Research On Legislative Regulation Of Human Gene Technology

The 21 century is an era of biotechnology, with gene technology as the core of it. Human gene technology (gene technology related to human, abbreviated HGT hereafter in the dissertation) is the most important part of the core, in the sense that it brings about significant influence to human life. With the application and development of genetic testing, genetic therapy, stem cell research, genetic organ copy and gene cloning technology, people can choose descendants with excellent gene "borne"; genetic diseases and cancer viewed as incurable in the past could be cured; people can obtain any requisite organs through the research of body cell, and the shortage of transplantable organs is no longer a problem; longevity is no more a dream of human beings, and dead people could "come back to life" again; with the capability of intervening and controlling human's whole life, from birth to death, humans are going beyond the power of "God"; everyone enjoys longevity and health, and quantity of life is highly enhanced too. However, in the meanwhile, the basic human rights and constitutional orders, as well as interests protected by constitution, such as dignity, life, health, equality, body's integrity, privacy, informed consent and patent, are all faced with unprecedented threat. While scientists ask "what can we do", scholars in the field of ethics and law ask, "what should we do and what is permitted to do?" Obviously, what people can accomplish technically is not necessarily what they are permitted to do. We need ethics and law to define and regulate such behavior. The main difference lies in this:ethics belongs to moral scope, relying on inside control mainly, while law is more effective with the national power behind, belonging to the category of the control outside. In the research of HGT, there are two kinds of constitutional interest in conflict: the freedom right of HGT research and the basic right of citizens. How to, by means of regulation, keep dynamic balance between the healthy development of HGT and the basic constitutional right of citizen? It is a very important subject for modern legal system. Regulation could be divided into three aspects, legislation, administration, and justice. Legislation definitely is the necessary prerequisite among them, and decides the enforcement of other regulation activities. Many countries and districts have established corresponding human gene technology laws and regulations to govern respectively the development of HGTwhile at the same time reconstructing ethical norms to restrain. Two ways are generally adopted:to adjust and rectify traditional law to meet the demand of developing HGT, and/or to formulate specific law of HGT to regulate and protect the practical research and application of any gene technology. The construction of HGT's legislation in china starts in the 1990's. However, with the rapid development of HGT, existent legal system has fallen behind of the development of gene technology. In addition, most current laws focus on such categories as the safety of food from animal, plant, modified food and agriculture application, and rarely pay attention to the HGT legislation which is most related to people's life and healthy. Furthermore, the efficency of HGT law are to be improved, most of which are regulations or rules. With improved application of HGT in reality, many new ethical and legal problems have followed, as well as a variety of new types of social relationships in different fields. This results into a "vacuum of legal regulation", which is disadvantageous to the stability of social order and the protection of people's basic rights. Thus, in consideration of such background, the author of this dissertation tries to do some systematic research on the legislative regulation of HGT to analyze the challenge to law from HGT and the necessity of legislative regulation, and elaborate on the ethical and legislative bases of HGT regulation. In addition, on the basis of a comprehensive study of international legislative regulation on HGT and the domestic situation in China, the dissertation attempts to constitute the legislative regulation system on HGT in China, with the framework and major content of Basic Law of Human Gene Technology as the focus.This dissertation is composed of introduction, body text and epilogue, and the body text consists of six chapters.In the introduction, the author mainly describes the history of gene technology and its influence on medical science, human quality and human longevity, to foreground the focus and the significance of the research. The author also introduces the present research circumstance, research scope and the framework of the whole dissertation, and further on defines methodology and several innovations of this dissertation finally. The development of HGT brings about huge healthy benefit for people and the possibility of catastrophic outcome at the same time. How to regulate and control HGT so that it can benefit human beings to the maximum and reduce its negative influence to the minimum? In this dissertation, the author has carried out specific systematic study on the legislation of HGT, which is one of the first comprehensive studies on the legislation of HGT.The first chapter elaborates on the challenges to law from HGT and its necessity to legislative regulation. First, owing to its realization of decorating and manipulating human's inheritance on the level of molecule, HGT has brought about a most fundamental and profound challenge to legal system - the challenge to human dignity. Second, in the context of HGT, the legal subject "natural person" who enjoys rights and takes responsibility is no longer a concept without controversy. What is "human being"? When does a person's life begin? Does embryo possess dignity and rights"? All these questions need to be clarified definitely. Third, the basic rights of human life such as health, equality, privacy, informed consent, patent and legal order are all confronted with unprecedented impact. Thus, it is urgent to enforce legislative regulation to secure a new type of social relationship of human life, as well as to guarantee the right orientation of HGT development and to defend against the abuse of HGT.The second chapter discusses the ethical foundation of legislative regulation of HGT. Firstly, this chapter analyzes the ethical problems and arguments which HGT puts forth. These mainly include the problems of eugenics, genetic privacy and discrimination, technical alienation which are brought about respectively by genetic reproduction, genetic test and therapy, gene cloning technology. The dissertation therefore points out the necessity of ethical regulation for HGT and the possible ethical solutions to the problems. Secondly, it puts forward the ethical value conflict and choice of HGT legislative regulation. Thirdly, taking human cloning as an example, it provides ethical foundation for human cloning legislation on the basis of the theories of Kant's Deontology, Benthamic Consquentialism and Confucianism. Last but not least, this chapter also tries to constitute ethical principles applying to HGT development.The third chapter is the legal foundation of HGT. First, it introduces the meaning and construction of the freedom right of HGT research, then it analyzes the interest conflict resulted from the development of HGT, namely the conflict between freedom of HGT research and some basic human rights, such as human dignity, life right, health right, and body right. This chapter also respectively elaborates on the protection, as well as constitutional and legal restriction of HGT and the validity of restriction, including the inner restriction for human dignity, and the legal observation of reservation principle, proportion principle and purpose principle.The forth chapter is the foreign investigation of legislative regulation for HGT. First, it analyzes several models of legislative regulation concerning gene technology from aboard, including independent legislation, the establishment of administrative criteria and rules, the combination of specific legislation, and some relevant legal regulation without independent legislation. Then, it investigates the foreign legislative regulation for HGT, based on three of HGT, gene therapy, stem cell research and gene cloning, and finally carries out a comparative analysis and study with foreign legislation as a contrast.The fifth chapter is the current situation and deficiency of legislative regulation of china's HGT. First, it mainly introduces the history and overview legislation situation of gene technology, and then introduces central contents concerning HGT legislative regulation. Finally the dissertation analyzes the current situation and deficiency of legislative regulation for HGT. Main problem are expresses as absence of core idea, lower level of legislation, weaker systemization, lack of new right protection and insufficient legal coverage.The sixth chapter is the system construction of legislative regulation. First, it points out that human dignity should be taken as the core idea of legislative regulation of HGT, which should also be added as a new provision in the constitution, as well as other basic right protection formulating in the constitution related with HGT. All these efforts might help to guideline the construction of legislative regulation system of HGT. Second, the special basic law of HGT should be enacted as core content of the legislative regulation system of HGT, together with other special law, regulation, rules and criminal law as the bottom line also. Finally, it introduces the framework and main content of the core legislation, "basic law of HGT", and tentatively designs some items of the law.