EU Advocate General: Human Embryos to be protected as from conception

By J.C. von Krempach, J.D. | March 10, 2011

The case to be decided does not concern abortion, but the patentability of embryonic stem cells. And the conclusions of the Advocate General are not more than a legal opinion, even if the European Court of Justice (ECJ) is very likely to follow them (he does so in most cases). Nevertheless, the Conclusions of Attorney General Yves Bot on the case of Oliver Brüstle vs. Greenpeace might well turn out a decisive breakthrough for a better protection of unborn life.

nullOliver Brüstle is a cutting edge researcher in the field of stem cell therapy – and, quite typically for persons working in that area, he quite skilfully seeks to draw personal pecuniary advantage from the ethically controversial technologies he is developing. In 1997 he filed a patent claim for a procedure in which “neural precursor cells”, which in turn are derived from embryonic stem cells, are used for therapeutic purposes. The procedure to create those “neural precursor cells”, which includes the creation in vitro and subsequent destruction of a human embryo, was also covered by the patent claim. The German Patent Office’s decision to grant the patent was successfully challenged by Greenpeace at the Bundespatentgericht (Federal Patent Court), and the patent was declared invalid. Against this decision, Mr. Brüstle filed an appeal to the Bundesgerichtshof (the supreme judiciary instance in Germany), which, given that the EU Directive 98/44 on the legal protection of biotechnological inventions explicitly prohibits the patenting of “the human body at the various stages of its formation and development” and “uses of human embryos for industrial or commercial purposes”, suspended the proceedings in order to submit a preliminary question to the ECJ: what is an embryo?

The procedure of the ECJ foresees that prior to a case being decided by the Court, it first must be analysed by one of the Court’s Advocates General. In the case at hand, Advocate General Yves Bot has today presented his Conclusions, which in a rare clarity and based on convincing arguments come to the result that the term ‘human embryo’ applies from conception onwards throughout the entire subsequent process of the development of a human body. He explicitly refutes arguments according which an embryo is to be considered as such only at a later stage, e.g. as from the time of ‘nidation’ in the mother’s uterus.

As there is currently no English translation available, I post the French version of Mr. Bot’s Conclusions. Make sure to check the ECJ’s website for the English text at a later stage.