非法植入基因编辑、克隆胚胎罪的保护法益：基于生命伦理的视角

作为一项新兴的生命科技，人体生殖系基因编辑可以改善个体和社会的境况，符合福利最大化原则。但这一技术远未成熟，贸然推广应用必将带来极大的不确定性风险，可能损害未来的人的健康等权益。对此，主流的伦理观认为，人体生殖系基因编辑的临床应用缺乏伦理正当性，但纯粹的不以生育为目的的医学实验在伦理上应被允许。法律是最低限度的伦理，刑法之所以禁止基因编辑“造人”的行为，是因为这一行为违反了相关的伦理规范。立足于目前的生命伦理规范，非法植入基因编辑、克隆胚胎罪的保护法益应是公共卫生秩序，而非人类基因库安全。因此，本罪是行政犯，以行为违反行政法规、行业规范等前置性规范为必要要件。

On the Legal Interest of Illegally Implanting Gene-Edited or Cloned Embryos: From the Perspective of Bioethics

The world’s first gene-edited baby incident, which happened in Shenzhen, prompted the Chinese legislature to establish a new crime of illegally implanting gene-edited or cloned embryos in the Amendment (Ⅺ) to the Criminal Law of China. However, a clarification on the legal interest of the new crime is in need. In view of the fact that the legislative explanation is quite simple, and no other country in the world has ever had a case, it is difficult to determine its legal interest. This article intends to analyze its legal interest from the perspective of bioethics and clarify the boundary of its punishment.Regarding the nature of the crime, the academic community mainly holds two confrontational viewpoints: the theory of infringing legal interests and the theory of ethical violation. The former believes that the purpose of criminal law is to protect legal interests, while the latter believes that its purpose is to maintain social ethics. Incompatible as the two seem to be, they are two sides of the same coin with different focuses. Behaviors that infringe legal interests inevitably violate social ethics at the same time, and vice versa. The reason why the criminal law can impose penalties on criminal acts is that these acts violate ethical rules at the bottom. Therefore, it is feasible to seek and justify legal interests through ethical norms.In the field of ethics, there is an opposition between deontology and utilitarianism in judging the legitimacy of a behavior. As a medical technology, germline gene editing is value-free, but its application in medical clinics faces doubts about its legitimacy. In this regard, the resort of deontology tends to end up in an inexplicable dilemma, because it is impossible to justify whether there is an absolute order that “the human germline gene should not be edited at any time” or similar abstractions. However, based on utilitarianism, it is not difficult to find that mature germline gene-editing technology can bring positive value to individuals, society, and the country by keeping in line with the “principle of maximizing welfare”, so it is worth promoting its application in medical clinics. Meanwhile, there is a premise that the technology is mature and risk-free.The reason why the legislature prohibits human germline gene editing is that this kind of behavior is seriously harmful at the current immature level of technology. It will not only endanger the life and health of the edited individual but also destroy the order of medical and health management. In the bioethics scholar community, although there is controversy over the legitimacy of germline gene editing, it is an accepted rule not to apply it to clinical treatment, given the current risk and uncertainty. Therefore, the legal interest should be the order of medical and health management. Whereas, the safety of the human gene bank is not the legal interest of this crime. On the one hand, as an abstract and uncertain concept, whether it is a kind of interest worthy of protection is still inconclusive even in the field of ethics. On the other hand, even if it is considered to be an interest worthy of protection, germline gene editing doesn’t compromise this interest as it does nothing to the purity, stability, and diversity of the human gene bank.The order of medical and health management educes that this crime punishes the behavior tendency of “designing babies” through gene editing, rather than the editing of genes for medical experiments. It is necessary to be tolerant of medical experiments, otherwise, the technology will never become mature for clinical application. Of course, such medical experiments should be conducted within a strict and effective regulatory framework which makes this criminal sanction a mere temporary legislation. When the technology becomes mature and risk-free in the future and a consensus is built up to apply it in the fields of treatment and enhancement, etc., this crime will withdraw from the stage of human history. At that time, the post-human society will also undergo earth-shaking changes in terms of compositional structure, family functions, ethical rules, and even the concept of human nature.