Commentary on Article 129. Human Cloning of the Criminal Code of the Republic of Kazakhstan

• 1. Human cloning, the creation of human embryos for the purposes of biomedical research, or the use of a human embryo for commercial, military or industrial purposes, as well as the export of germ cells or a human embryo from the Republic of Kazakhstan for the same purposes —
• shall be punishable by imprisonment for a term of up to three years, with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to two years.
• 2. The same acts committed:
• 1) by a group of persons or by a group of persons acting by prior conspiracy;
• 2) repeatedly, —
• shall be punishable by imprisonment for a term of four to eight years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
• 3. The acts provided for in Parts One or Two of this Article, committed by a criminal group, —
• shall be punishable by imprisonment for a term of seven to twelve years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years.

On February 19, 2005, the United Nations called upon its Member States to adopt legislative acts prohibiting all forms of cloning, as they “contradict human dignity” and oppose the “protection of human life.”

The United Nations Declaration on Human Cloning, adopted by Resolution 59/280 of March 8, 2005, states: “The General Assembly, guided by the purposes and principles of the Charter of the United Nations, recalling the Universal Declaration on the Human Genome and Human Rights, adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization on November 11, 1997, and, in particular, Article 11 thereof, which states that practices contrary to human dignity, such as reproductive cloning of human beings, shall not be permitted, ... solemnly declares the following: ... Member States are called upon to prohibit all forms of human cloning insofar as they are incompatible with human dignity and the protection of human life...”.

The only international instrument currently establishing a prohibition on human cloning is the Additional Protocol to the Convention on the Protection of Human Rights and Human Dignity with regard to the Application of Biology and Medicine, which was signed on January 12, 1998. According to Article 1 of the Protocol, any intervention seeking to create a human being genetically identical to another human being, whether living or deceased, is prohibited.

Furthermore, human cloning has caused serious concerns both among scientists and the general public. This concerns not only complex bioethical and legal issues, but also its possible unpredictable consequences for the further development of the human species.

The international community is increasingly leaning towards the idea of introducing, if not a complete ban, then at least a temporary moratorium on the creation of human clones. In particular, such offences have been included in the Criminal Codes of Spain (1995), Colombia (2000), Estonia (2002), Mexico (Federal District, 1931), Moldova (2002), and Romania (2014). In Slovenia, the relevant amendment was introduced into the Criminal Code in 2002, in Slovakia in 2003, and in France, amendments were introduced pursuant to the Bioethics Act of August 6, 2004. In certain countries (Brazil, Germany, the United Kingdom, and Japan), criminal liability for cloning is established by special laws. For example, the 1990 Federal Law of the Federal Republic of Germany “On the Protection of Embryos” defines as a criminal offence the creation of an embryo genetically identical to another embryo originating from a living or deceased person.

The Republic of Kazakhstan, being a Member State of the United Nations, introduced criminal liability for human cloning for the first time.

The terms “clone” and “cloning” were initially used in microbiology and breeding, and later in genetics, in connection with whose achievements they entered common usage. Cloning (English: cloning, from Ancient Greek κλών — “twig, shoot, offspring”) in its broadest sense means the exact reproduction of any object. Objects obtained as a result of cloning are called clones. At present, not a single case of human cloning has been reliably documented. However, methods already exist that allow us to state with a considerable degree of confidence that the key technological issue has been resolved.

The key aspect that causes the greatest rejection is the purpose of cloning — the artificial creation of life by an unnatural method. Another important negative aspect is the creation of a human being solely for immediate destruction in the case of therapeutic cloning, as well as the practically inevitable creation of several identical clones under current methodologies, which are almost always killed.

The public danger of this crime lies in unlawful interference with the creation of a human embryo for commercial, military or industrial purposes.

The object of the crime is the violation of the right to the protection of human life.

The objective aspect of the crime is characterized by human cloning or the use of a human embryo for commercial, military or industrial purposes, as well as the export of germ cells or a human embryo from the Republic of Kazakhstan for the same purposes.

Thus, the objective aspect of the corpus delicti under consideration consists of committing one of the following acts: 1) human cloning; 2) the use of a human embryo for commercial, military or industrial purposes; 3) the export of germ cells from the Republic of Kazakhstan for commercial, military or industrial purposes; 4) the export of a human embryo from the Republic of Kazakhstan for commercial, military or industrial purposes.

Human cloning is a projected methodology consisting of the creation of an embryo and its subsequent development into human beings possessing the genotype of a particular individual, whether currently living or previously deceased.

There are two types of human cloning in science. Reproductive human cloning implies that an individual born as a result of cloning receives a name, civil rights, education and upbringing; in short, leads the same life as all ordinary people. Reproductive cloning faces numerous ethical, religious and legal problems that do not yet have an obvious solution today. Reproductive cloning implies that a complete organism is obtained as a result.

Therapeutic human cloning implies that the development of the embryo is stopped after 14 days, and the embryo itself is used as a product for obtaining stem cells. Legislators in many countries fear that the legalization of therapeutic cloning will lead to its transition into reproductive cloning.

A human embryo is a human fetus. Under laboratory conditions, specialists remove the nucleus from a cell taken from any part of the human body (somatic, i.e. non-sexual). At the same time, the nucleus is also removed from a female germ cell (egg cell). The nucleus of the somatic cell is then introduced into the shell of the egg cell. The egg cell with the new nucleus is subjected to an electric current, which stimulates cell division. Thus, an embryo is created. An embryo is recognized as a human fetus at a developmental stage of up to 8 weeks.

By its legal structure, this corpus delicti belongs to the category of formal offences.

The moment of completion of the crime is the commencement of human cloning or the use of a human embryo for commercial, military or industrial purposes, as well as the export of germ cells or a human embryo from the Republic of Kazakhstan for these purposes.

The subjective aspect of the crime is characterized by direct intent. Human cloning is deemed to have been committed with direct intent if the person was aware of the social danger of their actions (inaction), foresaw the possibility or inevitability of socially dangerous consequences and desired their occurrence. The person is aware that they are cloning a human being, using a human embryo for commercial, military or industrial purposes, exporting germ cells from the Republic of Kazakhstan for commercial, military or industrial purposes, or exporting a human embryo from the Republic of Kazakhstan for commercial, military or industrial purposes.

When using a human embryo, exporting germ cells and human embryos from the Republic of Kazakhstan, an obligatory element of the corpus delicti is the purpose of committing the specified acts — commercial, military or industrial purposes.

Commercial purposes imply the extraction of profit or material benefit. Military purposes mean the use of the results of criminal acts in military operations. For example, the use in military operations of people grown through cloning who have no parents or relatives. Use for industrial purposes means, for example, the production of clones and human embryos on an industrial scale, i.e. in mass quantities.

The subject of the crime is a sane natural person who has attained the age of 16.

The qualified corpus delicti is provided for in Part 2 of Article 129. These are the same acts committed:

by a group of persons or by a group of persons acting by prior conspiracy. A crime is recognized as having been committed by a group of persons if two or more perpetrators jointly participated in its commission without prior conspiracy. A crime is recognized as having been committed by a group of persons acting by prior conspiracy if persons who had previously agreed to jointly commit the crime under consideration participated in it;

repeatedly. Repetition is recognized as the commission of two or more acts provided for by the Article under consideration or a part of the Article. A crime cannot be recognized as having been committed repeatedly if the person was convicted for a previously committed act or was released from criminal liability on grounds established by law. A continuing crime, i.e. one consisting of a series of identical unlawful acts covered by a single intent and purpose and collectively constituting one crime provided for by Article 129 of the Criminal Code, is not recognized as repeated.

Part 3 of Article 129 of the Criminal Code establishes criminal liability for acts provided for in Parts 1 or 2 of this Article when committed by a criminal group (see the commentary to subparagraph 15) of Part 2 of Article 99 of the Criminal Code).

The act provided for in Part 1 of Article 129 of the Criminal Code belongs to the category of medium-gravity crimes.

The acts provided for in Parts 2 and 3 of Article 129 of the Criminal Code belong to the category of serious crimes.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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