So, we are going to do this. In our lifetimes, we will genetically engineer an extinct species and bring it back from oblivion.

That species won't be a dinosaur. Don't waste Neil deGrasse Tyson's time asking him why.


But that species could be a Heath Hen (which, you know, is kind of just an evolved dinosaur). The bird was some kind of chicken that lived in New England, back in the day. We may have eaten it at the apocryphal First Thanksgiving. We certainly ate too much of it; the Heath Hen became extinct in 1932.

Now, the non-profit group Revive and Restore seems close to embarking on a project to re-animate the Heath Hen, and repopulate them on Martha's Vineyard.

Many people wring their hands about the ethical dilemmas posed by zombie chickens, but fewer people think about the legal consequences surrounding the "de-extinction" of tasty species. You'll be happy (or horrified) to know that currently it is perfectly legal to re-animate an extinct species. If you have the DNA, the millions of dollars, and the 1.21 jigowatts, go nuts.


But once you have your very own Stalking Bird of Alderaan, then you can expect the law to take an interest in your lab. Many of the threshold legal issues were covered in the 2014 Stanford Environmental Law Review by a paper titled: "How to Permit Your Mammoth: Some Legal Implications of 'De-Extinction.'" It's a good read. Unfortunately, it's also a 77-page law review article that most people will never read. Here's a fantastic summary of it in the January 2014 issue of National Geographic.

An important issue with de-extinction is whether the new/old species will be classified as "endangered" for purposes of the Environmental Protection Act. That's a big deal. If, for instance, the recreated Heath Hens are an endangered species, then all kinds of restrictions can be placed on their... "natural" habitat in Martha's Vineyard. You never know, somebody might want to build a 10-acre theme park in honor of Mike Barnicle up there. But if the land is the only home on Earth for a species we killed, then recreated, what are we going to do, kill it again?

You could twist yourself into philosophical knots debating the endangered-ness of species we've learned to mass produce in a lab. And the minute we can reliably scientifically do this, some asshole is going to be like, "Cool, so I'll just be over here, killing ALL of the elephants now."

But because this is America, the legal battle isn't going to be over endangered status of de-extinction species. No, what we are going to fight about is profit: who gets to charge you to have your very own thing-we-killed-cause-we're-greedy?

Likely, species brought back from extinction would be classified as "genetically modified organisms." That's because we're unlikely to be able to make a straight clone of something extinct. Think the "frog-DNA" scene from Jurassic Park: there will be gaps, and we'll have to fill in those gaps so we'll end up creating something slightly different from what was once natural.


We actually already have well established law regarding the treatment of GMOs. Farmers fight genetic scientists (or at least the companies those scientists work for) over duplication of patented seeds and crops all the time.

The Supreme Court ruled on two important "playing God with genes" cases in 2013. In one, Association for Molecular Pathology v. Myriad Genetics, Inc., the Court ruled unanimously that "naturally occurring" DNA sequences could not be patented. But synthetic DNA (called cDNA) could be. People were excited about this ("It means you own your own DNA!"), but the decision is useless. Any multibillion dollar pharmaceutical company worth its salt will just insert synthetic bits into any helpful DNA strand it wants to own. End of discussion.

The second 2013 case is Bowman v. Monsanto Co. There, the Court was again unanimous in holding that a company's super seeds were still the company's even after a farmer figured out how to grow his own.


The Monsanto case seems like good precedent for what we are talking about: when you do get your own Dodo Bird, and mate it with another Dodo Bird, that baby Dodo will still be property of the Future Petco that sold you the original birds.

Which brings us back to Jurassic Park. Despite having an entire Steven Spielberg movie sent here to warn us, the state of the law allows for exactly the kind of corporate dystopia the story contemplates. The problem is not recreating dinosaurs, the problem is having corporations own species and then deploying them in the most profitable way, nature be damned.

Sure, it'll start with the Heath Hen and some do-gooding non-profit excited to bring chickens back to New England. But it will end with Eli Lilly Elephants being bred and farmed for their super tusks on restricted land in Indianapolis.

That's not an ethical problem, it's a legal one.