One woman's fight to own her own genes

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.

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Rebecca Gilsenan

Maurice Blackburn Sydney
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 ...

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