The patenting of human embryonic stem (hES) cells has produced one of the most unusual and fraught situations in the history of science, ethics, and law. This Commentary examines legal and moral challenges to three foundational patents held by the Wisconsin Alumni Research Foundation (WARF). We conclude that, in the United States, technical challenges may, paradoxically, produce a stronger patent position for WARF. In the European Union, moral challenges mean confusion for member states. We demonstrate that hES cell intellectual property will be guided and bound by a welter of moral, technical, and legal inputs, with discrete national and jurisdictional dimensions.

Applicants in Europe are left with few options for the patent protection of hES cell-related technology.

The article offers a critical review of the institutional role of the European Group on Ethics in the EU, focusing on the appointment and composition of the group, the nature of its 'opinions', the way these are used by the Commission and other EU institutional actors, looking in particular at its controversial Opinion 22 on the ethical review and funding of stem cell research under the FP7 programme. The analysis highlights the methodological difficulties faced by the group in the grounding of its Opinions, the blurring of normative moral and legal orders, the risk of politicisation of ethics and the potential overreach by the EU of its competences in reliance on a group of this kind to reach unity on deeply contested moral questions in a culturally and morally diverse Europe.

The right of everyone to share in the benefits of science has been enshrined in human rights instruments since the last century, originally in Article 27 of the Universal Declaration of Human Rights (UDHR) and subsequently in Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right was generally perceived as "obscure" and its interpretation widely neglected until the expansion of the international intellectual property (IP) regime under the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) prompted an upsurge of legal scholarship and reports from international organizations seeking to address the "human rights paradox." The paradox is claimed to arise from the juxtaposition in human rights instruments of individual rights over intellectual creations against the rights of everyone to "share in scientific advancement and its benefits." This article draws on archived documentation to show that the paradox rests on a conceptual obfuscation of human rights and IP rights and is at odds both with the historical record on the aims of the drafters of the UDHR and the philosophical and legal foundations of human rights and IP rights. The drafting history of Article 27 shows that delegations from South American socialist countries backed the French initiative to include rights of authors and inventors to the protection of their intellectual creations, while the US, UK, and former Anglo-Saxon colonies opposed the proposal to the very end. Yet, behind the paradoxical political alignments there are important areas of convergence on the underlying philosophies and moral rationales which led to the adoption of Article 27 of the UDHR.

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