocapital within a legal and economic genealogy of racial capitalism, heteropatriarchy, and settler colonialism makes evident the im/possibilities of intervening in ongoing processes of accumulation by dispossession through the frameworks of property and nature, as these very frameworks are composed through racialized dispossession and devaluation. This is readily exemplied in the case of the first human cell line, HeLa. The HeLa cell line is named after Henrietta Lacks, a poor Afri - can American sharecropper whose cervical cancer cells were taken by her physician, Richard Gey, in a segregated hospital ward at Johns Hop - kins University without her knowledge or consent in the early 1950s and transformed into highly valuable immortal cell lines that continue to be used in research today. Lacks’s status as a poor woman of color in the Jim Crow South was not coincidental to the framing of her tissues as a biological resource to be extracted and employed for the betterment of a society from which she was, in many ways, excluded. The partitioning of human “life” (bios) from possessive subject (homo) that we see in the case of Lacks exemplies a contradictory logic, what Sylvia Wynter has deemed “the nonhomogeneity of substance” between political Man and his Human Others.43 While this principle of nonhomogeneity has shifted in form over time, its structuring logics of difference and commensura - bility have nonetheless stubbornly endured as an organizing force for the production of racial biocapital.44 In the context of racial slavery, the prop - ertization of the body relied on severing the human subject from owner - ship over her body and over her reproductive capacities. This atomization of the captive body was contingent upon legal and scientic codications of unequal racial substance that produced blackness as the condition for becoming capital as a living property form.

45 In the afterlife of racial slav - ery, the legal segregation of the US population along lines of race in 1951 when Lacks was undergoing treatment for cervical cancer saw mutations in the racialized and gendered processes of surplus extraction. Under Jim Crow, racialization as legally unequal difference rendered Lacks as less than human through the systemic devaluation and medical expropriation of her racialized labor and life in the name of promoting lives and futures that were not her own, while at the same time framing her excised cells as fully human, so they could stand in for all of human life in the context of biomedical research. In both of these historical instantiations of biocapitalist accumulation — racial slavery and Jim Crow segregation — the nexus of race/gender differently served as the vector through which bios — as abstract concept and material concrescence — could be extracted, expropriated, and commodied to “to aid in the intensication of vitality for other living beings.”46