Antimicrobial resistance (AMR), which occurs when pathogens no longer respond to antimicrobials like antibiotics, is among the top 10 global public health concerns and identified as an existential threat to humans in the “O’Neill Report.”Footnote 1 An influential study forecasts that an estimated 1.91 million deaths attributable to AMR and 8.22 million deaths associated with AMR could occur globally in 2050.Footnote 2 Despite the magnitude of this threat, countermeasures to AMR have been fragmented and uneven across a diverse range of interested parties, including institutional and state actors. Research and development (R&D) into new microbial treatments and diagnostics has been outpaced by the evolution of resistance, and the challenge is made worse by the emergence of new pathogens with environmental degradation and climate change. In this respect, AMR has been framed as an innovation problem.Footnote 3 The lack of financial and human capital due to the lower return in investment of antimicrobials compared with other drugs is a well-recognised barrier to innovation. However, even if these barriers are surmounted to develop effective antimicrobials, there is no assurance that these antimicrobials will be equitable in use or in effect for at least two reasons. First, the challenge of equitable access to antimicrobials will remain in the absence of a clear policy or regulatory response. Second, harms from contamination of the environment with antibiotic residues from human and animal waste and from manufacturing and agricultural runoff (i.e. antibiotic pollution) show that AMR innovation should not be limited to public health safety and therapeutic effectiveness.Footnote 4 Current initiatives directed at spurring AMR innovation remains unclear as to how equitable outcomes may be achieved, especially where the effects of AMR interventions extend beyond human health. Consider for instance, the World Health Organization (WHO) global research agenda for AMR in human health, with focus on infections caused by bacterial priority pathogens.Footnote 5 By setting out 40 research priority areas that serve both adults and children in all income contexts, the WHO aims to expand and enhance global knowledge on AMR and to advance research by 2030. Except for limited references to regulatory frameworks, there is no explicit mention of how disciplines like law, the humanities, and social sciences could help advance this global research agenda in a manner that is equitable. In this respect, there is complementarity with the Just Transitions for AMR Working Group (JTAMR), which is a cross-disciplinary initiative introduced to articulate what an equitable future with microbes could look like by drawing on these disciplines.Footnote 6 Microbes have inhabited our planet long before the existence of human beings, and the fact that they sustain all lifeforms is scientifically incontrovertible. To think of AMR as a call to war on microbes with the aim of annihilating certain disease-causing ones—whether in plants, nonhuman animals, or humans—is blinkered and inconsistent with equity (or justice, more broadly) and sustainability, especially from an environmental viewpoint. Notably, Joshua Lederberg, who was awarded the Nobel Prize for his discovery of genetic transfer in bacteria, demanded the war metaphor to be replaced with an ecological one instead.Footnote 7 His stance has found traction with his scientific peers, having observed in a professional statement that there is no reason to be fixated on 1415 species of pathogenic microbes while ignoring the remaining 999 billion species.Footnote 8 Similar support (as I will highlight below) is found in the humanities and social sciences, with legal developments steering in the same direction.
With focus on the global patent system, I ask why AMR innovation fails to consider equity in an ecological sense? By ecological equity, I refer to the normative goal of initiatives like One Health (OH) that seeks to sustainably balance and optimise the health of people, animals, and ecosystems.Footnote 9 In Section 1, I provide three reasons why the global patent and trade regimes are likely to exacerbate AMR by failing to take into account microbial well-being and collective interest in microbial diversity. First, a brief review of the historical development of the patent system explains how it seeks to promote R&D in the public interest by making available useful knowledge while avoiding clear and detrimental harms. For this reason, the term “patent” is derived from the Latin word patere which means “to be open.” As it is currently set up and implemented, the patent system has little to no regard for microbial interests or the ecological impact of constituting microbes as exploitable and tradable resource. This also means that it is unable to incentivise R&D involving microbes or microbial products that leave little ecological footprint over those that do not. In the same vein, the patent system narrowly construes microbes as resource by constituting them and their products as assets that may be owned, and then as goods that may be traded through global circuits. While the concerns of the patent system have been primarily anthropocentric, it need not necessarily be so.
I then ask why the global patent system should take into account ecological equity? In Section 2, I draw on the work of humanities and social science scholars who have argued for a fairer relationship between humans and our microbial “others.” While these scholars may differ in reasoning and justificatory processes, I read their intent as consistent with ecological equity in decentring human beings and anthropocentric interests, attributing moral value or significance to nonhuman entities (i.e. biocentric viewpoint), recognising the importance of relational connection with these nonhuman entities, and prioritising collective and environmental concerns. It is perhaps fair to say that the humanities and social sciences offer a richer conception of microbes–human relationships when compared with the binary of microbes as either a biosecurity concern or resource in international laws on patent and trade.Footnote 10 To be sure, not all fields of law view microbes in such a narrow way. In this section, I also consider important developments referred to as the “nonhuman turn” in international laws on environment and human rights, which are aligned with the richer conceptions of microbial-human relations in the humanities and social sciences.
In Section 3, I ask how AMR innovation may be rendered more equitable if ecological equity is a consideration for patentability? While AMR innovation itself encompasses different and complex concerns, I focus on the challenge of bridging disparate knowledge domains or epistemes since it is not always easy for a human actor (e.g. a microbiologist) to draw on a foreign knowledge system (e.g. philosophy) to devise a solution that is not only scientifically effective but also equitable.Footnote 11 Complex and multifaceted challenges like AMR require a holistic, outward-looking and sustainable approach. My main proposition, particularly in the context of AMR innovation, is that microbes should be conferred with legal rights, for the following reasons. Microbial rights could bridge legal discourses on microbes with those in the humanities and social sciences. Building on insights from the humanities and social sciences that show how the relationship between microbes and humans is multifaceted, I explain why legal cognizance of microbes in AMR innovation is inequitable. For instance, if human traits—and possibly even human cognitive abilities—are co-produced by microbes and their human host, would it not be just and fair for the credit of inventiveness to be shared? Importantly, the nonhuman turn in certain fields of law opens a crucial space for deliberation and dialogue as to how we—human beings—ought to perceive, understand, and engage with microbes as nonhuman “others.” As I will also show below, legal discourses on nonhuman rights and the emergence of “third-generation” human rights appear to steer towards a more convivial microbe–human relationship, even if they are not at this point focused on microbes. I conclude this penultimate section with a discussion on the practical implications that could follow from the recognition of microbial rights.
1. Microbes as “property” in science and trade
Discovery of the double-helix structure of the deoxyribonucleic acid (DNA) in 1953 opened up the study of biology at a molecular level and in fields of research like biochemistry, microbiology, and molecular genetics, which in turn revolutionised the study and practice of medicine. Of these developments, recombinant DNA technology and X-ray crystallography are among the most important research tools to be developed.Footnote 12 These tools contributed directly to advances in the life sciences and were soon referred to, categorically, as biotechnology. By the late 1970s, the commercial potential of the then essentially academic tools in the life sciences became apparent to policymakers in the United States (US). In 1980, the passage of the Bayh-Dole Act paved the way for the privatisation of university research.Footnote 13 That same year, the decision of the US Supreme Court in Diamond v Chakrabarty marked a critical point in the judicial recognition of patent rights in living organisms as biotechnological inventions.Footnote 14 Prior to this judgement, it was unclear if a living organism may be owned as intellectual property. Patent examiners initially rejected the patent application for the invention of a human-made, genetically engineered bacterium capable of breaking down crude oil, a property possessed by no natural occurring bacteria, on the ground that living things are not patentable subject matter under US patent law.Footnote 15 The majority of the US Supreme Court did not consider as relevant to the issue of patentability whether the bacteria are living organisms or not. Instead, the terms “manufacture” and “composition of matter” have been given expansive readings after taking into account the legislative history (that the US Patent Act embodies Jefferson’s philosophy that “ingenuity should receive liberal encouragement”), and the Senate Committee Report accompanying the 1952 US Patent Act which states that Congress intended the statutory subject matter to “include anything under the sun that is made by man.”Footnote 16 Accordingly, a human-made organism can be patented if it did not fall within the limitation of patenting natural and physical phenomena or abstract ideas. As the human-made bacteria was not naturally occurring, they are equivalent to engineered “inventions” and are patentable.Footnote 17
A bacterium is the single smallest living organism that may be engineered into existence if conferred with a functionality that is not already naturally occurring.Footnote 18 This functionality may be defined by a particular DNA sequence and is itself a critical limitation on the monopolistic scope of patent claims, including Chakrabarty’s. As such, a competitor that constructs a bacterium with a DNA sequence that is different from Chakrabarty’s bacterium will not infringe Chakrabarty’s patent rights only because the competitor’s bacterium is also capable of decomposing crude oil.Footnote 19 This limited economic functionality of microorganisms in industrial process is well understood in human experience and may have provided the US Supreme Court (an institution that has been conventionally adverse to monopolies) with some assurance that Chakrabarty’s patent will not cripple competition in biotechnology.Footnote 20 The US Supreme Court may also have considered the fact that a bacterium is difficult to define in an enduring manner. Indeed, it does not take very long for bacteria to mutate into a different DNA sequence. It was in response to this definitional challenge that the Budapest Treaty came into being—just three years before Chakrabarty was decided.Footnote 21
Under the Budapest Treaty, a special depository scheme was established to satisfy the disclosure requirement where the microbiological process or product is not available to the public and cannot be described in a sufficiently comprehensive manner for a skilled person to carry out the invention. The regime also facilitates patent protection for inventors among contracting States for the microorganisms or microbial product deposited with any international depositary authority (IDA) as part of the patent application process. All States party to the Treaty are obliged to recognise microorganisms deposited as a part of the patent disclosure with an IDA, regardless of where the depositary authority is located. As on 20 February 2025, there are 52 IDAs which are scientific institutions and typically culture collections based in high-income countries. Microorganism is interpreted broadly to cover a wide range of biological material that is necessary to disclose (through description) as the “invention.” Materials that may be deposited include cells, genetic vectors (e.g. plasmids or DNA fragments), and organisms or systems used to produce a protein from a gene (including purified nucleic acids and deposits of materials not readily classified as microorganisms, like RNA and plasmids). Once a microorganism is deposited with any of the IDA, it will not be necessary for the inventor or patent applicant to make a similar deposit in other contracting states or regions in order to gain patent protection in those jurisdictions.
By this regime, new microorganisms become valorised and “real” through a detailed description of specified features of the “invention.” These features include the taxonomic description, morphological characteristics (e.g. shape, size, stainability, and motility), colony characteristics (e.g. colour, shape, size, swarming, and any distinguishing features in appearance), metabolic characteristics (e.g. substrate requirements, products/by-products, and isozyme characteristics), and genetic characterisation of any known genes relevant to the use or characteristics of the organism. This is similarly the case for microbial products (such as new antibiotics or enzyme), which also qualify as the subject of patent protection. The patent applicant is required to characterise the microbial product by its chemical structure through ultraviolet or infrared absorption spectra, or high-performance liquid chromatography analysis, among other approved methods. If the structure is not known, the product may be defined in terms of the organism which produces it and/or by the physical or chemical characteristics that are known. However, sufficient information must be provided to distinguish it from other known compounds. As for patent protection of processes involving microorganisms (e.g. fermentation), the patent applicant is required to fully describe the source of that particular microorganism used for the process and the nutrient and culture conditions required by the microorganism for the process.
With the ascent of globalisation in the 1980s and 1990s, technologically advanced countries (or originating countries) became concerned that their technological expertise was unintentionally transferred to technologically less advanced countries (or receiving countries).Footnote 22 Such unintended transfers also meant a loss of return-on-investment for the originating countries. In addition, there was concern that what was seen as “free riding” by receiving countries will ultimately lead to technological and economic stagnation. Measures were then sought by the originating countries to block such unintended transfers.Footnote 23
In the 1980s, different standards applicable to the patentability of biotechnological inventions between originating countries and receiving countries were quickly identified as a channel of unintended technological outflow. The patent systems of most originating countries provide protection for both the inventive process and the product of the invention. In many receiving countries, however, patent protection did not include microbes, pharmaceutical products, or process patents. There would accordingly be no patent infringement if man-made microbes or microbial products were manufactured within the jurisdiction of those countries or otherwise imported for domestic use. This perceived problem arose at a time of ongoing efforts to form a global political economy—at least, for the purposes of facilitating international trade. The current of events that led to the conclusion of the Uruguay Round of negotiations and the formation of the World Trade Organisation (WTO) sequentially pave the way for the conception of a uniform international patent system. Under this uniform patent system, a WTO member will be required to provide patent protection for a range of intellectual properties that were previously unprotected. Despite initial resistance from many developing countries, the subject of intellectual property rights that included biotechnological inventions was eventually incorporated into the World Trade Organisation Agreement (WTO Agreement) as what is now commonly referred to as the Trade-Related Aspects of Intellectual Property Agreement (TRIPS Agreement).Footnote 24 Article 27 in Section 5 of Part II of the TRIPS Agreement allows microorganisms to be patented, provided that the invention criteria of novelty, inventive step, and industrial application are satisfied. The scope of patentable living organisms is also broad, as it includes isolated or genetically modified organisms, products made by microorganisms, new processes involving microorganisms, and transgenic and mutant plants and animals. However, patent protection does not extend to genes isolated from any natural organism, human beings, and biological processes for the generation of humans. With the expressed goal of increasing the technological capability of the WTO member countries on the basis that increased technological capability stimulates development, the TRIPS Agreement entered into force on January 1, 1995.Footnote 25 It formally links intellectual property rights with international trade and constituted microbes and microbial products as tradable and exploitable resources. However, there is no provision in this regime to ensure that innovation is equitable, especially from an ecological point of view.
2. Justice for whom?
In the previous section, we considered a number of developments from the late 1970s that served to lower the enforcement cost of microbes and microbial products by subsuming them within the framework of the patent system and so provided a level of legal certainty that was necessary for economic valuation of microbial inventions. Large inflow of capital from private sources that followed catalysed the exploitation of not only the then largely untapped wealth of academic knowledge in the life sciences but also microbes, their functionalities, and their products, for mostly anthropocentric ends. Since then, therapeutic benefits from microbial exploitation are evident in a wide range of pharmaceutical and medicinal products that include antibiotics, antivirals, antifungals, anticancer drugs, vaccines, and therapeutic enzymes, among others.Footnote 26 From purely anthropocentric—and indeed—capitalistic lenses, the initial success with these developments suggest that a combination of capital and human ingenuity are the necessary ingredients to solve intransigent problems of disease and human suffering. By this view, patent systems could promote technological development by rewarding inventors for their ingenuity. Proposals to strengthen patent protection by extending the scope and duration of patent rights as “just” rewards for the effort of inventors are illustrative of such a viewpoint. Drawing on the humanities and social sciences, I argue that this viewpoint is misguided for at least three reasons. First, the patent system was not established as a regime to reward inventors. The confusion arose when the prospect of monopolistic returns was interpreted as a way to channel or direct inventive work. Instead, a patent system is first and foremost directed at incentivising the disclosure of useful knowledge and in the public interest. Second, there is a causal fallacy that more capital leads to more inventions. Where antibiotics are concerned, evidence suggests that expanding patent rights is more likely to hinder—not aid—the development of new antibiotics. Third, the use of the patent system to incentivise innovation and reward inventors privileges human agency and fails to acknowledge the creative agencies of microbes and other nonhuman factors. We consider below each of these arguments in turn.
2.1. Incentivising disclosure, not inventiveness
I first trace the history behind the patent regime to understand what it seeks to reward and at whose expense. As I will show, the concerns of this regime are purely anthropocentric, and hence, the patentability of an invention does not take into account ecological (let alone microbial) considerations. This should not be surprising given the historical context of its establishment. The use of patents as industrial grants may have occurred as early as 1474 in the form of the Venetian Patent Act. This concept of patent protection was said to have been brought to England by Italian craftsmen, which led to the development of the “Monopoly System” (precursor of Anglo-styled modern patent systems) by Cecil in the reign of Queen Elizabeth I.Footnote 27 The first experience with such a system did not prove to be a pleasant one. While the intended function of patent awards was to promote the establishment of new industries, it was liberally issued by Elizabeth I and, her successor, James I to reward political creditors with trading monopolies.Footnote 28 The liberal issuance of monopolistic rights created a market condition that was economically unviable and eventually precipitated a show-down between the Judiciary and Parliament on the one side and the Crown on the other. Parliament subsequently enacted the Statute of Monopolies in 1624 to limit the scope of monopolies thereby clearly intimating a preference for competition—a feature that has since been entrenched in the United Kingdom Patent System.
Across the Atlantic, the US Constitution of 1787 expressly empowers Congress “to promote the process of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”Footnote 29 The empowerment of the US federal government with this task was essentially to resolve the problem of conflicting patents granted by most of the original 13 colonies.Footnote 30 The first legislation passed under this mandate in 1790 failed to establish a viable system so that “after 1793 all [patent] applications were approved and it was left to private suits in the courts to settle the issues of originality and use.”Footnote 31 Over the course of patent litigations, US courts established two important principles that became encapsulated in subsequent US patent legislation: first, basic scientific ideas are not patentable and, second, the government is obligated to protect the public from “unwarranted exclusiveness.”Footnote 32
From the early 1800s, important administrative changes were introduced into the patent systems in the United Kingdom and in the United States. These include the establishment of patent offices in both countries to manage patent applications, the examination of patent applications for originality, and, in the United States, specialisation within the professional bar and the creation of special federal judicial bodies to hear patent claims.Footnote 33 The US Patent System grew dramatically from 1836, and in the first half of the twentieth century, it oscillated between a strong patent policy and a weak one. Nevertheless, this does not detract from the consistent judicial stance on welfare maximisation through fair competition. The primary purpose of US patent law is, according to the US Supreme Court in Motion Picture Patent Co. v Universal Film Mfg. Co., not the creation of private fortunes for the owners of patents but to promote the “progress of science and the useful arts.”Footnote 34 It was upon this mandate that the US Congress established a federal patent system for promoting the advancement of applied knowledge. Other than the United States, the same general purpose has been found to underlie the patent systems of many, if not all, other jurisdictions. Several legislative revisions were made to the patent legislation in the United Kingdom, but the most far-reaching change was introduced in 1977.Footnote 35 The UK Patents Act of 1977 prescribes the main substantive provisions for English patent law to this day.Footnote 36 Essentially, the ultimate goal of patent systems is to encourage the introduction of “designs and technologies” through disclosure with the ultimate effect of raising public welfare on the whole.Footnote 37 The Budapest Treaty discussed above similarly prioritises disclosure. The information of deposited strains generally becomes available to the public from the date of early publication of the application. In awarding and subsequently (should rights to a patent be challenged) upholding a patent, it is necessary for the state to consider the value of the applied knowledge by balancing the social benefit that can be derived from its availability against the social cost that is lost to monopolistic rights.Footnote 38 For this reason, the legal rights that flow from a patent is not the same as legal rights in tangible property. A patent is a statutory monopoly which protects against unlicensed use of the patented applied knowledge and is sufficiently broad to exclude those who discover the same knowledge through independent research.Footnote 39 However, as the patent is not a common law right, the inventor is only protected to the extent that the applied knowledge has been described in the claims of the patent.Footnote 40 Where the patenting of microbes is concerned, a fundamental limitation of the current approach is its failure to take into account wider microbial and ecological considerations. Monopolistic rights that a patent confers seek only to reward the inventor, without considering deserving “others” like microbes, communities, and other ecological factors (discussed in Section 2.3) that have contributed to the invention. This blinkered view assumes that financial reward is a key driver of invention. In the next section, I explain why this viewpoint is erroneous.
2.2. Causal fallacy in antibiotics drug development
Where antibiotics are concerned, the impact of the patent system on drug development is unclear. The discovery of penicillin in 1928 was serendipitous, but the golden age of antibiotic development in the 1940s was championed by large pharmaceutical companies like Pfizer, Roche, AstraZeneca, and GlaxoSmithKline.Footnote 41 Discovery of natural product antibiotic peaked in the mid-1950s. There has been a decline in antibiotic discovery from then, whereas a growing number of pathogens has evolved to become drug resistant.Footnote 42 Since the 1970s (when Trimethoprim was approved), only two new classes of antibacterial drugs (linezolid and daptomycin) have been approved.Footnote 43 In the 1990s, 15 out of the 18 largest global pharmaceutical companies have exited antibacterial R&D, although governmental and nongovernmental organisations, small start-ups, and medium-size enterprises, as well as academic research institutions and medical centres (many of which funded by government grants), have filled the void.Footnote 44 Factors that limit the involvement of the private sector include the difficulty in predicting resistance, the size and characteristics of the population that would benefit from a drug that is effective against a resistance strain, and the short duration of a course of antibiotic treatment.Footnote 45
Patents may be valuable for incentivising antibiotics drug development for small start-ups but not for the purpose of motivating innovation.Footnote 46 Economic evaluations suggest that patent incentives (and the accompany social costs incurred) may not have been necessary to bring about the innovation. Redundant protection would be socially wasteful in contributing to the anticommons, patent thickets or inefficiencies of reduced access from noncompetitive pricing.Footnote 47 Creating new patent rights and patent term extensions could hinder access to antibiotics and increase inefficiencies by distorting consumption. Anticompetitive strategic practices like patent thickets and trolls have been observed to add to social cost.Footnote 48 Arguably, patents should be used to achieve efficient use, even if this could disincentivise profit-driven research. Focusing on incentivising disclosure rather than inventiveness could also help to remove patent thickets and thereby lower the costs of research on next-generation drugs. The better approach may then be to supplement patent incentives with nonpatent mechanisms that are independent of sale (e.g. prizes, patent buyouts, and less costly regulation) and thereby improve both consumption and disclosure incentives.Footnote 49 In this sense, social science research points to public funding of AMR research and conservation efforts to encourage prudent use of antimicrobial drugs as being more efficient.Footnote 50 Where efforts to conserve existing AMRs are concerned, financial levers like insurance reimbursement may also be more effective than patent law to address AMR challenges.Footnote 51
There is cautious optimism in assessing current R&D outputs in terms of published antibacterial target drug compound patents. By this measure, a steady stream of antibacterial drugs could be expected to proceed into drug development over the next decade or so.Footnote 52 Other promising signs for antibiotic discovery have been attributed to new technologies like genome mining and editing. The US Supreme Court judgement in Association for Molecular Pathology v Myriad Genetics, Inc. to limit the scope of patentable genetic material may be construed as an attempt to ensure that future innovation is not inhibited by restricting access to crucial genetic research tools.Footnote 53 However, the challenge of developing suitable financial models to translate knowledge to clinically approved antibiotics remains.Footnote 54 At this point, it is crucial to recognise that some of the AMR interventions in development have a lower ecological footprint in that they target pathogens rather than exert broad antimicrobial activity.Footnote 55 A patent system that takes into account microbial diversity ought to be able to incentivise these inventive endeavours over others.
2.3. Justice for microbes
Third, the use of patent systems to incentivise innovation and reward inventors privileges human agency at the expense of the creative agencies of microbes and other human and nonhuman factors. Noting the rise of patents over agricultural microorganisms that are beneficial to crop plants through various forms of symbiotic interactions, David Kothamasi et al. highlight the need to redefine the legal narrative that represents microbes and commodities in patent laws.Footnote 56 TRIPS, they argue, employs a human versus nature dichotomy that is inconsistent with “current understanding of ecological functions, developments in social sciences and the accommodation of legal thought and situated knowledges from Indigenous cultures and the Global South,” which has contributed to a perception that isolated microorganisms are human inventions rather than as living constituents of nature.Footnote 57 This dichotomy conceals the “inventive” contribution of ecological processes that have selected for functional traits in microbes that are of economic value. The mutualism, or human-nature partnership, that has facilitated the evolution of beneficial agricultural microbes has similarly been obscured. TRIPS and the patent systems constituted under it are no more than self-serving humanistic institutions that reward humans for inventions that—at least in the context of their discussion—deserve at best partial credit for such economically useful microbial traits.
From a biocentric vantage point whereby all forms of life are considered to have intrinsic value, this arrangement without more is highly unfair for at least four reasons. First, it does not accord adequate recognition to microbes as equal members of communal life on this planet.Footnote 58 To regard microbes as nothing more than a resource to meet exclusively human needs is a strong form of speciesism that seeks only to manipulate and exploit, rather than to nurture and engage. Second, it fails to recognise the inextricable interdependence that all living species have with microbes. Where humans are concerned, the profound impact of gut microbiota on human health and well-being appears incontrovertible.Footnote 59 It is the premise upon which many scientific studies have been initiated and potentially a means of addressing or mitigating difficult challenges in human development and a wide range of chronic diseases.Footnote 60 Implicit in these research designs is that the relationship between humans and our gut microbes is not purely instrumental, since microbes shape our personalities and possibly even our cognitive abilities.Footnote 61 We can only imagine how intricately every human person is interlinked with microbes given that microbial subsistence is not confined to our guts. Additionally, microbes connect us to our physical environment by modulating biotic and abiotic components and in a manner that maximises both their and our abilities to survive and thrive. To view microbes as nothing more than resource thereby fails to recognise microbes as teleological centres of life, which is the third critique of this narrow viewpoint. In biocentric ethics, microbes—either individually or as a species—are capable of pursuing their own good and in their own unique way. In this sense, the injustice is not only epistemic but also existential.Footnote 62 Finally, humans are not inherently superior to other living things in our ability to adapt and modify our environments. Where the latter in concerned, the best evidence shows human interventions in the environment to lack equity and sustainability. Given that the existence of microbes predates all other living organisms, humans cannot be said to be inherently superior to other living things, particularly where adaptability and environmental sustainability are concerned.Footnote 63
To promote fairer treatment of plants and nonhuman animals by humans, Paul Taylor advances four guiding principles: do no harm, noninterference, fidelity, and restitutive justice.Footnote 64 While this was a crucial first step in looking beyond exclusively human interests, Taylor’s ethical framework did not extend to microbes. Crucially, he would have at most recognised microbes as having inherent worth, similar to wild animals and plants, but would not have considered any of them as possessing rights. By his analysis, only humans have rights. In contrast, Anna Wienhues goes further, by extending biocentric theories like Taylor’s to include microbes.Footnote 65 Like all other living organisms, microbes strive towards their own good and can be harmed when prevented in doing so. On this analysis, a microbe is an entity that matters morally in itself and should be taken into account in moral decision-making. For Wienhues, microbes—at both the species and cellular levels—are morally considerable, not just morally significant. The purpose of attributing moral considerability to microbes is two-fold. First, moral significance may be so low that it is not theoretically or practically useful. Second, the inherent moral worth of microbes should not be applied comparatively with other living organisms. On this point, Wienhaus argues that the moral significance of microbes is incommensurable with other living beings—hence neither equal nor can it be ranked hierarchically. The following passage is instructive:
instead of arguing that all living beings have the same moral worth (egalitarianism) or that we can compare and rank the moral worth of different living beings along a linear scale (the most common form of hierarchical biocentricism), this third perspective claims that it is not possible to rank the moral significance of different living beings in such a manner—it is incommensurate.Footnote 66
It follows that the moral value of a bacterium cannot and should not be ranked against that of a wolf because they are so different forms of life. The ethical focus should instead be on contextual and relational factors. Where humans are concerned, Wienhues identifies the four morally relevant relationships with microbes as (1) collaborative (e.g. gut microbiome); (2) predation (e.g. pathogens or disease-causing microbes); (3) noninterference (e.g. microbes that dwell on the ocean floor); and (4) ecological dependency (e.g. microbes with agriculturally useful traits). At this stage, however, general biocentric approaches may not be adequate in explicating what a sound and sustainable microbes–human relationship should be like, particularly when they are conflictual. When humans use antibiotics for instance, the general biocentric position is that killing in self-defence is justified. But for self-defence to be morally justified, there are certain conditions that need to be satisfied. For instance, reasonable care should be exercised, but what if contact with the pathogenic microbes cannot be avoided? It may further be questioned if self-defence is appropriate since microbes have no moral agency. The notion of self-defence further complicates in the requirement of a supportive account of collateral damage (e.g. beneficial microbes being killed) and what restitutive actions should follow.
It is beyond the scope of this paper to put forward and defend an ethical account of one or more microbes–human relationships. Instead, the modest aim here is to explain why patent systems as applied to microorganisms fail to meet the requirements of ecological equity, which sets it apart from richer discourses in the humanities and social sciences that are applicable to AMR innovation. In other words, my goal here is to highlight the need for a more inclusive legal narrative that could better advance ecological justice, and in ways that include not only microbes but also human individuals and communities whose contributions are not recognised or accounted for in the patent award process and outcome. On this point, the humanities and social sciences help to point the way forward. In the section that follows, I advance three propositions. The first calls for a shift away from a dichotomous approach and to adopt an ecological or biocentric one instead. The second proposition is to adopt an approach that recognises humans as “multispecies beings,” in the sense that our human identity cannot be separated from other living organisms like the microbes that live within us.Footnote 67 In this respect, a human person is an ecological space. To avoid anthropocentrism and to make the interests of nonhuman species “real,” my third proposition relates to the attribution of certain rights to microbes.
3. Microbial rights
Microorganisms have adapted to life on earth for more than three billion years before the appearance of plants and animals. As they predate humans, microbes have been an intricate part of human evolution. As we considered above, gut microbiomes have significantly impact on human health because they co-evolved with humans through the generations. Consequently, gut microbiome influences not only mood and anxiety levels through neurotransmitters they produce but also the body’s metabolism and related health conditions or diseases, among others. In contrast, microorganisms in the context of AMR innovation tend to become visible mostly—if not only—when they are useful as resource for exploitation or as threat that must be neutralised, as discussed in Section 2. This limited viewpoint fails to recognise that “human” is not a discrete biological unit but an assemblage of host organism and associated microbiomes acting together as a single, integrated entity. In holobiont theory, this assemblage gives emphasis to host–microbiota interactions.Footnote 68 Like Donna Haraway’s call for a wider conception of (multispecies) environmental justice, Anna Tsing makes a similar point in arguing that human nature is an interspecies relationship.Footnote 69 It may then be asked, why should such an emphasis matter? Among the many reasons and explanations put forward by scholars in the humanities and social sciences, a response may be set out as follows: It matters because difficult challenges like AMR cannot be appropriately, effectively and sustainably responded to without a clear understanding of what the nature of that challenge is. The message from the humanities and social sciences is that the nature of the challenge requires a shift away from the human–nonhuman divide that underscores critical social institutions in AMR innovation like patent regimes around the world. To redress this limitation, it is necessary to first recognise the artificiality of the human–nonhuman divide and then consider if a more-than-human approach better advances ecological equity in AMR innovation. Speaking to the artificiality of the human–nonhuman divide, Bruno Latour famously observes that humans remain deeply entangled in the multiplicity of human and nonhuman assemblages since the “Great Divide,” which he attributes to a specific and influential group of people in Europe and America in the sixteenth and seventeenth centuries.Footnote 70 In the context of England, Adrian Franklin explains the interrelated social and cultural changes that followed from the phenomenon.Footnote 71 Most pertinent to our present discussion are these three: first, emphasis on taxonomic and behavioural separation of humans and nonhumans; second, subjugation of nature for human utilitarian aims and “betterment”; and third, set apart human creativity and free will as unique from nature’s causes, mechanisms, and instincts. Citing Keith Thomas, Franklin observes that “hills, forests and streams that were once alive and active in the world of English people were thus turned into inert, neutral, dead matter fit only as an exploitable resource based for humans, the only creative entity.”Footnote 72 The effort of early modern scientists to dominate nature was also a radical philosophical transformation from ontology to empiricism, which drove the development of modern science, the ascendency of economics, and the prioritisation of “human progress.”Footnote 73 At the same time, human thought, feelings, experience, and expressions about the natural world were displaced as mere subjectivity, and as we have more recently witnessed, at great cost to the natural and material environment.
Franklin explains that more-than-human studies in the humanities and social sciences seek to reunite a 400-year-long epistemic divide by articulating what the world looked like when nature and humanity were united in a common language. The approach adopted in these studies “abandons the notion of humanity living apart from and yet endangering the other-than-human and because historically and culturally it is such a widely shared, intuitive ontology that emerges spontaneously from a shared human capacity to prehend other entities in the world … and to be ourselves prehensible to them.”Footnote 74 This genre of studies avoids selective and reductive approaches in favour of situatedness and embeddedness in materially and discursively heterogeneous relations among human and nonhuman actors that are constantly reordered within that analytical space. It recognises that a boundary line cannot be clearly drawn between the human and the nonhuman, just as the “species” cannot be fully abstracted from its ecological context. It further debunks the assumption that humanity has the sole and unique capacity for creativity to change their own environments. These insights find support from scholars who sought to explain the place of humans in the world through other knowledge systems. For instance, “multispecies ethnography” is important not only as a descriptor of how humans and microbes are connected but also in its vivid illustration that our understanding of reality cannot be separated from how we know it (i.e. its onto-epistemological function).Footnote 75 Microbes are recognised to have agency and have impact on human societies and cultures.Footnote 76 For these ethnographers, microbes are social agents that profoundly shape relatedness, exchange, governmentality, and signification.Footnote 77 Stefan Helmreich challenges us to think of governance in terms of intricate entanglements, or what he refers to as symbiopolitics.Footnote 78 By this approach, science is but one of many kinds of human knowledge and practice concerning nonhumans, and indigenous scientists have been noted to have critically engaged with overlaps and divergences in their tribal and professional training.Footnote 79 Importantly, one kind of human knowledge and practice did not necessary crowd out another, but could each promote attention to forms of nonhuman life.Footnote 80
There are some helpful concepts that draw on non-Western and indigenous thinking in the alternative makings of reality. One such concept builds on the ideas of Japanese ecologist Imanishi Kinji (1902–1992) on “the world of living beings” to explain the human microbiome and the ways that it interconnects the human with the environment. Looking through this conceptual lens, “living means the subjectivation of the environment through the body, and the environmentalization of the subject through the body.”Footnote 81 In contrast to the view of microbes only as resource or threat, Imanishi introduces us to a more fluid and dynamic relationship that humans have with our living environment. Where microbes are concerned, Droz et al. identify seven relationships that illustrate how all human beings, as embodied individuals, are a part of microbial multispecies societies (which may be compared with those set out by Wienhues, as I noted above).Footnote 82 Drawing on indigenous thinking, Oscar Guardiola-Rivera shows how Amerindian knowledge system could advance understanding of the relational nature of human and nonhuman worlds through gift-logics rather than through differentiation and categorisation in legal thinking.Footnote 83 Of relevance to our present discussion is his explication of the work of “Palabreros” (wordsmiths), or shamans skilled in ritualistic words (“palabras”) and languages based on gift-logics, which seeks to forge alliances for the preservation of life. Such an approach stands in stark opposition to what he depicts as “Western” model of warfare against the “other” and the inevitable fixation with mortality and morbidity (or what he calls the cult mindset of death). Across the Pacific, this Amerindian approach finds resonance among indigenous knowledges in Oceania. Microbiome is implicit in indigenous narratives that refers to an unseen connection between people and the environment.Footnote 84 The “presence” that is reflected in indigenous epistemologies and frames of knowing the influence of unseen (or microbial) forces on health gives similar emphasis to a relationally holistic approach towards microorganisms, which may approximate to what Beth Greenbough (drawing on Haraway) depicts to be microbes as companion species.Footnote 85
Cognizance of microbes in patent and trade laws (being primarily extractive or conflictual) starkly contrasts the relational and perhaps even reverential understandings of these minute organisms in the more-than-human approaches in the humanities and social sciences and also in some non-Western and indigenous beliefs, epistemes, and ontologies. There are signs of various attempts to narrow this gap, notably in the “nonhuman turn” in the law. In introducing the notion of “nonhuman rights,” Alexis Alvarez-Nakagawa explains that it holds out the opportunity to think beyond human rights with the aim of challenging the binary dualisms that support human exceptionalism and the exploitation of nonhumans through different legal, economic, and political institutions.Footnote 86 In order to give actual legal existence to other-than-human beings, Alvarez-Nakagawa highlights the need to go beyond the politics as usual of human rights and, importantly, to dissociate from normative models with human-imprinted features like reason, agency, autonomy, and will. Otherwise, cognizance and, by extension, rights of nonhuman others are likely to be no more than a new modality of exploitation under an “episteme of surfeit,” as Alain Pottage explains with reference to Lovelock’s Gaia hypothesis, which posits that Earth is a self-regulating complex system where living organisms interact with inorganic surroundings to maintain the habitability and climate stability of the planet.Footnote 87 Pottage shows how the Royal Dutch Shell Company applied this hypothesis to envisage a particular strategy of climate denialism based on the self-regulating and adaptive mechanisms of the Earth.Footnote 88 Within the more mainstream discourse on human rights law, the emergence of “third-generation” human rights appear to steer in a similar direction.Footnote 89 These rights go beyond the individual as they can only be exercised as part of a group, in that no individual is able to enjoy them alone. The right to a clean, healthy, and sustainable environment (or the right to a healthy environment as it was previously referred to) as adopted by the General Assembly of the United Nations, and endorsed in a unanimous advisory opinion of the International Court of Justice, is an example of such a right.Footnote 90 Since third-generation rights aim to create an environment in which human rights may be fulfilled, they open up the possibility for nonhuman entities, including natural phenomenon like mountains and rivers, to be rights holders. Famously, New Zealand has granted legal personhood to specific ecosystems like the Whanganui River and Te Urewera National Part, while 100 countries have been noted to provide direct constitutional protection to environmental rights.Footnote 91
Microbes have not been specifically discussed in relation to nonhuman rights or otherwise the “greening” of human rights, but they are inextricably part of just about any environment and could be protected under the broad umbrella of environmental rights.Footnote 92 This was the approach adopted by Charles Cockell, a pioneer who calls for safeguarding microbial commons through microbe-centric ethic and microbial rights.Footnote 93 The essence of his proposition is captured in these statements: “The protection of the integrity of a microbial community or ecosystem should have equal, and sometimes greater, priority to that of any other organisms … Microbes have a right to live that is equal to that of any other life form on earth.”Footnote 94 As he explains, microbial species have intrinsic worth as the existence of all other living organisms depends on them. Cockell does not clearly distinguish a microbial community from its ecosystem due to their great diversity and their propensity to exchange genetic materials among themselves.Footnote 95 Consequently, protection of a microbial community is likely to be most practicable in securing the integrity of a natural salt pan, for instance, where these microbes subsist. Microbial rights could then be understood in terms of, or within, the institutions or arrangements that protect their ecosystem, like the natural salt pan.Footnote 96 Such an approach does not preclude the instrumental value of some microbes in the ecosystem, but it is not the main justification for protection or conservation.Footnote 97 More recently, scholars like Rob Amos, Anthony Rizk, and Louis-Patrick Haraoui have proposed rights of microbes in terms of legal protection for ecosystems that sustain them.Footnote 98 This also means that microbes that cause diseases in humans should similarly be protected from annihilation, as they too have intrinsic value in-and-of themselves and in the ecosystem that they constitute. In certain cases, the survival of these pathogens could find instrumental justification. Certain diseases do in fact protect a human or nonhuman living organism from other microorganisms. Famously, Edward Jenner used cowpox to protect variolated persons from smallpox, and helminths (parasitic worms) could provide symptomatic relief or even cure debilitating diseases in humans.Footnote 99
One may then ask if microbes will be able to sue us? Logically, legal redress for compensatory or injunctive relief will still require intervention by human beings or organisations acting on behalf of microbes. There is nothing new to this, as environmental rights legal actions (particularly climate-related ones) are now relatively commonplace around the world, even if they are not specific to microbes or microbial ecosystems.Footnote 100 Such legal actions could also help protect the rights of often marginalised indigenous communities, whose knowledges may be more deeply intertwined with their microbial allies, particularly in agricultural practices.Footnote 101 In this respect, there is already a degree of recognition that certain indigenous communities have developed deep links with microbial species that could in turn be exploited through intellectual and material extraction by others to the detriment of both.Footnote 102 For this reason, the Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge of the World Intellectual Property Organization adopted in May 2024 requires patent applicants to disclose the use of genetic resources and associated traditional knowledge. The aim of this requirement is to improve patent transparency and ensure proper recognition of indigenous knowledge.Footnote 103
However, our understanding of microbial rights should not be limited to a static set of normative prescriptions. As Scotch Veitch explains, there are often more obligations than rights in a given social context. To take obligations of ecological equity in AMR innovation seriously “is not merely a means of taking rights seriously, but of taking other obligations seriously. And these obligations are not those that correlate to rights, but mark out something more fundamental.”Footnote 104 In this sense, microbial rights could enable us—human beings—to think through the “creaturely.”Footnote 105 Working with Dayan incisive questions, we may ask: Can we define ourselves alongside and through our microbes? Can we think—cognitively and with sensibility—along with our microbes? What would it mean to reorient our ethical, political, or juridical assumptions by taking the perspective of microbes? Some responses to these questions may already be elicited from a call to action of the International Union of the Microbiological Societies (IUMS). With the overarching goal of environment protection and preserving the planet’s microbial diversity, its three-fold recommendations are set out as follows:
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• minimising the widespread use of broadly acting antimicrobial agents alongside an increased focus on the development and application of targeted vaccine and therapeutic treatments that are more effective and sustainable.
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• reducing the globally widespread overuse of antibiotics in agriculture which is helping drive the emergence of antibiotic resistant superbugs; and
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• actively embracing the objectives of the UN Sustainable Development Goals (SDGs) in seeking and supporting solutions for a healthy planet.Footnote 106
Additionally, microbial rights can add to the language of human rights in lending force to the recognition that enjoying rights like life, health, and (more recently) a clean, healthy and sustainable environment requires a more robust conception of the microbes–human relationship beyond the binary of exploitable resource or biosecurity threat, as discussed in Sections 1 and 2. Treating microbial rights as a human right puts it at the same level of importance as other rights considered necessary to human dignity, equality, and freedom. It also helps to foreground individuals (e.g. members of indigenous communities) and ecosystems that are most susceptible to harms.Footnote 107 Like human rights discourse, microbial rights can similarly provide a space for epistemic engagement and comingling, particularly between law, on the one hand, and the humanities and social sciences, on the other. In other words, microbial rights could function not just as legal protections but also as a framework for determining what knowledge counts and how it is validated and applied.Footnote 108 In the light of the “nonhuman turn” in international environmental law and international human rights law, the time is also right for the conception of rights to be widened. The threat of AMR looms large, even as microbes and their genetic profiles are increasingly treated as genetic resources that come under the control of individuals, human enterprises, and sovereign states, often with little to no recognition of the rights and interests of indigenous communities.Footnote 109 In a poly-crisis world, microbial rights could help protect microbial ecosystems from exploitation by unmasking extractivism and neoliberal policies and thereby keep in check problematic forms of capitalistic accumulation and production.
4. A Fairer Way Forward
Like climate change and loss of biodiversity, AMR is a formidable challenge to human health and well-being. A response to this challenge may be to channel all our inventiveness, efforts, and resources at eliminating a growing number of “superbugs” through scientific and technological innovation. Drawing insights from the humanities and social science, I have argued that this approach is wrong-headed. Even if the AMR innovation (e.g. a new antibiotic) can address an immediate health threat, it is unlikely to be equitable or sustainable, whether in ecological or humanistic terms. The illusion that human beings are—and could subsist as—a species apart from all other species, including microbes, should be dispelled. Microbes are inextricably part of human identity as they have co-evolved with us from the dawn of time. There is no reason why legal cognizance of microbes should be limited to a binary of “good” (i.e. useful resources) or “bad” (i.e. biosecurity threat), particularly when there is increasing recognition that nature has the right to exist, persist, and regenerate. The better approach is to reclaim our relationship with microbes and to initiate a similar “nonhuman turn” in international patent and trade laws as we find it in environmental and human rights law. I have argued that microbial rights could initiate this change in at least three ways. First, microbial rights give force to the view that microbes have moral value and should therefore not be treated merely as resource for exploitation or a threat that is to be eliminated, whether in R&D or in trade. Second, microbial rights will require social institutions on innovation like patent systems to consider arrangements necessary for both humans and microbes to flourish. Third, microbial rights can provide a discursive space for epistemic engagement and commingling to identify and articulate needs and obligations that underscore ecological equity. Microbial rights are not about giving microbes the power to sue us each time we scratch ourselves or an exercise in anthropomorphism. It is also not about undermining AMR as a grave and urgent collective action challenge to which we have no clearly effective, consistent, and sustainable response. Microbial rights are intended to underscore the importance of microbial diversity and ecological sustainability and enable action to be taken now. They could also have the incidental benefit of protecting indigenous communities whose knowledges and lives are deeply intertwined with their microbial allies. Practically, microbial rights could catalyse the “greening” of international patent and trade law regimes. They also strengthen the three-fold recommendations of the IUMS in prioritising AMS innovations that are more targeted and sustainable in application and in effect; reduce the widespread overuse of antibiotics; and contribute to the progressive realisation of the SDGs.
To summarise, let me recapitulate the three questions that I ask in this paper and my responses to them. First, why does AMR innovation fail to consider equity in an ecological sense? In reviewing the historical development of patent systems and their subsumption into the international trade regime, I have explained how microbes have been relegated to an abstract notion of property that may be controlled, manipulated, and owned. In this context, microbes as exploitable resource renders redundant ecological evaluation since only anthropocentric needs and interests matter. Second, what does ecological equity mean in relation to AMR innovation? Drawing on insights and concepts from the humanities and social sciences (e.g. “more-than-human,” “multispecies justice,” and “biocentric egalitarianism”), I have explained what ecological equity could mean when microbes are recognised to have moral value, creative agency, and situated knowledge. By this view, the patent system becomes inherently unfair because it neither considers nor reward the inventive contributions of microbes. It also does not take into account the ecological impact that an invention may have. Third, how could AMR innovation be rendered ecologically more equitable? Social institutions (like patent systems) that apply to AMR innovation must shift away from the human–nonhuman divide and adopt an ecological or biocentric approach. Innovations should enrich both human and microbial environments to allow both to flourish. Finally, rights should be attributed to microbes to enable conceptual cross-pollination across law, the humanities, and social sciences and to steer the “greening” of legal regimes that apply to AMR innovation.
Acknowledgements
The author is immensely grateful to the guest editors of this special issue (Professors Sheila Varadan, Sara de Wit, Miriam Waltz, and Claas Kirchhelle) for their guidance and support; two anonymous reviewers for their thoughtful and instructive comments; the members of the Just Transitions for AMR Working Group for their camaraderie; and the British Academy for its generous support. All errors are the author’s own.
Author contribution
Conceptualization, Formal analysis, Funding acquisition, Methodology, Project administration, Resources, Writing - original draft, Writing - review & editing: C.W.L.Ho.
Financial Support
This work was funded by the British Academy (GCPS2\100009) for the author’s participation in the project “A Just Transitions Framework for the Equitable and Sustainable Mitigation of Antimicrobial Resistance.” For the purpose of open access, the authors have applied a CC BY public copyright licence to any Author Accepted Manuscript version arising from this submission.
Conflict of interest
The author declares none.
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