When the state & ‘rogue’ scientists collide: case of China & CRISPR baby guy He Jiankui (贺建奎)

What happens next to He Jiankui (贺建奎) or as some people now refer to him, the “CRISPR baby guy”?

China has a challenging situation to resolve here, but such conflicts between scientists and governments have happened regularly in history.

When scientists go “rogue” (i.e. don’t conform to norms or ethical standards in an extreme way or potentially break laws), governments are often unsure what to do.

Also, who decides what’s “rogue”? Where is the line between positive transformative science and something that is really wrong? What about things that fall into a gray zone?

Do motivations such as shooting for glory or profit matter? In her recent Wired piece Megan Molteni also asked whether He’s project and more broadly similar unethical or ethically questionable work should be publishable or not.

I am a long-time advocate for appropriately rigorous oversight of human research such as stem cell clinical science and clinical use of CRISPR, the main topics of discussion on this blog. For example as to the former, in the US certain unproven stem cell clinic businesses are flagrantly violating the law in my opinion and there need to be consequences from regulators as well as law enforcement in the most egregious cases.

However, I don’t have a clear sense even for myself of what should happen with He, at least in part because very few established facts are available. The possibilities from Chinese authorities run the gamut from no consequences for He to something on the other extreme like prison time. If He basically did what we already have vaguely heard about and the twin CRISPR’d babies remain healthy, I’d bet that most scientists wouldn’t be comfortable with the idea of him going to prison.

This isn’t just a hypothetical question.

A new NYT piece by Elsie Chen and Paul Mozur reports that He is under some kind of house arrest (see parts of image above and below from the NYT times). The article more specifically has reported that He is under heavy guard in a building on the campus of his own university, Southern University of Science and Technology in Shenzhen, China.

The NYT further reports He’s balconies are covered in metal wiring, which seems consistent with how things look in the zoomed-in part of the cropped image at left/below. Maybe the NYT is wrong about this or the image is misleading? Maybe it’s not even He? I doubt it, but it’s possible.

If the NYT is right, as much as I have condemned what He claims to have done and even called for a temporary moratorium on implantation of CRISPR’d human embryos, it’s an unsettling image to see a professor potentially already locked up in a sense on the campus of his own university.

It is possible that Chinese officials have other information outside the public domain that suggests clear criminal activity by He in their view. Potentially forged forms or signatures, for instance, have been alluded to in the media. Is that something you get locked up for? Instead or in addition, maybe it turns out that making CRISPR’d babies is in fact illegal in China?

I’m not a legal expert so I turned to Hank Greely, Stanford Professor of Law and Genetics, for his take on the NYT report and He’s situation. Here was some of his thinking, which I found very useful.

“Different countries and cultures have very different approaches to “the law.” Whether or not there is a clear statute against what He did, one that would hold up in a U.S. criminal proceeding, is not necessarily important in China, where what the government thinks is against the law turns out, almost always, to be “against the law”. And although we don’t have a culture of vague and undefined detention before (or without) trial, our ways are not everyone’s ways. Spending a month in a dorm is a lot better than many other places the government might have placed him – or that our government might place someone who had been convicted of, or even just charged with, a crime.  Indefinite detention with no legal process would be wrong almost anywhere, and arguably would violate universal human rights, but we know neither what actions the government has taken (maybe he has been charged, for example) nor what the future holds for him.

On balance, unless some steps have been taken that we don’t know about (very possible), his detention would seem likely to be improper in a liberal democracy – which China is not. It seems to me that that we have too little information, and too little time has passed, to venture a view on whether China has violated some standard of universal human rights.”

It’s also worth mentioning the reality that throughout history many countries including the U.S. have struggled with what to do about scientists and physicians who severely break norms, ethical standards, or even the law. For example, in my view the U.S. government didn’t handle the “rogue” production of a “3-parent” baby in 2016 by American fertility doc John Zhang very well, only sending him a “don’t do it again” kind of warning letter a year later. The FDA historically hasn’t handled the predatory stem cell clinic situation in America well either in past years before Scott Gottlieb’s tenure.

For more perspectives, I asked Ben Hurlbut, Associate Professor in the School of Life Sciences at ASU (who has a new piece out in Nature on this overall situation) for his reaction to the new NYT piece and the broader issues:

“In my view, the real lessons are to be learned from the reaction of the rest of the “scientific community” (i.e. those leading voices who speak for it) which by making one actor as rogue positions the rest as responsible. But the leading voices have used He’s outlaw science as a justification for pushing forward into the same territory. Is that not itself rather like going rogue?”

Looking ahead, if things aren’t complicated enough, imagine a scenario where one or both of the twin girls who He claims to have CRISPR’d later became sick or died specifically due to He’s actions. For me that might substantially change how I view his situation and use of CRISPR in the human germline in the future.

Overall, governments still don’t quite know what to do about researchers who aren’t just disrupters, but who go further into an unethical and even dangerous realm. Science itself doesn’t quite know what to do either.