This thesis is concerned with what is a better way to regulate Human Embryonic Stem Cell (HESC) research in China. It concludes that, neither moral control in the patent law nor federal funding control is a effective way to monitoring HESC research. The best way to control immoral HESC research in China is to regulate research at the international level. HESC holds the promise of treating many incurable diseases such as cancer, diabetes and Parkinson’s Disease; however, the interplay between patent law and moral controversy has generated enormous variations in addition to the jurisdiction complexities. The diversity of HESC regulation has been considered problematic, since varied regulations in states might impede research collaboration and scientific advance. Researchers working across jurisdictions are required to meet different technical, ethical and legal standards. Some developing countries have sought to profit from the regulatory vacuum. Such a situation can be seen in China where unproven and unsafe stem cell therapies are currently offered to patients. While attempts have been made to examine the disparities in HESC regulations across countries, there is little work of significance addressing how to regulate HESC research in China.
This thesis attempts to find a better way to control HESC research in China. It is laid out from three perspectives. First, this thesis explores the legal challenges from the emerging areas raised by HESC technology. It illuminate the moral challenges associated with HESC research. It demonstrates that HESC research, like a double-edged sword, might bring tremendous benefits or, on the contrary, irreversible disaster. It can be distinguished that the success of HESC development depends largely on how the law participates in it. Second, the thesis examines two different approaches adopted by the Europe and US in HESC research. Apart from examining the incongruous interpretations of moral definitions of human embryo in the EUROPE case law, this thesis also explores the inconsistent policies adopted by different administrations in the US. Through a detailed comparison, this thesis observes that both infusing moral exclusions into patent law and federal funding control are inefficient and ineffective ways to supervise immoral research. Third, the thesis explores the reconciling attempts of HESC regulation. Drawing lessons from reconciling attempts, the thesis finds out that minumin standard is practical and applicable since there are various
interpretations of moral, human embryo and the commercial or industrial use
addressing the adoptions of moral exclusions in national states.
The thesis argues that, the best way to control HESC research in China is to
regulate research inself in a reconciled regulation at the international level.
First, the patent prohibition of HESC related inventions based on morality
issues doesn’t seem to be an effective method to control immoral research.
Morality is not a criterion that should be determinable by patent authorities.
The various interpretations of moral exclusion in patent law result the legal
uncertainty. Even if the results of HESC research would not be patented,
HESC research could still be performed and funded. Immoral HESC research
should be prohibited at the beginning of research instead of at the
patent-application stage. Second, even if federal funding cannot be used in
HESC research, private funding could still flow into this area. It is a waste of
time, money and material resources since some halfway public funding
research should be halt and private money reinvest in it. Third, from the
economical perspective, regulate research is able to prohibit immoral research
at the initial stage which saves time and money and is economically viable
and legally feasible. In order to eliminate the phenomenom of “stem cell
tourism” in China, it is best to regulate the research at the international level.