Dr He Jiankui is in prison for using CRISPR to create HIV-immune and cognitively-enhanced babies.
China’s new Criminal Code, which came into effect four weeks ago on March 1st, has a new section dedicated to ‘illegal medical practices’, which makes it a punishable crime to create gene-edited babies, human clones and animal-human chimeras.
The new section is an amendment to Article 336 of China’s Criminal Law, and officially outlaws “the implantation of genetically-edited or cloned human embryos into human or animal bodies, or the implantation of genetically edited or cloned animal embryos into human bodies,” — with penalties ranging from fines to seven years imprisonment.
Back in 2018 on November the 25th, Chinese biophysicist Dr He Jiankui announced that he had used gene-editing tool CRISPR to create the world’s first gene-edited babies. Dr He had modified the babies’ CCR5 gene — which the HIV virus uses as a pathway enter the cell. Through this CCR5 modification, the babies were made immune to HIV infection, and quite possibly had their cognitive capabilities enhanced.
Dr He was widely rebuked for this experiment, and after a storm of media-generated outrage and mounting pressure from influential Western bioethicists, Dr He was detained, and on December 30th 2019, a Chinese court sentenced him to three years in prison.
Although Dr He had been sentenced for genetically modifying human embryos, China’s previous criminal code on ‘illegal medical practices’, under which he was sentenced, was extremely vague on the gene-editing of human embryos, and was mostly used to prosecute providers of dangerous medical procedures, and not researchers. The only official Chinese Government legal document that made a stipulation against genetically altering human embryos at the time of Dr He’s sentencing was a scientifically-outdated 2003 guideline by the Chinese Ministry of Health, which mostly addressed ethical issues on human embryonic stem cell research.
And thus due to this legal vagueness on human gene-editing, legal experts in China found the court sentencing of Dr He to be very problematic.
According to the court’s legal interpretation, what constituted the ‘crime’ of offering illegal medical services was Dr He “engaging in the illegal genetic editing of human embryos for reproductive purposes and reproductive medical treatment activities, and disturbing the order of medical management, with serious consequences.”
Chinese legal experts argue that in this instance the court had over-interpreted the law, which at the time of Dr He’s sentencing said nothing about human gene-editing. This raised questions like, was the genetic modification of embryos really a medical service? And can the supposed risks in the case, which are largely theoretical, be defined as “serious consequences”?