It Is So Ordered: Orphan Black And The Law

Orphan Black is a lot like the law: it is all about the way people and their objectives and their actions are at odds with “the system.” It’s not really surprising, because law and TV both follow the groundswell of society. Orphan Black and the U.S. Supreme Court syllabus boast many of the same themes: corporate identity, scientific ownership of living things, the right to control your body and life, and the right to exist as yourself, whatever and whoever that is. Here’s a rundown of just some of the U.S. Supreme Court cases that are relevant to the themes of Orphan Black. [While I know Orphan Black is a Canadian production, I’m not a Canadian lawyer – hence the U.S. focus.]

Gene Patents and Myriad

The Issue:

Patents for human products may sound hyper-modern, but in 1906 a patent for isolated, purified adrenaline filed by P.T. Westmoreland was upheld in court. Judge Learned Hand (my long-time favorite name of a legal figure, and maybe of a human) theorized that even “if it were merely an extracted product without change, there is no rule that such products are not patentable.”  By 2011, thousands of unaltered yet isolated human genes had been patented. Some argued that such patents fostered scientific progress – a fat cash incentive for labs and pharmaceutical companies to be the first to isolate a particular gene. Others maintained that these patents deterred scientific collaboration and led to price-gouging for testing of genetically-linked diseases.

The Case:

In Association For Molecular Pathology v. Myriad Genetics, Inc, Myriad owned the patent for the isolated BRCA1 and BRCA2 genes (AKA the breast cancer genes). The company enjoined other genetic testing labs from isolating BRCA DNA, which they challenged. The question: is uncovering the precise location and genetic sequence of the BRCA genes on their chromosomes an invention of “new and useful composition,” or was Myriad staking claim to naturally-occurring phenomena? The answer: mere isolation of a gene or genes is not patentable, although genes that have been altered may be patented, as may complementary DNA, or cDNA, an exons-only molecule created from mRNA.

Meanwhile, On Orphan Black:

In Orphan Black terms: if Dyad merely mapped the Leda DNA, they could not patent the genetic sequences — even if, say, they isolated the genes responsible for Kira’s fast healing. However, if they isolated Kira’s miraculous car accident genes and created cDNA, that could be patented, as could a protein therapy derived from modified cDNA. Even assuming Dyad HAD successfully patented all or part of the Leda DNA back in the ’80s, this would not mean that Dyad owned the clones themselves: rather that they retained the right to create derivative products based on that DNA.

 

The Right To Privacy and Griswold

The Issue:

The worst part about being an Orphan Black clone, for me, would be having to look my own face in the face all the time. The second-worst part would be the invasion of privacy. Finding out your partner is actually a monitor? It’s like the WORST secret three-way call. And secret spy-eyeballs? I don’t even like touching regular eyeballs. The right to privacy involves more than just freedom from looky-loos and spyballs, though. In Constitutional terms it’s the right to make your own medical decisions, parenting decisions, and who-to-spend-time-with decisions without government intrusion.

The Cases:

In 1965, Griswold v. Connecticut arose because it was illegal for married people to obtain contraception in the state of Connecticut. [Or single people. But a physician who only works with married couples made a sympathetic plaintiff in Mad Men-era New England.] Although the Constitution and Bill of Rights do not explicitly protect the right to privacy, the Supreme Court looked to other cases where a right to privacy was implicit, like Pierce v. Society of Sisters (educating your children as you see fit) and Meyer v. Nebraska (educating your children as you see fit, in German).  The right to privacy lives in the “penumbras” formed by the “emanations” from the guarantees in the first amendment (freedom of association), third (freedom from quartering soldiers in your house which sounds like the ACTUAL WORST), fourth (freedom from unreasonable search and seizure), fifth (freedom from self-incrimination) and ninth (rights retained by the people).

The right to privacy was the basis for the landmark Roe v. Wade decision in 1973 and still comes up quite a bit in debates over abortion legislation, like that terrifying Arkansas law or the gross Oklahoma bill or this stuff that just went down in Texas. The Supreme Court invoked the right to privacy in Lawrence v. Texas, the case that invalidated Texas’s sodomy law in 2003. You read that right. 2003. Season two of American Idol was on. It wasn’t long ago.

Meanwhile, On Orphan Black:

Where does clone monitoring fit into this?  LEDA isn’t fronted by a government agency, (Castor, on the other hand…). But if the government were somehow involved in any number of the weird bodily invasions and intrusions into autonomy that have happened so far, you better believe it’s an overstep.  Still, the constitutional right to privacy is all over Orphan Black. It’s there in the neolutionists’ right to get weird tails and gross eyes. It is evident in  Henrik’s weird cult’s right to assemble (not to do all the other stuff they do –  but if they want to peacefully remake The Village, have at it). It’s even why Alison’s parents could have a child through in vitro fertilization.

Corporate Personhood And Citizens United

The Issue:

A series about an evil, life-controlling corporation could not be better timed. The titans of industry are a hot topic right now: can corporations generate enough revenue to boost the economy while complying with environmental regulations? (Yes.) Will reducing corporate taxes help or hurt the average citizen? (Meh.) Do corporate policies infringe on free speech? (Ugh.) Also, are corporations even people? (WAIT WHAT.)

The Case:

Citizens United v. Federal Elections Commission began, like every problem I can remember having, with a presidential election. A non-profit wanted to air an anti-Hillary Clinton film on TV prior to the 2008 primary, but electioneering funded by corporations and unions was prohibited by law. The Supreme Court ruled that the application of this law violates the First Amendment right to free speech – a right afforded to people, but fine.

The dissent noted that a corporation is at its core creepier than a plain old rich person, having ” ‘limited liability’ for their owners and managers, ‘perpetual life,’ […] unlike voters in U.S. elections, corporations may be foreign controlled […] Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.”

So, yikes.

Meanwhile, On Orphan Black

On one hand, the Dyad Institute/Topside (and Big Cosmetics, for that matter) isn’t looking to finance any elections. But it’s precisely the corporate activities listed in the Citizens United dissent that make these corporations so dangerous. An individual doing half of the things Dyad does would be scary enough, but a corporation  has many of the rights of an individual actor with comparatively few responsibilities and WAY more money. Safely hidden behind the corporate veil, Dyad higher ups are not personally responsible for the corporations actions (okay, if courts ever pierce the corporate veil it might be for something like cloning actual humans, not to mention all the murders – so many murders? has anyone counted them all? – but still, the presumption is a lack of personal liability). Even in the non Orphan Black-world, corporations have individual rights like freedom of speech and freedom of religion (Hobby Lobby, your sale section was legit but the rest of you is NOT).

READ ON

I’m fresh out of time, but the history and philosophy of law are full of topics that are relevant to anyone with an interest in Orphan Black – or the world around them – like the legal and medical ethics of research on human subjects. The history of this issue is – like all legal topics – about more than just the law, it’s about who society (and the law, as a tool of society) prioritizes.

Recommended reading:

The Immortal Life Of Henrietta Lacks

You’ve Got Bad Blood: The Horror Of The Tuskegee Syphilis Experiment

The Ethics Of Using Medical Data From Nazi Experiments

Where Are All The Female Test Subjects?

That should be just about enough to hold us all over until Saturday night, when I will be crying for a solid hour, and possibly then some. Check back with us tomorrow for some more Orphan Black fun that will be, I promise, a little less academic.

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