By: Brandon Larrabee

Scientist He Jiankui might have gotten more than he bargained for after claiming he had created the first gene-edited humans: the Chinese government is now saying his actions broke the law.[1] Xu Nanping, vice minister for science and technology, said He’s breakthrough — if it is confirmed, of course — “blatantly violated China’s relevant laws and regulations.”[2]

The truth is that many nations are still struggling to figure out their policies on gene editing — and those that have policies are dealing with debates over whether those regulations should be more or less stringent.[3] For example, stringent laws in Canada — where editing “germ line” cells could land someone a 10-year prison term — have come under fire from researchers.[4] A similar “crime” could bring a 15-year sentence in Australia.[5]

The United States, for its part, doesn’t ban germ line editing per se.[6] Other countries have a policy somewhere in between. The United Kingdom, for instance, allows use of gene editing techniques as long as the embryos are not maintained for more than 14 days and are not implanted.[7]

The developments could also force countries and other entities to confront arguments that have so far been largely theoretical, or at least on the very verges of science. For example, the prospect of gene-edited babies is likely to bring new focus to a recent ruling by the European Court of Justice on genetic modifications.[8] The court seemed to place techniques like CRISPR — the method used for human gene editing — under the European Union’s regulations for genetically-modified organisms.[9] (Whether humans with edited genomes would have to be labeled somehow is unclear.)

Elsewhere, laws are not as clear as they could be.[10] France, for example, bans anything that would “undermine the integrity of the human species,” but critics say the definition of “crimes against the human species” is vague.[11]

How effective any of these laws will be in the future is questionable, for two reasons. The first is that technology is changing so rapidly that laws simply might not be able to catch up.[12] The other problem is the possibility of “reproductive tourism,” where wealthy families will travel anywhere that they can get a gene-editing procedure done.[13] That has led to questions about whether the problem needs to be tackled internationally.[14]

The problem, of course, is that international law generally moves even more slowly than domestic law. And, while He Jiankui might be taking a break from engineering more gene-edited babies for now[15], the record so far indicates that science will continue plowing new ground whether or the law keeps pace.

 

[1]Sophia Yan, Gene-editing Babies a Violation of Chinese Law, Says Official, The Telegraph (Nov. 29, 2018, 4:57 PM), https://www.telegraph.co.uk/news/2018/11/29/gene-editing-babies-violation-chinese-law-says-official/.

[2]Id.

[3]For more on the debate in the United States, see Michael R. Dohn, Preventing an Era of “New Eugenics”: An Argument for Federal Funding and Regulation of Gene Editing Research in Human Embryos, 25 Rich. J.L. & Tech., no. 2 (forthcoming).

[4]Ben Schaub, Human Gene Editing Could Change the World — What Are the Laws Governing It in Canada, CBC, https://www.cbc.ca/natureofthings/features/gene-editing-in-canada.

[5]Christopher Gyngell & Julian Savulescu, U.K. Gene Editing Breakthrough Could Land an Aussie in Jail for 15 Years: Here’s Why Our Laws Need to Catch Up, The Conversation (Sept. 25, 2017, 11:22 PM), https://theconversation.com/uk-gene-editing-breakthrough-could-land-an-aussie-in-jail-for-15-years-heres-why-our-laws-need-to-catch-up-84590.

[6]Angela Chen, If Someone Wants to Create Gene-Edited Babies, Who Would Stop Them?, The Verge (Nov. 26, 2018, 3:00 PM), https://www.theverge.com/2018/11/26/18112970/crispr-china-babies-embryos-genetic-engineering-bioethics-policy.

[7]James Gallagher, U.K. Scientists Edit DNA of Human Embryos, BBC (Sept. 20, 2017), https://www.bbc.com/news/health-41269200.

[8]See Case C-528/16,Confédération Paysanne v. Premier Ministre, CELEX West 6016CJ0528 (July 25, 2018).

[9]See Paul Rincon, Gene Editing Is GM, Says European Court, BBC (July 25, 2018), https://www.bbc.com/news/science-environment-44953100.

[10]See R. Isasi et al., Editing Policy to Fit the Genome?, 351 Science 337, 338.

[11]Id.at 339.

[12]See id.at 337.

[13]See Chen, supra note 6.

[14]Id.

[15]Yan, supra note 1.

Image Source: ttps://images.newscientist.com/wp-content/uploads/2018/11/26122048/3000-1.jpg

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