‘A vast inequity’: The role of law in accessing Covid-19 vaccines

26 Jul 2022

Prof Aisling McMahon. Image: Maynooth University

Maynooth University’s Prof Aisling McMahon researches the role of law in regulating emerging tech. She explains how the pandemic shone a spotlight on patents and healthcare.

Prof Aisling McMahon started out with a bachelor’s in civil law at NUI Galway, followed by an LLM in law, technology and governance. It was then that she gained an interest in the regulation and patenting of biotechnologies and the potential impact that intellectual property rights could have on how people access and use health technologies.

“This immediately intrigued me and I wanted to study this area more,” she told SiliconRepublic.com. McMahon pursued a PhD at the University of Edinburgh, bringing together her interests in bioethics and intellectual property law, and working with colleagues across a range of disciplines. After positions at Newcastle University and Durham University, she returned to Ireland.

Now, McMahon is based at Maynooth University’s School of Law and Criminology. Earlier this year, she was one of eight Irish researchers to be awarded a European Research Council (ERC) grant. She will use this to build a team of researchers to examine issues at the intersection of law, biotech and health.

‘There is often a disconnect between the patent law field and the bioethics field – my work seeks to bridge this’

Tell us about the research you’re currently working on.

My research examines the role of law in regulating emerging technologies.

My current research focuses in particular on the potential impact of how patents, and other intellectual property rights, can impact access and delivery of health technologies. In this context, my recent work has focused on the potential impact of intellectual property rights on access to Covid-19 vaccines.

My research has interrogated the potential for patents to act as governance tools shaping who can access Covid-19 vaccines, medicines and diagnostics and on what terms. Recent co-authored work in this context has considered the inequity arising around access to Covid-19 vaccines and other health technologies and the role of law in facilitating this, but also the potential for laws to be shaped in such a manner that they could ameliorate this.

Together with Prof Susi Geiger, I explored the global mechanisms which have been put forward to address global inequity in relation to Covd-19 vaccine access, and the institutional jostling that has arisen in this context. In 2021, with Dr Siva Thambisetty, Dr Hyo Yoon Kang, Dr Luke McDonagh and Prof Graham Dutfield, I examined the legal case for a temporary TRIPS waiver to suspend intellectual property rights for access to Covid-19 health technologies, which we argued was necessary as a pathway to clear intellectual property obstacles to allow greater upscaling of Covid-19 vaccines and other health technologies.

I was recently awarded an ERC Starting Grant for my project PatentsInHumans, which will commence later in 2022. As part of this project, I will lead a team of researchers to investigate the bioethical implications of patents over technologies related to the human body, such as medicines, human genes, elements of diagnostic tests, prosthetic limbs and human enhancement technologies – for instance, potential future uses of brain implant technologies.

In this context, patents are a type of intellectual property right, allowing rightsholders to control how patented technologies are accessed and by whom. Therefore, patents granted over technologies related to the human body and how they are licensed can have significant implications for how we treat, use and modify our human bodies. PatentsInHumans focuses on understanding these bioethical implications and its ultimate aim is to reconceptualise how such interests are viewed and incorporated within European patent decision-making.

In your opinion, why is your research important?

Patents, and other intellectual property rights, can have a significant impact on how we treat, use and modify our human bodies, including on how we access healthcare, on how medical devices are developed, and on how future technologies are developed.

Yet despite this, there is often a disconnect between conversations in the patent law field and in the bioethics field – my work seeks to bring insights from these fields together and bridge this disconnect.

This has the potential for significant impact as my research aims to help us better understand the extent to which patents over technologies related to the human body impact how we treat, use and modify our bodies. It then seeks to grapple with questions around the extent these considerations are accounted for, or could be accounted for, within existing decision-making avenues in the European patent and licensing system for health technologies.

Such issues are particularly timely, given the debate around the role of intellectual property rights including patents on access to Covid-19 vaccines, which has illuminated again the role of patents in the access to health space.

This research is also important given that technologies are rapidly evolving in the biotech and health field, and the boundary between the human body (which is unpatentable) and technology (which is patentable) is blurring. Thus, patents over such emerging technologies’ are likely to pose significant bioethical implications.

What inspired you to become a researcher?

I have always been very curious about the role of law as a tool which can shape and regulate human behaviours, interactions and societal and technological developments.

I was also fascinated by the potential for scientific research to have such benefits for society and the world we live in, and the need for laws to ensure access to such technologies for those who most need them.

When I first studied patent law during my master’s, I started to see the complex factors that can shape health technologies’ development and access. I was immediately fascinated by this and by the power and responsibility of legal rules and systems that operate in such contexts in shaping health technologies and mediating access to these. Much of my research has explored such themes and issues.

What are some of the biggest challenges or misconceptions you face as a researcher in your field?

Patent law is sometimes viewed as a very technical field, which some see as not equipped to engage with ethical issues. In other cases, it is viewed as a relatively complex field, as it involves bringing together legal and scientific insights.

Accordingly, it is often insulated from scrutiny by the public and, even within the legal academic field, patent law can be a relatively niche field. Therefore, it can be tricky to convey the potential ethical issues posed by patents, particularly in the health context which my work seeks to examine.

Do you think public engagement with this field has changed in recent years?

I think that Covid-19 has thrown a real spotlight on the role of intellectual property rights in how people access Covid-19 vaccines and other health technologies.

The vast inequity which has developed around access to Covid-19 vaccines between high-income countries and low-income countries has been widely reported on by the media, and scrutinised by civil society groups both in Ireland and internationally.

This debate has looked at the potential role of intellectual property rights in this context, and as a result my sense is that there is a much wider public awareness of what patents are, and of the potential ethical implications that patents for access medicines, vaccines and diagnostics.

I think a key to encouraging change in this, and indeed any field, is having broader public engagement. I actively seek to publish my work and findings in a range of formats for academic and public audiences. I regularly blog and write short articles on my work and have been invited to speak about my work at various academic and civil society events which discussed the impact of patents on access to healthcare.

Most recently, I had the privilege to be invited to speak at the Oireachtas Joint Committee on Enterprise Trade and Employment discussion on the waiver of intellectual property rights under TRIPS for Covid-19 vaccines.

10 things you need to know direct to your inbox every weekday. Sign up for the Daily Brief, Silicon Republic’s digest of essential sci-tech news.