“Crimes concerning the genetic manipulation” is titled the Title V of the Book II of the Spanish Penal Code (CP).
It is a title that as far as I could investigate it, has not been applied to any concrete case, therefore, there exist no jurisprudence yet that develops the articles which it contains. This convert it into a special title, as special as the crimes which are regulated in it, something which explains the reason of the lack of jurisprudence on real cases. In the articles which form part of this title, are punished: the manipulation of human gens; the genetic engineering for producing biological weapons; the fertilization of human ovules for different ends than the human procreation; the human cloning and other procedures aimed to the selection of the race, and; and the assisted reproduction in a woman without her consent.
As we can observe for its content, it is a title clearly aimed to regulate the scientific and technological advances which are being developed in each of these matters. Regulation which respond to a necessity of fitting this advances, to the current ethic and moral of the Spanish society.
For the study of the following articles, I have used as previous work material, different resolutions from the International Bioethics Committee (IBC) of the UNESCO, a body formed by 36 independent experts from different disciplines which follow the progress in the life of science and its application for assuring the respect for the human dignity and the human rights.
– Article 159:
The firs article of this title is the article 159, which firstly we are going to transcribe: “1. Will be punished with the punishment of imprisonment from tow to six years and special disqualification for post or public office, profession or trade from seven to tex years those who, with different finality than the elimination or decrease of grave defects or illness, manipulate human genes in a way which alteres the genotype.
- If the alteration of the genotype was carried out by grave imprudence, the punishment will be of fine from six to fifteen months and special disqualification for post or public office, profession or trade from one to three years.”
In the first point of the article 159 is punished who with different finality than the elimination or decrease of grave defects or illnesses, manipulate human genes in a way which alteres the genotype.
In this first point, is regulated the malicious version of the crime, which comprehends both, the direct malice and the eventual malice. On the one hand, the direct malice supposes to know and to want the objective elements of the penal type, or in the own words of the Spanish Supreme Court in its sentence number 4840/2022: “As is argued in the Spanish Supreme Court´s resolution of 16/6/2004 the malice, according to the more classic definition, means to know and to wish the objective elements of the penal type”. On the other hand, there will exist eventual malice when, the typic result is envisaged as possible by the subject who carries out an action and despite this, it executes it, or again in the own words of the Spanish Supreme Court´s sentence number 4804/2022: “the Spanish Supreme Court´s sentence of 4/6/2001 says that the malice supposes that the agent represents to itself a harming result, of possible and not necessary origination and not directly wanted, in spite of which it is accepted, also consciously, because there is no renounce of the execution of the thought acts. It means that, in any case, is demandable in the author either the consciousness or knowledge of the great risk of production of the result that its action contains.”
Let us now talk on what we should understand for gen or genotype. According to the Wikipedia: “A gen is a unity of information on a locus of deoxyribonucleic acid (DNA) that codifies a gene product, either proteins or RNA. It is the molecular unity of the genetic heritage, for it stores the genetic information and allows its transmission to the descendants. The genes are located in the chromosomes, and each of them occupy a determined position called locus. All the genes of an spice is denominated genome.”
Thus, to the effects of what interests us, a gen is the unity in which the genetic information of a person is stored and can be transmitted to its descendants.
On the other hand, and again according to the Wikipedia: “The genotype refers to the genetic information which poses an organism in particular, in form of DNA…All the information contained in the chromosomes is known as genotype, however this information either can be or cannot be manifested in a person.”
Hence, the genotype is made up of all the genes which store the genetic information of a person and which can be transmitted to its descendants.
Then, what is punished in the article 159 is to alter any of the molecular unities, genes, in a way which alters the genetic information as a whole, genotype, of a person, always that, this alteration is carried out with different goals than to eliminate or decrease defects or grave illnesses.
Here, what is forbidden is, for instance, the use of genetic modifications for enhancements or the use of genetic engineering for choosing the traits of our descendants. Both can be regarded as moral problems.
In the former case, this enhancements have already been made since a lot of time, we refer to the plastic surgery, or to the cases in which a guitarist cuts one of the ligaments of its hand to better its domain upon its guitar. In this cases, the genetic modifications can be regarded as contrary to the ethic when all the participants of game should compete with equality of conditions, as in the sports. But out of these ambits, we should consider each case, for determining if the enhancement or the technique used for carrying it out could be a risk for the life of who suffers it, or really it poses a ethic problem. That a result is achieved by means of the genetic engineering, and not by other means, does not signify that it is unethical. Thus, in this aspect, the current regulation can be criticizable, for it leaves out of the legality all the enhancements which cannot be regarded as unethical, but do not suppose the elimination or decrease of a grave defect or illness as, for example, to make that a cell produces more pigment for the skin for avoiding that a persons suffers sunburn as consequence of its exposition to the sun. This is one of the four conclusion to which reaches the IBC´s Report on Human Gene Therapy: “Its use for enhancement purposes may be widely prohibited, but it should not be categorically disapproved as unethical in all imaginable circumstances.”
The second scenario is a much more complex, since the alteration suffered by a cell should be able to be transmitted generation after generation. This has given rise to numerous conjetures, some have imagined a world into which the doctors and the fathers are able to choose the traits of future generations, a kind of eugenics. Although it can be also applicable in cases in which a couple or person do not want to transmit to their descendants a genetic illness. However, its application is not as easy as it looks at first glance, for being possible this kind of genetic alteration it should be carried out in an early stage of gestation, upon the denominated zygote in the stage of four cells. But if the goal is to guarantee that a facther´s or mother´s genetic illness is not transmitted to a son, why not to choose a healthy zygote before implanting it into the uterus of a woman, instead of altering the gens of one? That is why, its application is so controversial, indeed the IBC´s Report on Human Gene Therapy deems that: “Germline interventions are indefensible at present, but they should not be categorically disallowed.”
In the article 159 is also punished who by grave negligence alters the genotype. The negligence, is a legal concept more complex, bordering with the eventual malice when it is a grave negligence, for the LO 1/2015 distinguishes between the grave negligence and the less grave negligence, leaving the slight negligence reserved the the (civil) ambit of the extra-contractual liability.
According to the Spanish Supreme Court’s sentence 2648/2022: “The essence of the crime of negligence is the infringement of the duty of care which makes punishable his behavior because this care was demandable to him.” Afterwards it adds the elements which compound the negligence: “a) a willful not intentional or malicious action or omission, with the absence of whatever direct or eventual malice; b) the psychological or subjective factor consisting in the negligent action for a lack of the forecast of the risk; c) the normative or objective factor represented by the infringement of the objective duty of care, concreted in the regulation or imposed by cultural social norms demandable to the average citizen, according to common experience; d) the production of the harmful result; and e) adequate causal relation between the careless action which unleashes the risk and the harm caused, within the ambit of the objective imputation ( SSTS. 1382/2000 de 24.10, 1841/2000 de 1.12.).”
The Supremo Court ́s sentence 2543/2022 says: “In the imprudent crime, thereby, it is produced a result socially harmful through an avoidable action which surpass the risk allowed. The consideration as a negligence of the action will be determined through the comparison between the action which was carried out and the action which was demanded by the duty of care in the concrete situation.”In order to distinguish the grave negligence from the less grave negligence, we should attend to the importance of the duty omitted, the value of the legal goods affected and the possibilities of provoking the result.
According to the aforementioned sentence of the Spanish Supreme Court 2543/2022, the grave negligence is: “the most intolerable omission of diligence, through either an active or omissive conduct, which causes a harmful result and which is normatively connected with the result.” Whereas in the same sentence the less grave negligence is defined as: “the setting-up of a risk of inferior nature, to the grave, assimilable in this case, the less grave negligence, as the infringement of the average duty before the activity which is carried out by the agent in the corresponding action to the behavior which is the object of attention and which is the main cause, with the produced result, in such way that it can be affirmed that the creation of the risk is imputable to the agent, either for his professional behavior or for an action or omission in one activity socially and legally allowed which may cause a harmful result”.
In the case of the article 159, is only punished the grave negligence, thereby is left out of the scope of this article the genetic alterations as consequence of less grave negligences.
– Article 160:
According to the article 160: “1. The use of genetic engineering for producing biological weapons or exterminating of the human specie, will be punished with the punishment of imprisonment from three to seven years and special disqualification for post or public office, profession or trade from seven to ten years.
- Will be punished with the punishment of imprisonment from one to five years and special disqualification for post or public office, profession or trade from six to ten years who fertilize human ovules with a different goal than the human procreation.
- With the same punishment will be punished the creation of identical human beings by cloning or other procedures aimed to the selection of the race.”
Therefore, it is an article which punishes three different behaviors altogether, although all of them in its malicious version, since for any of them is not envisaged the punishment of the negligence.
As we have been able to see, in the first point of the article 160 is punished the use of genetic engineering for producing biological weapons or exterminating of the human specie. According to the Wikipedia: “A biological weapon – also known as bioweapon or sometimes like bacteriological weapon- is any pathogen (bacteria, virus, fungus, parasite or another microorganism which produce or causes illnesses) that is used as a weapon of war. To use toxic not living products, including if they are produced by living organisms (for example, toxins), is regarded as a chemical weapon under the provisions of the Convention of chemical weapons. A biological weapon may be aimed to kill, or incapacitate.”
On the other hand, in the second point of the article 160 is punished who fertilize human ovules with any other end than the human procreation. Here, we can clearly see the influence of the Catholic religion upon the current regulation, for according to this belief, the life exists from the moment and ovule is fertilized, and consequently it has to be protected from that moment like any other human being. However, this stand could not coincide with the adopted by other cultures, religions, of ways of thinking, and in fact does not coincide, as the Report of the IBC on the Ethical Aspects of Human Embryonic Stem Cell Research points out. Here the polemic arises because, what is doing this second point of the article 160 is to forbid the creation of human embryos, from where are obtained the so-called stem cells, with the exclusive end of investigation.
The stem cells are obtained from embryos in the earliest stages of their development. The process of extradition ends with the capacity of the embryo from where are obtained of becoming a human being with its implantation in the uterus, therefore, the extraction of the cells ends with the existence of the embryo.
The stem cells can be maintained with life in an artificial means and can live in it more or less indefinitely. It is believed that in a close future, can be facilitated the development of these cells in specific kind of tissue, which will be able to be used for building parts or even whole organs for human being who do not have them or have them damaged.
However, there exist another two relevant norms that open the door to the possibility of investigating with human embryos, always that, their initial end was the procreation but they were not finally used. We refer to the Law 14/2006 of 26 May, about techniques of human assisted reproduction and the Law 14/2007 of 3 July, of biomedical investigation.
In the Law 14/2006 is allowed the use of pre-embryos with the end of investigation always that the requisites of the articles 15 and 16 are fulfilled. The pre-embryos, have to be the remaining of the application of the techniques of assisted reproduction. In this cases, the investigation with clones from embryos remaining from the techniques of assisted reproduction is allowed too.
And the Law 14/2007, allows in its article 33, the use of techniques for obtaining human stem cells with therapeutic ends or of investigation, which do not comprehend the creation of a pre-embryo or of an embryo exclusively with this end, in the terms of the own Law, including the activation of oocytes by means of the nuclear transference. Here, the investigation with clones is also allowed.
Concretely, the article 15 and the article 16 of the Law 14/2006 states:
“Article 15. Use of the pre-embryos with ends of investigation:
- The investigation and experimentation with pre-embryos remaining from the application of the techniques of assisted reproduction will be only allowed if the following requisites are fulfilled:
a) That the writing consent of the couple is given or, in its case, of the woman, previous detailed explication of the ends followed with the investigation and their implications. Such consents will specify in any case the renounce of the couple or woman, in its case, to any right of dispositive, economical or patrimonial nature, from the result which may directly or indirectly derive from the investigation carried out.
The information and the consent should be given in the adequate formats, following the rules marked by the principle of design for all, in a way which result accesible and understandable for the handicapped persons.
b) The the pre-embryo had not developed in vitro more than fourteen days after the fertilization of the oocyte, not taking into account the time which it could have been cryopreserved.
c) In the case of projects of investigation related with the development and application of the techniques of assisted reproduction, that the investigation is carried out in authorized centers.
In any case, the projects will be carried out by qualified scientific teams, under control and following of the competent sanitary authorities.
d) That they are carried out on the basis of a project properly presented and authorized by the competent sanitary authorities, previous favorable report of the National Commission of Human Assisted Reproduction if they were projects of investigation related with the development and application of he techniques of assisted reproduction, or of the competent organ if they were another kind of projects of investigation related with the obtention, development and use of cell lines or of embryonic stem cells.
e) In the case of the cession of pre-embryos to other centers, in the project mentioned in the above paragraph should be specified the common relations and interests of any nature which may exits between the team and center between which is carried out the cession of pre-embryos. In these cases should be also maintained the conditions established of confidentiality of the data of the father and mother and the gratuity and absence of the will of profit. - Once ended the project, the authority which granted the concession should share the result of the experiment with the National Commission of Human Assisted Reproduction and, in its case, the competent organ which informed it.”
«Article 16. Conservation and use of the pre-embryos for the investigation:
- The remaining pre-embryos cryopreserved which have the consent of the father and mother o, in its case, the woman for their use with ends of investigation will be preserved, as well as those others for which had been consented in other possible destinies, in the banks of pre-embryos of the centers of corresponding assisted reproduction.
- The effective use of the pre-embryo with ends of investigation in a concrete project in the own center of assisted reproduction, or its relocation to another center in which will be used in another concrete project of investigation, will requiere the express consent of the couple or, in its case, of the woman responsible of the pre-embryo for its use in this project, previous detailed information and understanding by the interested of the ends of this investigation, its stages, terms, the specification of its restriction, as well as of its possible consequences. If not is granted the express consent for a concrete project of investigation, it has to be obtained before its cession to this end, except in the cases of the absence of renovation of the consent envisaged in the art. 11.6.”
And in the article 33 of the Law 14/2007 states:
«Article 33. Obtaining of cells of embryonic origin:
- It is forbidden the creation of human pre-embryos and embryos exclusively with ends of experimentation.
- It is allowed the use of any technique of obtaining human stem cells with therapeutic ends or of investigation, which do not entail the creation of an pre-embryo or an embryo exclusively with this end, in the terms defined in this Law, included the activation of oocytes through nuclear transfer.«
Lastly, the third point of the article 160 punishes the creation of human beings by cloning or another means aimed to the selection of the race. Prohibition of cloning human beings which is also supported by the Report of the IBC on Updating Its Reflection on the Human Genome and Human Rights, where is expressly forbidden the human cloning with reproductive ends.
– Article 161:
According to the article 161: “1. Who practices assisted reproduction in a woman, without her consent, will be punished with the punishment of imprisonment from two to six years, and special disqualification for post or public office, profession or trade from one to four years.
- For initiating a procedure for this crime will be needed the report of the offended or her legal representative. When she is a minor of age, a handicapped person needed of special protection or helpless person, it can be also initiated by report of the Public Prosecution.”
In the article 161 is not punished the negligence either, and therefore its application needs of the concurrence of malice.
The assisted reproduction consist in all the techniques which facilitated the pregnancy, when it is not achieved in a natural way.
For being prosecutable the behavior described in the article 161 is needed either report or lawsuit of the offended, this converts this crime into a semi-public crime. Notwithstanding this previous requisite, the procedure may continue without private accusation, with the Public Accusation defending the interests of the offended.
– Article 162:
According to the article 162: “In the crimes included in this title, the judicial authority may impose any of the consequences envisaged in the article 129 of this Code when the person liable of the crime pertains to a entity, organization, or association, even of transitory character, which carried out such activities.”
Therefore, the crime which has been committed within companies, organizations, groups of any other class of entities which lack legal personality and thus, not included in the scope of the article 31 bis, the judge or court may impose to such organizations one or various accessory consequences along the punishment which corresponds to the author of the crime, with the content of the letters from c) to g) of the article 33 CP, which are:
c) Suspension of the activities for a term which cannot exceed the five years.
d) The closing of its premises and establishments for a term which cannot exceed five years.
e) Prohibition of carrying out in the future the activities in whose exercise had been committed, favored or covered the crime.
This prohibition may be temporal or definitive. If it was temporal, the term cannot exceed from fifteen years.
f) Disqualification for obtaining subventions and public subsidies, for contracting with the public sector and for enjoying tax benefits or of the Social Security, for a term which cannot exceed the fifteen years.
g) Judicial intervention for guaranteeing the rights of the workers or the creditors for term deemed necessary, which cannot exceed the five years.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com