Doctor He Jiankui was sentenced to a three year prison term, fined $430,000, and fired from his academic position as Associate Professor at the Southern University of Science and Technology in Shenzhen, China. Did he engage in groping a patient? No. Poisoning a client? Again, no. According to the official Chinese Xinhua News Agency, Dr. He and two others, Zhang Renli and Qin Jinzhou, were convicted of gene editing fetuses.
His clients were a healthy mother and a father who was HIV positive. Dr. He engineered the genes of their twin girl babies so they would be resistant to HIV..
At the outset, this appears to be an agreement between consenting adults to engage in a capitalist act. The couple knew of the risks involved in this new medical technology. According to the defense, He did not hide these from the mother and father. They agreed to the procedure since they weighed the dangers of AIDS for their daughters more heavily than the perils of the new, unproven, technique.
Why, then, were He and his two colleagues arrested and convicted? It is all too easy to surmise that this was done because it occurred in China, withits reputation as a lawless country. The fact of the matter is that if He had performed this CRISPR-Cas9 gene-editing operation in the United States, a similar fate would have befallen him. This is because the Food and Drug Administration has not yet approved of this technique for human beings in terms of reproduction.
What are we to make of all of this? Let us adopt a set of private property rights economic freedom spectacles through which we can best perceive all such controversial acts. We start by asking, who were the owners of the property in question? This, presumably, would be the parents. Did they receive informed consent from the supplier of the service? Not according to the local Shenzhen court. Let us, however, abstract from this finding. Instead, we adopt a Platonic perspective. This is because although we are indeed interested in this one case, we also want to derive a principle to deal with all such violations of the law. So let us assume that there was no fraud involved here.
Should He and his colleagues have then been found guilty? Well, they did break an extant law. This leads to another question: is it a proper law that prohibits voluntary trades of this or any sort? The answer emanating from the free enterprise philosophy is a clear “No.” Rather, this would be a victimless crime, and all those even properly found guilty of violating it, should be set free.
Was there a victim here? Yes, possibly. If the dangers of this procedure were indeed of greater moment than these two children suffering from AIDS, then, yes, they might be considered victims. After all, one day that now manageable disease might be fully cured. But this is clearly a judgement call upon which reasonable people can disagree. The parents would certainly not be guilty of child abuse even were this contrary to fact conditional to come into being. They were doing what they thought best for their children.
What of the doctors involved? It is difficult to see them in any other way than as heroes. They put their careers and their freedom on the line, in order to help this mother and father be good guardians. Yes, Dr. He jumped the legal gun, whether that of the FDA in the United States, or its Chinese counterpart. But the monopoly powers of these government bodies are incompatible with the free enterprise ethic through which we are viewing their behavior. These organizations, too, can err. But when they do (thalidomide, anyone?) they carry on merrily into the sunset. They cannot be bankrupted through erroneous decisions. That is no way to run a railroad.
Walter E. Block is the Harold E. Wirth Eminent Scholar Endowed Chair and Professor of Economics at Loyola University New Orleans.
READER COMMENTS
Jon Murphy
Sep 27 2020 at 11:25am
Overall, you make a pretty good case, but there is one massive error:
This is hugely incorrect. There are lots of voluntary interactions that one may want to prohibit. Adam Smith spends a decent amount of time discussing them in the Theory of Moral Sentiments (see Part II) and the Wealth of Nations (scattered throughout). There are many reasons that one would want to forbid certain voluntary transactions, even absent fraud. Indeed, I would argue (pulling from AV Dicey, James Coolidge Carter, Pollock & Maitland, Adam Smith) that the vast body of Common Law is figuring out where these boundaries lie.
It is true that in a free enterprise system, voluntary transactions deserve a presumption of acceptance. That is, those who wish to interfere in those transactions must face a very high burden of proof (and one that is not merely theoretical, such as in the case of externalitites) before the transaction should be disrupted. But simply because some action is voluntary does not imply whatsoever that it is beyond reproach.
Phil H
Sep 27 2020 at 7:10pm
“Owner…This, presumably, would be the parents.”
This seems a bit unwarranted. Why would my parents own my genome? He altered the genome of a future child, a situation in which it is impossible to obtain consent. There may be good rationales for such action, but each one will have to be carefully thought through.
Jon Murphy
Sep 27 2020 at 8:27pm
At least in the US, the parents are considered “owners” of the child. They make vast decisions for the children, including medical ones, all the time.
Phil H
Sep 27 2020 at 9:11pm
I don’t think that’s correct at all. Parents (or other guardians) are guardians of children. That’s just not the same thing as ownership. I know that the very narrow libertarian ideology only allows for one kind of relationship in the world – ownership. But for the rest of us, including the law as it stands in the USA and elsewhere, many other kinds of relationship exist. So the fact that parents have power over children, and the right to make medical decisions for them, does not imply ownership in any way.
Of course, we do make decisions for our born and unborn children, and I don’t think that this issue will prevent genetic intervention in children. But it’s also not as simple a question as “who owns what”.
robc
Sep 27 2020 at 10:51pm
Nice strawman.
Jon is mostly right. At least up to the mid 1800s, common law in noth England and the US treating children as the property of the Father. Its slightly more complicated than that, but no more so than different types of property are treated differently by the law.
In the last 175 years or so, things have changed somewhat, so property isnt probably the best term anymore. But historically it was accurate.
Jon Murphy
Sep 27 2020 at 11:15pm
Phil-
1st, No reason for glib dismissals.
2nd, ownership refers to control, what one has the legal and rightful title to. That is how it is understood. When a parent can make, and overrule, decisions by a child, they own that child. I put the word in quotation marks because it’s a little weird to think of ownership of a person in that manner, but it is still ownership. What Block is asking is “who has the right to decide?”
As robc said, your comment is largely a strawman. I don’t think you understand that it is simply because you do not understand the words being used.
Mark Z
Sep 28 2020 at 9:05am
You can’t own your own genome prior to your existence. It’s only a violation of your consent for your parents to alter your genome in the same sense that it’s a violation of your consent to choose to have you in the first place without your consent, under circumstances you can’t consent to. There are certainly moral arguments for not doing certain things to a genome – e.g. making it so the child will get Huntington’s disease – but one argument that is clearly logically incoherent is that the child owns the genome that brought him into existence.
Unless maybe you believe a zygote has the necessary moral agency to own something, which I’m guessing is not the case.
Mark Brady
Sep 28 2020 at 6:29pm
Jon places “owners” in quotation marks, but in subsequent posts commenters have dropped the quotation marks. Yes, parents (guardians) “make vast decisions for the children, including medical ones, all the time.” (I’m assuming that “vast” means “crucial for the rest of the children’s lives.’) But it doesn’t follow that parents “own” their children, or that children are the “property” of their parents. This is in contrast to chattel slavery where slaveowners are said to own slaves, and those slaves are personal property. Indeed, I’d be surprised if the words own, ownership, and property were ever used in a Common Law decision on parental rights and responsibilities, even centuries ago.
The author of the original post asks, “We start by asking, who were the owners of the property in question? This, presumably, would be the parents.” That, I suggest, raises a question of a different sort. If we put aside the question of whether fetuses have rights, the fetuses are presumably the property of the mother, who may have chosen to share decision-making with the father, and not of the parents.
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