Civil liability for damages related to germline and embryo editing against the legal admissibility of gene editing

Abstract

The creators of CRISPR-Cas9 method have turned to the world community, including lawyers, to undertake a public discussion on the implications that it can create. One of the most important problems to be resolved in the future, will be the issue of establishing very clear legal principles of compensatory liability for damages resulting from the editing of genes in human embryos and reproductive cells. It is necessary to show possible legal problems that may arise and—what is more—the fact that they will certainly appear in future legislative work in the world. Questions must be asked to which world legal experts will seek answers. And this is the goal of this paper was set—showing possible legal problems and asking questions related to liability for damages resulting from the editing of genes in human embryos and reproductive cells that will be answered in the future. The most important research questions are therefore: what is the genetic nature of the genes edition—is it a treatment whose aim is to treat infertility of parents or the future child? How to determine the scope of responsibility in the situation when it comes to the “cure” of one mutation, but there is a tendency to develop a disease in the future? What then is the scope of the doctor’s duty to inform? How to qualify the editing of a gene that is not intended to cure the existing disease, but to obtain a certain specific immunity? What legal obligations will weigh on parents who decide to edit the genes of the embryo or in the preconception phase? Finally, the question arises about the time limits of this gene-editing responsibility. If we make genetic modification of hereditary nature, then will the children or grandchildren subjected to gene editing be able to make claims? In this paper, the provisions of international European law, common law and continental law on the example of Polish law have been analysed. The key findings of this paper are to show that legal problems in gene editing are not limited to answering the question whether it should be admissible or not. For this reason, the role of legal discourse, and in particular of private law, should focus on the reinterpretation of traditional compensation structures, so that they also protect the rights of people whose genome has been modified.