Something is eating me.
I smoke too much
I drink too much
I am dying too slowly
—German playwright Heiner Müller in Tooth Decay in Paris, 1981
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
—Title 35 United States Code 101 regarding patentable inventions
On Friday, February 11, 2005, US Patent Application No. 20030079240—an application persistently rejected by the US Patent and Trademark Office (PTO)—was denied for the last time. Dr. Stewart Newman, from New York Medical College, originally filed patent application No. 20030079240 in December 1997 under the following descriptive title: Chimeric Embryos and Animals Containing Human Cells. The invention described in the patent sought to create:
A mammalian embryo developed from a mixture of embryo cells, embryo cells and embryonic stem cells, or embryonic stem cells exclusively, in which at least one of the cells is derived from a human embryo, a human embryonic stem cell line, or any other type of human cell, and any cell line, developed embryo, or animal derived from such an embryo.1
The Washington Post explained the invention in more general terms with an emphasis on the patent’s anticipated end results:
Newman’s application ... described a technique for combining human embryo cells with cells from the embryo of a monkey, ape, or other animal to create a blend of the two—what scientists call a chimera ... Newman’s human-animal chimeras would have greater utility in medicine, for drug and toxicity testing and perhaps as sources of organs for transplantation into people.2
In a counterintuitive twist, Dr. Newman welcomed the final rejection not as a defeat but as an important bioethical victory. He wanted the PTO to either completely dismiss the original patent application or exclusively grant the chimera technology to him. Had Newman been granted the sole patent, he could have prevented others from gaining control over similar inventions for at least twenty years. By refusing to grant the patent to anyone, however, the PTO effectively blocked other parties from turning human-animal hybrids into patentable inventions.
Patent officials provided a handful of reasons for denying the application. The chimeras would violate the US constitutional right to privacy, officials suggested, since Dr. Newman or anyone he licensed the technology to would own the bodies in question as property. This potential property ownership could also violate the Thirteenth Amendment to the US Constitution. Whoever “owned” the patent also effectively “owned” the chimera made with the technology, and this ownership could itself become a form of slavery.3 The application’s final rejection was therefore the end result that Dr. Newman originally desired in 1997: the denial of a patent that would have legally recognized the creation and ownership of part human-part animal life forms. Dr. Newman explained his rationale for pursuing the patent’s ultimate demise: “[T]he whole privatization of the biological world has to be looked at, so we don’t suddenly all find ourselves in the position of saying, ‘How did we get here? Everything is owned.’”4
What makes Newman’s patent application case both fascinating and relevant is that similar biotechnical inventions, the very ones critiqued by Deleuze’s superfold, will inevitably change how future concepts of death and the dead body represent the end of a “natural” human life.5 The preceding pages discussed multiple situations and examples where controlling dead bodies undermined the supposed conceptual rigidity of death. In each case, from the Bisga Man to the Happy Death Movement to the HIV/AIDS corpse, from the denatured corpses in Body Worlds to the global trade in human body parts, to US authorities’ necropolitical control in Guantanamo Bay, the conceptual stability of the dead body remained under constant reinvention. These very same postmortem technologies, and the productive results of those technologies, help to demonstrate how the logic of death that living humans believe to be so fixed is actually quite malleable. Herein sits the fundamental critique of the countless human technologies altering death and transforming the human corpse. The sum effect of how humans used and continue to use these technologies suggests that it is only a matter of time before the postmortem conditions that made the dead body look alive during the nineteenth century will move toward keeping the living twenty-first-century body from ever becoming dead.
Much of the scientific, legal, and ethical discourse surrounding Newman’s application comes from an earlier, also applicable, patent dispute that concerned the ownership of manmade microorganisms—the 1981 Diamond vs. Chakrabarty US Supreme Court case.6 In a landmark 5–4 decision, the Supreme Court found that human-invented living organisms could in fact be patented. The case involved a microorganism invented by General Electric Company (GE) engineer Ananda Chakrabarty that could digest oil from oil spills and industrial accidents. When Chakrabarty and GE filed the initial application in 1971, the PTO immediately rejected it. The application then worked its way through the court system until it reached the Supreme Court.
The reason that the Chakrabarty case is so important for both biotechnology research and technologies controlling the human corpse is that the court’s decision made “life” a formally pantentable entity. Biotechnology critic, and coauthor of the Newman application, Jeremy Rifkin explains that “the PTO office rejected the [Chakrabarty] patent request, arguing that living things are not patentable under US patent laws.”7 And the majority decision in Diamond vs. Chakrabarty did in fact clearly state that: “The laws of nature, physical phenomena, and abstract ideas have been held not patentable. ... Thus a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated E = mc2; nor could Newton have patented the law of gravity.”8 Yet since Ananda Chakrabarty produced the microorganisms himself, he was making something new and not discovering something new. This distinction then allowed the Supreme Court to rule as follows: “A live human-made micro-organism is patentable subject matter ... [Chakrabarty’s] micro-organism constitutes a ‘manufacture’ or ‘composition of matter.’”9
The logic used in the Chakrabarty case, Newman’s concerns regarding the private ownership of biological life, and the merger of both these cases with the constant evolution of dead body technologies bring me to this hypothetical question: What happens when human death is patented?
Death, it would seem, is a force of nature not unlike gravity, so any initial patent on “death” might automatically fail given the rules governing such applications. To legitimately patent death would mean more than simply inventing some new device or machine. What such a patent entails is finding a method, a concept, some combination of practical, political, and theoretical technologies that turn death into a man-made invention. Turning death into a humanly invented process would necessarily mean possessing both the powers to prevent it from happening, as is the case with current biomedical technology, and reversing previously irreversible death through this patented invention. By using the Chakrabarty case’s reasoning, patenting death would also then mean its cessation was a “useful process” as defined by Title 35 of the US Code on patentable inventions.10 Death would need to become entirely unnatural, both politically and practically, for the logic of the patent to succeed.
Any patent application for an invention that controlled death would necessarily need to stress how it assisted human mortality and to such a degree that the concept and practice of “life span” ceased to matter. Biomedical innovations that limited the finality of death were already visible in the latter part of the twentieth century as new forms of mechanical enhancement began keeping patients alive for increasing periods of time. As Dr. Robert H. Blank commented at that time, “Our very concept of what it means to be human is challenged by these rapid advances in medical technology.”11
These conceptual and physical changes to the biological longevity of the human body are not, as this study of human corpse technologies suggests, without progenitors. The nineteenth-century preservation technologies that invented the modern human corpse provided a fundamentally important example of how these temporal shifts can operate. That new kind of nineteenth-century body offered the first moment in what later became the American public’s desire to mediate and control death with technological precision. The contemporary medical and technological ability to replace malfunctioning human body parts with cadaveric tissues is a further demonstration of fundamental shifts in human biology made possible by corpses. These transplantation technologies certainly increased the possibilities for prolonging human life, but they also began bringing the immanence of death nearer its own limit. Agamben argues that the earliest stages of total human control over death appear through these persistent advances in human transplant surgery, beginning with the heart and eventually working to the brain: “According to any good logic, this would imply that just as heart failure no longer furnishes a valid criterion for death once life-support technology and transplantation are discovered, so brain death would, hypothetically speaking, cease to be death on the day on which the first brain transplant were performed.”12
Agamben’s point requires a slight addendum that the scientific question of whether brain transplantation is possible or not seems less an issue of feasibility than time.13 How quickly the technology can be developed for safe use on humans is a more important question to ponder. The notion of a brain transplant also makes apparent that a person who lives without dying need not remain in the same body. Perhaps the person who dies from cardiopulmonary problems simply has his brain moved into another body, assuming another body has either been grown in a laboratory for such a purpose or is available from a donor. What these hypothetical technologies suggest is that the continued merger of humans and machines, as begun full force with the human corpse over a century ago, will push the human concept of the human into what can only be described as the terrain of science fiction.14 As things stand today, the uploading of the dead self remains perpetually elusive (the possibility is somehow always about twenty years away), and companies that offer these digital postmortem preservation services allegedly require customers to commit “voluntary euthanasia” in order to access the brain.15 Caveat emptor is my strongest advice. But as Dr. James J. Hughes, author of Citizen Cyborg: Why Democratic Societies Must Respond to the Redesigned Human of the Future, suggests: “Ultimately, the nanotechnological neuro-prosthetics that we develop to remediate brain injuries will also lend themselves to the sharing and backing up of memories, thoughts and personalities. That point may be recognized as the ‘death of death.’”16
This idea, the “death of death,” suggests that the ongoing fusion of living bodies with life-span-extending/death-preventing technologies found an important precursor in the corpse. As the machines making dead bodies look alive became the technological precursors of devices keeping almost-dead bodies indefinitely alive, the human body easily adapted to all forms of mechanical enhancement. What could emerge from the hypothetical patent on death and the ensuing sociotechnological shifts is a new phase of human-machine interface where the death of death becomes the condition of possibility for a human body that can die but may not remain dead.
But what would become of a society or civilization with radically reduced numbers of dead bodies? Any group of people that persists in unabated living would present substantial and stark economic problems for the larger population. Governmental care for the population would have to be entirely rethought, as death would no longer be one way to keep the nation’s population under control. Per Foucault’s thoughts on biopolitics, authorities’ ability to control human life is one that requires the possibility of death, even if that death is ignored. What possible control can a sovereign yield if a population cannot easily die? Death, in theory, would no longer be a threat, but rather a kind of inconvenience for an already born population ultimately beyond the control of that sovereign. The politics of childbirth and population control would as well take on significantly different cultural stakes. Unless, of course, sovereign authorities are the ones responsible for managing which individuals can access prolonged life extension. This potentially new kind of battle over who or whom controls the end of life would surely make previous, similar fights look simple.
What would most likely happen with a technology stopping death, using the United States as an example, is that limited mortality would become an even more pervasive tool against the economically disadvantaged and technologically illiterate populations. Death would become a phenomenon largely affecting the poor, not unlike curable infectious diseases today, and would simultaneously privilege the affluent populations that could afford the technology. And while a labor force of lower socioeconomic groups would still be needed, the resources to keep those laboring bodies alive would become ever more scarce. These potential economic problems are reason enough not to pursue a patent that eliminates death.
The larger, more fundamental ethical problem created by any individual or sovereign authority attempting total control of human mortality is this: death represents a choice about life. And as human mortality leading to the limit of death becomes more and more technologized, that moment of choice, as Raymond Williams suggests, becomes itself more distributed and potentially uncontrollable.17 Human beings would not be liberating themselves from dying as much as death, and the dead body would become separated by greater and greater degrees from the human. Foucault’s articulation of the irony produced by various regimes controlling human sexuality that have us “believe that our ‘liberation’ is in the balance” also extends to the politics of death.18 The biopolitical controls that are so apparent at every level of sovereign power today will soon merge with the powers of both necropolitics and thanatopolitics. In a world without death only life will exist, and living forever is surely no liberation. Indeed, it is the face of Man drawn in the sand washing out to sea.19
12/03/2018
Watching My Sister Die—Today Is My Birthday
Today is my birthday little sister.
the first one since you died
And we were together last year.
When I began to realize how much pain you
were in
and how bad the pain was becoming.
I look back now and think about
how much more I might have done
but didn’t.
So I’m left now wondering
where your life might have gone
had I insisted sooner
that you knew
you were dying
But not on that trip
when all we did was laugh
and talk and take a photo
one of the last ones we took together
so today is my birthday little sister
and I don’t much feel like celebrating
mostly because I’ll live now every year
without you telling me I’m getting old.