Legal Protection Of Genetic Rights In Genetic Therapy

Genetic therapy, the product of genetic technology development, is an application of genetic technology in medical area. It could modify the defected gene or compensate its function, and consequently cure the disease by inserting the exogenous normal genes into target cells through specific carrier. Nevertheless technology is also a double-edged sword that would bring a series of problems in ethics, society, and law, and so does genetic therapy, if there is no restriction on genetic therapy, it will not only make inroads on human rights in the clinical procedures, but also lead to gene discrimination and technological choosing on purpose of human enhancement. Therefore, lack of constraint by law and morality, genetic therapy might open a gate to annihilation.In order to protect the genetic rights in genetic therapy by law, the first step is to understand the conceptions of genetic therapy and genetic rights. Differentiating genetic therapy from genetic screening, genetic research, and genetic enhancement gives an approach to define the genetic therapy. And after reviewing the clinical procedures of genetic therapy, it is clear that the genetic rights involved in genetic therapy is not a single right, but a group of rights associated with research, application and protection of gene, which includes informed right in genetic therapy, genetic privacy, genetic equality, gene patents, etc. The legal quality of genetic rights indicates that the law nature of rights is compounded."Genetic rights include not only real right, but also intellectual property as well as personal right. It covers the majority of civil rights." So, genetic rights are rights on the level of private law. Additionally, The personal dignity protected is "the datum point of genetic rights, and start of genetic rights system." In that way, genetic rights are also rights of public law.The present article discussed the sensitive and thorny issues in genetic rights protection through cases analysis. A total of four main rights were discussed in detail. The first one is informed rights in genetic therapy. It means the patients have the rights to choose therapy under the consideration of information provided by the doctors. To protect this right, three difficulties were discussed:a)"misunderstanding of therapeutic effect" in clinical trials of genetic therapy; b) information hiding under the interest conflict of genetic therapy; and c) unclear subject of right in informed right of genetic therapy. The second one is genetic privacy. There are also three aspects involved in the discussion of genetic privacy protection:diversification of subject of the right, intrusion of genetic privacy, and conflicting and harmonizing in protection of the right. The third one is genetic equality. Ensuring the genetic equality is the foundation of resolve the "discrimination". Based on relevant cases, several effective movements were raised and valued. The last one is gene patents. Different from the above three rights, gene patents take the doctors as the subject of the right, not the patients, the carrier of genetic information. More details were discussed on distinguishing the invention from discovering and clarifying the limits of gene patents in this part.Finally, based on the analysis of four selected genetic rights, the disadvantages of genetic rights protection in our country were recognized. More studies were performed on the countries that have relatively thorough law about genetic therapy and have practiced in the early time. And after studying the experiences of foreign countries and drawing lessons from the shortcomings of our country, suggestions for legislation and hospital ethnical committee improvements were provided.