Bioethics Forum Essay
Chinese Bioethicists: He Jiankui’s Crime is More than Illegal Medical Practice
Professionals and the public in China first learned of the jail sentence of He Jiankui from the report of Xinhua News Agency. No information, including any interpretation, was provided by the Court. But the reported words of the sentence are so ambiguous as to leave room for different interpretations. We believe that the public has the right to know more than Xinhua News Agency reported.
The Court blames He and his accomplices for “their deliberate violence of China’s relevant regulations and medical ethics,” “the application of human embryonic gene editing technologies for which safety and efficacy have not been proven to clinical practices of assisted reproduction,” and “their action going beyond the bottom line of research/clinical ethics.” All these offences violate administrative regulations and ethical norms, but none of them are illegal under China’s civil or criminal laws. However, in listing these ethical and administrative wrongdoings in the sentence, the court may have been trying to fill the legal gap; that is extraordinary, and it should be praised.
We feel relieved that the trial in this case followed procedural law. The defendants had lawyers and were given the opportunity to speak for themselves in the court. And family members of the defendants, as well as representatives of the People’s Congress (legislature) and members of Political Consultation Conference (an official consulting body), journalists, and representatives of the public attended the announcement of the sentence as observers.
However, there are two points we would like to raise. One is that the He Jiankui incident, a notorious scandal that upset the world with the use of heritable genome editing and the birth of the first gene-edited babies, has been reduced to a case of illegal medical practice. It is ridiculous. But the violations of administrative regulations and ethical norms on gene manipulation that He and his accomplices committed do not constitute a crime in China, except for illegal medical practice. Article 336 of the Criminal Law of Chinese People’s Republic stipulates that illegal medical practice refers to the action taken by a person who has not obtained a medical license but engages medical activities without authorization. Although He and his accomplices conducted a clinical trial, the clinical trial can be looked upon, under Article 336, as a kind of medical activity. And since neither He nor his accomplices have a medical license, they are guilty of illegal medical practice.
For us, it is regrettable that this wrongdoing became a case of illegal medical practice. However, we are glad that National Health Commission banned He Jiankui and his accomplices for life from performing human assisted reproduction, and that the Ministry of Science and Technology prohibited them from applying public funds for their research program.
Furthermore, He paid each of the couples who participated in the research 280,000 Yuan (about $40,000) to keep the clinical trial confidential. The lack of disclosure and the payment made the consent provided by research participants invalid.
The Chinese legislature is now drafting the Civil Code to address the ethical issues raised by heritable genome editing, including identifying the conditions that should be met before undertaking the practice. It remains to be seen if doing heritable genome editing without meeting those conditions will constitute a crime. Chinese bioethicists and legal scholars will meet on January 12 to discuss which ethical requirements should be included. The representation of bioethics is very important. We hope that a number of ethical requirements for clinical practice, health-related research, and public health will be entered the Civil Code after the dialogue and consultation between bioethicists and law scientists, scientists, physicians, scholars of the humanities, social scientists and the representatives of the public.
Ruipeng Lei, a newly elected Hastings Center Fellow, is Professor and Executive Director, Center for Bioethics, Huazhong University of Science & Technology. Renzong Qiu, a Hastings Center Fellow, is Professor and Director, Institute of Bioethics Center for Ethics & Moral Studies, Renmin University of China.
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