On June 13, 2013, the US Supreme Court unanimously ruled that isolated, unmodified DNA cannot be patented, in the case of Association for Molecular Pathology v. Myriad Genetics, Inc.—a case that has been called the Brown v. Board of Education of genetic science. In line with Cheryl Harris’s critique of the reproduction of racial property in Brown, this article illustrates how Myriad’s “desegregation” of the genome reinstantiated and mutated a legal grammar of racialized dispossession in property. By dismantling one type of biological property in the form of gene patents, the Court enabled a different mode of property to emerge: the genomic commons. Far from being the alternative to enclosure, the commons itself has become an accumulation strategy in a postgenomic climate in which the aggregation of large quantities of genomic data and the accumulation of racial diversity in biobanks have become key to the generation of biovalue.

On June 13, 2013, the US Supreme Court unanimously ruled that isolated, unmodified DNA cannot be patented, in the case of Association for Molecular Pathology v. Myriad Genetics, Inc.—a case that has been called the Brown v. Board of Education of genetic science.1 The Court’s decision struck down biotech company Myriad Genetics, Inc.’s near twenty-year exclusive patent rights over the biological substance of the BRCA tumor suppressor genes, popularly called the “breast cancer genes” due to their association with elevated breast and ovarian cancer risk. The cluster of patents Myriad had acquired in the mid-1990s gave the company rights to all potential uses and prospective values of the genes, providing the corporation with a legal monopoly over the use of BRCA genes in cancer research, diagnostics, and treatment for twenty years (expiring in 2015). Unlike other biotech companies that have collaborated with advocacy groups and medical researchers, Myriad aggressively enforced its legal right to exclude others from accessing, researching, or testing for BRCA gene mutations on a national and international scale.2

The description of Myriad as the Brown of genetic science referenced the unusual civil rights–based framing of the patent case, as it focused explicitly on the segregating influence of patents on scientific research and patient access.3 US patent law has generally limited its purview to highly technical economic issues that are addressed by research institutions, corporations, and lawyers who are seen to “represent the interests of citizens by representing the interests of innovation and the market.”4 In Myriad, however, researchers, citizens, and legal counsel challenged the generally accepted premise that patents promote economic growth and scientific progress. The American Civil Liberties Union (ACLU), joined by patients, researchers, nonprofits, and medical organizations, filed the suit against Myriad, claiming the company’s patents were hampering research toward better forms of testing, treatment, and diagnosis, making it impossible for doctors to provide cheaper and more comprehensive genetic tests or to offer second opinions to patients, and denying people access to important information related to their own genetic materials. As counsel for the petitioners, Christopher Hansen argued before the Supreme Court, “The effect of the patents in this case allows Myriad to stop all research on a part of the human body.”5

In the Court proceedings and in the aftermath of the decision, patients, scientists, and lawmakers acknowledged that science is inevitably bound up with politics and economics, as they leveled critiques of “biological enclosure” and racialized exclusion in genomics.6 Women from patient activist groups gathered on the steps of the US Supreme Court carrying signs that read, “Human Genes Belong to Human Beings, Not Corporations,” “I Take Back My Genes,” and “Patients before Profits.” Scientists repeatedly made use of the language of primitive accumulation, as they claimed that a biological research commons had been subjected to a form of enclosure that threatened the social good. Leading genomic scientists, including James Watson and Eric Lander, wrote amicus briefs in support of the plaintiff, in which they expressed concern that the enclosure of the biological commons through patent law has “balkanized” the human genome.7 “A human genome cluttered with no trespassing signs granted by the Patent Office,” Watson wrote in his brief, “inhibits scientific progress.”8 By breaking up the genome into “small fiefdoms of intellectual property,”9 many argued, the molecular surge in primitive accumulation since the 1990s had created a scientific “anti-commons,”10 with chilling longterm effects on health research and innovation.11

These critiques of enclosure were materially linked to the exclusion of racialized populations in genomic research and testing. As several clinical geneticists asserted in briefs for the case, the research barriers caused by Myriad’s aggressive enforcement of its BRCA gene patents disproportionately impacted patients of color, who are overrepresented among the poor and uninsured in the United States due to patterns of race and class stratification.12 They argued that the high cost of Myriad’s test, compounded by the company’s decision not to accept Medicaid and not to let independent researchers access the genetic data or provide independent genetic testing, meant that these populations were less likely to get access or referrals for genetic testing and counseling, and when they did access these services, they were less likely to receive conclusive results about their genetic status due to the overrepresentation of people of immediate European ancestry in the available research data.13

Within the Supreme Court deliberations, however, the Myriad decision hinged on an ontological question: Was isolated DNA a product of nature or a human invention? According to the product of nature doctrine, a patentable composition of matter is a “novel and useful invention” that has not previously existed in nature. It is only through the ontological transformation of nature into a natural-cultural invention through the application of human labor that nature can be legally converted into property. It is within this framework of nature and culture that the law performs what Sheila Jasanoff calls “ontological surgery,” as it “constructs both life and capital and, more specifically, demarcates those aspects of life that can be owned from those that cannot.”14

Legal counsel for both parties clamored to situate the isolated BRCA genes on either side of the nature/culture property divide. To preserve Myriad’s gene patents, counsel for Myriad argued before the Court that “genes themselves are human constructs”15 and challenged the premise of the product of nature doctrine, cautioning against the legal separation of nature and culture in a biotechnological age in which “the goal of medicine is to get closer to nature, rather than farther away.”16 Counsel for the plaintiffs, on the other hand, insisted that gene patents are ontologically invalid, since “the isolated gene and gene in the body are the same,”17 and further argued that exclusive gene patents were in effect “lock[ing] up a product of nature” and “impeding science.”18 As they worked to align themselves with the plaintiffs’ argument that isolated human DNA is unpatentable, several justices and US Solicitor General Donald Verrilli found themselves comparing “native DNA extracted from the body”19 to native plants extracted from the Amazon so as to argue they are both nature and therefore a commons to be accessed by all and exclusively owned by none.

In the final decision, written by Justice Clarence Thomas, the Court held that “a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated.” “Separating that gene from its surrounding genetic material,” the Court declared, “is not an act of invention.”20 This outcome marked a sea change in patent procedures by significantly expanding access to biological materials in research and narrowing the field of patent-eligible biotechnologies. The ACLU, along with major patient activist groups and genomics researchers, declared this landmark decision to “free the genes” a victory for bioethics, health innovation, and civil rights. Many others joined in the celebration, sharing in a sense of hope that this decision reflected a growing commitment on the part of researchers and the US government to mitigate health inequities and restrict property rights in the body.

In many ways, the Myriad decision has lived up to its name as the Brown of genetic science by helping to “desegregate” genomic research and testing in the United States: the creation of a genomic commons has reduced research barriers and genetic testing costs, improving overall access to genomic materials and technologies. Yet, upon closer inspection, a range of inequities inhered in the legal proceedings and in the aftermath of the decision. In her foundational article “Whiteness as Property,” legal scholar Cheryl Harris argues that, while the landmark decision in Brown that racial segregation was unconstitutional did critical work toward dismantling one form of racial inequality in the shape of overt discrimination, it failed to expose or address “the problem of substantive and enduring inequality in material terms” and indeed revised and reconstituted racialized property in a “different, but no less potent form” of color-blindness.21 Similarly, in the Myriad proceedings, the Court condemned unequal access to genetic materials and technologies and legally freed some human biological materials from propertization. Yet, the legal dissolution of isolated gene patents failed to address enduring racial and economic inequalities under biocapitalism and re-created biological property in the different but no less potent form of the commons.

By pairing a close reading of the oral arguments in Myriad with a brief genealogy of property rights in bodily materials, this article illustrates how the very legal and historical framework that made it possible for the Court to undermine biological enclosure—the argument that human DNA cannot be owned because it is a product of nature—reinstantiates and obfuscates a deep and abiding relation between racialization and property in the United States. Then, by contextualizing the legal ruling in relation to major epistemic and ideological shifts in the postgenomic research landscape, it goes on to show that, by dismantling one type of biological property in the form of gene patents, the Court enabled a different mode of property to emerge: the genomic commons. Far from being the alternative to enclosure, the commons itself has become an accumulation strategy in a postgenomic climate in which the aggregation of large quantities of genomic data and the accumulation of racial diversity in biobanks have become the primary sources for generating “biovalue.”22

The Accumulation of the Primitive: Legal Mutations in Racial Biocapital

Rights in property are contingent on, intertwined with, and conflated with race. Through this entangled relationship between race and property, historical formations of domination have evolved to reproduce subordination in the present.

—Cheryl Harris, “Whiteness as Property”

According to the US Patent Act of 1790, one can patent “anything under the sun that is made by man.” This general claim has since been more narrowly defined in the product of nature doctrine, which stipulates that a patentable composition of matter is any “novel and useful invention” that has not previously existed in nature. Prior to Myriad, it was taken for granted by the courts that the labor of extracting a substance from its environmental substrate transforms the composition of matter into a patentable invention because it makes the material available to new modes of use and possession—speculative and tangible, affective and material, scientific and economic. In line with Jeremy Bentham’s speculative possessive, extraction has been understood as ontological conversion because it was agreed that extraction converts natural substance into economic value through the possibility of use. This reasoning is exemplified in the pivotal legal case of Moore v. Regents of California.

In 1990, the Supreme Court of California ruled against cancer patient John Moore in his suit against his doctors at UCLA and the affiliated Genetics Institute, Inc. and Sandoz Pharmaceuticals over the ownership of cells excised from his spleen when he was being treated for leukemia. Moore argued this was a case of legal conversion—theft—of his cells. Moore insisted that, as a part of his body, the cell line was his property and had been stolen from him by his doctor, David Golde; the defense for UCLA Medical Center argued that the scientific researcher who had extracted Moore’s cells without his knowledge or consent had created something new—the Mo cell line—that was markedly different from the cells within Moore’s body and thereby had possessive rights. The Court ultimately upheld Golde’s property rights in Moore’s cells based on two ontological premises: Moore’s cells were not individual property but were instead a human commons, and the act of isolating the cells from Moore’s body made them an ontologically new substance. On the first point, the court argued that Moore’s cells (lymphokines) were common to the cells in all human bodies and were therefore a natural resource—a shared human substance and inheritance—that could neither be owned by Moore nor stolen from him.23 Second, the court argued that, when extracted from Moore’s body, this natural resource—his isolated cells—became “legally and factually distinct” from the same cells residing within his body because they had a newly useful function: they could circulate as therapeutic, scientific, and commercial objects.24 As long as the cells remained housed within the body of the patient, it was reasoned, they rendered no value to their host—in fact, they were slowly killing him of cancer—and they were also of no value to society because they were being impeded from their potential to enter into circulation and use as potentially lifesaving and profit-generating technologies.25 Living materials are only lively, within this capitalist logic, insomuch as labor can imbue them with life by giving them economic value. Until then, they are simply dead capital awaiting animation by living labor. As such, the California Supreme Court argued that allowing Moore rights to exclude others from accessing his cells would “hinder research by restricting access to the necessary raw materials,” while Golde’s rights to Moore’s cells had the potential to generate value as knowledge and capital by putting them into circulation.26 In Marx’s terms, the court found that the act of isolation transforms a natural resource (Rohstoff) into a raw material (Rohmaterial) by allowing it to enter into circuits of exchange and value production.27

In Myriad, however, the US Supreme Court questioned whether the act of defining human genes as scientific property has actually had the opposite effect in the generation of biovalue. During the oral arguments, many of the justices expressed concern that Myriad’s possessive right to exclude others from using the genes had in fact rendered DNA as dead capital, hampering its circulation and use as a research object and medical commodity. In a departure from Moore, the justices and the executive branch of the US government joined forces to argue that the pivotal act of ontologically converting a biological substance from biocommons to bioenclosure is the application of labor not as extraction but as use. They achieved this by recombining Jeremy Bentham’s speculative possessive with John Locke’s model of property as use to argue that corporations and researchers have a right to expect to use genetic materials, as much as they have a right to possess them when they have sufficiently transformed them through the labor of use.

Throughout the proceedings, counsel for the plaintiff, Christopher Hansen, worked to disarticulate utility (use) from ontology (being) in the context of biological property, such that new ways of using a natural substance could be remain patentable but simply making a substance available to new uses through discovery or extraction would not be considered ontologically transformative. Within the parameters of the product of nature doctrine, therefore, he had to first ontologically define genes as natural properties and then revise which types of human labor can convert genomic nature into property. Put simply, Hansen had to uphold the first part of the legal reasoning in Moore—maintaining that human cells are a commons—while reversing the second part of the argument: insisting that the act of extracting a gene did not render it legally and factually distinct from “native DNA” in the bodily environment.

Hansen began the oral arguments by reifying isolated human genes as unmodified nature: “The genes themselves, their—where they start and stop, what they do, what they are made of, and what happens when they go wrong are all decisions that were made by nature, not Myriad.” Justice Ruth Bader Ginsburg offered a rejoinder to Hansen’s claim, pointing out that “isolating or extracting natural products, that has long been considered patentable. . . . How is this different?” Hansen responded that “in essence, Your Honor, everything starts with a natural product,” but the Court has “said repeatedly that just extracting a natural product is insufficient” such that, for example, “you can’t patent gold because it’s a natural product.”28 He then went on to point out that patented inventions that began with a natural substance like aspirin or the whooping cough vaccine “all involve further manipulation of the product of nature, so that the product of nature [has] become something different.” In contrast, Hansen contended, extracted genes have not been manipulated sufficiently to make them something different from what they were in their “native” environment.

To better delineate what constitutes nature and what constitutes natural-cultural property, Justice Samuel Alito conjured a hypothetical plant in the Amazon with medicinal properties and prompted Hansen to explain his isolated-human-gene-as-unchanged-nature claim in relation to it. Alito asked Hansen: If you found a molecule in the leaf of a plant in the Amazon that could treat breast cancer, “your answer is that cannot be patent—patented; it’s not eligible for patenting because the chemical composition of the—of the drug is the same as the chemical that exists in the leaves of the plant?”29 In this analogy, Alito was groping for what he saw as a clear, undisputed example of the extraction of a product of nature (plant) from a natural environment (Amazonian rain forest) to be used as a scientific technology (treat cancer). The goal here was to prompt Hansen to explain if a woman’s extracted gene, like a plant’s extracted molecule, remains a product of nature once it has been isolated from its environment or if it has become something new and patentable because, in isolation, it has a new function—to treat cancer—and a different form: an isolated molecule.30 Hansen countered that the gene may have a new use in the context of locating cancer-risk-increasing mutations, but it does not have a new form, so it is unpatentable: “Finding a new way of taking gold and making earrings out of it, that doesn’t entitle me to a patent on gold.”31

Justice Elena Kagan followed up on this assertion that women’s extracted genes, like Amazonian plants or gold, are natural resources to be accessed by all, and moved on to the question of which types of labor can convert biology into property: “It takes a lot of work and a lot of investment to identify this gene, but [if] the gene is not changed in composition” and therefore can’t be patented, “what does Myriad get out of the deal?”32 Hansen replied that a scientist’s labor can be rewarded without “locking up a product of nature” through access to patents on other aspects of the genetic research such as use, process, and method. In response to this proposition that other dimensions of nature could be patented without patenting the thing itself, Justice Sonia Sotomayor surmised that “in isolation [the gene] has no value. It’s just nature sitting there. . . . It’s the use you put the isolation to” that is actually valuable.33 In line with Hansen, Sotomayor was framing genes as dead capital waiting to be animated so as to define them out of biological enclosure: if human genes are inert nature, they are a commons that cannot be owned unless sufficient labor adds life-generating value to them. Crucially, however, Sotomayor was parsing which types of labor are life-giving. She was not valuing the labor or expense of discovery in and of itself as the basis for a right to possess and exclude. This stance was reinforced by Solicitor General Verrilli, who made a highly uncommon appearance in Court to reverse the government’s official stance on biological patents.34 Verrilli asked the Court to consider “the question Justice Alito asked earlier about identifying a—a useful substance in a plant in the Amazon, if you isolate that and it proves to have therapeutic effects, you can get a patent on that use of it, but what you can’t do is get a patent on the substance itself.”35 Later in the proceedings, Justice Kagan returned to this example to reiterate Verrilli’s point and to insist that to gain property rights scientific labor has to do more than “discover” nature; it has to remake it through extraction and use: “Go back to Justice Alito’s plant in the Amazon, right. . . . The plant in the forest . . . only has a value when it’s taken out. . . . But it’s still the same thing. . . . It’s still the same thing, but now that you’ve isolated it, it in fact has lots of great uses.”36

At first brush, the justices’ and executive branch’s joint claim that acts of discovery and extraction do not confer possessive rights appears to undercut not only corporate rights to bodily materials but also, more broadly, legal precedents in property law such as the doctrine of discovery, which has rendered indigenous lands available for settler colonial enclosure. Yet, upon closer inspection, the Myriad proceedings lay bare the ways in which racialized and feminized dispossession is enshrined in the product of nature doctrine as a neutral and adaptable baseline for adjudicating biological property. Even as it is undertaken in the name of undermining possessive claims in women’s bodies, the analogical conflation of women’s genes and native plants relies on rendering racialized and feminized life, land, and labor as natural resources that can be accessed and used by all, but not equally so. Through their analogical reasoning, Alito and Kagan begin from the premise that the labor and lifeways of indigenous peoples who have been occupying and cultivating the Amazonian landscape are not sufficient grounds to claim rights in their land. In fact, everyone in the Court appears to assume that the various sovereign nations that crosscut the Amazon are precluded from possessive claims to the territories, and that the native peoples, plants, and knowledges of the region—much like biospecimens in the United States, such as women’s extracted genes—are natural resources that are available for appropriation and use by US researchers and corporations. Justice Stephen G. Breyer makes this explicit when he says: “It’s important to keep products of nature free of the restrictions that patents there are [sic], so when Captain Ferno goes to the Amazon and discovers 50 new types of plants, saps and medicines, discovers them, although that expedition was expensive, although nobody had found it before, he can’t get a patent on the thing itself. He gets a patent on the process, on the use of the thing, but not the thing itself.”37

Race operates as the pivotal historical and epistemic grounds for disarticulating the natural commons—figured here as Amazonian non/human nature that “nobody had found before”—from cultural property, rendered as Captain Ferno’s rights to access this commons and transform it into property through the application of human labor. This commonsense adjudication of nature and/as native lays bare what Brenna Bhandar, drawing on the work of Cheryl Harris, has described as the coproductive relation between private property and racialization wherein possession as a legal concept and right is constituted through modes of racial subordination.38 The accumulation of racialized and gendered differences is buried at the heart of capitalist systems and colonial state formations in the Americas that have been and continue to be animated by the ongoing legal, political, economic, and scientific conversion of peoples and lands into natural resources—what Marx called “a preserve”—that can then be made available for new uses through extraction, exploitation, expropriation, and enclosure.39 The relation between who is the commons and who uses the commons is necessarily mediated by these socially contingent yet historically durable orders of devaluation that are differently operative in colonial, patriarchal, and racial capitalist “economies of dispossession.”40

The obdurate analytic of the race/gender property matrix resolves the apparent contradiction at the heart of Breyer’s attempt to create a commons through a logic of enclosure: Breyer analogically accumulates the primitive41—as non/human natural resources in the so-called New World—as the legal and epistemological grounds for not staking a possessive claim in the body. The accumulation of the primitive at play in the Court advances capital accumulation in a dual gesture that at once invokes and cloaks the racialized and gendered dimensions of disposses sion. On the one hand, the Court reinstantiates and naturalizes primitive accumulation—as a transparently violent process for accruing capital in the form of differential dispossession of land, labor, and life—as the basis for the property form. At the same time, however, it frames the “primitive”—as non/human nature—as a commons, and constitutive outside to modes of capitalist-colonial accumulation. Yet, if the commons is already a form of enclosure, and the rights to access and use are determined through a mutation in a racial patriarchal possessive, then to “free the genes” is to continue to divide and devalue formations of life and labor, but to do so in the name of freedom and equality.

This race/gender property matrix is at work in the expropriation of reproductive labor and the technologization of biological production that are biocapital’s conditions of possibility. Since the biotech revolution, biocapital has been variously theorized as the harnessing of “life itself” or “living nature” as a productive force through the joint ventures of life science and finance capital.42 Situating biocapital within a legal and economic genealogy of racial capitalism, heteropatriarchy, and settler colonialism makes evident the im/possibilities of intervening in ongoing processes of accumulation by dispossession through the frameworks of property and nature, as these very frameworks are composed through racialized dispossession and devaluation. This is readily exemplified in the case of the first human cell line, HeLa.

The HeLa cell line is named after Henrietta Lacks, a poor African American sharecropper whose cervical cancer cells were taken by her physician, Richard Gey, in a segregated hospital ward at Johns Hopkins University without her knowledge or consent in the early 1950s and transformed into highly valuable immortal cell lines that continue to be used in research today. Lacks’s status as a poor woman of color in the Jim Crow South was not coincidental to the framing of her tissues as a biological resource to be extracted and employed for the betterment of a society from which she was, in many ways, excluded. The partitioning of human “life” (bios) from possessive subject (homo) that we see in the case of Lacks exemplifies a contradictory logic, what Sylvia Wynter has deemed “the nonhomogeneity of substance” between political Man and his Human Others.43 While this principle of nonhomogeneity has shifted in form over time, its structuring logics of difference and commensurability have nonetheless stubbornly endured as an organizing force for the production of racial biocapital.44 In the context of racial slavery, the propertization of the body relied on severing the human subject from ownership over her body and over her reproductive capacities. This atomization of the captive body was contingent upon legal and scientific codifications of unequal racial substance that produced blackness as the condition for becoming capital as a living property form.45 In the afterlife of racial slav ery, the legal segregation of the US population along lines of race in 1951 when Lacks was undergoing treatment for cervical cancer saw mutations in the racialized and gendered processes of surplus extraction. Under Jim Crow, racialization as legally unequal difference rendered Lacks as less than human through the systemic devaluation and medical expropriation of her racialized labor and life in the name of promoting lives and futures that were not her own, while at the same time framing her excised cells as fully human, so they could stand in for all of human life in the context of biomedical research. In both of these historical instantiations of biocapitalist accumulation—racial slavery and Jim Crow segregation—the nexus of race/gender differently served as the vector through which bios—as abstract concept and material concrescence—could be extracted, expropriated, and commodified to “to aid in the intensification of vitality for other living beings.”46

In 1990, these histories that congealed in the HeLa cell line became the conduit for a new form of biological enclosure through the Moore decision. The precedent of HeLa in many ways laid the material and legal groundwork for a devaluation of John Moore’s labor of biological reproduction and a denial of his rights to self-possession. The California Supreme Court cited the wide circulation and generally uncontested commercial use of HeLa for the forty years preceding the trial as a challenge to Moore’s claim of legal conversion—or theft—of his bodily property,47 in spite of the fact that the HeLa cells were never patented; since 1954, they were designated as “general scientific property” and were produced for commercial use in research.48 Crucially, while HeLa was a communal form of scientific property that was seen as common to all bodies, it was not accessible to all: numerous scholars have shown how Lacks’s family’s poverty, paired with the severing of her devalued subjectivity from her valued cells, has precluded her ancestors from accessing the cell line along with the commercial and medical benefits that continue to accrue from it. The form of racialized dispossession that facilitated the technologization of life in the case of Lacks mutated with the legal decision in Moore, which reordered and expanded the sources for the expropriation of life to include a wider range of human subjects while curtailing the circulation and capitalization of lively materials by rendering them as exclusive academic or corporate property from which all others could be denied access.49

Almost twenty-five years later in Myriad, the biological property form mutated yet again. In a departure from Moore, Myriad explicitly centered and challenged the commodification of the body, as well as the ways in which processes of bioaccumulation negatively impact health research and access, particularly among racially and economically marginalized populations. In Moore, via Lacks, racialized inequality and extraction provided the infra/structural and ideological matrix for primitive accumula tion as biological enclosure. In contradistinction, in Myriad the values of racial equality and access provided the infra/structural and ideological underpinnings for the accumulation of the primitive as the conversion of extracted biological materials into a commons.50 Yet through this very act of “desegregating” the genome, Myriad relied on and reinstantiated a logic of racialized dispossession while masking and mutating the dynamic integration of biology and racialized property at other levels. By advancing a primitivizing logic of nature, the landmark decision in Myriad increased inclusion in research and access to genetic testing through the dissolution of some property rights over the genome while leaving intact other forms of biological property such as patents on use, method, and process. But even more critical, through this apparently emancipatory gesture of creating a genomic commons, the Court enabled new modes of enclosure to emerge. As I show in the following section, the forms of accumulation that follow from Myriad’s intervention in primitive accumulation mirror those at play in the courtroom proceedings: accumulating the primitive—as a racialized commons—in the name of inclusion and access is a form of property and capital creation in a postgenomic climate in which practices of acquiring, analyzing, and monetizing large volumes of diverse genomic data have supplanted single genes and immortal cell lines as the most promising sites for generating knowledge and value.

Race as Capital and the Accumulation of the Commons in Postgenomics

The years between Moore (1990) and Myriad (2013) saw two notable and interrelated transformations in the genomic research landscape: (a) accumulating and analyzing aggregate genomic data has replaced the model of patenting single genes as the future of genomic capital, and (b) an ethos of democracy and an emphasis on diversity have become key to bioaccumulation strategies. By contextualizing the unusual civil rights–based framing of the Myriad case in relation to this broader political and economic climate of genomic science in the early twenty-first century, it becomes clear that the landmark patenting decision, far from slowing processes of primitive accumulation, enables the aggregation and monetization of genomic biodata and the accumulation of genomic diversity as biovalue while at the same time reproducing and obscuring enduring forms of structural inequality through a discourse of inclusion.

In the same year the Moore decision was handed down, the Human Genome Project was initiated with the goal of sequencing the entire human genome to locate disease-linked genes and improve health care. Meanwhile, biotech start-ups and commercial gene testing laboratories sprung up across the United States, as gene patents presented a profitable opportunity to control the commercialization and availability of testing for future gene-linked diseases and treatments. So, in 1990, when Dr. Marie Claire King’s Berkeley laboratory narrowed the location of the BRCA1 gene to a region on the long arm of chromosome 13, the so-called breast cancer gene became emblematic of the hope and promise of genetic medicine: it provided concrete evidence in support of a hypothesis that common complex diseases such as cancer could be linked to single gene variants—the common disease–common variant (CD-CV) hypothesis—and set off an international race to find the gene. The race came to a close in 1994 when researchers in the United States located, cloned, and immediately patented the BRCA1 gene and then founded the private biotech company Myriad Genetics, Inc.

While companies like Myriad benefited significantly from the gene-patenting gold rush that Moore set off, by the end of the next decade the International Haplotype Mapping (HapMap) Project had begun to unravel the gene-linked disease hypothesis.51 The HapMap Project had been initiated in 2001 to create a global map of the 0.5 percent of human genetic variation, with the aim of better understanding how these variants might impact health and disease. Yet, by its conclusion, HapMap had found that only a small fraction of common genetic variants can be linked to disease risk. These results confirmed a growing suspicion that most common diseases are associated with a complex array of genetic variations, as well as gene-environment interactions, and that even diseases that can be connected to a mutation in a single gene like BRCA1 are impacted by interactions with other genes and the environment in ways that are not easily mapped or fully understood.52 By 2010, Craig Venter, head of the private effort to sequence the human genome, articulated the failings of the CD-CV model: “Everyone was looking for miracle ‘yes/no’ answers in the genome. ‘Yes, you’ll have cancer.’ Or ‘No, you won’t have cancer.’ But that’s not the way it is.”53

This epistemic shift has had significant implications for the generation of biovalue in genomics. The patent frenzy was motivated by the understanding that single gene patents hold prospective value because the patent holder will have exclusive rights to all uses of the gene in tests and therapies once the disease link is found. As understanding of the complexities and embeddedness of genes has increased, postgenomic research has turned its focus to the wider array of DNA’s interactions and contexts, from the cellular substrates in the body to the influences of microbes, behaviors, chemicals, and psychology. Thus, the possibilities for major medical breakthroughs have come to rely upon the volume and accessibility of genomic sequencing data, along with highly specific and localized information about geographic location, personal history, and individual behavior that will help with targeting therapies and producing patentable DNA maps of genomic interactions (such as microbiomes, epigenomes, and other “omes”).54 In this context, the promises of personalized medicine, biotechnological innovation, and biocapitalist returns have increasingly become affixed to processes of accumulating, storing, and studying diverse and copious amounts of genomic bioinformation over time rather than studying isolated single genes or sequencing individual genomes.55 23andMe, for example, sells anonymized and aggregated data from its “commons” of 5 million customers to academic labs and pharmaceutical companies such as Pfizer and Genentech, as well as engaging in its own data-mining analyses on health and ancestry. In short, aggregate genomic data banking and analysis—not genetic tests—have become the future of genomic biocapital.56

When the Myriad proceedings first entered into the federal district court in 2010, major biotech companies and researchers were already vocally critiquing exclusive gene patents as a vestige of an outmoded regime of genetic value and knowledge that was impeding the possibilities for postgenomic value and knowledge production. After the completion of the Human Genome Project, whole genome sequencing technologies became cheaper and faster, such that it was possible to imagine expanding the scale dramatically. However, sources of DNA for large-scale sequencing were harder to come by due in part to the problem of gene patent infringement. In a blog post from 2010, cofounder of 23andMe Linda Avey called the patent model a form of genomic “feudalism,” describing how, in a time “when full genome sequencing is now amazingly within our grasp . . . patents on every gene would be like needing to have 1000 people show up to paint your house, just because they claimed a right to that small piece of wall.”57 At the time, Avey and others such as Harvard genomicist and founder of the Personal Genome Project George Church had been experimenting with ways around not only corporate property rights but also federal privacy rights and institutional bioethical protocols that they experienced as barriers to acquiring and sharing genomic data.

Drawing on a digital ethos of open access and a political model of democratizing knowledge, Avey and Church worked to find new ways to gain unimpeded access to whole genomes through a model of open science in which consumers could participate in the sharing and use of their data. Church’s Personal Genome Project, for example, created an in-depth model of consent and sharing in which people would have a copy of their genomic data and gain access to a digital “commons” in which they could share this genomic and personal health data with researchers.58 In this way, Church and others intimated, sharing genomic information would become a mode of participation and access rather than a form of dispossession or exclusion. Avey made this explicit when she cited the example of Henrietta Lacks as a cautionary tale of undemocratic science. In her blog post about the potentials of consumer genomics companies like 23andMe to democratize science, Avey lampooned conventional bioethical protocols that work to deidentify genomic data from the “so-called human subject” who “contributes his or her highly valuable information.”59 According to Avey, this untethering of person from data “absolves or disallows” researchers of responsibility to communicate with their subjects. As a result, she argued, “data from these studies rarely get back to the person from whose precious sample these discoveries were derived,” which, she continued, is alarmingly clear in the “gripping read about patient sample use” that had just come out that year—Rebecca Skloot’s Immortal Life of Henrietta Lacks.

In Avey’s account, Lacks represents the negative outcomes of a conventional science of paternalism, property, and privacy that denies people access to their biological materials as well as the research findings linked to their biodata. In many ways, this argument reflects the changing social climate of technoscientific and biomedical research in the United States since the 1990s. The years between Myriad and Moore saw significant shifts in the racialized and gendered terrain of experimentation and commodification, as demands for inclusive, participatory, and just research gained a foothold in policy and practice. When the Moore decision was handed down, the risks and benefits of scientific research were becoming an increasingly visible point of public concern in the United States. Women’s and ethnic minority health organizations joined together to demand inclusion in medical studies, arguing that their underrepresentation in health research led to decreased funding, research, and treatment for conditions that most impacted populations that had been historically exploited or excluded in biomedical research.60 Between 1985 and 2002, several forms of federal legislation were passed to address this, such as creating guidelines stipulating mandatory representation of diverse populations in health studies and clinical trials, as well as allocating funds and developing initiatives targeted toward minority health research.61 Yet, researchers soon found themselves navigating the different meanings of minority inclusion in relation to enduring histories of racial discrimination and exploitation. In 1991, for example, the Human Genome Diversity Project was met with backlash from indigenous rights advocates and biological anthropologists, who dubbed it the “Vampire Project” and described the project’s goal of cataloging human genetic diversity by collecting and immortalizing DNA from “isolated” indigenous populations as a form of biocolonialism.62 By 1997, President Bill Clinton formally apologized for the racialized abuses enacted in the Tuskegee Syphilis Study, and the National Institutes of Health (NIH) and Centers for Disease Control and Prevention found themselves tasked with exploring how to address human variation in genomic research in an equitable and ethical way. With the 2001 International HapMap Project, the directors of the National Human Genome Research Institute (NHGRI) radically revised its approach to studying genomic variation. In an unprecedented move, they brought in ethicists as consultants and began from the premise that processes of consent and participation would be robust and collaborative, including offering research subjects “some input into the way their samples would be collected and described.”63 In a variation of the NHGRI’s public research approach, the private company 23andMe offers a commercial platform for consumers to access their raw genomic data and employs a model of informed consent, information sharing, and active participation for consumers to engage as “people,” rather than as research subjects.64

In many ways, this participatory approach is more lucrative and expedient for public genomic researchers and private companies that need to recruit large and diverse subject pools to meet federal guidelines of inclusion and statistical significance, acquire consent from participants for future uses of the DNA, and access information that links research subject trait and health data to the genetic data. An open-source, interactive structure eliminates recruitment barriers and radically reduces study costs and timelines while also encouraging more dynamic and expansive modes of recruitment and participation, all while framing these practices within the more appealing frameworks of democracy and equality. Due to the scale, range, and volume of studies that can be run with the same genomic information, it is more valuable and effective to have active and open lines of communication with research participants who might need to fill out surveys or update health information as it changes. Further, the model of a commons also offers a work-around for bioethical protocols for protecting human subjects by separating their health and identity information from their biodata. By paying for access to 23andMe’s database, for example, genomic researchers can engage in ongoing recruitment and communication with research populations whose members can provide up-to-date information on health, ancestry, or other relevant traits to contextualize their genomic data in relation to new studies in ways that aren’t as readily possible in public biobanks.

These modes of value creation also rely on expanding the geographical and racial diversity of biodata to generate meaningful and widely applicable research outcomes for precision medicine. As numerous plaintiffs (including the US Department of Justice) argued in briefs presented to the Court in Myriad, there is a dearth of genomic information from populations of non-European ancestry in available public and commercial genomic databases. A 2009 study, for example, found that 96 percent of participants in a genome-wide disease association study were of immediate European descent,65 leading researchers to express concern that this form of sampling bias would limit the benefits of genomic medicine and reinforce problematic standards of approaching whiteness as a default in research standards.66 Director of the NHGRI Eric Green described this overrepresentation of populations of immediate European descent as a “major tactical error,”67 and numerous other major researchers have characterized it is a considerable barrier to advancing precision medicine, as the available genomic data being used in research expresses a strong sampling bias, which results in incomplete and skewed data.

Myriad’s invalidation of isolated gene patents and emphasis on racial inclusion in genomics align with these changing epistemic, ethical, and economic priorities of a postgenomic research climate that relies increasingly on aggregate and diverse genomic data. By “desegregating” the human genome, Myriad has increased researcher access to previously patented genes like BRCA1, allowing for more expansive genome-wide research studies and causing the cost of genetic tests to plummet from $3000 to as low as $200.68 Genetic testing rates have increased overall since 2013, which also means that genomic data acquisition has expanded and includes a broader constellation of populations that were previously economically excluded due to the high price. Meanwhile, a number of initiatives are actively working to mitigate racial disparities in genomic research and the resulting therapies and technologies by targeting underrepresented groups as participants and researchers and by actively working to reduce sampling bias in public and private DNA databases. Yet, this mode of inclusion is part of a more complex and uneven terrain of the postgenomic “afterlife of property,”69 as enduring formations of racial capitalism recombine with antiracist permutations of biocapital.

In the context of the HeLa cell line, race served as a mechanism of value creation through the devaluation of racialized life and labor, and, in Moore, these histories of racialized dispossession served as a structuring analytic for defining access to property and value; in the world of postgenomic bioinformatics, these frameworks shift, as race—recoded as diversity and inclusion—becomes a source of value in itself and racialized subjects are reframed as not only producers of biovalue but also coproducers of knowledge and consumers of biotechnologies in a genomic commons. This becomes evident in a range of global initiatives and public-private partnerships that have emerged to accumulate the genomic diversity necessary to establish a genomic infrastructure for robust population-based disease research. The NIH has multiple studies under way that target Latin American and Native American populations to assess genomic risk factors for cardiovascular disease, and in 2015 the Obama administration launched the All of Us Research Program as part of the Precision Medicine Initiative, which aims to recruit a cohort of “one million or more” US research participants who “reflect the rich diversity of the US” to share their DNA as part of “participant-engaged, data-driven” health research.70 Meanwhile, private companies like Illumina, Helix, and 23andMe are partnering with researchers working with underrepresented groups to expand their databases. 23andMe offers free DNA analysis to scientists, as well as individuals in the United States and globally, who represent populations they want to add to their database.71 The company’s African Genetics Project, for example, offers free DNA analysis to people from certain African countries, specifically those on the western coast that were major sites for the transatlantic slave trade.72 The stated goals of all of these initiatives are increasing diversity in research, expanding knowledge about human heritage, and improving health outcomes. Yet, many DNA diversity initiatives rely on and reinforce patterns of uneven racialized expropriation and economic distribution within global bioeconomies.

While the acquisition of non-European DNA is framed as part of an effort to address racial disparities in research, to pursue these efforts many American companies and researchers are accumulating the primitive—rendering “African” DNA, in particular, as a natural resource and a racialized commons available for foreign extraction and value creation in the name of health, equality, and democracy. Primitivist renderings of African DNA animate much of the scientific research, which frames it as the richest source of human diversity in the world and as a global inheritance that promises to offer insights into “all of our” human history.73 Several studies since 2009 have found that the African continent has more genomic diversity than any other part of the world, making it an ideal site for the study of health and human variation.74 These arguments mirror the ones laid out in the Court about Amazonian plants: the Amazonian rainforest is currently the richest site of biodiversity in the world, making it a prime source of global bioprospecting in the name of improving human health. Similarly, the entire African continent is approached by genomic researchers as a source of rich human biodiversity ripe for Western exploration. These primitivisms also inhere in temporal renderings of contemporary African DNA as a living source of a genetic past that belongs to “all of us.” For example, in a press release on Illumina’s website about a new African genomic microarray, Dr. Adebowale Adeyemo, deputy director of the Center for Research on Genomics and Global Health and cochair of the Human Heredity and Health in Africa (H3Africa) Genome Analysis Working Group, suggests that “investing in genomic research in Africa will benefit everyone, given that all modern humans originated in Africa 200,000 years ago.”75 Racial inclusion, here, is not simply a progressive or justice-oriented stance; it is an accumulation strategy that relies on biopolitical processes of racial differentiation and biocapitalist regimes of de/valuation. At the same time, the discourse of inclusion covers over the very real ways that DNA sampling and collection practices continue to be powerful forms of surplus value production, premised on alienating donors from their labor, their bodily materials, and the resulting therapies and biotechnologies.76

Even as numerous African researchers, such as Nigerian Dr. Adeyemo quoted above, have participated in this primitivist discourse that frames African DNA as living history, many have been quick to challenge the predatory approaches at play in acquiring this data. Researchers working with the NIH-and Wellcome Trust–funded H3Africa initiative have criticized many DNA inclusion efforts as “helicopter research”—a form of bioprospecting in which foreign researchers and corporations extract African DNA and develop it for their own benefit elsewhere.77 In response, some African countries such as Zambia and Tanzania have placed federal restrictions on the use of “broad consent” in genomic research—a practice in which research participants are asked to agree to the indefinite banking and unspecified use of their genomic data—so as to limit the types of research and value that can be generated through their populations’ extracted biospecimens. Meanwhile, H3Africa has created funding provisions to combat helicopter research, stipulating that lead researchers on all projects must be African, that funding should prioritize building local research facilities and genomic infrastructures in African research sites, and that they should undertake research that promotes community health. These are important steps toward reducing bias and increasing the accessibility of genomics for researchers and patients, and they offer a compelling example of a critical and situated scientific practice that sees genomics as inextricable from global circuits of knowledge and power.

Nonetheless, the types of research emerging from even the most ethically robust collaborations are part of a complex terrain of infra/structural inequalities that are veiled or exploited within current inclusive and participatory genomic research models. While well-intentioned genomics researchers are working to address racial disparities in and through precision medicine, forms of inclusion upstream in the research and development of genomic health technologies, though necessary and overdue, do not readily translate into downstream access to medical treatments for research populations. Democratizing access to genomic knowledge in the form of research participation and access to genetic data continues to take shape within commercial health markets that monetize data and reframe some populations as “consumers in waiting” and other as experimental subjects based on local and global asymmetries.78

The BRCA genes encapsulate this disjuncture between access to genomic information and access to medical care in the United States. Insurance coverage—for those Americans who can afford to access it—is inconsistent for genetic tests, for BRCA mutation–related cancer risk–reducing measures such as preventive surgeries or chemopreventive drugs, and for cancer treatments for those with manifest disease, which can prove incredibly expensive even for the insured. Meanwhile, in parts of the African continent where genomic researchers are hoping to partner with local researchers and communities to develop genomic technologies and local research infrastructures, the promissory futures of precision medicine come up against the enduring failures of basic health care.79 Julie Livingston, for example, described the dynamics of cancer care in Botswana where, even though there is universal health care, there is only one dedicated cancer ward in the entire country, in which “vital machines are often broken, drugs go in and out of stock, and bed-space is always at a premium.”80

It is critical that genomic technologies such as therapies and tests do not embed racial and economic disparities within them through sampling biases. However, improving the technologies themselves and increasing access to genomic knowledges does not necessarily improve health outcomes; it only guarantees that more populations are differentially included as genomic producers and consumers. Further, the model of the genomic commons enables the reproduction and mutation of racial capitalism and its attendant inequalities at a global scale. Clearly, saying “Black Genes Matter,” as a 2018 special cancer issue of Newsweek declared on its cover, serves as an inadequate and troubling appropriation of the loud and insistent demand that Black Lives Matter in the face of ongoing and uneven acts of differentiation, devaluation, and dispossession in and beyond biocapitalist regimes of value.81 In fact, in acknowledging that race consciousness is a potential weapon against oppression, genomics research that draws on a biological discourse of technomedical remediation of racial inequality actually facilitates and obfuscates the reproduction of race as a tool of subjection and expropriation in the absence of meaningful structural changes to global social and economic asymmetries.82

The Afterlives of Biological Property

The hard materiality of the unreal convinces us that we are surrounded, that we must take possession of ourselves, correct ourselves, remain in the emergency, on a permanent footing, settled, determined, protecting nothing but an illusory right to what we do not have, which the settler takes for and as the commons.

— Fred Moten and Stephano Harney, The Undercommons

As Cheryl Harris has shown, the Brown decision was shaped by a range of political pressures and economic interests that were as much ideological as they were strategic in a shifting social landscape in which certain forms of overt racial discrimination were becoming less tenable on multiple fronts.83 The political consequence of Brown was critical, yet it was inevitably inadequate to the task of materially shifting social and economic structures of power and knowledge within a racial capitalist-colonial state. Myriad, too, emerges in relation to a complex topography of epistemic shifts, sociopolitical transformations, and economic mutations that see bioinformatic technologies and antiracist ideologies combine in a postgenomic era of knowledge and value. In describing the continuities and mutations in biocapital at play in the decision and its aftermath, and reading them through Harris’s critique of Brown, I do not seek to condemn well-intentioned justices or scientists for their attempts to enact justice in their work, nor do I want to minimize the import of the decision in Myriad for some dimensions of genomic research. My hope, rather, is to highlight the pressing and consistent need to attend to enduring deformations of life under and as capital and to fiercely insist on the im/possibilities of doing justice within dominant epistemic and political frameworks that are structured by and internal to colonial-capitalist logics. It is crucial to remain vigilant with our critical deployment of categories, practices, and ideals such as those codified in and through Myriad and its aftermath. Nature, property, and the commons are all freighted concepts that are bound up in the reproduction of the race/property matrix within juridical, scientific, and national formations. Whether marshaled in the name of domination or liberation, modes of knowing that frame biology as property—as a concrete, bounded property of the body and as a property form to be possessed, exchanged, and abstracted within circuits of value—are inadequate to the task of transforming the ongoing operations of dispossession and enclosure at play in racial biocapitalisms.

Notes

3

As Shobita Parthasarathy observes, this choice to focus on problems of access and ethics enabled the American Civil Liberties Union (ACLU) to acquire a wide range of plaintiffs, such as scientific and medical researchers and institutions, as well as patients and disease advocacy organizations—all of whom usually don’t participate in patent law proceedings. An ACLU representative explained: “Our plaintiffs are civil rights plaintiffs, not patent law plaintiffs. . . . It’s one of a half dozen ways in which this case is really novel for the patent world. But, I will say, totally garden variety when it comes to the civil rights world. You couldn’t be a more typical civil rights case than this. It’s just that the Patent Bar doesn’t understand the fact that civil rights apply to patents.” Parthasarathy, Patent Politics, 162.

5

Association for Molecular Pathology v. Myriad Genetics, Inc., oral arguments, 62.

8

Watson, amicus brief, 19.

13

Clinical researchers argued that racialized inequalities in access to genetic testing led to a lack of genetic diversity in biological research repositories and, as a result, reduced the clinical accuracy of genetic test results for excluded populations. For example, when the case first went before the US District Court, the plaintiffs included leading clinical geneticists Wendy Chung (Columbia University) and Harry Ostrer (New York University). Both Chung and Ostrer submitted plaintiff statements detailing how racial minorities in the United States tend to have higher frequencies of variations of uncertain significance (VUS) in their test results. A VUS occurs when Myriad’s BRACAnalysis test registers a mutation in the patient’s BRCA gene but does not have enough data on that particular mutation to determine whether it is associated with increased risk for breast and ovarian cancer. Chung, “Declaration,” 5; Ostrer “Declaration,” 7. For more on this, see Lee, “Cease or Persist?” 

15

Myriad, oral arguments, 14–15.

16

Myriad, oral arguments, 46.

17

Myriad, oral arguments, 17.

18

Myriad, oral arguments, 12.

19

Myriad, oral arguments, 24.

20

Myriad, court decision, 1, 12.

23

Moore v. Regents of the University of California, 138–39. For more on the argument that the extracted cells were common to all bodies, see Weheliye, Habeas Viscus, 80; Jasanoff, “Taking Life”; and Harris, “Whiteness as Property.” 

24

Jasanoff, “Taking Life.” See also Landecker, “Between Beneficence and Chattel.” The case often gets made that patients are biased and self-interested such that they will hamper access to their bodily materials in ways that are detrimental to scientific progress. This often reinforces a false binary between patient and scientist, and between science and commerce, which frames scientists as unbiased experts who are undertaking research in the public interest. Yet, the very logic that undergirds questions of access and rights to possess and exclude in patent law assumes that scientists will seek economic rewards. And, as is evidenced in Myriad, there is no guarantee that social interests will outweigh economic interests for patent holders.

26

Moore, 145.

27

Rohstoff is the raw material before the application of human labor; Rohmaterial is the raw material that has been shaped by human labor but is not yet a commodity or final product. Marx, Capital, 178–82.

28

Myriad, oral arguments, 4.

29

Myriad, oral arguments, 7.

30

It not coincidental that the specific genetic material whose naturalness and property value are contested territory in science, economy, and law is associated with female bodies. While the BRCA genes are carried by people of all genders, the elevated breast and ovarian risk that they confer has resulted in their consistent popular and medical association with women. This is noted multiple times in the oral arguments, as both legal and judicial parties referenced women’s bodies and breast cancer specifically when discussing the genetic material’s source and its utility. As Londa Schiebinger, among others, has noted, nature—as an object of knowledge and intervention—has historically been conceived of as racialized and feminized, and the narrative of scientific discovery has been animated by sexualized colonial imaginaries of masculinist science discovering, deciphering, and dominating a female nature, often coded as brown. Schiebinger, Nature’s Body; Schiebinger, Plants and Empire. Donna Haraway has demonstrated that the very foundations of modern science are premised upon the explicit exclusion of women and people of color from its practices and institutions, figuring them as objects, rather than producers, of knowledge. Haraway, Modest_Witness@Second_Millennium.FemaleMan_Meets_OncoMouse. Indeed, the law-science-capital triad has relied heavily on the exclusion and exploitation of women, and particularly women of color, from labor markets and land ownership while violently coercing them into reproducing the capitalist workforce. Federici, Caliban and the Witch.

31

Myriad, oral arguments, 9.

32

Myriad, oral arguments, 11.

33

Myriad, oral arguments, 16.

34

Verrilli said explicitly that he was changing the government’s stance on patents. Myriad, oral arguments, 28.

35

Myriad, oral arguments, 30.

36

Myriad, oral arguments, 45.

37

Myriad, oral arguments, 49.

39

Silvia Federici shows how gender became a site of accumulation within the consolidation of a capitalist order in feudal Europe, as women and their labor began to “appear as a natural resource, available to all, no less than the air we breathe and the water we drink.” Federici, Caliban and the Witch, 97. Cedric Robinson has also argued that modes of racialization are inextricable from the emergence and advancement of capitalist systems. These formations are not about race in the modern sense of an attribute of bodies or geographical origin; racial capitalism, instead, encapsulates the processes through which the political ontologies of “the racial” have operated as meaningful and durable analytics of unequal difference at capitalism’s core. Robinson, Black Marxism.

40

Jodi A. Byrd and colleagues use the phrase economies of dispossession to “underscore the constitutive and continuing role of both colonization and racialization for capitalism.” Byrd et al., “Predatory Value,” 2.

41

Sandy Grande originally uses this phrase in “Accumulation of the Primitive.”

47

Moore, 134–35.

50

The Court did, however, uphold patents on complementary DNA, or cDNA, which is a lab-manipulated version of DNA in which the noncoding regions (introns) are removed in a routine process of reverse replication. This maintained access to property rights in biological materials as long as they are sufficiently modified through labor. Patents on use, process, and method also remained firmly intact.

51

Sites in the DNA sequence where individuals differ at a single DNA base are called single nucleotide polymorphisms (SNPs), and these SNPs are inherited in blocks, called haplotypes. The HapMap project sought to map these blocks to facilitate targeted research into how these specific genetic variations are connected to environment, disease, and drug responsiveness. See National Human Genome Research Institute, “International HapMap Project Overview.”

53

Der Spiegel, “Spiegel Interview with Craig Venter.”

56

As a 23andMe board member explained, “The long game here is not to make money selling [gene testing] kits, although the kits are essential to get the base level data. Once you have the data, [the company] really does actually become the Google of personalized healthcare.” See Seife, “23andMe Is Terrifying.” 

63

International HapMap Consortium, “Integrating Ethics and Science.”

64

I would argue that Avey uses this language of “people” deliberately. This linguistic choice draws from indigenous critiques of the biocolonialism of federally funded genomic research projects such as the Human Genome Diversity Project. In 2001, for example, Bronco Le Beau of the Lakota Sioux insisted, “We’re not biological specimens, we’re not anthropological specimens—we’re people.” Quoted in Davis, “Genetic Research and Communal Narratives,” 42.

67

Quoted in Wapner, “Cancer Scientists Have Ignored African DNA.”

68

The Affordable Care Act has also mandated that private insurers cover genetic testing and counseling for patients who meet certain eligibility criteria, though no provisions are in place to ensure coverage of preventive screenings and surgeries, and all of this may be rendered null by the Trump administration.

71

See, e.g., 23andMe, “Populations Collaborations Program”; 23andMe, “Global Genetics Project”; and 23andMe, “African Genetics Project.”

72

23andMe, “African Genetics Project.”

73

Kim TallBear argues that this claim that “we” are all from Africa is “nonsensical” since Africa as a political and epistemological space did not exist 200,000 years ago. Further, this assertion that we all share the same ancient genetic heritage “continues to rely on representing living African bodies and living indigenous bodies as primordial, as a genetic window to the past, as the source of ‘all of us,’ ” while suggesting that the benefits of investing in African research must accrue to non-African peoples for it to be worthwhile. TallBear, “Genomic Articulations of Indigeneity,” 511–12.

79

Jenny Reardon shows how early African American–centered genomic research projects came up against structural concerns voiced by study participants and local consultants about rampant poverty, medical discrimination, and a lack of basic health care. In Tuskegee, where the poverty rate was over 50 percent and the nearest hospital was a thirty-minute drive, people were hard-pressed to find investments in genomic research to be a priority since, as one community member said, “there is so much else wrong.” Reardon, Postgenomic Condition, 64–65.

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