(CN) - An adviser to Europe's high court says stem cells cannot be patented, so long as they are embryonic cells that could develop into human beings.
Advocate General Yves Bot opined that a European directive intended to protect the human body should apply to prevent German scientist Oliver Brüstle from patenting a process using stem cells to potentially treat Parkinson's disease.
After Greenpeace challenged the patent registration, the German court referred to the Court of Justice of the European Union the question of whether human cells can be considered embryos from the point of fertilization, or rather at some later stage.
Advocate Bot said he thinks an embryo needs its own definition for the sake of interpreting European law. He also pointed out that this is the first time the court has considered industrial or commercial use of embryos.
Totipotent cells, since they have the ability to develop into a complete human being, are therefore unpatentable embryos, Bot said. Even a blastocyst, the entity that exists about five days after fertilization, should also be considered an embryo, Bot continued.
Unfertilized eggs with nuclei from mature cells also should be protected, he added, since they may also develop into human beings. This is the process by which embryos may be cloned, and is performed in some countries to produce more embryos for research purposes.
Pluripotent cells, also deriving from stem cells, only have the ability to develop into skin, muscle or nerve tissue. They are therefore not to be considered embryos, Bot said.
Brüstle's patent involved the latter type of pluripotent cells. This would be patentable, but for the fact that extraction of pluripotent cells normally destroys the embryo. Bot asserted that this should not be allowed.
Commercial patenting of inventions that assist human embryos, such as to correct defects, should however be allowed, Bot concluded.
The European Union allows member states to decide for themselves whether to allow stem cell production, import and research. Spain, Sweden, Denmark and the United Kingdom allow research with human embryos less than 2 weeks old, while the latter two actually create embryos for research purposes.
In many countries marked by Catholicism, stem cell research is banned. Due to Germany's Nazi history, stem cell research is restricted to imported surplus embryos produced by artificial fertilization.
In Europe, the discussion of stem cell use is not as closely tied to the abortion issue as in the United States. The freedom to choose whether to terminate a fetus applies in the majority of European Union states.