What if a corporation owned part of your body? In 2010, one woman challenged a US biotech company's right to own her own genes.
October 2017 marks two years since the end of the long legal battle, when the Australian High Court rules in favour of Yvonne. Thanks to Yvonne, all Australians now own these genes.
Myriad Genetics had a monopoly over BRCA1 and BRCA2 genes
In 1995, American biotechnology company Myriad Genetics was granted a patent over isolated hereditary mutations to the BRCA1 and BRCA2 genes, which increase the carrier’s risk of developing breast and ovarian cancer.
The patent gave Myriad and Genetic Technologies Limited a monopoly over the use of the genes for research, diagnostic and testing purposes.
Legal action launched in June 2010
Maurice Blackburn’s Social Justice Practice, acting for Cancer Voices and cancer sufferer Yvonne D’Arcy, launched legal action in 2010 to challenge Myriad’s patent over the BRCA1 gene.
Three years later, the Federal Court ruled in favour of Myriad, holding that isolated gene sequences are the product of human intervention and are therefore patentable.
Yvonne D’Arcy appealed the decision. The appeal was heard in August 2013 by the Full Federal Court and on 5 September 2014, the court upheld the initial ruling. Unhappy with the result, Maurice Blackburn then sought leave to appeal to the High Court of Australia. In a win for women across the nation, on 7 October 2015 the High Court ruled unanimously that the BRCA1 gene cannot be patented, ending the long and hard-fought legal battle.
Why was the case so important?
The case raised philosophical and ethical issues about the commercialisation of the human body. It also exposed practical concerns around gene patents including access to the gene mutation for research and testing purposes.
Among the many people affected by the win in this case is Krystal Barter whose family carries the BRCA1 gene mutation.
PODCAST: When your future looks like cancer
“Extremely confronting” is how Krystal Barter describes what it was like being a teenager growing her own breasts while her mum was losing hers. She turned to drugs, alcohol and anything else she could to escape the realisation that cancer was her future too. She didn’t want to know about it so buried her head in the sand because it seemed like the easiest way to deal with everything going on around her.
Listen to the podcast below, or subscribe on iTunes.
Rebecca Gilsenan is a Principal Lawyer in Maurice Blackburn's class actions department in Sydney. She has extensive experience in running complex and novel litigation, including class actions in the areas of price fixing, failed investment schemes, product liability and securities. Best Lawyers has listed Rebecca as one of the top class actions lawyers in Sydney.
Rebecca's major cases have included:
a class action against Amcor Limited and Visy Board Pty Ltd resulting in $95 million settlement for thousands of victims of the companies price fixing and market rigging conduct
a series of class actions regarding failed heart devices
a class action regarding failed Smith & Nephew macrotextured knee implants
landmark litigation for a child immigration detainee against the Commonwealth and detention centre operators regarding the child's treatment in immigration detention
a constitutional challenge in the High Court
a class action regarding investments in a property trust, and
a group action for investors in a failed property investment scheme.
She is currently working on:
a test case about whether human genes can be patented
a shareholder class action against Leighton Holdings
a class action against various airlines for price fixing in the air cargo industry
a class action in relation to failed knee implants
a shareholder class action against Gunns Limited
a class action against various airlines for price fixing in the air cargo industry, and
a class action in relation to failed DePuy LCS Duofix knee implants
Rebecca also acts for Greenpeace Australia Pacific Limited.
Rebecca has been a contributor on legal matters with various media outlets. In 2011, she was a weekly contributor and blogger with The Daily Telegraph newspaper. In 2012, Rebecca was a weekly contributor to Network Ten's national morning television program Breakfast as their weekly expert on legal matters.
Memberships & accreditations
Public Interest Advocacy Centre Board member
UNSW Law School Advisory Council member
Guthrie House former Board member
Best Lawyers 2018 - class actions lawyer in Sydney
Listed by the AFR as one of the best class action lawyers in Australia in 2016
Lawyers Weekly Partner of the Year Pro Bono Award finalist
2016 Lawyers Weekly Women in Law Pro Bono Award finalist, 2015
NSW Women Lawyers Partner of the Year finalist, 2015