What constitutes a human embryo? - CJEU to revisit controversial issue

On 17 April the UK High Court made a reference to the Court of Justice of the European Union (“CJEU”), requesting clarification of the term “human embryos” in Article 6(2) of the Directive 98/44/EC, On 17 April the UK High Court made a reference to the Court of Justice of the European Union (“CJEU”), requesting clarification of the term “human embryos” in Article 6(2) of the Directive 98/44/EC, commonly referred to as the Biotech Directive.  The referral focuses on whether artificially stimulated ova that are incapable of developing to term should nevertheless be classified as human embryos.

In expressing his own view, Henry Carr QC, sitting as Chancery judge, said he felt that if the process of development was incapable of leading to a human being, then it should not be excluded from patentability.

Capturing commercial value from stem cell research would be far easier under a narrower definition of what constitutes a 'human embryo' in terms of patentability.  In considering the Biotech Directive and the potential for stem cell technologies to transform medicine, the Court emphasised that excluding processes which are incapable of leading to a human being was “akin to a total exclusion from patent protection of the fruits of stem cell research, to the detriment of European industry and public health”.   

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