Wednesday, November 18, 2015


The thorny legal problem Bert Gropes faces in the The Hot Monkey Love Trial – whether he’s a person who can be prosecuted or a mere thing that can’t be prosecuted, like a monkey or a humonkey – I’m telling you isn’t so farfetched.

It was reported that a mother, Lydia Fairchild, found out that DNA tests indisputably proved that her children were not hers, not only disqualifying her from receiving welfare but proving she’d committed a crime in fraudulently receiving prior welfare payments. When she had a third child, law enforcement was there at the hospital to take additional genetic samples to support the case against her. The father was indeed the father, but the DNA again proved that she was not the mother, strongly suggesting she was engaged in some kind of clandestine surrogacy that made little sense. 

A lawyer took on her case in the face of overwhelming genetic evidence against her. The answer was eventually found in the New England Journal of Medicine. There it was reported that a woman could not find a match in her own family for a kidney transplant because her DNA did not match her siblings, and it was discovered her own children must not have been her own. In that case the doctors persisted by taking samples from different parts of the body, resulting in the same conclusion. Eventually they tested tissue of the patient from a removed thyroid and – bingo! – the DNA matched her siblings and children.

This condition of having different genetic profiles from different parts of the body is a type of chimerism, conjuring up the original meaning of the word where two different species have been welded together. Here, however two human genetic profiles have been fused together.
Although mild forms of chimerism can result from transfusions, transplantations, and natural genetic inheritance, the cases like Lydia Fairchild are called tetragametic chimerism. That’s tetra, as in four. Instead of two cells – one egg and one sperm – forming a zygote, a tetragametic zygote is formed from two eggs and two cells that form one zygote instead of simply forming twins. 

The upshot of tetragametic chimerism – where four cells fuse into one zygote embodying two distinctly different genetic profiles – is that a criminal suspect can be wrongly accused, or exculpated when actually guilty, or accused twice based on two different genetic tests. But, under double jeopardy, an accused can only be tried once even if the other “person” lurking in his genes has only now been identified.

Thursday, September 24, 2015

Monkey See, Monkey Shoot: Who Owns The Monkey Selfie?

Who should own the copyright in a selfie that is composed, art-directed, and shot by a monkey?  A new lawsuit has been filed here in San Francisco federal court by PETA seeking to have Naruto, the monkey, declared the “author” of his smiling selfie gone viral. What’s more, the plaintiff in Naruto v. Slater wants the monkey to be designated the beneficiary of all royalties earned by the popular photographic image with proceeds to benefit the reserve where Naruto lives.

The photos were taken in 2011 when British nature photographer, David Slater, was on the Indonesian island of Sulawesi. He’d set up the camera and a tripod to photograph the macaque monkeys but, as monkeys are wont to do, Naruto started examining and playing with the equipment. The photos were later published by Slater in his book Wildlife Personalities, and Slater claimed to own copyright in the monkey selfies.

Slater’s position is that he set the whole thing up and therefore was the “mastermind” behind – and therefore the “author” of  the photos.  In fact, Slater said he left the camera unattended and hoped the monkeys would do what they did. Taken to its logical extreme, however, that may be like saying you locked Tolstoy in a room and hoped he’d write a novel, making you the “mastermind” behind War and Peace (although it is a much more elegant solution than the proverbial million monkeys with a million typewriters).

There is at least some support for Slater’s position. In the 1884 case of Burrow-Giles Lithographic Co. v. Sarony, the U.S. Supreme Court held that photographs are subject to copyright protection because of the artistic decisions made by the photographer in taking a portrait shot of Oscar Wilde. Those decisions include choosing the camera, lighting, angle, and wardrobe of the subject.  Maybe only the first two of those items help Slater’s claim of ownership.

On the other hand, Naruto selected – whether knowingly or not – such things as the camera angle, timing, level of focus, and framing of the photograph.

Meanwhile, the Copyright Office – which is considered authoritative but whose interpretations of copyright law are not binding on a federal court – has just recently pronounced in its Compendium of the U.S. Copyright Office Practices (3rd Edition) that any original work of authorship, including a photograph, can be registered “provided that the work was created by a human being.” The Copyright Office cites photographs taken by monkeys and murals created by elephants as examples of such works it views as created by nonhumans and not eligible for ownership.

In the photos taken by Naruto, shown above, it’s hard not to see the hand, complete with an opposable thumb, of an artist at work.The smiling selfie shows a steady touch and a nicely composed headshot highlighting a set of choppers that, make no mistake, would cause even George Washington to go bananas.  The second shot, so stoic and determined, suggests Naruto intended to conjure elements of American Gothic, but without the whole monkey on your back of having to keep the farm going, or having to pay the mortgage or, for that matter, finding yourself armed with only a puny pitchfork while facing, straight ahead, nothing less than a mountain of 1930’s Midwestern existentialism to sort through. Even if Naruto is a not the copyright owner, and likely no one is, he made judicious artistic choices that would best capture his personal worldview.

Monday, August 10, 2015

REVERSE EVOLUTION: On Becoming a Dino-Chicken

Although it's been firmly proven that birds evolved from dinosaurs, we don't know exactly how it all happened, especially when it took place over an unimaginably long period of time. Recently scientists were able to better understand how the snout of a flying dinosaur became a  beak found in thousands of birds on earth. By turning off the gene expression that is the set of instructions for a chicken embryo to build a beak, the Yale and Harvard scientists were able to have the embryo build what resembled the snout of a giant prehistoric Velocitoraptor.

"Our goal here was to understand the molecular underpinnings of an important evolutionary transition," one of the Yale scientists involved in the project said in a statement, "not to create a 'dino-chicken' simply for the sake of it."

Having the understanding of the molecular underpinnings does, however, teach a great deal about how to make new animal. The book How to Build a Dinosaur: The New Science of Reverse Evolution by noted paleontologist Jack Horner (with New York Times science columnist, James Gorman) makes no secret of where reverse evolution leads. The publisher's blurb on Amazon summarizes the book's content:

 "A scientific adviser for the film Jurassic Park evaluates the potential for artificially growing a real dinosaur without ancient DNA discussing the relationships between dinosaurs and birds and how it may be possible to stimulate latent tyrannosaurus rex."

All of which brings us to the subject of humans. In the novel Bert's in-vitro fertilization resulted in a unique monkey gene being inserted into his DNA. The legal system wonders if he is a human person who can be prosecuted and not some lesser creature. Bert worries if he is the first human to ever have measurably reversed the ascent of man, appearing to be moving forward as a human but in fact moonwalking backwards into the two and four-legged apes following behind. 

And what next? If the new science of reverse evolution is taught in the schools, will there be those who insist that "Reverse Creationism" also be taught, i.e., the disassembly of the universe piece by piece in an effort to recreate a massive, Ikea-inspired set of assembly instructions so complex and so utterly unfathomable that it proves only one Creator could have put the whole shebang together in the first place?

Sunday, July 5, 2015

Nonhuman Rights Project Represents Nonhuman "Persons"

The Nonhuman Rights Project is a nonprofit organization holding this in its mission

“Our mission is to change the common law status of at least some nonhuman animals from mere ‘things,’ which lack the capacity to possess any legal right, to ‘persons,’ who possess such fundamental rights as bodily integrity and bodily liberty, and those other legal rights to which evolving standards of morality, scientific discovery, and human experience entitle them.”
Historically animals, since they are viewed as “things,” have had no rights.  Animal welfare laws as we know them have been largely born out of the rights of humans, namely, the right to not have to witness or tolerate animal cruelty or suffering.
Founded by attorney and law professor, Steven Wise, the Nonhuman Rights Project seeks to change that.   In an April 2014 cover story entitled “Should A Chimp Be Able To Sue Its Owner?” the New York Times Magazine reported that Wise started with his mission back in 1981 after he read the seminal book Animal Liberation by Peter Singer. However, only now, starting in late 2013 has he, with the backing of the NhPP and others, begun filing habeas corpus lawsuits, with animals as plaintiffs and their captors as defendants.  A habeas corpus  – literally meaning “you have the body” – is a proceeding which simply seeks to release the plaintiff from unlawful restraint.
The first habeas corpus court cases have as their plaintiffs chimps by the names of Kiko, Hercules and Leo, all of whom are in captivity in New York state, including two of whom are research animals at Stony Brook University. All of the suits brought in December 2013 have been dismissed because – no surprise – each of the state court judges hearing these cases has decided that New York law does not recognize the standing of a petitioner who claims to possess “nonhuman personhood.” This conclusion was reached in the face of papers filed by the plaintiffs setting forth in elaborate detail, with world-class experts, the ability of the petitioners to know their past and contemplate their future, among other cognitive and emotional attributes.
I was aware of Steven Wise’s studies and teachings when I wrote The Hot Monkey Love Trial. I read his book Rattling the Cage: Toward Legal Rights for Animals, published in 2000. It was about the only book to be found that discussed the notion of animals capable of being treated as legal “persons,” and I used it for historical facts and to better understand the line our laws have drawn between a living nonhuman being, seen as having no rights, and a human being with rights.
But is there really anything shared in common between these habeas court cases brought by plaintiffs, claiming to be nonhuman persons, and The Hot Monkey Love Trial?  After all, one is very real; one is fiction. One is a very serious matter; one is intended to be mostly comic. One raises the question: Should a monkey – with stunning cognitive powers and the ability to communicate, even empathize with other animals, including humans – have a right to personal liberty upon petition to a court where there’s proof of pervasive bondage, cruelty, and suffering? On the other hand, the novel asks: Can someone who is part genetically nonhuman – that is, whose genome contains genetic material that is unique to monkeys – be deemed a person who can be held accountable for crimes? Isn’t the answer to both yes? Or stated differently, it takes twisting of common sense, if not the wrong kind of blind justice – one tragically and ironically pigheaded and one comically absurd – to answer both questions no.

The Court granted a habeas corpus hearing – something that to date has only been granted to full-fledged humans – and the hearing was held on May 27 ,2015.  Stay tuned for more on the cases filed, now on appeal, and this fascinating and developing area of law.

Sunday, May 24, 2015

Editing and Laser-Printing New DNA

QUESTION: Can you identify the one sentence in this post that is fictional, i.e., that hasn’t happened or isn’t happening right now in the biotech world? Think carefully before answering.

                            A startup in San Francisco, Cambrian Genomics, is the first to assemble, sequence, and “laser-print” customized DNA, allowing customers to edit and create new species of plants and animals. The company has major Silicon Valley venture funding.
                            Here’s how Cambrian processes an order for “special-order” genes. First it adds DNA chemicals millions of times onto tiny beads layered onto glass with what could be described as a “god machine” that assigns a fateful color to each DNA chemical. Then a laser “analyzes” the colors, and it recognizes the correct ones by separating them from the incorrect ones. The chosen strands are “printed” into a powder on a small plastic plate that may be inserted into the cells of an organism.
                            One company using Cambrian technology, Petomics, is making a probiotic for dogs and cats that makes their poop smell like bananas. The technology was also behind a Kickstarter crowdfunding startup that makes plants that glow in the dark. The sponsors claim it is the first step in fully replacing the traditional lightbulb by creating “sustainable natural lighting” made from synthetic biological material.  After the project was fully funded, Kickstarter announced its new policy that it will not promote funding for genetically-engineered organisms.  
                            On the drawing boards are cow-free milk and “animal-free” meat. But if the meat doesn’t come from animals, where does it come from? And does that mean we can also create animals with something other than good old-fashioned flesh? Also on the drawing board are Bio-BUDs, so named because they are biological “blow-up dolls.”
The founder of Cambrian Genomics, Austin Heinz, wants to make “totally new organisms” that have never existed. He believes we’re not far off from Mom and Dad getting in on the act. Because the technology will let parents digitally design their children, that twinkle in their eye may prove to be the blinking cursor on their computer screen.  
                            At present the company does a check before shipping it out to make sure that what it has created for the customer isn’t Black Plague or some other known and readily-identifiable disaster in the making. As orders increase, the company won’t have time to do that, but it expects that it should be able to ship to a third-party vendor who can provide that service.
                     “It is the most powerful technology humans have ever created,” Heinz is quoted as saying. “Hydrogen bombs can destroy whole planets, but this is a technology that can create planets. This is the greatest human achievement of all time — the ability to read and write life, because that’s who we are.”
                            I understand – or I’m coming to slowly understand – that life can be “written” by creating and editing DNA, including that of humans. When speaking of “reading” people, I’ve only understood that to mean the ability to watch and decipher the code behind another’s words, gestures, and actions, making it possible in an imperfect science to come to conclusions about that person’s true nature. But what if “reading” people, or experimenting with their "recipe,"were as easy as reading, writing, or revising a cookbook?
ANSWER: The Bio-BUDs are fictional. In the novel the company Primal Urge is developing a product line by that name. The rest of it about Cambrian Genomics is all true.

Friday, May 1, 2015

Welcome, And What's This All About?

Welcome to the Monkey Trial Jury Room, a place to talk about the subject of The Hot Monkey Love Trial: A Novel About Romance, Biotech, and Odd Combinations coming from Water Street Press in the summer of 2016. More broadly, it’s a place to gather and talk about any kind of monkeying with genes, about monkeying with language and story-telling, about humans and animals, and those that think, feel, or believe they’re somewhere in between the two.
What the Novel Is About
In the novel the protagonist Bert Gropes comes to learn, but only after he’s been charged with involuntary manslaughter under lurid circumstances, that before he was born someone monkeyed with his in-vitro fertilization, inserting a unique and powerful gene from a great ape, possibly making him so different that, according to his lawyer anyway, he’s not really a “person” who can be held accountable any more than a socially maladapted stray dog rescued from a kill shelter. A trial is held, à la Scopes Monkey Trial, to decide whether Bert is truly and legally a human being, or something else not fitting into any species box recognized by science, much less our legal system.
What this Blog Is About
While aspiring to be thoughtful and provocative on these emerging questions, The Hot Monkey Love Trial takes a mostly humorous approach to a particular kind of genetically modified organism (GMO), namely, a species whose genome has been modified and combined with that of another species. GMOs that combine the genetic material of one species with another are called “chimera.”
Part human, part animal species, chimera have been the subject of talk since ancient mythology.
 More recently, but long before the genetic revolution in which we now find ourselves, humans have imagined and not so responsibly tried to conceive human-animal hybrids. Chimeric humans, combining Homo sapiens with any other species, have been called “parahumans,” but when the combination is man and chimp, they’ve been called “humanzees,” “chumans,” and “manpanzees” (although I must say the latter sounds a bit more swishy than manly).
The subject of chimera, GMOs, genetic tampering, and intellectual property ownership is growing by the day and taking on new forms. In June 2013 the United States Supreme Court reached the decision that a human gene cannot be “owned” by patent or otherwise. But just because some part of you is not owned by someone else, that doesn't mean you’re free…or in the clear yet. Follow the posts here and – this being all about combinations, recombinations, and the never-before joinder of material, both genetic and written, from diverse beings – feel free to join in.