Crimes and offences regarding genetic

manipulation
Elena Tudurachi
1

1
Petre Andrei University in Iasi (ROMANIA)
elena.tudurachi@gail.c!
Abstract
The study aims to outline the history of infractions against the person, given that the offences and
crimes regarding genetic manipulation prejudice the life of the individual from several perspectives physical,
moral, spiritual; the study also aims to bring arguments for the necessity to incriminate them. It is not easy for a
democratic State, with the rule of law to maintain a perfect balance between sanctioning all the deeds that
prejudice the right to life and respecting the rights of those who violate it. Criminal law has the hardest job
regarding the right to life the criminal law has to incriminate as infractions all the deeds that prejudice directly
or indirectly this social value.
!owever, these deeds represent only a limited part of the potentially dangerous deeds, with possible
conse"uences on the genetic identity of the individual or involving a certain degree of genetic engineering use.
#rom this viewpoint, the approach of the $egal commission, which created the %roject of the &ew Criminal
Code, was an effective one, but it failed to enter to be effective. Currently, in order to deal with new situations, I
believe it necessary for the 'omanian legislator to get inspiration from the laws adopted by other States of the
world (especially the )uropean ones*, which have ta+en significantly more measures in this field. The best
e,ample is represented by the #rench bioethics law of -../
-
, modified and completed in 011/, when it also
entered to be effective. This law is dedicated e,clusively to the regulation of genetic engineering, regardless of
the form.
2eywords genetics, manipulation, infraction, cloning, incrimination.
1 Introduction
$ife is the most precious asset of the individual. Throughout time, man has defended his life, individually or
collectively, anarchically or in an organi3ed manner under the rigours of the law though all means available
to this purpose. #or a long time at the beginnings of human+ind, the protection of the right to life was ensured in
an original manner, sometimes by diverse and often bi3arre customs considering the logics and morality of the
present. !ence, starting from the abovementioned aspects, I believe a short historical presentation to be
necessary in the following lines
0
.
In regard to the infractions on genetic manipulation, ta+ing into account the recent evolutions in this field, no
such deeds were incriminated by the old regulations. The &ew 'omanian Criminal Code published in The
4fficial 5a3ette, %art I no. 676 of 0. 8une 011/ (yet to enter into force* has not ignored the medical evolutions
and, in art. -.9:-.7, it incriminates certain deeds regarding genetic manipulation art. -.9 5enotype alteration
;The alteration of human genotype in full +nowledge, by any means is punished with strict imprisonment from 0
to 6 years<. In addition, art. -./ =angerous use of genetic engineering ;The dangerous use of genetic
engineering to produce biological weapons or weapons of mass destruction is punished with severe
imprisonment from -6 to 06 years and the prohibition of certain rights<. >rt. -.6 Illegal creation of human
embryos and cloning states ;(-* The creation of human embryos in other purposes than procreation is punished
with strict imprisonment from 9 to -1 years and with the prohibition of certain rights; (0* The same punishment
1
The Bioethics law, which entered into force on the 6
th
of August 2004, published in Journal Officiel, on the 7
th
of August 2004.
2
aleric! "a#!r, $lie %ascu, &'rept penal. %artea special!. $nfrac(iuni pre)!#ute *n +odul penal ro,-n. /cuprinde ,odific!rile 0i
co,plet!rile +odului penal p-n! la 10 ,artie 20012, "u,ina "e3, Bucharest, 2001, p. 1415 Augustin 6ngureanu, &+onsidera(ii *n
leg!tur! cu aplicarea unor dispo#i(ii ale "egii nr. 44074886, pentru ,odificarea 0i co,pletarea +odului penal., in 9e)ista 'reptul
no. 474887, p. 60 s::.
4
is reserved for the creation of a human being genetically identical to another human being, either living or dead,
by cloning<. >rt. -.? Sanctioning the attempt ;The attempts to the offence stipulated in art. -.6 are
punished<; art. -.7 Sanctioning the legal person ;The legal person will be sanctioned for the offences stated in
the present chapter<. In regard to the object of these genetic manipulation offences, I believe it should involve
both the protection of the common genome of humanity and the protection of the individual genotype in its
integrity, which leads to the right to health and dignity. The objective side will e,plore the violation of the
person@s right to information and consent, including of the couple@s rights, in the reproductive cloning and the
se, choice documents, as well as in the documents concerning the age limit for procreation or the incorrect
genetic manipulations on species of seeds, plants, or animals. The 'omanian legislator has not incriminated the
alteration of the human genotype and cloning in a special law, but the solution was to incriminate them in the
provisions of the &ew 'omanian Criminal Code, published in the 4f.5., %art I, no. 676A0..1?.011/, approved
through the $aw no. 91-A011/. 5iven that this Criminal Code has been delayed several times from entering into
force, our country has been in a +ind of legislative void in this respect, considering that the genetic manipulation
deeds have no coverage concerning the criminal protection of the social values in this field. 'omania is the first
country in the Bal+ans to have legislated the 5C4s, through the 5.4. /.A0111. This order approved and
modified through the $aw no. 0-/A0110 regulated for the first time the ;obtainment, testing, use, and
commerciali3ation of genetically modified organisms through modern biotechnics, as well as their products<.
The same order defined the 5C4 as an organism that contains a new combination of genetic material, obtained
through the means of modern biotechnologies, which adds new characteristics. #rom the perspective of criminal
law, the pre:embryo or embryo is not human beings. !ence, their deliberate destruction does not constitute a
criminal deed. In agreement with one of the systems, only -9 countries do research on pre:embryos. In countries
such as 5ermany, Israel, Ireland, &orway, and Swit3erland, the law prohibits the research on embryos. The most
important reports on the research on embryos have come from the Dalter Committee in >ustralia, the )uropean
!uman Society, and )mbryology 'eproduction, as well as from the Society for 'eproductive Cedicine and the
)uropean %arliament. The benefits of the research on pre:embryos concern four great medical fields infertility
research, improvement of clinical outcomes, diagnosis of genetic anomalies, and the therapeutic use of the
embryonic tissue to transplant the life:threatening conditions
9
.
2 Historic elements regarding the infractions against the person
a. The ancient period. #or a long time, the behavioural norms were tradition:based, and this tradition
became the mandatory norm through which the forms of the new preponderant economy were protected. In the
tribal matriarchate where, considering her role in the productive activity, the woman benefitted from a special
protection +illing a mother was the most serious crime and the revenge was mandatory. %atriarchate eliminated
this tradition by replacing it with another one, where the man@s power was the e,pression of economic interests
/
.
!ence, in >ssyria, homicide could be redeemed by paying material compensations, but if the parties failed to
reach an agreement, the death penalty was applied
6
. The ancient )gyptians punished homicide with the death
penalty
?
. The death sentence e,ecution in case of the ancient 8ews applied for voluntary manslaughter too+
place in public; the murderer was +illed with stones, either by the family of the victim or by the collective. In the
last case, the crown witnesses threw the first stone, and then all the members of the collective threw a stone, until
the body was totally covered by stones. =uring the nomad phase, the 8ewish people observed the supreme law of
;blood revenge<; in fact, the principle survived until much later
7
. =eath re"uested a death penalty; the family of
the murdered victim had to +ill the +iller or a member of his family. The $aw of the ;blood revenge< was also
conserved later, during the sedentary phase, and it was completed by the legal principle common to many
Semitic peoples of the ;Etalion<
F
. The %ersians punished murder with the death penalty; the penalty was
e,ecuted in one of the following manners poisoning, impaling, crucifying, hanging upside down, +illing with
stones, s+inned alive, head smashing, smothering with hot ashes, burying alive up to the nec+, and other such
horrors
.
. The ancient Indians also applied the capital punishment
-1
for the person who murdered a woman, a
3
".Ostnor, ;te, +ells, <u,an =,br>os and =thics? $nterdisciplinar> %erspecti)es, ;pringer, 4
st
edition, 200@, p. @4.
4
$ulian %oenaru, &%edeapsa cu ,oartea. &&%ro. sau &contra.A., "u,ina "e3, Bucharest, 4884, p. 14.
5
O)idiu 'r*,b!, &$storia culturii 0i ci)ili#a(iei., =ditura Btiin(ific! 0i =nciclopedic!, Bucharest, 48@4, p. 7@.
6
O)idiu 'r*,b!, op. cit., p. 426.
7
Cenesis, $, 4D5 =3odus, EE$, 425 ;econd booF of ;a,uel, $$$, 27, E$, 7.
8
&e>e for e>e, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe. /=3odus, EE$,
24G2D2. The word &talion. co,es fro, "atin /&talio., fro, &talis.G &suchHH2, as the 9o,ans also adopted I until the 2
nd
centur> B+ I
this cruel legal principle, was not applied &ad littera,. not e)en b> the Jews, considering that the death a su, of ,one> could
be laid for the ranso, of oneJs life /=3odus, EE$, 28 s::.2, unless the person in :uestion was a ,urderer.
9
O)idiu 'r*,b!, op. cit., p. 270.
10
O)idiu 'r*,b!, op. cit., p. 274.
2
child, or a Brahman
--
. In China, too, murder was punished with death penalty. >lso in China, the family vendetta
was practised, which the te,ts of Confucius considered a duty ;the son cannot live under the same s+y as his
father@s +iller<
-0
. Though it was the most developed law system of the ancient society, the 'oman law also
punished the one who too+ a life (almost* e,clusively with the death penalty. !ence, in ?7-, the $aw Cornelia de
sicariis stated that the noblemen who +illed someone would only be deported, while those of the middle:class
would be beheaded, and the low:class people would be crucified and then given to wild beasts. This law just
li+e the laws Cornelia de falsis and %ompeia de parricidiis stipulated the indictment of legal proceedings
against the incriminated deeds, considered public crimes, following a special procedure and submitted to a
special jurisdiction
-9
. #or parricide, the $aw %ompeia stipulated ;!e who +illed a father or mother, grandfather
or grandmother, will be punished by being whipped till he bled, sewn up in a sac+ with a dog, coc+, viper, and
ape, and thrown into the sea, if the sea was at hand, and if not, by a constitution of !adrian, he was e,posed to
wild beasts<
-/
.
b. The period of Ciddle >ges. In regard to the period of the Ciddle >ges, the governing principles of
legal justice are very different compared to the principles of the contemporary legal policy. !ence, for homicide,
the Celts stipulated ;the price of honour<, and only if the murdered could not pay it, he was sentenced to death
-6
.
The ancient 5ermans did not consider that punishing a murderer fell under the competence of the State; if the
defendant claimed to be not guilty, he had to defend himself before -0 jurors members of the community
who judged his behaviour from the past, since they had +nown him. )ventually, the defendant could appeal to
the judgment of gods ordeals or legal duel. $ater, the )dict of Theoderic stipulated a financial compensation for
murder (Dergeld*, as follows for an underclass freeman 011 golden solidi; for a semi:freeman ?1 golden
solidi; for a house slave 61; for a swineherd 61 (if he had more than two helps* or 06 (if he had just one or
none*; for a goatherd or shepherd 01, while for his help -0. >fter paying the compensation, if the plaintiff
decided to +ill in order to get revenge, he had to pay to the family or to the master of the person +illed the double
of the compensation for a death. !owever, the death penalty was stipulated for a slave +illing his master and for
a wife +illing her husband. The same retributive view is also stipulated by the >rabians; the Islamic law sought
to replace the vendetta by a ransom sum (diya* but only for the first +illing, not for subse"uent ones. Gnli+e the
8ewish %entateuch, the 2oran distinguishes between voluntary (intentional* manslaughter and second:degree
murder which e,cludes vendetta and replaces it with the ransom sum
-?
. The Ciddle >ges also comprise a
development of the tortures for murder, which became diabolically various. #or instance, in #rance, the accused
was usually strangled before being hanged, and in some cases, he had his arms or tongue cut off.
c. Codern and contemporary period. Influenced by Beccaria and Beccarianism, which anticipated the
modern criminal law, rational and humanitarian ideas began to be applied, thus underlining the importance of
crime prevention, re"uiring more respect for the rights of the accused, as well as the abolition of torture and
death penalty. > new idea emerged in the application of the punishment, the determining point should be the
assessment of the damage incurred by the wrongdoer first of all to the society. The old views of defending the
individual@s right to life by judging the murderers through ;sui< generis procedures and by condemning them to
suffering the same thing they did e,pressed in manifestations and forms of the vendetta were present in the
ancient and medieval law. Today, it is still present only in the mafia:specific ;raw force retaliations<. !owever,
the views of modern law proved effective, reason for which they have been preserved in the contemporary
period. In time, people reali3ed that their individual e,istences conditioned each other, that human life became a
social value re"uiring imperious protection. #urthermore, the framewor+ of the governing principles for the
modern criminal law systems is highly different from the one of past, given that they ceased to be applied
arbitrarily and considering the legal classification for homicide. The #rench Criminal Code of -F1/ also called
the Code of &apoleon that includes a discussion on the influence of Bentham@s utilitarian philosophy, reduced
indeed the framewor+ of the crimes punished with death penalty. !owever, it did maintain this penalty for
crimes such as parricide, poisoning, assassinate, torturing to death or barbarian deeds, murder preceded,
accompanied or followed by another murder, as well as homicide under certain circumstances. Soon afterwards,
the issue of abolishing the death penalty led to a real abolitionist movement the death sentence was abolished in
'omania (-F?/*, %ortugal (-F??*, !olland (-F71*, and Italy (-F..*, even for certain types of homicides. >fter
the instauration of fascist regimes in Italy and 5ermany, a recrudescence of repression was registered, even in
11
$. %oenaru, op. cit., p. 16.
12
O. 'r*,b!, op. cit., p. 11@.
13
$. %oenaru, op. cit., p. 18.
14
At the beginning of the 9epublic, the death penalt> was the e3clusi)e repression ,ean of the public cri,inal procedure
and it alwa>s re,ained the ,ain ,ean5 in e3change, at the end of the 9epublic, %o,peius abolished it, e)en in case of
parricides.
15
O)idiu 'r*,b!, &Istoria culturii i civilizaiei, )ol. $$, =ditura Btiin(ific! 0i =nciclopedic!, Bucharest, 48@7, p. 16.
16
Koran, , 48.
1
other countries with dictatorship:oriented political regimes; hence, the death penalty was restored not only for
political crimes, but also for those against life. This way, the death penalty was restored in Italy in -.06 and
-.91, in 'omania in -.9F, etc. #ollowing Dorld Dar II, a new abolitionist movement on death penalty emerged
and it was victorious in Italy (-./7*, in the #ederal 'epublic of 5ermany (-./.*, and in Tur+ey (-.61*.
&owadays, crimes against life are severely sanctioned in most countries, in an attempt to protect the right to life
not only by drastically punishing those who committed crimes against life, but also the other way around by
eliminating from the legislations the death penalty for those who committed such crimes.
d. )volutions on the 'omanian territory. >t the beginning and during the =acian State, the council of
noblemen decided the punishments for crimes against life and for other crimes. In the 'oman =acia period, the
provincial governor was the deliverer of justice and he had i"eriu eru# power of life and death. The law of
talion was applied in those times; for instance, $ucius Iulius Bassus, decuri!n and $uaest!r, +illed while in BHile
!erculane to treat health issues, was avenged by his brother
-7
. $ater in 'omanian laws such as Cartea
'omIneascH de JnvHKHturH (Code of $aw* of -?/? by Basil $upu and Jndreptarea $egii (The 5reat Code* of
-?60 by Catthew Basarab the most serious criminal deeds, among which the crimes against life, were
punished with the death penalty. =uring the reign of =imitrie Cantemir, the sanctions for the crimes against life
were applied differently, by social class the noblemen were beheaded, while the low:class thieves and murderers
were hanged. In the modern period, though Beccaria also influenced the modern 'omanian criminal law, the
death penalty for crimes against life was not abolished. !ence, the Caragea Code stipulated the death penalty for
among others first:degree murder, passion murder with a weapon or with a cutting instrument. #urthermore,
the Calimach Code stipulated death penalty for homicide, parricide, and poisoning. The 4rganic 'egulation in
Dallachia abolished death penalty, but it was conserved in Coldavia. The Criminal Code of -F?/ is a legislative
victory for Beccarianism the death penalty was abolished, even for crimes against life; it was then instituted
through the Constitutions of -F?? (art. -F* and of -.09 (art. -?*. The Constitution of -.9F reintroduced death
penalty, among others for robbery followed by murder. 'epublished in #ebruary 07, -./F, The Criminal Code of
-.9? maintained the death penalty, and, among the crimes against life, the homicide was sanctioned with death
penalty (art. /?/
-
*. The Criminal Code of -.?. maintained the death penalty for the crimes against life, with
three degrees manslaughter (simple or specific*, second:degree murder, and aggravated murder. #ollowing the
-.F. revolution, one of the first legislative acts of the Council of the &S# abolished death penalty. The law:
decree no. ? of 7 8an. -..1
-F
abolished the death penalty and replaced it with life in prison (art. -*. >rt 0 stated
that all provisions regarding death penalty in the Criminal code, in the Criminal %rocedure Code, and in other
normative acts besides the ones e,pressly abrogated by art. / of the law:decree would refer to life in prison
and that the death sentences pronounced by a court, definitive but not yet e,ecuted, would be commuted to life
in prison, according to the law on death penalty abolition. 4f course, these provisions also referred to homicide.
>n article in the -..- 'omanian Constitution reinforced the success of the abolitionist idea ;death penalty is
prohibited< (art. 00 par. 9*.
3 Conclusions
!owever, criminal law is not perfect when it comes to incriminating crimes against life. #or this reason,
criminal law should specify the notion of cloning, it should highlight cloning as a crime, an ;attac+< to the man@s
life, considering the fame ac"uired by progresses in all realms of life and the need to moderni3e the fundamental
laws of States (#rance, Swit3erland*. I believe it useful for the 'omanian Constitution to stipulate the prohibition
of cloning as aspect of the fundamental right to life, to physical and mental integrity, and to human dignity. I also
believe it necessary to incriminate, in the field of genetic manipulation, the following deeds human genotype
alteration, use of genetic engineering to produce biological or mass e,termination weapons, creation of embryos
in other purposes than procreation. >s for the prohibition of human genotype altering, the e,amination of the
human genetic characteristics should be regulated. I believe that it should only be permitted for medical or
scientific research purposes, only with the e,press and previous consent of the person, which the person may
revo+e at any time. 5enetic uniformity is a crime because it diminishes the genetic diversity as progress of the
evolution in the nature; it denies the freedom and responsibility of man, which derives from the genetic diversity
and uni"ueness. Similarly, eugenics is a crime; mostly negative eugenics becomes the man@s right to be informed
on the ris+s of his genome or to agree to individual or couple@s therapy regarding the ris+ of transmitting
pathological genes to the offspring. Considering the meaning and human signification of the various scientific
discoveries, the law will favour the development of human:favourable science and it will protect his values
against diverse ris+s and abuses. > special attention should be paid to the protection of embryos and gametes.
There should be an e,press incrimination for illegal creation of embryos in other purposes than procreation.
17
$ulian %oenaru, op. cit., p. DD.
18
%ublished in The Official Ca#ette no. 4 of @ Januar> 4880.
4
Cany countries forbid the creation of embryos for scientific purposes, but they do allow the study on the e,isting
ones; however, there clear:cut conditions should be stipulated for such an approach.
REFERENCE
L4M "a#!r, ., %ascu, $. /20012.'rept penal. %artea special!. $nfrac(iuni pre)!#ute *n +odul penal ro,-n, "u,ina "e3,
Bucharest, p. 141.
L2M 6ngureanu,A. /48872.+onsidera(ii *n leg!tur! cu aplicarea unor dispo#i(ii ale "egii no. 44074886, pentru ,odificarea 0i
co,pletarea +odului penal, 9e)ista 'reptul no. 4, p. 60.
L1M Ostnor, "./200@2. ;te, +ells, <u,an =,br>os and =thics? $nterdisciplinar> %erspecti)es, ;pringer, 4 edition, p. @4.
L4M %oenaru, $. /48842.%edeapsa cu ,oartea. N%ro. sau Ncontra.A, "u,ina "e3, Bucharest, p. 14.
LDM 'r*,b!, O./48@42.$storia culturii 0i ci)ili#a(iei, =ditura Btiin(ific! 0i =nciclopedic!, Bucharest, p. 7@.
D