Acknowledgements

I am most grateful to Nurit Bird-David for a conversation that started this off (pers. comm., November 2000). The second part of this chapter was stimulated by an International Symposium, ‘Governing Medically Assisted Human Repro­duction’, University of Toronto, 1996, organised by Lorna Weir.

Notes

1 ‘Competitors may thus benefit, free of charge, from the efforts and investments of a company which has had to bear the associated costs and risks on its own’ (Callon 1998: 245-6). In their survey of R&D managers from some 1,500 US firms, Cohen, Nelson and Walsh (2000) found that the ease with which an invention could be ‘invented around’ by others was a principal reason for firms not to take out patents (and disclose information); the simple alternative was to keep their innovations secret.

2 I owe the precision of this point to Corinne Hayden’s work on the way ethics and politics are, so to speak, engineered into biological artefacts (pers. comm.). She cites Sarah Franklin’s observation about cell lines developed to bypass the use of human embryos: a ‘built-in ethics’ to avoid public opposition.

3 Indeed, when the public good is articulated as an aim, famously in the release of information about the human genome, it may be held that the public good is better.

4 Two examples are cited in the Financial Times (17 November 2000) by David Pilling reporting on patents. One concerns a Maryland firm, Human Genome Sciences, which was criticised for relying too heavily on patents to protect its databases of DNA fragments known as expressed sequence tags; so, indeed, rather than rely on the patent to protect its intellectual property it has evolved into a company to produce its own drugs.

5 In their words, blocking patents may be used either to extract license revenue or to force entry into cross-licensing negotiation. They find differences in strategies according to the type of industry in question, but very broadly in the former case the patent holders may have no intention of commercialising a product but seek a share of revenue

simply through licensing, while in the latter case they force their way into rival technologies.

‘For example, the recent ruling that gene fragments are separately patentable suggests that the commercialization of a single biotechnology drug product may now require rights over numerous patents' (Cohen et al. 2000: 19). ‘Expressed sequence tags' of otherwise unknown biological function (Heller and Eisenberg 1998; Crespi 2000) have been a particular source of controversy here.

Commenting on the way the patent universe has been expanding, Drahos (1999) notes that the scope of patentable subject matter has increasingly been given an inclusive interpretation while, at the same time, restrictions on patentability have been narrowly interpreted. Thus the US Patent Code defines standards for ‘novelty' and ‘nonobvious­ness' but the courts are said to apply these standards more loosely than is required by statute (Barton 2000: 1933); in the European Patent Office, restrictions on the patentability of human treatment [normally excluded] can be overcome by formulaic means (see Pottage 1998 on the narrow use of legal formulae).

In Merz's words, many patents are being licensed to large clinical laboratories which then enforce their patents and prevent other clinical molecular pathologists and geneticists from performing the patented tests.

‘Reach-through' royalties, for instance, are royalties on second generation products derived from a patented technique. ‘ “Royalty stacking” can swamp the development costs of some therapies to the point where development is not economically feasible' (IPRRTMB 2000).

Embraced in a positive way by some. Supercomplexity is the term given by the educationalist Ronald Barnett (2000) to a heated up world as it looks from the university. He is passionate about the need to embrace uncertainties: ‘Supercomeplexity is the world into which the graduates of universities will go; it marks out the experiences they will face of continual challenge and insecurity.... [They will need the] capacity to embrace multiple and conflicting frameworks and to offer their own positive interventions in that milieu.' The supercomplex graduate has to grasp unpredictable intersections of knowledges which fold in on one another in convoluted, crisis-like, locations, while academics, diversified through their relationships with the wider community, will work with one another in epistemological ‘turmoil'.

Not that the condition of overflow is not confined to the kinds of crisis situations with which ethics committees (say) have to deal.

Hybridity alone, of which there are several ‘cold' examples (Latour 1993), does not necessarily produce ‘heat'.

Siegler's subject matter is institutional ethics committees, which in a clinical context (according to his account) can often produce an ‘immoral' outcome which fudges responsibility by virtue of its very remove from the purview of the exclusive specialist. Barry (pers. comm.) comments that the whole phenomenon of Commissions relates to opposition conventionally made between government and market (and government and politics).

I have drawn on this material in diverse places. Originally prepared for a conference on Reproductive values: the individual and society in 1997 (the Centre for Social Ethics and Policy, Manchester, and Comm.

For a commentary, see Basen, Eichler and Lippmann 1993. Similar but more modest exercises were being carried out elsewhere, such as the Warnock Enquiry which in the UK led to the Human Fertilisation and Embryology Act 1990 (e.g Mulkay 1997). But there has been no other population consulted on such a scale and with such a thorough airing of multiple voices. The constitutional pluralism of Canada, with multilingualism and the rights of women and minority peoples recognised in the national Charter, was a significant environment.

17 Note that this is as unproblematic to write in English as the Melanesian inversions and eversions are problematic to express.

18 Surveys to determine views and attitudes targeted a population (by phone) controlled for factors such as age, ethnicity, region. There were, among many kinds of additional consultants, ten focus groups for ascertaining the ‘specific attitudes’ of Aboriginal peoples: key representatives from ethnocultural communities were thus sought for their unique attitudes (although the reported patterns turn out to be similar to those of the ‘general public’).

19 In the sense of social person, that is, an actor with particular attributes of agency. Massey (1993) points out that prior to the working of the Commission there were no new reproductive technologies (NRT) advocacy groups as such; the only constituencies of which the Commission was initially sure were medical and research groups.

20 Of course there is a sense in which we may regard the four frames as producing externalities, but they do so in relation to one another, so they (the frames) appear as a set of internalising and externalising strategies. This is how, for example, we might understand the different positions occupied by the ‘individual,’ now a member of society and now in antithesis to society.

21 Many values were given voice. But, at least in the final Report, it was never made clear on a systematic basis how the values were distributed or located across the different kinds of data that the Commissioners were considering, e.g in reference to how the data was collected or the (social, cultural) context in which views were enunciated, and whether individual choices were being stressed or people were appealing to collective sentiments. In other words, analysis of the data as data was not seen part of the Report’s business. Without such information there can be no questioning of the extent to which particular values resonated with what the Commissioners themselves, as a specific body of people, held as obvious and right - the pre-figured assumptions that came from their own real-life worlds.

22 Diversity thus appears as a double feature of the population at large, both social and cultural, and as characteristic of (to use the Report’s terms) individuals and of groups alike.

23 This is only one of the Commissioner’s six grounds for dissent, which are published in full, the ‘Six Dissenting opinions’ (1993: 1054-65) being followed by 80 pages of ‘detailed reasoning’ for them.

24 This was, for example, documented in the Report in relation to single and lesbian mothers.

25 The immediate response by the federal government had been to turn up the heat again - in the wake of the Report and its 293 specific recommendations it conducted its own consultation exercise, ‘with provinces and territories as well as more than 40 organizations representing women, the disabled, medical and research groups, infertile Canadians, and other’ (Health Canada news release, 27 July 1995). The Moratorium asked medical and research communities to refrain from applying a number of controversial technologies or practices (they were listed) to humans beings. The list overlapped with but was not the same as the list of practices which the Commission wished to criminalise.

References

Barnett, R. (2000) Realizing the University in an Age of Supercomplexity, Buckingham: Society for Research into Higher Education and Open University Press.

Barry, A. (2000) [1999/2000] ‘Invention and inertia', Cambridge Anthropology, 21: 62-70. Barton, J. (2000) ‘Reforming the patent system', Science, 287: 1933.

Basen, G., M. Eichler and A. Lippmann (eds) (1993) Misconceptions: The Social Construction of Choice and the New Reproductive and Genetic Technologies, 2 volumes, Quebec: Voyageur Publishing.

Callon, M. (ed.) (1998) The Laws of the Markets, Oxford: Blackwell and The Sociological Review.

Canada, Minister of Government Services (1993) Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies, Ottawa.

Cohen, W. M., R. R. Nelson and J. P. Walsh (2000) ‘Protecting their intellectual assets: appropriability conditions and why U.S. manufacturing firms patent (or not)', National Bureau of Economic Research, Massachusetts, Working Paper 7552.

Crespi, S. (2000) ‘An analysis of moral issues affecting patenting inventions in the life sciences: a European perspective', Science and Engineering Ethics, 6, 2: 157-80.

Drahos, P. (1999) Biotechnology patents, market and morality, European Intellectual Property Review, 21: 441-9.

Eichler, M. (1996) ‘The construction of technologically-mediated families. Looking at the Royal Commission Report from a family perspective', in M. Baker (ed.) Families: Changing Trends in Canada, 3rd edn, Toronto: McGraw-Hill.

Foster, R. (1995) Social Reproduction and History in Melanesia: Mortuary Ritual, Gift Exchange and Custom in the Tanga Islands, Cambridge: Cambridge University Press.

Heller, M. and R. Eisenberg (1998) ‘Can patents deter innovation? The anticommons in biomedical research', Science, 280: 698-701.

Intellectual Property Rights and Research Tools in Molecular Biology (2000) Intellectual Property Rights and Research Tools in Molecular Biology, ch 5, available online at http:/ stills.nap.edu∕html∕property∕5.html.

Latour, B. (1993) We Have Never Been Modern (trans. C. Porter), London: Harvester Wheatsheaf.

Margalit, A. (1996) The Decent Society (trans. N. Goldblum), Cambridge, MA: Harvard University Press.

Massey, C. (1993) ‘The public hearings of the Royal Commission on New Reproductive Technologies', in G. Basen, M. Eichler and A. Lippmann (eds) Misconceptions: The Social Construction of Choice and the New Reproductive and Genetic Technologies, Quebec: Voyageur Publishing.

Merz, J.F. (1999) ‘Disease gene patts: overcoming ethical constraints on clinical laboratory medicine', Clinical Chemistry, 45: 324-30.

Mosko, M. (1985) Quadripartite Structures: Categories, Relations and Homologies in Bush Mekeo Cultures, Cambridge: Cambridge University Press.

Mulkay, M. (1997) The Embryo Research Debate: Science and the Politics of Reproduction, Cambridge: Cambridge University Press.

Nowotny, H., P. Scott and M. Gibbons (2001) Re-thinking Science: Knowledge and the Public in an Age of Uncertainty, Oxford: Polity Press.

Pottage, A. (1998) ‘The inscription of life in law: genes, parents, and bio-politics', Modern Law Review, 61: 740-65.

Siegler, M. (1999) ‘Ethics committees: decisions by bureaucracy', in H. Kuhse and P. Singer (eds) Bioethics: An Anthology, Oxford: Blackwell.

Strathern, M. (1999) ‘Refusing information', in Property, Substance and Effect, London: Athlone Press.

Strathern, M. (2003) ‘Redescribing society', in H. Nowotny, P. Scott and M. Gibbons (eds) Reflections on the New Production of Knowledge, special issue, Minerva, 41: 263-76.

Wagner, R. (1976) The Invention of Culture, New Jersey: Prentice-Hall.

Weir, L. (1996) ‘Recent developments in the government of pregnancy', Economy and Society, 25: 372-92.

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