Orphan Black

A few readers asked about the TV series Orphan Black a while back.  Now that the show is in its second season (and I finally got around to watching the first one and have caught up with the second one), I thought I’d address the central legal questions raised by the show.  Moderate spoilers below if you haven’t seen past the first episode or so, followed by big spoilers if you haven’t seen the season one finale.

The first question readers had regards the fundamental premise of the show, so it makes sense to address that one first.  The second question is about the twist introduced at the end of the first season.  Canonically the show is set in Toronto, but I’m going to answer the first question primarily from a US perspective.  The second question regards an area of law I am more familiar with, and I feel reasonably comfortable addressing the Canadian law in that area.

I. Is Any of This Legal?

And by “this” I mean “human cloning.”  The answer depends on why the cloning is being done and where.  There are two types of cloning: reproductive cloning (i.e. producing a clone in order to make a whole, mature person) and therapeutic cloning (i.e. producing an embryonic clone for stem cells or matched organs).  The former has never (verifiably) been done in humans, whereas the latter has been.

At the US federal level there is no comprehensive prohibition on reproductive cloning, despite several attempts at introducing such legislation.  Part of the problem has been crafting a bill that would prohibit reproductive cloning without prohibiting or needlessly hampering therapeutic cloning.  The states, however, have been more active.  As of 2008 at least thirteen states had completely banned reproductive cloning and two had banned the use of public money to fund it.  Some of those states also ban therapeutic cloning.

Of course, these state bans have limited jurisdiction, and they only affect the act of producing the clone.  The clone itself (assuming a viable human results from the procedure) would presumably be treated like any other person…with at least one important complication: who are a clone’s parents?  Arguably, existing law does not address the situation very well.  For an interesting article on the subject, check out W. Nicholson Price II, Am I My Son? Human Clones and the Modern Family, 11 Colum. Sci. & Tech. L. Rev. 119 (2010).

In Canada there is an outright ban on human cloning, part of the 2004 Assisted Human Reproduction Act.

But of course none of these laws were in effect at the time Sarah and the other clones were created in the 1970s 1984 [Note: Thanks to reader ‘pc’ who corrected the clones’ birth year], so in that particular regard the clone creators haven’t (technically) done anything illegal.  There is, of course, everything else they did, but never mind that…

And now for the big season one twist

II. Patent Pending?

No, no, no.  Wrong, wrong, wrongity wrong.  The clones cannot be patented. Even if they could be, that does not mean that Dyad owns them or Kira.  Oh how wrong this is, let me count the ways.

In Canada it’s not possible to patent any higher life forms, not even “simple” animals such as genetically engineered mice (plants are okay, though, for reasons that strike some as unprincipled). Harvard College v. Canada (Commissioner of Patents).  It is likely that the Canadian Charter of Rights and Freedoms would prohibit exerting ownership over a human being via a patent in any case.

In the US it’s possible to patent genetically engineered animals, but it is not possible to patent anything that is “directed to or encompasses a human being.”  This was a long-standing Patent Office policy and was codified by the 2011 America Invents Act.  Furthermore, the 13th Amendment’s prohibition on slavery would almost certainly mean that even if it were possible to obtain a patent on a genetically engineered human being it would be impossible to enforce such a patent.

(NB: In the show Rachel says something about a recent Supreme Court decision regarding synthetic DNA, probably a reference to the Association for Molecular Pathology case.  It’s a nice reference to current events, but that case has no bearing on patenting genetically engineered humans or on asserting gene patents against individual humans qua humans.)

Next up: patents have a limited term, and they must be filed for within a certain time after an invention has been in public use.  The law on this varies from country to country and has varied over time as well, but the bottom line is that there is almost no way that Dyad can have a valid patent that covers Sarah and the clones in 2014.  Such a patent would either have to have been filed for in the 1970s at most a year after the clones were born (for a US patent), in which case it would be expired now, or it would have to have been filed for more recently, in which case it would be invalid.  It’s possible it could have been the result of a so-called submarine patent, but those are difficult to engineer, and in any case I don’t think that was ever really possible outside the United States.

Finally: patents are public.  The word patent literally means “open.”  If Dyad owned patents on a method for producing viable human clones (or on genetically engineered humans, or both) it would be public knowledge and a huge deal.  Certainly Cosima would be aware of it.

Overall the patent nonsense strains my suspension of disbelief, but I’m okay with it because it’s otherwise a very good show.

26 responses to “Orphan Black

  1. Great post, enjoyed seeing this show covered.

    I agree, it really took me out of it when they started talking about patents in such a ridiculous way. I think Cosima even says “we’re property” or something very close to that.

    I tried to give them a little more credit. Cosima ostensibly knows about this stuff, and I suppose she could have meant that because they were actively pursuing patents, she didn’t trust claims that Dyad just wanted to be warm, fuzzy, and benevolent. It was pretty clear from the dialog though, that she thought they thought they owned the people, and the government would agree.

  2. Anonymous Rex

    I think it’s great that you researched this so much. I love thought experiments such as these, It just struck me though, wouldn’t it be fantastic if they incorporated this into the storyline?

    Invariably, sci-fi fiction requires copious amounts of plot twists to ratchet up the drama…wouldn’t it be cool if they referenced modern patent law? Imagine a confrontation where the mad scientist guy says that the “patent” code in the clones DNA was inserted in a time when there was no legal precedent. Or your statement that even if it were patentable, the Institute could not own people.

    I think that would make a plausible “oh wait…maybe the institute isn’t as bad as I thought” plot twist. Either way, great post…

  3. That mention of “synthetic DNA” makes be think that the clones of Orphan Black may not have their genes taken from a human donor – that their entire DNA sequence was artificially constructed from the component chemicals.

    Aside from the fact that such a technique would be an even bigger deal in the scientific community (and so get even more public attention) what effect do you believe that would have on the legal standing of the patent and the legal status of the clones?

    Would the fact that it was completely artificially produced allow the Dyad Institute to patent their DNA? Would the fact that they had no human ancestor, coupled with the alterations resulting in superhuman abilities (Kira and possibly Helena’s inhuman fortitude and healing), allow Dyad to have them legally classified as non-human?

    • The law is not clear on this subject, since it’s never come up. Indeed, there isn’t really a legal definition of “human being.” However, it’s pretty clear that, say, a genetically engineered mouse with one human gene inserted into it isn’t human, and a genetically engineered human with one modified gene would still be human. Somewhere along that continuum things might get blurry, but I highly doubt it would be on the Sarah/Kira side.

      Another strike against that argument is that Sarah was able to have a child. Now, we don’t know who the father is, and it’s possible it was another member of the clone “species”, but assuming it was a genetically typically human, then that argues against the clones being biologically non-human, regardless of whether their original chromosomes were constructed the usual way or by a DNA sequencing machine. It’s not a conclusive argument, not least because the biological definition(s) of species are more complex than that, but it’s a strong one in my opinion.

  4. An episode of Century City focused on this. The client’s son had terminal liver cancer, and he went to Singapore (dodging U.S. law) to have to boy cloned to provide a partial liver transplant. He proclaimed himself ready to face any criminal penalties, but was suing to get the clone back after Customs confiscated it. After various maneuvering, including argument over the “obsolete” action of replevin, it finally came out that the “son” was also a clone; so that his “grandparents” were the real parents who had to give consent for any operations.

    • I’ve always thought those things sounded ridiculous. Wouldn’t it be far easier legally and physically to just clone the organ?

      • James Pollock

        Why would it be easier to clone just one organ rather than an entire organism?

        Think about it… a living organism has many, many interrelated parts. If you want to grow just one of the parts, you’ll have to somehow still do all the other parts artificially. And if you can replicate those things artificially, why are you cloning anything?

      • But much less telegenic.

      • Actually there are similar ideas already being done completely without a full human body, for example a girl had a full windpipe ‘printed’ out and implanted in her.

        Between that and the amount of waiting one would have to do for the organ to be at all viable for an adult if it’s grown naturally in a cloned human, cloned or printed organs sound far more practical.

      • James Pollock

        “for example a girl had a full windpipe ‘printed’ out and implanted in her.”

        Yes, that’s the “why are you cloning at all” prong of my argument. If you can build parts to order, you don’t need to clone spares.

        I think people who favor the “create a clone so you can harvest its organs” mostly assume there will be some way to fast-track the growth. This is true of many fictional cases… the clones of Star Wars, or the replicants of Blade Runner, for example. This contrasts with the real-world practice sometimes seen, where parents of a sick child decide to have another child to create a bone-marrow donor.

  5. If Sara had signed the contract suggested by Dyad, could she later claim that it was signed under duress, and void it?
    She had good reasons to fear for her life and the life and safety of her child, and even though most of those reasons were connected to third parties (like Helena and religious fanatics), she was also branded as property by a large, secretive, and it seems a very powerful corporation that does not forego illegal means of getting what they want (like blackmail and spying). Would that be enough to claim duress?

    Also – is the contract itself legal?
    We don’t see the exact wording of course, but Leekie implies in his talk with Alison that it includes taking away the monitors. I assume monitoring the clones would be very illegal, so there would be no way to put it in a legally binding contract, right?

    Lastly, can a contract be made that makes it later impossible or very hard to refuse medical examination?
    I would assume that contract like the one suggested by Dyad, that makes regular medical observation mandatory must have some way to unilaterally stop it, but I have no idea how big can they make the penalty for that.

  6. What about Alison’s actions in the season finale? Did she have any obligation to turn off the garbage disposal? If not, was leaving the scene (and wiping her fingerprints away) a crime?

    • Unfortunately that requires more in-depth knowledge of Canadian law than I possess. In the US the general rule is that there is no obligation to rescue an unrelated third party, cruel as that sounds. However, she might have had an obligation to report the death, and wiping her prints and closing the garage door may have amounted to obstruction of justice. But again I don’t know if Canadian law (or the law in Ontario specifically) would have required her to turn off the garbage disposal.

      • I’m not sure as to the particulars, but I would point out that criminal law in Canada is a Federal jurisdiction (unlike in the US), so it’s Canadian and not Ontario law that matters.

      • Thank you for pointing that out. That gives you an idea of why I don’t normally write about non-US law!

  7. reply to James Daily’s 5/1/2014 article above:
    I found your article very interesting and well done. -But there is one plot detail you apparently misunderstood. You mention patents from the 1970’s being expired by now, and what the law was in the 1970’s. But in the early episodes of season 1, the clones’ birth certifcates are shown, and they were all born in 1984, not the 1970’s. Was there any difference in the law by 1984?

    • Thank you for the correction! I will note it in the post. I was going off of the date on the back of the “Project LEDA” photograph. In any case, at least in the United States there was no significant difference in the patent law of the 1970s and 1984. The only reason I wasn’t more specific is that there has been a change between then and now, the 2011 America Invents Act, the relevant parts of which took effect in 2013, but it would take a few paragraphs to explain and would boil down to “nope, still wouldn’t matter.”

  8. Melanie Koleini

    James, you say, “If you can build parts to order, you don’t need to clone spares.”
    Building an organ (with a 3d printer or by another mean) could still involve cloning. Cells from the person needing the organ would be cloned & used to build the new body part.

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  11. James: You say: “Sarah was able to have a child. … assuming it was a genetically typically human, then that argues against the clones being biologically non-human.” But Neanderthals may also have interbred with humans (although the scientific community is now divided on that again.) But assuming for a second that the”yes, the Homo Sapiens and the Neanderthals did have offspring” are right then does that make the Neanderthals human?

    • It makes them not NONhuman, as a lawyer said in Jasper Fforde’s SOMETHING ROTTEN. (He was handling the question of whether a croquet team could legally field genetech Neanderthals.)

      • @Will: So if Neanderthals did have offspring with Homo Sapiens were they the same species or not? (Keeping in mind that we may be talking about a people who provided us with 1-4% of our DNA–which doesn’t sound like much until you consider that 20% of our genome is all that separates us and our canine friends.)

    • As I went on to say, “It’s not a conclusive argument, not least because the biological definition(s) of species are more complex than that, but it’s a strong one in my opinion.”

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  13. I studied IP at Harvard Law. I wrote my graduate thesis on animal patents. After yelling at my TV for a season and a half, I am finding this post very validating.

    And the comments as well, especially about the contract under duress (hubby was the one to point that out, may talk too much about law at home) and lack of affirmative duty to act re:Allison. Whatever laws she broke, the penalties are not enough for her to be quite so panicked about.

    I should point out that SCOTUS has directly held humans unpatentable and the USPTO at least one chimera.

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