How should the benefits of bioprospecting be shared?

Hastings Center Report

Volumn 40, Issue 1, 2010, Pages 24-33

  Millum, Joseph ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; BIODIVERSITY; DEVELOPED COUNTRY; DEVELOPING COUNTRY; DRUG INDUSTRY; ECONOMICS; ENVIRONMENTAL PROTECTION; ETHICS; GENETICS; HEALTH; HEALTH CARE COST; HUMAN; INTERNATIONAL COOPERATION; LEGAL ASPECT; MORALITY; ORGANIZATION AND MANAGEMENT; PATENT; POPULATION GENETICS; RESEARCH SUBJECT; SOCIAL BEHAVIOR; SOCIAL JUSTICE; STANDARD;

BIODIVERSITY; CONSERVATION OF NATURAL RESOURCES; DEVELOPED COUNTRIES; DEVELOPING COUNTRIES; DRUG INDUSTRY; GENETIC RESEARCH; GENETICS, POPULATION; HEALTH CARE SECTOR; HUMANS; INTELLECTUAL PROPERTY; INTERNATIONAL COOPERATION; MORAL OBLIGATIONS; OWNERSHIP; PATENTS AS TOPIC; RESEARCH SUBJECTS; SOCIAL JUSTICE; SOCIAL RESPONSIBILITY; WORLD HEALTH;

EID: 77249155632     PISSN: 00930334     EISSN: 1552146X     Source Type: Journal    
DOI: 10.1353/hcr.0.0227     Document Type: Article

References (47)

1. See W. R. Reid et al., Biodiversity Prospecting: Using Genetic Resources for Sustainable Development (Washington, D. C.: World Resources Institute, 1993);
2. A. J. Beattie et al., "New Products and Industries from Biodiversity Millennium Ecosystem Assessment", in Ecosystems and Human Well-Being: Current State and Trends (Washington, D. C.: Island Press, 2005), 271-95.
3. My summary here draws on R. Wynberg, "Rhetoric, Realism and Benefit-Sharing: Use of Traditional Knowledge of Hoodia Species in the Development of an Appetite Suppressant", Journal of World Intellectual Property 7, no. 6 (2004):851-76.
4. Convention on Biological Diversity, Article 1, June 5, 1992; http://www.cbd.int /convention/convention.shtml.
5. Seven such groups-each a public-private partnership that includes a developing country organization-are currently operating in different regions of the developing world. They promote the three goals of improving human health, promoting scientific and economic activity in developing countries, and conserving biological diversity. J. Rosenthal et al., "Combining High Risk Science with Ambitious Social and Economic Goals", Pharmaceutical Biology 37, supplement (1999):7.
6. See Convention on Biological Diversity, Article 8 (j).
7. For an example of a benefit-sharing agreement, see D. D. Soejarto, "The UIC ICBG (University of Illinois at Chicago International Cooperative Biodiversity Group) Memorandum of Agreement: A Model of Benefit-Sharing Arrangement in Natural Products Drug Discovery and Development", Journal of Natural Products 67 (2004):294-99.
8. The actual benefit is a matter of debate. Many important medicines are derived from natural products; G. Tan et al., "Biodiversity as a Source of Anticancer Drugs", Current Drug Targets 7, no. 3 (2006):265-77. Nonetheless, it is very rare for a natural chemical compound to be useful enough to be brought to market; Rosenthal et al., "Combining High Risk Science with Ambitious Social and Economic Goals", 7.
9. See C. R. Bijoy, "Access and Benefit-Sharing from the Indigenous Peoples' Perspective: The TBGRI-Kani 'Model, '" Law, Environment and Development Journal 3, no. 1 (2007):18.
10. See W. Sumner, The Moral Foundation of Rights (Oxford, U. K.: Clarendon Press, 1987), chapter 2.
11. See J. Waldron, "Property", The Stanford Encyclopedia of Philosophy, fall 2004 edition, ed. E. N. Zalta; http://plato.stanford.edu/ archives/fall2004/entries/property/.
12. I assume that indigenous people have legitimate property rights over the land they inhabit, although frequently, either these rights are not acknowledged in law, or the laws that should establish them are not honored.
13. This is a simplification. In fact, there can be significant genetic variation within a species, many samples might be needed to run different tests, and sometimes the same biological sample can be rescreened for new compounds and properties of interest as new tests are developed. The essential point is that additional samples of a species contain rapidly diminishing amounts of extra genetic information about that species.
14. I have assumed that states can have legitimate authority over their citizens. Similarly, local governments can legitimately represent their subjects, including by wielding collective rights.
15. S. Laird, "Natura, Brazil: The Use of Traditional Knowledge and Community-Based Sourcing of 'Biological Materials' in the Personal Care and Cosmetics Sector", in Access and Benefit-Sharing in Practice: Trends in Partnerships Across Sectors (Montreal, Canada: Secretariat of the Convention on Biological Diversity, 2008), 82.
16. One might object that the principle applies only when the person affecting another's interests has no right to do so. But this would put the cart before the horse: we are trying to work out who has the right to do what.
17. A. Sen, Development as Freedom, (New York: Anchor Books, 1999), 112-19.
18. Farmers' subsidies provide an example of how increasing supply can give legitimate cause for complaint. The European Union massively subsidizes its farmers so that they can produce food at artificially low costs. When a subsidized foodstuff is put on the market, it increases supply and reduces the price of the foodstuff. For farmers outside of the Union, in the developing world, this can make farming uneconomical. In this case, freedom is not enhanced: at best the European farmers have more options they can exercise, and the farmers who now lack a market have fewer. Furthermore, the market is not functioning well: the subsidies decrease the efficiency of the agricultural sector overall. See Oxfam Briefing Paper, "Stop the Dumping! How EU Agricultural Subsidies Are Damaging Livelihoods in the Developing World", 2001; http://www.globalpolicy.org/socecon/trade/subsidies/2002/10stopdumpingpdf.
19. Thus, we assume that all the other parties to the transaction are being treated fairly and then consider what else is needed to treat the holders of the genetic resources fairly, too.
20. This is helpful because comparing different grounds for establishing desert is difficult. Consider how we should divide a social surplus between a machine-worker and the owner of the machine. The machine owner may claim that what the worker deserves should be determined by the market price value of the labor, while the worker claims that she deserves the majority of the surplus because reward should be proportionate to effort.
21. See A. Wertheimer, Exploitation (Princeton, N. J.: Princeton University Press, 1999), 230-36.
22. Ibid.., chapter 7.
23. Ibid.., 10.
24. Bill of Law No. 306/95 (Draft), tr. V. Tavares; http://www.lclark.edu/ law/clinics/international-environmental-law-project/brazil-genetic.php, accessed September 28, 2009.
25. For details, see B. Berlin and E. A. Berlin, "Community Autonomy and the Maya ICBG Project in Chiapas, Mexico: How A Bioprospecting Project That Should Have Succeeded Failed", Human Organization 63, no. 4 (2004):472-86.
26. Thanks to an anonymous reviewer for the Hastings Center Report for pressing me on this point.
27. This conclusion applies to what people deserve because they have legitimate property rights over an area of biodiversity. Further redistribution of benefits might be required by, for example, distributive justice.
28. R. V. Anuradha, "Sharing with the Kanis: A Case Study from Kerala, India", Convention on Biological Diversity, Biological Diversity Case Studies, 1998, http: //www.biodiv.org/doc/case-studies/abs/csabs-kanispdf.
29. For example, the San of South Africa are not the only group to claim traditional use of Hoodia. San communities exist in Namibia and Botswana, and other non-San tribes use the plant; Wynberg, "Rhetoric, Realism and Benefit-Sharing", 852-53.
30. Part of the problem is that the Convention on Biological Diversity gives nations sovereign rights over their biological resources (see Preamble and Article 15.1). We must hope that where the biological resources of different countries overlap, this will engender cooperation, not competition.
31. The expected value would be the sum of a series of products-the probabilities of the various outcomes of bioprospecting multiplied by their values.
32. Another question is whether the benefits given to communities living in areas of biodiversity should be based on the resources' ex ante value or on their ex post value. For example, should a community receive fixed milestone payments as a research project progresses, or should it have a chance to receive a potentially lucrative share of the royalties on an eventual product? In the abstract, it seems to me, the parties to benefit-sharing agreements should be free to negotiate for ex ante benefits, ex post benefits, or a mix of the two. In practice, however, a community may well want at least some ex ante benefits. Any given bioprospecting venture is unlikely to produce profitable products, and any products will take a long time to get to the market. But many communities have immediate needs. Consequently, immediate and certain benefits are in their interests. See J. Rosenthal, "Equitable Sharing of Biodiversity Benefits: Agreements on Genetic Resources", in Investing In Biological Diversity: Proceedings of the Cairns Conference, Organisation for Economic Co-operation and Development, 1997.
33. Legally, this may vary between communities. The Convention on Biological Diversity grants control over genetic resources to national governments. However, I am concerned with the moral justification of property rights, which is what determines the moral justification for benefit-sharing. See P. Gepts, "Who Owns Biodiversity, and How Should the Owners Be Compensated?" Plant Physiology 134 (2004):1295-1307.
34. Waldron, "Property."
35. J. Locke, Two Treatises of Government, book II (London, U. K.: Printed for C. and J. Rivington, 1824), 144-59.
36. One might argue that the property rights are justified because the property has been inherited by the community members from ancestors who legitimately acquired it through one of these two methods. However, the legitimacy of such transfers is unclear. It may seem unjust for the actions of longdead individuals to govern the property rights of living individuals. And in any event, the ancestors will often not have performed the actions necessary for acquiring property rights according to these two theories.
37. Convention on Biological Diversity, Article 1.
38. The World Bank, "Poverty Drops below 1 Billion, Says World Bank", http: //web.worldbank.org/WBSITE/EXTERNAL/NEWS/0, contentMDK:21299914~pagePK:64257043~piPK:437376~the-SitePK:4607, 00.html.
39. Forbes.com, "The World's Richest People", http://www.forbes. com/2004/02 /25/bill04land.html.
40. W. Kymlicka, Contemporary Political Philosophy: An Introduction, second ed. (Oxford, U. K.: Oxford University Press, 2002), 3-5.
41. See G. Sreenivasan, "International Justice and Health: A Proposal", Ethics and International Affairs 16, no. 2 (2002):81-82.
42. See T. Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Cambridge, U. K.: Polity Press, 2002), 203-4. A libertarian might think of the distributive requirements I mention as rectification for past unjust transactions;
43. see R. Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 152-53 and 230-31.
44. Alternatively, people could be given some other, equally valuable property, but moving people is costly, and unfamiliar property is less likely to be useful to people.
45. B. Vastag, "Traditional Medicine, Novel Partnership", The New Scientist (October 28, 2006):54-55.
46. See. B. Berlin and E. A. Berlin, "Private and Public Knowledge in the Debate on Bioprospecting: Implications for Local Communities and Prior Informed Consent", in Ethical Issues in International Biomedical Research: A Casebook, ed. J. Lavery et al. (Oxford, U. K.: Oxford University Press, 2007), 29-30.
47. My thanks to Joshua Rosenthal for this point.