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.

Advertisements

Frizzle Fails: Majorly Unfun Magic School Bus Trips

Science is cool. When I was a kid my mom was a science teacher, and during the summer I’d serve as a child guinea pig for whatever courses she was taking. I dissected owl pellets, collected pond water, and learned firsthand that science is awesome. And gross. Did I mention gross?

If you weren’t lucky enough to have a scientifically inclined parent, you may have had the next best thing — the guiding, fictional hand of Miss Frizzle, the adventurous, well-dressed schoolmarm from The Magic School Bus. The Magic School Bus was a series of children’s books and cartoons about a group of kids diving head-first into the inner workings of scientific phenomena.

But let’s be real. Teachers are great, but they can’t hit the mark 100% of the time. Here are some Frizzle Fails: those Magic School Bus adventures that delved a little too far into the disgusting, confusing, or downright depressing side of science.

The Magic School Bus Gets Demented

The school bus takes a mystical journey along the neurons and synapses of Phoebe’s grandmother, who was recently diagnosed with advanced dementia. Can they make it through the hippocampus before activity is significantly impaired?

The Magic School Bus Heats Up

Riding on the back of a flea, the Magic School Bus travels with a roadkill racoon on its trip through the animal control center’s crematorium. The kids learn an important scientific axiom: energy cannot be created or destroyed… it can only change form (into a harrowing experience that will haunt you for all the rest of your days).

The Magic School Bus Is In The Money

…as a strain of bacteria being passed from person to person on a dollar bill. The whole gang follows Ralphie’s tooth fairy money as, in the course of a single day, it passes from a man’s unwashed bathroom hands, to the wallet of a lady who just sneezed into her bare palm, before making its final appearance tucked into a g-string at a gentleman’s club.

The Magic School Bus Yes We Can-Cer

When Tim Jamal is diagnosed with a rare invasive tumor, the Magic School Bus takes a fun ride along his fast-dividing cells, evading the surgeon’s knife before ultimately getting wiped out by a high dose of chemotherapy. Uncontrolled mitosis? More like uncontrolled fun!

The Magic School Bus And The Poison Ivy Mystery Tour

WHEEEE! The School Bus slip-slides along the oils excreted from a poison ivy plant, and everyone learns how urushiol can trigger an immune response before – whooosh! – getting knocked out by a hefty, immune-suppressing dose of oral steroids. Will prednisolone make the kids go HAM with mood changes and aggression? Will Frizzle escape the dreaded moon face?

[Guys this isn’t even a book pitch, really, I just have poison oak really bad and this is my life right now.]

The Magic School Bus Peanut Caper

What began as a wacky adventure into the growth cycle of legumes ended three minutes later. Because Keesha has a nut allergy. Read more in The Magic School Bus EpiPen Extravaganza!

Dammit, Friz.

The Magic School Bus In The Mouse House

Miss Frizzle takes the gang on a great trip along the gut flora in the digestive tract of a mouse (you would not BELIEVE how much food from your very own home they find in that stomach!). When the mouse is chased out by the family cat, he is snatched up by an owl. The mouse is swallowed whole, and the kids find themselves broken down into teenier and teenier bits inside the owl before being regurgitated in a sack of hair and bone that is harvested and dissected by a bunch of curious youngsters.

[Like… this is what I did for fun when I was eight. Thanks, mom.]

The Magic School Bus Joins A Gerbil Family

This trip begins in the vas deferens of a male gerbil. From there, they … learn some stuff… then grow into the rapidly dividing cells of a gerbil embryo. When the fetal gerbil is fully formed, they learn – oh no! – that a choromosomal abnormality prevented proper development. After a bumpy journey through the gerbil birth canal, they learn that the circle of life is short indeed, when the gerbil mother recognizes that the child will not thrive and eats it. From there, it’s an awesome lesson in gerbil digestion and egestion. YAY.

The Magic School Bus Is NOT The Father!

The kids learn about DNA analysis – AND the civil justice system – when they go for a quick trip on Dorothy Ann’s blood cells during a hotly contested child support inquiry. How much of her genome is identical to her putative father’s? A statistically insignificant amount, it turns out!

The Magic School Bus Comes To Your AIDs

In this Very Special Edition of the Magic School Bus, the kids learn about the proper handling of bodily fluids when Friz, who has several open paper cut wounds on her hands (so much grading!) comes to the assistance of the heavily bleeding victim of a freak drone accident. As they tag along with an HIV strain, the kids learn that communicable diseases can be passed in a number of ways and that they should always take precautions when interacting with bodily secretions. But it never hurts to hug!