He Jiankui announcing that babies had been born with a modified genome

Dr He Jiankui, who claimed in November 2018 at an international conference in Hong Kong that the first babies had been born with modified genomes in the world, has been sentenced to jail time and fined for committing “illegal medical practices”.

Xinhua News Agency, China's state-run news agency, stated on December 30 that the Shenzhen Nanshan District People's Court sentenced Dr He to three years in jail and imposed a 3 million yuan (US$430,000) fine. He had collaborated with two embryologists, Zhang Renli and Qin Jinzhou,  to use the technology to make the babies.

The collaborators were given more lenient sentences. Zhang was sentenced to two years in prison and fined 1 million yuan (US$143,000) and Qin was given a suspended sentence of one year and six months in jail and fined 500,000 yuan (US$71,600).

What is going on here? Well, nobody, at least nobody in the Western media, really knows. Dr He made world headlines for modifying the human genome but shortly thereafter he disappeared from view. It was as if the earth has swallowed him up. And when he reappeared, it was as a convicted felon.

Why was the Chinese government so angry? After all, President Xi Jinping has been calling upon scientists to reach world level. Dr He certainly believed that he had fulfilled that goal.

He modified the genome of twin to make them resistant to HIV, which Dr He had managed using the innovative technology CRISPR-Cas9 before birth. Technically, it appeared to be cutting-edge work.

But instead of bouquets from his colleagues in the West, he got brickbats. Many have raised ethical concerns, including the level of consent Dr He had obtained from the parents of the twins and the lack of transparency surrounding his work. Furthermore, 122 Chinese ethicists and researchers also signed an open letter condemning He’s work.

But China’s sudden ethical squeamishness is puzzling. For the last few years government hospitals have been offering unproved stem cell therapies for locals and foreign tourists. A new law has even been passed permitting some hospitals to sell untest stem cell therapies.

This has been highly criticised by Western doctors and scientists. “We are deeply concerned that China’s newly proposed regulations will provide incentives for hospitals to market unsafe and ineffective interventions directly to consumers. This has the potential to harm the people of China, undermine public health and discredit the international standing of the Chinese regenerative medicine community,” warned the International Society for Stem Cell Research.

In Dr He’s hearing, due process was allegedly followed. The defendants were represented by lawyers and were given the opportunity to speak in court. Family members of the defendants, representatives of the National People’s Congress (legislature), members of the Political Consultation Conference (official consulting body) and journalists attended the trial. The court held that the accused did not obtain the relevant qualifications, gained profit and had violated the national regulations on scientific research and medical management. The nature of their behaviour is considered as severe and thus constitutes the crime of ‘illegal medical practice’.

According to Article 336 of the Criminal Law of the Chinese People’s Republic, an illegal medical practice refers to a medical activity performed by a person who does not possess a medical license. Dr He and his collaborators’ clinical trial was interpreted as a type of medical activity. As none of the three had obtained a license, they were found guilty of committing illegal medical practice. That was a foregone conclusion, as China has a 99.9 percent conviction rate.  

Dr He became aware of financial gains from the technology according to the court's findings, Xinhua said. Also, there was a questionable consent. The consent form was laden with technical jargon. Also, Dr He paid every couple who took part in the research 280,000 Yuan (about US$40,000), indeed a significant sum for most Chinese people.

All this seems to be true – although the lack of transparency surrounding the trial makes it hard to know for sure.

If Dr He had been an Australian researcher, he would face 15 years in prison. There would also be sanctions from his employer and loss of research funding. In Australia, section 15 of the Prohibition of Human Cloning for Reproduction Act 2002 prohibits a scientist from changing the genome of an embryo in a manner that the change is heritable by its descendants and the person intended this to be so. And the UK has a developed regulatory framework for reproductive technology since 1990.

But in China, Dr He’s real crime was to have embarrassed the government. Its horror has more than a little of the classic line from Casablanca in it: “I am shocked- shocked –– to find that gambling is going on in here!”

He probably thought that he was a high flier, but he had not counted on political fall-out from his ground-breaking research. Instead, like Icarus, he plunged into the sea.

China has a very different culture compared to the Western world and in bioethics that is particularly noticeable. After Dr He’s announcement, the government was under international pressure to do something. And so it suddenly remembered its bioethical standards.

What signals will his punishment and public shaming send Chinese scientists? What signals does its double-standard on untested stem cells send?

Probably three. And none of them is really about ethics. First, don’t do research which is not government approved. Second, don’t get caught. Third, don’t be creative.

It doesn’t augur a dynamic future for Chinese science – or for its bioethics. Bioethical behaviour flourishes in a culture in which human dignity is paramount. The He debacle suggests that bioethics is just a stick that the government uses to keep problematic citizens in line.

Dr Patrick Foong is a law lecturer at Western Sydney University. His research interest lies in bioethics and health law. 

Dr Patrick Foong is a senior law lecturer at Western Sydney University. His research interest lies in bioethics and health law.