Jail for editing the DNA of embryos to prevent HIV and class actions against Shaw and the University of Victoria

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Three Chinese scientists were sentenced to jail for editing the genes of three fetuses in an attempt to provide immunity from HIV. The scientist used CRISPR in an attempt to disable the gene that allows the HIV virus to enter a cell.

The fathers of the children, who appear to be healthy, had HIV. Their mothers did not.

The three scientists announced what they had done at a 2018 conference in Hong Kong and, shortly thereafter, disappeared. They had been in Chinese custody and were recently sentenced to between two and three years in jail, after they plead guilty to practicing medicine without a licence, at a non-public hearing.

The concern with the activity of the scientists is that the genetic changes they made to the fetuses were subject to being passed along to future generations, and the effects are not known.

In Canada, the Assisted Human Reproduction Act prohibits the alteration of “the genome of a cell of a human being in vitro embryo such that the alteration is capable of being transmitted to descendants” in. Doing so is punishable by up to five years in jail.

Other things prohibited, by this act in Canada, include the creation of human-animal hybrids, the transplantation of human fetuses into animals, or animals or animal fetuses into humans. It is also unlawful to “maintain an embryo outside the body of a female person after the fourteenth day of its development following fertilization or creation, excluding any time during which its development has been suspended”.

Also discussed on the show are two proposed class actions.

One proposed class action, against Shaw, alleges that Shaw participated in an “unlawful pricing scheme” involving routine discrimination against existing and potential customers by offering a discounted rate exclusively to individuals who communicated with Shaw in either Mandarin and/or Cantonese.

Shaw denies the allegation and was successful in an application for a summary trial, prior to deciding on an application for the certification of the claim as a class action.

The other class action involved a successful appeal to the British Columbia Court of appeal, in order to certify a class action on behalf of employees of the University of Victoria, who were subjected to a wage freeze from 2013 – 2016 as a result of an emailed direction from the then Minister of Finance.


Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.


Automated transcript of the show:


Adam Stirling [00:00:00] Time now for Legally Speaking on CFAX1070 with Michael Mulligan Mulligan Defence Lawyers. Michael, pleasure as always. How are you?

Michael T. Mulligan [00:00:06] I’m doing great. Looking like another good year of legal events non-stop.

Adam Stirling [00:00:11] You know, I still remember as a young man reading various fiction and watching shows like Star Trek used to present moral dilemmas that would make us question matters that we would seem to think are simple. Like what rights does a human being have versus an animal versus a tree versus a plant. But they would often sort of throw a curveball. They say, well, what would happen if you put human genes into an animal? Does that animal now have more rights than it did before or vice versa? What happens if you were to crossbreed, I don’t know, a human with some animal genes? Is that human somehow lesser? How would the law deal with that? How would we deal with that morally now? There are no easy answers to these questions, but we are now at the state where it is possible, at least we’re told, to use technology to modify the genetic code of a person. So, is that person now an intellectual work? Who owns the rights to that DNA? Is that moral? Should that be allowed at all? China’s courts are dealing with the implications of gene edited babies right now. Science fiction being made reality. How is the law dealing with this?

Michael T. Mulligan [00:01:14] Well, in China, kind of opaquely would be the threat of the one-word answer to it. And there a decision or a judgment there which just came out a few days ago and it involved the conviction of three Chinese scientists who decided to genetically modify an embryo in an attempt to give the children immunity to HIV. And the background is that apparently the father of the children had HIV, the mothers did not. There were twins and then one other child who had this procedure performed as an embryo. Now, the particular, the controversy includes the type of gene editing that the scientists performed here. There are some kinds of gene edits like we hear about them in the context of things like, you know, possible gene therapy where, you know, they’d be able to remove and fix some disease that somebody has, but those kind of edits are not edits which would be potentially passed along to your children. They would be sort of editing genes in a way that that would not occur. What the scientists did in China is that the kind of modifications they made to the stem cells of this embryo using a technology called crisper was controversial because the changes would then be passed on forever by the offspring of the resulting children.

Michael T. Mulligan [00:02:50] Now, it seems so far that the three children, the twins and one other child who were born, was born as a result of all of this appear to be healthy. There doesn’t seem to be an immediate problem. Nobody’s grown a third arm, or any other odd genetic mutation has become apparent. But the concern is that these technologies are new and uncertain. It’s unclear whether the edits performed by the scientists edited only the gene which permits the HIV to enter a cell, or whether they may have modified other cell…gene in other ways and to the extent they may have missed the exact mark. The issue here is that nobody would know, well, what is the implication of that going to be?

Adam Stirling [00:03:42] Yeah.

Michael T. Mulligan [00:03:42] And the implication would be passed on potentially forever through the various children of the children or of the children that resulted from this procedure. Now, the Chinese court’s interestingly is sort of an opaque way of dealing with all of this. They convicted, these three people of practicing medicine without a licence, which is a bit of an odd one. They sentenced the head scientists to three years in prison. One of the other scientists received a received a sentence of two years in prison. And the third one apparently got a suspended two-year prison sentence. All of them were also fined. Now, it’s difficult to know exactly what happened here. These scientists essentially disappeared 13 months ago after they in Hong Kong made the announcement that they had engaged in this, done this procedure. They just sort of were disappeared, which I suppose feeds into some of the concern about the protests going on in Hong Kong at the moment. Apparently, they went across the border into Shenzhen. Unclear whether they went there under their own steam or something else caused them to get there.

Adam Stirling [00:04:53] mmhmm.

Michael T. Mulligan [00:04:53] But essentially, they were detained and disappeared for the past 13 months. There was then a trial of some kind of descript, conducted, but the trial was conducted in secret, so we don’t know what went on there. All three of them were reported to have pled guilty. But again, we don’t know on what basis that happened. And in any case, off they go, at least two of them directly to jail and they’re not collecting their 200 dollars. So, what does Canada do with all of these.

Adam Stirling [00:05:21] Yeah.

Michael T. Mulligan [00:05:21] Possible dystopian possibilities that are now available to us? And I must say, that’s an interesting one, right. The Chinese example, because obviously the scientists, well, they may have had other motivations. One of the motivations was a genuinely helpful one, to allow these couples to have children to try to prevent children from contracting HIV. That sounds all very positive. The risk is that you might cause some unintended consequence that could have a very, very long-term implications for everyone concerned.

Adam Stirling [00:05:52] No…

Michael T. Mulligan [00:05:52] So what do we have in Canada, in Canada? We’ve got the Assisted Human Reproduction Act.

Adam Stirling [00:05:56] Okay.

Michael T. Mulligan [00:05:57] So we’ve thought about these things and in fact, we’ve set up a bunch of things which are now prohibited. One of the things which we’ve prohibited in Canada is exactly what the activity was in China. So, in China, we wouldn’t charge somebody with practicing medicine without a licence and send you to jail for three years for that. We would instead charge you with an offence under the Assisted Human Reproduction Act, which makes it an offence to alter the genome of a cell of a human being or in vitro embryos such that the alterations is capable of being transmitted to descendants. That’s prohibited.

Adam Stirling [00:06:32] Interesting, so it’s the heritability that is necessary for the offence.

Michael T. Mulligan [00:06:35] Right.

Adam Stirling [00:06:35] Fascinating.

Michael T. Mulligan [00:06:37] Other things are permitted. In fact, there is a group of people who are they describe themselves as sort of DNA or genetic hackers who will do things like try to edit their own genes to do things. There was one fellow who tried to give himself larger muscles by editing his own DNA. And I guess as long as you’re doing it in a way that you’re not going to pass it on and you want to inject yourself with some unknown gene edit, I guess that’s your prerogative. Other things that I should say in Canada that would be punishable by up to five years in prison. So not that far off of what the Chinese result was. Other things we’ve chosen to prohibit here, allowing the sort of Star Trek and other assorted dystopia, future possibilities. We’ve prohibited things like yeah, it is an offence to implant an embryo of a nonhuman into a human or vice versa. You can’t do either of those things. This one’s interesting, d, I think this may have been a Star Trek episode, I’m not sure. It’s also an offence to maintain an embryo outside the body of a female person after the fourteenth day of its development following fertilization. Now there’s an exception. If the development was suspended, I guess it’s a frozen embryo exception. But when you read that in the face of it, various things would be prohibited there. Sort of the Star Trek possibility of babies and vials would be or, you know, jars of some kind that would be prohibited. I think there’s also a feature of the matrix, wasn’t it?

Adam Stirling [00:08:03] Or how it deals with premature births or point as an embryo become a baby.

Michael T. Mulligan [00:08:07] Well, don’t we have 14 days of fertilization? Also, interestingly, it’s specific to female persons. So it also would appear to be an offence punishable by up to five years in prison to implant, if you could somehow manage to have the embryo survive into somebody who was a male person, if you could somehow engineer that, that would actually be a crime in Canada. It’s also an offence to combine humans and animals. So, you couldn’t create a human animal hybrid.

Adam Stirling [00:08:34] Or would that have rights of a human rights of an animal combination thereof? Who knows?

Michael T. Mulligan [00:08:38] Hard to know, but not allowed. We’ve also banned human cloning so that, you know, intricate plan. You might have had to just carry on.

Adam Stirling [00:08:47] I would jealous of my clone I’d be like, OK, this looks like me, sounds like me technically is me, but it’s not me. Why would I why give everything over to an imposter?

Michael T. Mulligan [00:08:55] It might have the same position about you. It’s all…

Adam Stirling [00:08:57] It probably would.

Michael T. Mulligan [00:08:58] … all is. Well, you know.

Adam Stirling [00:08:59] The first thing it would do is try to usurp me; I know that. So, I’m not going immediately.

Michael T. Mulligan [00:09:03] It’s going immediately to the bank and making a very large withdrawal. Right.

Adam Stirling [00:09:08] You can’t trust this guy. It’s me.

Michael T. Mulligan [00:09:09] It’s me. So, don’t believe anything he has to say. Right. So essentially, we’ve tried to clamp down on all these things and, you know, wiping out all manner of possible, you know, Star Trek dystopian futures. But of course, it’s a big world and whatever we might choose to do in Canada with the Assisted Human Reproduction Act is likely not going to get universal traction. So now that these technologies are available, it’s simply going to be a matter of time until you see them employed somewhere, perhaps not in China, or at least if it’s occurring in China in the future, you probably don’t want to hold a press conference in Hong Kong about the greatest new DNA edit you just managed to perform for somebody. So, it’s going to be really interesting times in which we live, it is fascinating that we actually need to have an act prohibiting, you know, human cloning and implantation of embryos into animals and all kinds of other things. And also, interesting, some of the just sort of value judgments that go into those things. Right. The prohibition on the editing DNA in a way that can be passed along to descendants, I think would be understandable. But you’d have to ask questions about sort of, what’s the moral imperative that would mandate that prohibition on embryos remaining outside of the body of a female person after the 14th day of developed.

Adam Stirling [00:10:38] Well isn’t wouldn’t a premature birth and seven months technically be an embryo after the 14th day of development? Would that also not be maintained outside the body yet?

Michael T. Mulligan [00:10:46] Well, that’s an interesting claim.

Adam Stirling [00:10:47] I guess what I was thinking when …we can’t do that.

Michael T. Mulligan [00:10:50] We’ve tried to define these things in different ways. You have to look up like an embryo means a human organism during the first 56 days of develop.

Adam Stirling [00:10:57] OK. There’s the answer.

Michael T. Mulligan [00:10:58] So there would be the answer to it.

Adam Stirling [00:11:00] Alright huh?

Michael T. Mulligan [00:11:00] But you mean you’d have to answer other questions? Why would you want to prohibit, for example, if there was some technology that allowed people to have a child, but it used some sort of advanced version of an incubator, for example, for a longer period of time? Is that inherently wrong? Should we… Should we send people to prison for engaging in that behaviour? What are the implications of that? So there’s some really interesting ethical issues and unfortunately don’t have a clear answer to how China dealt with them because they just conducted a secret trial and sent these people off to jail after disappearing them for 13 months, at least happily in Canada, if there’s some application of the Assisted Human Reproduction Act, at least we’d have a better and clearer idea of what, in fact went on and why we do what we do.

Adam Stirling [00:11:47] All right. Time for a quick break. Legally Speaking with Michael Mulligan continues after this.

[00:11:51] COMMERCIAL

Adam Stirling [00:11:51] Somebody texted in saying, just think, Adam, if you were cloned, you’d be just like Austin Powers. He was cloned in the second movie and had a great time. Well, there we go. It’s all that convincing. I mean, Legally Speaking, continues of CFAX. I didn’t even know before we had this conversation Michael Mulligan. Canada had an act called the Assisted Human Reproduction Act that prohibited all these activities. So, it’s a useful conversation.

Michael T. Mulligan [00:12:13] You know, we lawyers have to keep ourselves busy. If we have enough of these acts raped, it’s a virtually a non-stop possibility to get through life without needing to consult one of us. Right. And really, to know us is to love us. Maybe that brings us back to the desirability of cloning.

Adam Stirling [00:12:28] There we go. But then again, you know who, who gets to bill for that time? You are the clone, or do you get a part of what your clone does? You have a right to to sort of recoup those. Who knows? Well, it’s nothing the endless litigation wouldn’t solve. Speaking of litigation, there is a civil action that we are contemplating in our next story, a class action against. Is this Shaw allegedly discriminating? What’s going on here?

Michael T. Mulligan [00:12:51] Indeed. This is, I think, a very interesting one, both from a legal perspective and what is alleged. So, what is alleged and none of this has been proven at this point. It’s a proposed class action alleging that Shaw participated in a, quote, unlawful pricing scheme, close quote, where it is alleged that they routinely discriminated against people in terms of offering discounts, claiming that Shaw offered discounts routinely to anyone who communicated with them in Mandarin or Chinese or Cantonese, but not people who communicated with them in other languages.

Adam Stirling [00:13:30] Hmm.

Michael T. Mulligan [00:13:30] So that’s an interesting claim. Shaw denies that allegation. But the decision which just came out was an interesting one from the perspective of how this is proceeding, because the proposal is this proceed as a class action. Not surprisingly, because no one is going to go to court and litigate whether they failed to get the word discriminated against, it didn’t get their discount on their shore plan. That makes no sense whatsoever on an individual basis. But if that was made, though, collectively, that could be a fair bit of money. Now, many of these class action cases are fought over the issue of certification. Should a judge approve the thing to go ahead as a class action as opposed to just this case, Martin Halliday claiming that, hey, I paid too much on my Shaw bill, and that’s where a lot of the litigation occurs. The companies usually that are being sued fiercely defend these things, trying to prevent them from get getting certified. And here the argument was whether this thing should be certified or whether as Shaw wanted, they wanted to have a summary trial to determine whether this person, Martin, had a valid claim because they would rather deal with that rather than have the thing certified, when then there could be some additional pressure to settle the thing. And Shaw’s arguments were things including; hey, this is damaging to our reputation, we should be able to deal with this in a summary fast way, we don’t think that this particular person has any claim against us. Their response was that he had voluntarily entered into a contract with his eyes open, presumably to renew his Shaw cable or some such thing. Right. And so, the judge was struggling with the issue of does the judge allow Shaw to have the trial before the issue of should the thing be turned into a class action? And there were a number of objections to that, including things like, well, if you have a trial where there isn’t a class action, you can get costs awarded against you if you don’t succeed. Or you might have a circumstance where there’s a defence against that guy or the person, right, but maybe it would have a different analysis if you’re looking at the class more broadly. And in any case here, the oh, and then other concerns were things like, well, now what happened? So, if the Shaw loses the summary trial, is Shaw then going to try to appeal that thing all the way up to the Supreme Court of Canada, thereby delaying the certification issue? Is this just some tactic to cause delay and put off the potential claim? Here, the judge concluded that wasn’t so. The judge found that Shaw had waived their right to ask for costs if they didn’t succeed. And in terms of the judicial efficiency, the judge concluded that it made more sense to allow this summary trial about whether the individual person had a claim, because it would also, then, if that was unsuccessful, shortened one of the potential arguments on the certification hearing. So, what’s going to happen? Well, I guess we’ll wait and see. Presumably they there will be a summary trial, which means generally a trial based on, you know, affidavit evidence rather than a long thing where all the evidence is oral. There’ll be a determination as to whether Martin’s got a good claim against Shaw based on the way his cable bill was determined. And if Martin is successful, then presumably the next stage will be a class action certification hearing. So, you may or may not, sometimes the next decade wind up with some rebate from Shaw. If this thing succeeds and if you didn’t communicate with them in Mandarin or Cantonese.

Adam Stirling [00:17:23] So interesting.

Michael T. Mulligan [00:17:24] There it is Shaw.

Adam Stirling [00:17:26] We have another story that involves class actions, do we not?

Michael T. Mulligan [00:17:30] We do. And this is another local one and a decision which also just came out and it deals with an issue that we just touched on, that issue of certification and how that decision should be made. And this is a local case involving the University of Victoria, and it excluded employees there, people who would not be union members who worked for the University of Victoria. And the background of it is that back in 2012, the then Minister of Finance needed direction to the university to freeze the pay of all excluded employees. The university got this email from the Minister of Finance directing them under the Public Sector Employers Act to freeze the pay of all of the employees, and the university treated that as legally valid and did exactly that, froze everyone’s pay for several years. And so, one of the employees from the University of Victoria brought a proposed class action, arguing a number of things, including that that was a breach of contract. They weren’t allowed to make that change. They had a contract with the excluded employees and arguing that the requirements under the that particular act weren’t complied with, such that the minister didn’t have the authority to just direct the university to freeze everyone’s pay in the way they did it. Now, that preceded, that started with one of those applications for certification. That’s where the lawyers for the plaintiff, representative plaintiff, would go before a judge to argue that, hey, this should go as a class action, not just one by one, which in many cases would be untenable. And there are five things that a judge would need to be satisfied of in order to certify something. There’s to be a cause of action. There to be at least two people. They have to be common issues. That’s to be the preferable procedure. Right. And that and that they represent a plaintiff is an appropriate person. So.

Adam Stirling [00:19:32] I was going to say that was four.

Michael T. Mulligan [00:19:34] that was four, just one or appropriate person.

Adam Stirling [00:19:35] OK.

Michael T. Mulligan [00:19:35] Number five.

Adam Stirling [00:19:36] OK.

Michael T. Mulligan [00:19:36] So the person was unsuccessful at the initial application. And the decision, which just came out on December 27, was an appeal to the Court of Appeal. And the Court of Appeal found that the trial judge had made an error in how they analyzed the certification application and has decided that this should proceed as a class action. The Court of Appeal found that the original judge mischaracterized or misunderstood what the proposed nature of the claim was. The judge seemed to think in part, for example, this was a claim for wrongful dismissal and that it would be too complicated because you’d have to figure out everyone and how there individually were affected.

Adam Stirling [00:20:21] Yeah.

Michael T. Mulligan [00:20:21] Anyways, the Court of Appeal found that no, no, that’s not really what’s being claimed here and that well, there would have to be some computation done if they are successful to figure out, you know, what would you know, Susan’s salary have been? And what about Bob’s? Is there a sort of a formula in there for a, you know, 2 percent or 3 percent raise, whatever it might be? But that wasn’t completely unworkable. And the university was obviously capable of making those calculations each and every year when they weren’t trying to freeze everyone’s salary. So the Court of Appeal found that the class proceeding was an appropriate way to deal with it, recognizing things like there are common issues and it would be essentially impractical for everyone in this position to going to hire a lawyer and sue their employer, particularly for people who are continuing to work there. That’s not going to be a popular move when you’ve hired somebody, hired a lawyer and sued the person you’re working for. So, bearing in mind all of those things, the Court of Appeal has ordered that to be certified. And so, there will be a, now that there is a certification, there will then be ultimately a trial unless the thing settled, and the excluded employees may wind up with some backpay. And also, importantly for a number of them, it has an impact on their pension, of course, because if you’ve reduced somebody’s pay for several years, you’ve retired, that could have a lifetime effect for you.

Adam Stirling [00:21:45] Michael Mulligan from Mulligan Defence Lawyers. Every Thursday during the second half of our second hour, Legally Speaking here on CFAX 1070, pleasure, as always. Thanks for coming in.

Michael T. Mulligan [00:21:54] Thank you.

Automatically Transcribed on December 19, 2019 – MULLIGAN DEFENCE LAWYERS