The Criminal Boundary Of Therapeutic Human Experimentation

The gene-edited baby case is a therapeutic human experiment.Over the past two centuries,surgery and the development of new drugs and medical devices have greatly extended life expectancy and reduced the pain and disability caused by injuries and diseases that require therapeutic human experimentation.But therapeutic human experimentation creates risks as well as benefits.In addition to the violation or danger to the life,health,freedom and other traditional legal interests of the subjects,the illegal therapeutic human experiment will also cause danger and violation to the "human dignity" to varying degrees.These are important legal interests that deserve to be protected by criminal law,so it is necessary for criminal law to intervene.Since therapeutic human experiments are both useful and harmful,they should not be "one-size-fits-all".They should not be completely allowed or banned,but only conditionally allowed.The theory of "admissible danger" is the theoretical basis of allowing partial therapeutic human experimentation in criminal law.Not all the therapeutic human experiments can be legitimated.Only the therapeutic human experiments with specific requirements can belong to the "allowable risk" and have the tolerability of the criminal law.These specific tolerances are: medical adaptability,subject informed consent,and a balance of benefits and risks.The boundary between the legality and illegality of therapeutic human experimentation is whether or not these tolerances are met.Within the framework of the existing criminal law,the academic community generally believes that the crime of illegal medical practice,the crime of medical malpractice and the crime of intentional injury can be used to convict and punish the illegal therapeutic human experiment.The case of gene editing babies has caused a huge controversy.For the illegal therapeutic human experiments such as gene editing,it is obvious that no one can be held criminally responsible through these three charges.This shows that the existing charges in China’s criminal law are insufficient in the criminal imputation of illegal therapeutic human experiments,and it is difficult to properly trace all the illegal therapeutic human experiments.In addition,there are still some problems such as the lack of science in the allowable requirements set by the existing administrative rules and normative documents and the weak rigidity of punishment.In order to improve the criminal law regulation of illegal therapeutic human experimentation in China,it is necessary to strengthen the interpretation of relevant charges in the criminal law on the basis of improving the relevant prepositional norms,and to add "illegal human experimentation crime" in the criminal law.