There's more to Angelina Jolie's decision than meets the eye.

By HANNAH QUADRIO

When Angelina Jolie removed both her breasts to minimise the risk of cancer – we all took notice. But there is more to this story than meets the eye.

Angelina told the world the reason she did it. Testing revealed that she carried the mutated BRCA1 gene which greatly increased her risk of breast cancer. It wasn’t a flippant move by a gorgeous celebrity; it was an informed decision by a woman who’d done her research.

Angelina’s announcement has led women around the world to think more about their risk of breast and ovarian cancer  and encouraged many to book in for a test to see if they carry the same mutated BRCA1 gene. For Australian women, if a family cancer clinic determines that their risk of carrying the mutated BRCA1 gene is more than ten per cent, Medicare covers the cost of the test. If your risk is less than 10 per cent, the test will set you back over $2,000.

As important as they are, these tests are not cheap. Whether the cost of these tests will rise or fall in the future will largely depend on a legal case to be heard in the Federal Court in August.

The case, called Cancer Voices v Myriad Genetics, is about whether a pharmaceutical company can “patent” (that is, own) genetic material once it has been isolated from the human body. The Federal Court will decide if a pharmaceutical company called Myriad Genetics can own a patent over the isolated BRCA1 gene.

And here’s the rub for Australian women. If a company can “own” the isolated BRCA1 gene, they can decide how much the diagnostic test for mutations on that gene costs.

At the moment, the situation isn’t too bad. The pharmaceutical companies are allowing public health facilities and clinics to conduct the BRCA1 test without having to pay big fees. But there is no guarantee this practice will continue.  In fact, if the Federal Court decides that the patent over the isolated BRCA1 gene is valid, Myriad and its licensees may enforce their patent rights – and the cost of the tests will skyrocket.

Alternatively, if the Federal Court finds that the patent is invalid, genetic testing could become cheaper, as scientists are able use the isolated genetic material to develop alternate diagnostic tests.

The legal question the Federal Court must decide is whether taking genetic material out of the body can be considered an ‘invention’, or a just a ‘discovery’ of something that occurs in nature.

It’s a simple question, and one that most Australians would have a strong gut reaction to. You wouldn’t be able to patent a collection of flowers just because you’d picked them out of the garden and arranged them in a vase. In the same way, you wouldn’t think that a company studying our genetic code could claim any kind of patent or ownership just because it isolated the sequence of a naturally occurring gene.

But so far, Australian law has not seen it that way. In February a judge decided that the human intervention involved in isolating genetic material allows that material to be patented.

That doesn’t make much sense to me, so I’m glad that Cancer Voices Australia, represented by Maurice Blackburn, are appealing the decision. This is the court case that will be heard in August.

Last week the United States Supreme Court considered a very similar case. It decided that isolated genetic material can not be patented. As Justice Clarence Thomas said on behalf of the Court:

“A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated…

“It is undisputed that Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2 genes.”

The US decision does not change the law in Australia, but let’s hope it is considered when the Federal Court hears the Cancer Voices appeal in August.

Because unlike Angelina Jolie, not all Australian women have a lazy few grand they can use to have themselves tested for deadly genetic mutations.

Angelina has set a great example for women; let’s hope our legal system doesn’t prevent Australian women from following it.

Hannah Quadrio is a commercial lawyer and the President of the NSW Society of Labor Lawyers.