A few readers asked about the TV series Orphan Black a while back. Now that the show is in its second season (and I finally got around to watching the first one and have caught up with the second one), I thought I’d address the central legal questions raised by the show. Moderate spoilers below if you haven’t seen past the first episode or so, followed by big spoilers if you haven’t seen the season one finale.

The first question readers had regards the fundamental premise of the show, so it makes sense to address that one first. The second question is about the twist introduced at the end of the first season. Canonically the show is set in Toronto, but I’m going to answer the first question primarily from a US perspective. The second question regards an area of law I am more familiar with, and I feel reasonably comfortable addressing the Canadian law in that area.

I. Is Any of This Legal?

And by “this” I mean “human cloning.” The answer depends on why the cloning is being done and where. There are two types of cloning: reproductive cloning (i.e. producing a clone in order to make a whole, mature person) and therapeutic cloning (i.e. producing an embryonic clone for stem cells or matched organs). The former has never (verifiably) been done in humans, whereas the latter has been.

At the US federal level there is no comprehensive prohibition on reproductive cloning, despite several attempts at introducing such legislation. Part of the problem has been crafting a bill that would prohibit reproductive cloning without prohibiting or needlessly hampering therapeutic cloning. The states, however, have been more active. As of 2008 at least thirteen states had completely banned reproductive cloning and two had banned the use of public money to fund it. Some of those states also ban therapeutic cloning.

Of course, these state bans have limited jurisdiction, and they only affect the act of producing the clone. The clone itself (assuming a viable human results from the procedure) would presumably be treated like any other person…with at least one important complication: who are a clone’s parents? Arguably, existing law does not address the situation very well. For an interesting article on the subject, check out W. Nicholson Price II, Am I My Son? Human Clones and the Modern Family, 11 Colum. Sci. & Tech. L. Rev. 119 (2010).

In Canada there is an outright ban on human cloning, part of the 2004 Assisted Human Reproduction Act.

But of course none of these laws were in effect at the time Sarah and the other clones were created in the 1970s 1984 [Note: Thanks to reader ‘pc’ who corrected the clones’ birth year], so in that particular regard the clone creators haven’t (technically) done anything illegal. There is, of course, everything else they did, but never mind that…

And now for the big season one twist

II. Patent Pending?

No, no, no. Wrong, wrong, wrongity wrong. The clones cannot be patented. Even if they could be, that does not mean that Dyad owns them or Kira. Oh how wrong this is, let me count the ways.

In Canada it’s not possible to patent any higher life forms, not even “simple” animals such as genetically engineered mice (plants are okay, though, for reasons that strike some as unprincipled). Harvard College v. Canada (Commissioner of Patents). It is likely that the Canadian Charter of Rights and Freedoms would prohibit exerting ownership over a human being via a patent in any case.

In the US it’s possible to patent genetically engineered animals, but it is not possible to patent anything that is “directed to or encompasses a human being.” This was a long-standing Patent Office policy and was codified by the 2011 America Invents Act. Furthermore, the 13th Amendment’s prohibition on slavery would almost certainly mean that even if it were possible to obtain a patent on a genetically engineered human being it would be impossible to enforce such a patent.

(NB: In the show Rachel says something about a recent Supreme Court decision regarding synthetic DNA, probably a reference to the Association for Molecular Pathology case. It’s a nice reference to current events, but that case has no bearing on patenting genetically engineered humans or on asserting gene patents against individual humans qua humans.)

Next up: patents have a limited term, and they must be filed for within a certain time after an invention has been in public use. The law on this varies from country to country and has varied over time as well, but the bottom line is that there is almost no way that Dyad can have a valid patent that covers Sarah and the clones in 2014. Such a patent would either have to have been filed for in the 1970s at most a year after the clones were born (for a US patent), in which case it would be expired now, or it would have to have been filed for more recently, in which case it would be invalid. It’s possible it could have been the result of a so-called submarine patent, but those are difficult to engineer, and in any case I don’t think that was ever really possible outside the United States.

Finally: patents are public. The word patent literally means “open.” If Dyad owned patents on a method for producing viable human clones (or on genetically engineered humans, or both) it would be public knowledge and a huge deal. Certainly Cosima would be aware of it.

Overall the patent nonsense strains my suspension of disbelief, but I’m okay with it because it’s otherwise a very good show.