The First Case of Human Genome Editing: Criminal law Perspective

AuthorD. Sergeev
PositionUral State Law University (Yekaterinburg, Russia)
Pages114-133
BRICS LAW JOURNAL Volume VI (2019) Issue 4
COMMENTS
THE FIRST CASE oF HuMAn GEnoME EDITInG:
CRIMInAL LAw PERSPECTIVE
DANIL SERGEEV,
Ural State Law University (Yekaterinburg, Russia)
https://doi.org/10.21684/2412-2343-2019-6-4-114-133
This article analyzes the legal assessment of the human genome modication experiment
at the pre-implantation stage conducted by a group of scientists headed by He Jiankui,
professor at the Southern University of Science and Technology (SUSTech) in Shenzhen,
Guangdong Province, China, by means of the CRISPR/Cas9 technology. Chinese scholars
have dierent opinions concerning He Jiankui’s experiment, but on the whole condemn
it as illegal. Though CRISPR/Cas9 has been applied for quite a long time, the legislation of
most developed countries is not ready to respond. The author of the article underlines the
fact that despite the consolidated opinion of scholars, there is no binding international
act which would restrict human genome editing. The author relies on Chinese sources
in considering the main approaches to the assessment of He Jiankui’s actions in terms
of criminal law (illegal medical activity, forgery of documents or fraud). Based on the
analysis of Chinese criminal law doctrine, the author oers possible models of classifying
separate actions related to human genome manipulation. The following cases of human
genome manipulation are considered by the author as publicly dangerous and criminally
liable: (a) when the embryo genome is changed by genetic engineering technologies for
the purpose of its further implantation in the situation where the child’s parents are not
aware of such intervention and its possible implications; (b) when genetic therapy or any
other gene transfer (transgenesis) is applied to a person who is not aware of the nature of
such manipulation and the possible implications of the application of the technology.
Keywords: He Jiankui; genome editing; genetics; criminal law of China; criminal liability;
public danger.
Recommended citation: Danil Sergeev, The First Case of Human Genome Editing:
Criminal Law Perspective, 6(4) BRICS Law Journal 114–133 (2019).
DANIL SERGEEV 115
Table of Contents
Introduction
1. He’s Case as a Challenge to International Law?
1.1. Preliminary Remarks
1.2. Is There an International Ban on Human Genetic Editing?
1.3. Criminal Liability for Human Genome Editing
2. He’s Case and Legal Regulation of Genetic Manipulation in China
2.1. Preliminary Remarks on the Legal System of China
2.2. A Short Overview of Legal Regulation of Genetic Research
and Experiments, Clinical Application of Genetic Technologies
in the People’s Republic of China
2.3. What Criminal Charges Can He Jiankui Face?
3. He’s Case as a Factor Contributing to the Development of Genetic
Justice in China and Other Countries
Conclusion
Introduction
The discovery of CRISPR functions – a special locus of bacteria able to cooperate
with Cas proteins which complementarily connect RNA with nucleic acids of
foreign elements and later destroy these elements – opened a new era in genetic
engineering.1
CRISPR/Cas9 technology provides the opportunity to edit genetic material rather
than simply removing a gene or introducing a new gene in the existing sequence.
The possible application of human genome editing technology has caused
a great deal of discussion on the ethical and legal consequences. In 2015, a group
of leading scholars published their opinion in Nature, calling for agreement among
scientists not to edit reproductive cells:
In our view, genome editing in human embryos using current technologies
could have unpredictable effects on future generations. This makes it
dangerous and ethically unacceptable. Such research could be exploited
for non-therapeutic modications. We are concerned that a public outcr y
about such an ethical breach could hinder a promising area of therapeutic
development, namely making genetic changes that cannot be inherited.
At this early stage, scientists should agree not to modify the DNA of human
1 Alexandre Loureiro & Gabriela J. da Silva, CRISPR-Cas Converting a Bacterial Defence Mechanism into
a State-of-the-Art Genetic Manipulation Tool, 8(1) Antibiotics 18 (2019) (Sep. 25, 2019), also available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6466564/.

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