Every Sperm Is Sacred

XY Inc. is a Colorado company offering "sex-selection techniques in non-human mammals, including cattle, horses, pigs and endangered species." The company uses flow cytometry (characterization of individual cells based on how the cells scatter light from a laser) to detect differences in sperm cell DNA content (sperm containing X chromosomes tend to possess measurably more DNA than those containing Y chromosomes) in precisely oriented sperm cells. The result is an accurate method of discriminating between X chromosome-bearing and Y chromosome-bearing sperm, effectively allowing the predetermination of sex in non-human mammals.

XY recently received a European patent that includes claims to methods of selecting sperm. For example,

Claim 1. A method for the cryopreservation of sperm comprising : (a) obtaining a selected sperm sample ; (b) cooling said selected sperm sample ; (c) isolating sperm from said selected sperm sample to produce isolated sperm ; (d) adding final extender to said isolated sperm to produce a suspension of sperm ; and (e) freezing said suspension of sperm.

However, tucked at the end of these method claims is a group of claims of a very different sort. Rather than methods, these claims cover sperm cells themselves. Claims 27, 28, and 29 are particularly illuminating:

Claim 27. A frozen selected sperm sample comprising a portion of the sperm present in a source sample, said portion of sperm selected for a characteristic.

Claim 28. The frozen selected sperm sample of Claim 27 wherein said frozen selected sperm sample comprises sex-selected sperm.

Claim 29. The frozen selected sperm sample of Claim 27 wherein said frozen selected sperm sample comprises mammalian sperm.

They are illuminating not just for the claim elements they recite, but for those they omit. Nowhere are the claims limited to non-human mammals. In fact, claim 29 purports to cover all mammalian sperm, including, so it would seem, human sperm. And, the sperm in question is not genetically modified human sperm, but, rather, specifically selected, naturally occurring human sperm.

Though it currently takes more than a sperm to produce a human being, notwithstanding the homunculus theory, many have expressed their outrage at the granting of a patent claiming an unmodified human germline cell. Opposition proceedings filed by Greenpeace (germline patents are immoral), Monsanto Company (gender-selected sperm cells are nothing new), and the European Parliament's Working Group on Bioethics (germline patents violate the European Union Directive prohibiting patents covering human body parts) are currently winding their way through the European Patent Office.

To update a famous refrain by that prescient critic of biotechnology, Monty Python,

Every sperm is sacred.
Every sperm is great.
If a sperm is patented,
Many get quite irate.