Human cloning: the opinion of lawyers
What is the situation with the legal possibility of cloning in the world and Russia now?
Many people remember the Brazilian TV series "Clone", where the central theme was human cloning. In addition to moral, medical and ethical issues, the topic of the law was also mentioned in passing.
Currently, many countries have a legal ban on human cloning (Japan, France, Germany). In the legislation of many countries, there is a criminal prosecution for human cloning.
Currently, the process of criminalizing human cloning is actively unfolding in the world.
The criminal laws of the countries have corresponding elements of crimes: for example, Spain – in 1995, El Salvador – in 1997, Colombia – in 2000, Estonia – in 2001, Romania – in 2004. In Slovenia, the corresponding amendment to the Criminal Code was made in 2002, in Slovakia – in 2003. In Germany , such a law appeared back in 1990 .
Russia is not a party to the convention. Nevertheless, the Federal Law "On a temporary ban on human cloning" dated 05/20/2002 No. 54-Fz is in force on the territory of Russia. At the same time, it follows from the preamble of the law that the restriction is temporary.
This temporary ban on human cloning was established based on the principles of respect for human beings, recognition of the value of the individual, the need to protect human rights and freedoms and taking into account the insufficiently studied biological and social consequences of human cloning.
Taking into account the prospects of using existing and developing technologies for cloning organisms, it is possible to extend the ban on human cloning or cancel it as scientific knowledge in this field accumulates, moral, social and ethical norms are determined when using human cloning technologies.
At the same time, it is established at the legislative level in the Russian Federation that, in accordance with paragraph 4 of Article 1349 of the Civil Code of the Russian Federation, they cannot be objects of patent rights:
- methods of cloning a person and his clone;
- methods of modifying the genetic integrity of human germ line cells;
- the use of human embryos for industrial and commercial purposes;
- decisions contrary to public interests, principles of humanity and morality.
This means that all the research that is being conducted in this area will not receive protection from the state, and if the restrictions on cloning are lifted, not only developers can use the results of such research.
It is worth noting that currently the rule on non-granting patent protection to the above-mentioned inventions is carefully observed in the Russian Federation. More recently, on 15. 06.2020, the Intellectual Property Rights Court of the Russian Federation supported the Patent Chamber, which refused to grant a patent for the invention "A method for editing the CCR5 human gene in order to make delta32 deletion at an early stage of embryonic development." At the same time, the representative of the inventor company reported that "The invention does not relate to methods of modifying the genetic integrity of such cells, given that the human embryo is up to the gastrula stage (14 days) it does not contain germline cells (contains only their precursors), while DNA modification according to the proposed method occurs at the stage of a single cell (zygote) even before the start of the crushing process (1st day) and, thus, cannot affect human germ line cells that do not exist at this stage of development, and therefore does not belong to the list that is not subject to protection."
As for the medical aspects of cloning, it is obvious that it is possible. Commercial cloning of, for example, pets is currently gaining momentum. In 2018, the U.S. Food and Drug Administration authorized the sale of meat and milk from cloned animals.
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