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Patented GM Crops: Making Seed Saving Illegal?

Among much talk of the future of GM crops in Africa, among the claims of higher yields, pest resistance and solutions to hunger, and the acknowledgement of the risks to health, environment and markets, there is a consistent and glaring omission from the GM debate. While ministers, scientists and policy makers talk of Biosafety frameworks, and the costs and benefits of GMOs, all seem blind to the issue which is of most concern to African farmers: the issue of patented GM crops and how this will affect farmers’ rights to save seed.

GM crops are patented by multinational companies such as Monsanto and Syngenta. Patenting, or claiming of intellectual property rights (IPRs) means that farmers who buy GM seeds are forbidden from seed saving by law, and must buy new seed from the company each season. GM crops are significantly more expensive than conventional or hybrid crops. In India, for example, Monsanto’s Bt cotton can be three times the price of conventional cotton seed.

The implications of patented GM seeds for African farmers should not be underestimated. Saved seed is the one resource that the poorest depend upon to carry them through the year. If they are forbidden to save their seed and must pay up to triple the costs of buying new seed each season, the costs of growing food will become prohibitive. The claims of lowered production costs do not stand up to scrutiny. Neither are the yields of GM crops sufficient to recover the costs.

It is ironic (or inappropriate) that while GM purports to help to solve hunger and poverty in Africa, it may instead place an impossible burden on the poorest farmers, the very people at whom this technology is supposedly aimed.

Very few African farmers are aware that patented GM crops will make seed saving illegal. Even policy makers seem largely unaware or uninterested in this fact. This glaring omission needs to be addressed, to help governments and farmers make policy from an informed position.

International NGOs working on food security issues are in agreement that patented GM crops present a serous threat to farmers and food rights. Organisations such as Action Aid , Christian Aid , Genetic Resources Action International (GRAIN) and even the UK Government’s own Commission on Intellectual Property Rights all warn of the negative consequences to seed saving, food sovereignty and farmers’ rights should patented GM crops be accepted in developing countries. However, these warnings have been consistently ignored by the majority of the media and policymakers in Africa.

According to GRAIN, the patenting of crops "is an attempt to privatize Africa’s innovative practices and biological resources and reorganize its seed markets for the benefit of foreign corporations. Africa’s farmers and the abundant knowledge and plant diversity they have nurtured are bound to be trampled over in the process, threatening Africa’s already fragile food security."

"Africa’s farmers, like all small farmers around the world, will be affected most directly by any consequences. Social and economic risks from GM crops are equally weighty. They will increase dependence on outside technologies, marginalize farmers from R&D, and consequently exacerbate the social and economic difficulties already affecting Africa’s small farmers."

Monsanto is evidently serious about ensuring that no-one saves their GM seed, and that farmers are forced to buy from them each season. The Center for Food Safety report "Monsanto vs Farmers" documents Monsanto’s lawsuits against American farmers, revealing thousands of investigations, nearly 100 lawsuits and numerous bankruptcies.

"CFS found that Monsanto, the world’s leading agricultural biotechnology company, has used heavy-handed investigations and ruthless prosecutions that have fundamentally changed the way many American farmers farm. The result has been nothing less than an assault on the foundations of farming practices and traditions that have endured for centuries in this country and millennia around the world, including one of the oldest, the right to save and replant crop seed."

According to CFS, "the largest recorded judgment made thus far in favor of Monsanto as a result of a farmer lawsuit is $3,052,800.00. Total recorded judgments granted to Monsanto for lawsuits amount to $15,253,602.82. Farmers have paid a mean of $412,259.54 for cases with recorded judgments." However this does not tell the full story, as many farmers have chosen to settle out of court and pay Monsanto rather than undergo trial. They are obliged to sign confidentiality agreements - which mean they are forbidden to talk about their experiences.

As disturbing as this may already be, the implications for patented GM crops go further than just forbidden seed saving. When Monsanto patents a GM crop, they are actually patenting the gene from a different species which they have transferred into the crop (e.g. the pesticide-producing gene from a bacteria, which is inserted into maize and cotton, to make Bt maize and Bt cotton.) Should a GM crop cross-pollinate with a neighboring crop through the movement of wind, insects, birds, or accidental seed mixing, the neighbouring harvest would be likely to carry the patented gene also. Monsanto could then claim that the neighbouring farm has infringed their patent. The farmer who was unintentionally contaminated by somebody else’s GM crop, would be breaking the law if he saved his seed and planted it.

There is a well-known case where a Canadian farmer’s canola (oilseed rape) fields were accidentally contaminated by pollen from someone else’s GM crops. Monsanto came onto his land to test his crops, and found that their patented gene had contaminated the canola that he had been developing for 50 years. They sued him. Percy Schmeiser is one of the few farmers who chose to fight his case in the courts, but according to Canadian patent law, he was found guilty of patent infringement, even though it was clear that there was nothing he could have done to prevent the contamination. Practically his only option to avoid breaking the law, was to stop growing his own seed, and buy Monsanto’s GM seed himself.

North American law on patents and intellectual property rights is particularly favorable to Monsanto’s interests, but currently not all African countries have similar patent and intellectual property laws on seed. This fact might, for a time, persuade African policymakers that they have nothing to fear. However, there is constant international pressure on countries to implement national IPR laws that are consistent with treaties such as the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO) and the International Union for the Protection of New Varieties of Plants (UPOV), which allow for protection of seed companies’ rights, but do not protect the rights of farmers to save seed.

South Africa is the only African country that currently allows GM crops to be grown commercially. Complementing their GMO Act (which has been criticized for facilitating GMO acceptance instead of implementing careful regulation), South Africa’s patent laws protect Monsanto’s interests and forbids the saving of GM seeds. South African farmers growing GM crops must sign a "Technology Agreement" that signs away their rights to save seed. Even illiterate farmers have been signing these agreements, although there is doubt that many of them understand what they are agreeing to.

Other African countries are currently in the process of debating GM acceptance, and develop their Biosafety laws for GM crop regulation. Parallel to this, foreign companies and institutions are calling for IPR legislation. There is chance that given sufficient influence from industry, new laws may be developed that will make seed saving illegal.

One country that chose to accept GM crops, whilst refusing to adapt patent law to meet Monsanto’s wishes, was Argentina. Monsanto’s GM Roundup Ready Soya, developed to be resistant to Roundup herbicide, entered the Argentine market at a time when the country had decided to focus its agriculture towards soya for exports. By subsidizing the Roundup, not patenting the crops, and allowing extensive contamination, GM soya took over 95% of the soya market. The social costs of this takeover were considerable -the herbicide-resistant technology was favorable to the largest Agribusiness farms whose farms expanded to tens of thousands of hectares, while hundreds of thousands of farming families were forced off the land to become unemployed in the cities.

Once Monsanto controlled the nation’s soya economy in this way, they threatened to cut off the seed supply if the Argentine government did not implement patent law, help Monsanto to recoup their royalties, make GM seed saving illegal, and put an end to the black market. A government proposal for a "Technology Compensation Fund" that would levy a charge on farmers selling their soybean harvests, in order to return the equivalent of the royalty charges to the GM Company, is currently stuck in Congress due to resistance from farming groups. Now Monsanto’s new strategy is to block exports when ships carrying exported soybeans arrive in a different country, until their demands for royalty payments are met. Argentina is currently planning to take legal action against Monsanto as the company blocks soya shipments to Spain from reaching the European Union.

The case of Argentina can also serve as a warning to African countries about how GM agriculture can grant a single company extensive control over a country’s food and seed supply. The fact that the Argentine government was willing to create the "Technology Compensation Fund" - essentially a new tax that would go directly into Monsanto’s pocket - shows the political power that this control can afford.

Taken together, evidence suggests that GM companies like Monsanto and Syngenta are serious about enforcing their patent protection systems. They argue that they can only justify the many millions of dollars spent in developing GM crops, if they can ensure their continued profits. By patenting their seeds, charging high prices, and forbidding seed saving, they can certainly protect their own interests. But this will come at a heavy cost to farmers, particularly the poorest. Patented GM seeds present a significant threat to food security and livelihoods of the 80% of small farmers in Africa who use saved seed.

It is now time for policy makers to openly recognize and talk about the fact that GM crops are patented. They must consider whether such a system of agriculture will truly address the needs of the poor and hungry. Or will patented GM and illegal seed saving instead compromise Africa’s food security, seed diversity, and the livelihoods of its farmers?



By Teresa Anderson
The Gaia Foundation, UK


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