Want to Recreate a Mammoth? Some Legal Food for Thought

Contemplating recreating a mammoth?

You’re not the first.

The discussion around recreating extinct species (or “de-extinction”) is not new.

But today that concept is becoming rapidly less abstract and considerably closer to reality.

Some scientists have openly admitted to working on recreating extinct species, and some advocate vocally for de-extinction research. A few of these scientists are in our backyard: Dr. George Church is a geneticist at Harvard who openly advocates for the recreation of extinct species. Revive & Restore, part of the Long Now Foundation in San Francisco, has de-extinction as part of its stated mission. Others are much further: Hwang Woo-Suk’s Sooam Biotech Research Foundation of Korea signed an agreement with the North-Eastern Federal University in Russia to recreate a mammoth within a specific set of time. The topic has gained so much momentum that it was the focus of a TED discussion on de-extinction in DC last March, hosted by Revive & Restore in partnership with TED and National Geographic.

The authors of “How to Permit Your Mammoth”, published in the January edition (Vol.33) of the Stanford Environmental Law Journal, take an engaging look at the potential legal implications of bringing an extinct species back to life.

This highly readable and incredibly fascinating piece is the work of three people: Norman Carlin, Partner at Pillsbury Winthrop Shaw Pittman, LLP in San Francisco, Ilan Wurman, Law Clerk to Judge Jerry Smith, and Tamara Zakim, former Associate at Pillsbury Winthrop.

The focus of their article is the law, not the ethics behind such a venture.

In the very beginning, they state that the recreated entity would not be an exact replica of the extinct species. It would, instead, be a “facsimile” of the original, due entirely to the limits inherent within the science of de-extinction.

The key points to take away from this discussion, and which will be relevant for the legal analysis which follows, are these: No ‘resurrected’ species would be an exact copy of the original extinct species. With all methods, the results will to some degree be facsimiles or likenesses of the original species…For purposes of the law, it may make most sense to treat such facsimiles both as new creations altogether…yet also as recreations, in a sense.  They would not represent the true revival of an extinct species, but nonetheless would be living representatives of at least a portion of the range of genetic variation that once constituted that species.

Currently, the known de-extinction methods are:

1. somatic cell nuclear transfer,
2. genetic engineering,
3. and artificial selection and “back-breeding”.

 

 
In very broad strokes, somatic cell nuclear transfer relies on the egg of an existing species—one that is closely related to the extinct species—and the removal of that egg’s nuclear DNA. The nuclear DNA of the extinct species is added into the host egg, and the embryo is induced to develop within the living species.

Genetic engineering, again in broad strokes, relies on fragmented DNA sequences that can be harvested from specimens in museum collections. In a nod to the fictional “Jurassic Park”, this method would insert DNA fragments from the extinct species into the DNA sequence of closely-related living species.

Artificial selection involves breeding those living species that are descended from or related to that of the extinct species and may retain some genetic variation characteristic of the extinct species. Through generation after generation of selective breeding, the goal is to bring about a species that resembles that of its long-lost genetic cousin or ancestor.

Finally, “back-breeding” is a form of artificial selection that refers to the use of ancestral traits within a living species. In other words, one would selectively breed a species to enhance the parts of its genome that it shares with extinct species. Jack Horner writes about this in “How to Build a Dinosaur” with James Gorman. In it, he suggests that chickens are modern descendants of dinosaurs. By stimulating certain ancient genes and suppressing others, he believes we can recreate a dinosaur.

All of these scientific methods, according to Carlin, Wurman and Zakim, play an important role in terms of what laws may affect the facsimile.

Should it be classified as an “endangered species”? And if so, does it fall under the protection of the Endangered Species Act (ESA)?

Or is it a genetically modified organism (GMO), and therefore subject to GMO regulation and patent law?

The authors assert that “the ultimate objective of de-extinction efforts is not to produce laboratory curiosities, but to restore lost species to independent existence in nature.”

Imagine, then, a herd of Columbian mammoths, enormous animals that need substantial room and sustenance. How would the herd affect the existing ecosystem and vice versa? What kind of competition—if any—would arise for natural resources in the area in which they now live?

Once cannot read this piece, with the questions it inevitably provokes, without a keen sense of wonder and awe.

The article does mention the limits of existing laws, particularly regarding the Endangered Species Act.

Needless to say, the ESA was intended to protect living endangered species. The drafters of the ESA, which was adopted in 1973, could not have anticipated the prospect of de-extinction with twenty-first century genetic technology. Thus, de-extinction presents a classic case of dynamic statutory interpretation, which arises out of a “need for practical accommodation of the [statutory] directive to new circumstances.”

Which leads one to wonder–particularly if one is without legal expertise–why new rules would not be the first objective.

“Sometimes rules need to be changed,” responded Ilan Wurman in an email, “when there is no way to interpret existing laws in a way that effects that change. In those situations we do, indeed, need new rules.”

“Dynamic statutory interpretation has a somewhat more narrow meaning [than simply interpreting or defining laws differently],” he continued. “Let’s say a statute in 1850 was written to say, ‘All eligible voters shall constitute jury pool from which they may be called to serve on a jury.’ At the time, only men could vote, and so women were excluded from this jury pool. But the year is now 1950 — how do we interpret the statute? At the time it was written, it excluded women; but today women can vote. Thus, we ‘dynamically’ interpret ‘eligible voter’ to include certain facts or circumstances that did not exist at the time but which fall within the meaning of the term. We would include women within its meaning.”

The article discusses the recreation of species whose extinction was relatively recent, such as passenger pigeons.

When it comes to something such as a mammoth, however, the possibility of finding viable DNA seems greater in countries outside of the US. Russia has been home to recent exciting discoveries along this line.

“We excluded international law,” wrote Wurman, “because we needed to keep the piece at a manageable length, but also because none of us has any particular familiarity with international law. But there would certainly be some implications for international law as well.”

Norman Carlin emphasized Wurman’s assertion about the length of the article.

“I was surprised,” he wrote, “by how much we ended up finding to say, once we dug deeply into the questions raised by de-extinction. Before we got started, I initially thought the piece would be about half the length it turned out to be.”

When asked about other surprises to writing this piece, Wurman had this to say: “The only surprise was just how significant this ‘facsimile’ concept turned out to be. The whole piece turned on it. Consider the interesting tension it creates — it might be a GMO, and thus worthy of patent protection; but if it’s a GMO doesn’t that mean the ESA doesn’t apply? But surely the whole point of recreating these species is to protect them — so the ESA should apply. A lot of fun legal issue arose as a result of this concept.”

“Norman provided the bulk of the scientific background,” Wurman continued. “He and Tamara worked on the implications under NEPA (the National Environmental Policy Act), and I teased out the initial implications for patent law and the ESA (Endangered Species Act). After that, we all had a hand in the entire piece and in putting the piece together in a coherent fashion.”

“Norman had been reading about de-extinction efforts and, given his scientific background as well as his legal background, suspected that there might be something to write on the topic. Our initial model was a rather famous piece from the New York Law Journal on the legal implications of protecting against Near Earth Objects.”

Should someone successfully recreate an extinct species, would any of the three be willing to be part of its legal team?

“I think Norman would be thrilled if he got called on to do some of the legal leg work on this issue in the future,” Wurman offered.

If there is one thing human history has shown, it is that what is once thought impossible, eventually, be it centuries or millennia down the road, becomes a reality.

So although there are innumerable reasons—many of them ethical and scientific—why we are not able to recreate extinct species now, it is not inconceivable that the future might indeed open that door.

And if it does, “How to Permit Your Mammoth” will equip us with a legal starting point.

—————————–

You can read the full article here: http://journals.law.stanford.edu/stanford-environmental-law-journal-selj/print/volume-33/number-1/how-permit-your-mammoth-some-legal-implications-de-extinction

Ilan Wurman and Norman Carlin were *remarkably generous* with their time and their help, and I cannot thank either of them enough. 

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