23andMe’s designer baby patent is ‘a serious mistake,’ critics charge


What’s even more repulsive than the idea of using DNA tests to help people create a designer babies? Getting a patent for the idea.

23andMe, the pioneering direct-to-consumer genetic testing company, was awarded such a patent in September. U.S. Patent #8,543,339 is titled “Gamete donor selection based on genetic calculations,” and among the inventions it claims is the idea of using genetic tests and computer programs to predict the likely traits of a baby based on the DNA of its parents.

Needless to say, this patent does not sit well with bioethicists. In a commentary published Thursday in the journal Genetics in Medicine, a group of bioethicists in Europe describes another scenario covered by the patent: prospective parents seeking egg and sperm donors with specific DNA variants to maximize their chance of having a child who will grow to a specific height, or develop the slow-twitch muscles that make someone a better endurance athlete, or have certain personality characteristics. Some traits, such as gender and eye color, could be chosen pretty reliably.


“Selecting children in ways such as those patented by 23andMe is hugely ethically controversial,” the bioethicists wrote. (They did give the company credit for not offering “a cast-iron, fool-proof method guaranteeing that the eventual child will have all the phenotypic traits on the parents’ shopping list, an impossible task.”)

The Center for Genetics and Society, a bioethics think tank based in Berkeley, has called on 23andMe “to abstain from developing or offering any product or service based on this patent, and to use its patent to prevent others from doing so.”

“We believe the patent office made a serious mistake in allowing a patent that includes drop-down menus from which to choose a future child’s traits,” Marcy Darnovsky, the center’s executive director, said in a statement.

Any such system would be “ethically and socially treacherous,” she said. “It could encourage the dangerous idea that science should be used to breed ‘better’ people, breathing new life into the specter of eugenics that has long hung over the field of genetics.”

For its part, 23andMe says it has no plans to offer the sort of designer-baby service that critics are worried about. Speaking on the company’s behalf, blogger “ScottH” wrote that the Mountain View, Calif., company intended to patent the technology behind its Family Traits Inheritance Calculator, which “is used by our customers as a fun way to look at such things as what eye color their child might have or if their child will be able to perceive bitter taste or be lactose intolerant.”

But five years ago, when the patent application was filed, the company thought “the technology could have potential applications for fertility clinics so language specific to the fertility treatment process was included in the patent,” ScottH wrote. As it turned out, the company never pursued that line of business, “nor do we have any plans to do so,” he wrote.


Even if 23andMe never brings a design-your-own-baby DNA test to market -- and even if it uses its patent to prevent anyone else from doing so -- the authors of the Genetics in Medicine report say it’s still troubling that the U.S. Patent and Trademark Office would award this patent in the first place.

“At no stage during the examination of the patent application did the patent office examiner question whether techniques for facilitating the ‘design’ of future human babies were appropriate subject matter for a patent,” they wrote.

In June, the U.S. Supreme Court ruled that individual genes were products of nature, not inventions, and thus could not be patented by companies. The case involved Myriad Genetics, which co-developed a test that is used to see whether people have particular mutations in their DNA that are known to influence the risk of breast, ovarian and other cancers.

The Supreme Court’s opinion in Assn. of Molecular Pathology vs. Myriad Genetics, Inc. was unanimous.

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