The Right Of Genetic Law Norms

That the genetic technology in medicine touches the basic value such as the human dignity or liberty arouses a number of ethical and societal issues, as well as the demand for reflection on the current legal orders. Quite a few incidences happened in this area in our country. However, we haven’t developed any fundamental legislation or specialized legislation concerning the genetic technology in medicine yet so far, nor have pay possible attention to the genetic technology in medicine and genetic rights during civil legislation. This dissertation sets the civil rules of genetic right, which is been viewed as a right of personality, as its proposition, and conducts studies on the legal issues of the genetic technology in medicine from the factual?(Chapter1), theoretical (Chapter2) and regulatory (Chapters3-5) aspects.The First Chapter discusses the societal basis of genetic right. The genetic technology in medicine features in its relevance to the highest level of privacy, the predictability of disease hazard, uncertainty and risk, and the societal concerns. The genetic technology in medicine involves some internal interested parties (mainly including patients, family members and genetic tribes) and external interested parties (mainly including doctors, research or funding institutions, insurers, employers and governments). A chain of ethical issues triggered by the technology is exactly the main content of legal rules. According to the specific analytical cases, we can find the ethical basis for legal analysis, such as the dignity coming from the Ethics of Person, the responsibility imposed by ethics of risk and the discourse driven by ethics in the diversified situation, and thereby draw the conclusion what moral personality rights in regard of human gene should pursuit. Moral personality rights in regard of human gene, which start completely from dignity and is totally dignity-oriented, consider self-determination and integrity of personality as its core concern, and gauge various interested relationship accordingly using reasonability as a standard, pave the way for the genetic right evolving towards civil rights of personality.The Second Chapter discusses how to establish genetic right in civil law. Faced with the "objectification of subject" reality, based upon the inherent property attribute of personality, human gene is defined as a quasi personality property. Such a definition merely manifests that human gene, as personality, instinctively bears the sense of property. Human gene, in essence, is one of personality interests, and may establish the conception of genetic right in civil law via the way of legal hermeneutics. Genetic right, when viewed from the perspective of civil law, is one of personality rights, and entitled by a natural person due to his or her own specific gene. As a bundle of rights, genetic right at least include right of genetic equality, right of genetic self-determination, right of genetic privacy, right of genetic publicity. Right of genetic publicity possesses the property attribute, where publicity merely takes advantage of the materialization of genetic personality interests. According to the logic of civil law, genetic right becoming a specific right of personality has solid jurisprudence basis and powerful reality support, and is mainly justified by the substantive legal sources of natural rights. The legal values of genetic right include highlighting human dignity, safeguarding personality interests and guiding the technical rationality.The Third Chapter discusses the construction of the rules of genetic right. Under the background of diversified social interactive relationships such as risk society, multi-dimensional interest structure and the medical power and rights, with the guidance from the principles of prevention of risks, relativity of rights, pluralism of justice and tolerance, the system and the content of the civil rules of genetic right are capable of being specified. What we should adopt when making regulations is the law-ethic interactive model and what we should emphasize and mainly concentrate on in the process is the civil rules of genetic right focusing on right protection. As to the content of genetic right, right of genetic equality refers to the right of personality enjoyed by natural persons to be equally treated concerning gene; right of genetic self-determination refers to the right of personality enjoyed by natural persons to decide everything by oneself in regards of gene; right of genetic privacy refers to the right of personality enjoyed by natural persons to keep and maintain the privacy of one’s genetic information; right of genetic publicity refers to the right of personality enjoyed by natural persons to publicly use one’s specific gene and share the interests derived from that use. We can recognize genetic right by principles and rules in the part of Rights of Personality of the anticipated China Civil Code (or independent Personality Law), especially specify each branch of the bundle of genetic rights and respective restrictions. The civil rules of genetic right focusing on right protection can coexist with public law system focusing on the control of the genetic technology in medicine. One point that the civil rules of genetic right focus on is to strike a balance among the progress of technology, the prevention of risks and the protection of rights, with the goal of pursuing human dignity and liberty.The Fourth Chapter discusses the dilemma genetic right confronted with in real life. Genetic Medicine is "a place full of contradicted values and the understanding of such contradiction". Resembling other conflicts of rights, the conflict of genetic right also originates from the conflict of interests (and the value) among different subjects. Behind the phenomenon of conflict of genetic right, the distance between scientific culture and liberal arts illustrates the cultural background; the externality of the genetic technology in medicine serves as the economic incentive; the choice tendency of public policy provides the political condition for the conflicts. Balance of interests should be the fundamental strategy for solving the conflicts of genetic right. We should comply with the principle of discourse, proportionality, reciprocity and ethics while balancing the interests concerning the conflicts. Only in certain cases can these principles be applied specifically and directly.The Fifth Chapter discusses the remedies for genetic right. Remedies should be the last part of the civil rules of genetic rights. In cases of damage of genetic right, we need to differentiate "the actual damage" and "the abstract damage." The introducing of "damage risks" manifests the legal request of preventative liability (obligation)—"risk liability," enables civil rules to be a tool for controlling conducts, and makes "rights and interests" more abstract and towards a more preliminary position. The prevention of damage and damage risk weighs more in a remedy system for genetic rights concentrating on the idea of risk liability. In general, the basis of liability should only be fault; however, at the same time it is necessary to impose a high-level duty of care on the doctors (researchers). Tort in a true sense doesn’t exist when there’s no fault during the human experiment of gene therapy, while what does exist is the unforeseeable damage during the experiment process. In order to efficiently protect the rights of the subjects and avoid any negative repressive influence on the progress of technology, the tort liability for genetic damage, under the guidance of idea of risk liability, should be coordinated with social relief methods such as liability insurance, relief fund and state compensation.