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GENETIC ABUSE OF CHILDREN: NEED TO PONDER OVER THE NEW FORM OF EXPLOITATION
Radhika Dev Varma*
Abstract: The term 'Child Abuse' may have different connotations in different cultural milieu and socio -economic situations. A universal definition of child abuse in the Indian context does not exist and has yet to be defined. However, major types of child abuse are: physical abuse, emotional abuse, sexual child abuse, & neglect. These abuses have done enormous damage to the individuals and the society as a whole. Although, many countries have incorporated various laws, but action to eradicate this menace remains far fro m any satisfaction. In India, the postindependence era has experienced an explicit expression of the commitment of the government to the cause of children through constitutional provisions, policies, programmes and legislation. The aim of this paper is to present, the adverse consequences of developing technology in the field of biotechnology and bioengineering on children, if it is allowed to be applied unchecked. By enacting suitable laws well in advance will enable us to prevent this type of child abuse and thus save the children and the society from getting succumbed to machination of the few. Efforts should be made to enhance further discussion on the issue amongst all stakeholders and be translated into a movement to ensure protection of children of this country. Key Words: Child abuse, biotechnology, bio-engineering, embryo, sex selection.

Introduction: The term 'Child Abuse' may have different connotations in different cultural milieu and socio-economic situations. The International Society for the Prevention of Child Abuse and Neglect (ISPCAN) 1977 compared definitions of abuse from 58 countries and found some commonality in what was considered abusive. In 1999, the WHO Consultation on Child Abuse Prevention drafted the following definition: Child abuse or maltreatment constitutes all forms of physical and/or emotional ill-treatment, sexual abuse, neglect or negligent treatment or commercial or other exploitation, resulting in actual or potential harm to the childs health, survival, development or dignity in the context of a relationship of responsibility, trust or power. According to Burgess, Child abuse refers to any child who receives nonaccidental physical and psychological injury as a result of acts and omissions on the part of his parents or guardians or employers1 This definition covers a broad spectrum of abuse and focuses primarily on manifestations and consequences of four types of child maltreatment, namely: physical abuse; emotional abuse, sexual abuse, & neglect. These abuses take place after the child has been brought into this world. But have we ever thought about abuse of a child at a pre-birth stage. Science and Technology through Human Genetic Engineering (HGE) can do so, so the question I pose is What are the rights of the child when it is in forming stage? The science which is progressive and carrying out research to find cure for incurable diseases, does it have the right to fiddle or manipulate with the law of nature? If we allow our scientists to apply their knowledge recklessly; it will not only affect the children alone but would alter the very basic structure of human race. This is a new form of child abuse initiated by human genetic engineering technology. The aim of this paper is to highlight the new form of child abuse and its consequences which can be initiated with the free acceptance of HGE. Every human being including the unborn in the womb of its mother receives the right to life directly from the Almighty God and not from parents, society or any other authority. There are some definitions that consider the unborn fetus as a child. The Congenital Disabilities (Civil Liabilities) Act, 1976 gives right to a child for cause of action for the personal injuries caused to it before its birth. Under the Hindu law, the presumption is that a child comes into existence at the time of its conception. It endows rights to the
* Lecturer in Law, Rayat and B ahra, College of Law, Mohali, INDIA.
1

R.L. Burgess, Child Abuse: A Social Interactional Analysis, vol. 2, 1979, Advances in Clinical Child Psychology, (New York: Plenum Press) at 143; Ram Ahuja, Social Problems in India. (Jaipur: Rawat Publications 2006) at 220

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child even in the womb of the mother for various purposes or benefits. What is required is that the child in the womb must be alive. For instance, if a coparcener conceived at the time of partition but born afterwards has the right to get the partition reopened. To facilitate transfers to unborn children among Hindus, 3 Acts were passed namely: The Hindu Transfers and Bequests (Madras) Act, 1914 and 1 921; Hindu Disposition of Property Act, 1916. Privy Council in the Tagore case2 observed that as a general rule, the term child would include embryos also who afterwards come into existence as separate entity. A child in mothers womb is considered to be a living entity with its own life. This gives rise to the next question that does an unborn child have any right? The answer is yes, it has an inherent right to life, and healthy development which begins from conception itself. Recently Delhi High Court in Motor Accident Claims Petition 3 has observed that life may enter immediately on the date of conception in the form of a small cell, which gets multiplied but physically a mother can feel the movement of child only when the fetus is 20 weeks old i.e., 5 months, as the cell changes its structures and textures to become an eye, legs, bones, blood, head etc. At the conception stage, from 1-10 days the life is in the form of a developing ovum. From 1 week till the end of 2 nd month, the baby is medically referred to as an embryo. Once major structures have formed sufficiently at around eight weeks of life, the embryo is classified medically as a fetus. Fetus, in Latin, literally means "offspring". In medical term, it is described as a baby of a species that is at or beyond eight weeks in its developmental process from the point of conception. By the ninth week, the heart, brain, hands and feet can be seen in the fetus as well as other organs, thus forming as an infant. Therefore, it is the basic ethical duties of parents, doctors and society to respect life and to serve humanity. As a fetus has consciousness, more rights, benefits and protections are provided to it by law like the human rights. The rights of an unborn child are also recognized under Section 6 of the Limitation Act, 1963 which provides that where a person entitled to institute a suit or make an application for execution of the decree is, at the time from which the prescribed period is to be reckoned, a minor, he may institute the suit or make the application within the same period after the disability has ceased. Explanation to Section 6 reads thus: "Explanation: For the purposes of this section, 'minor' includes a child in the womb." Section 20 of the Hindu Succession Act, 1956 recognizes the rights of a child in the womb. It reads thus: A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born, before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate." Mulla on Hindu Law, Fifteenth Edition, contains a commentary by the author while dealing with Section 20. The commentary reads thus: "It is by fiction or indulgence of the law that the rights of a child born justo matrimonio are regarded by reference to the moment of conception and not of birth the unborn child in the womb if born alive is treated as actually born for the purpose of conferring on him benefits of inheritance. This view is not peculiar to the ancient Hindu law but one which is adopted by all mature systems of jurisprudence. This section recognizes that rule of beneficent indulgence and the child in uterus although subsequently born is to be deemed to be born before the death of the intestate and inheritance is to be deemed to vest in the child with effect from the date of the death of the intestate." Sections 13 and 20 of the Transfer of Property Act deal with situations in which on a transfer of property, an interest therein is created for the benefit of a person not in existence. As per Section 20, where on a transfer of property an interest therein is created for an unborn person, he acquires on his birth, a vested interest. Sections 312 to 316 of the Indian Penal Code, 1860 provide for punishment for the offence of miscarriage; for doing any act with intent to prevent child being born alive; for causing death of quick unborn child by act amounting to culpable homicide etc.
2

Tagore v. Tagore (1872) 9 Bengal L.R. 377; Paras Diwan, Modern Hindu law (Codified and Uncodified.) (Faridabad: Allahabad Law Agency 2001) at 453 3 Prakash & ors v. Arun Kumar Saini & anr, M AC.APP.No.602/2009. Date of Decision: 5th February, 2010, available at http://www.indiankanoon.org/doc/336668

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"Though the dead possess no legal personality, it is otherwise with the unborn. There is nothing in law to prevent a man from owning property before he is born. His ownership is necessarily contingent, indeed, for he may never be born at all; but it is none the less a real and present ownership. .... A child in its mother's womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim, Nasciturus pro jam nato habetur. In the words of Coke: "The law in many cases hath consideration of him in respect of the apparent expectation of his birth". Thus, in the law of property, there is a fiction that a child en ventre sa mere is a person in being for the purposes of (1) the acquisition of property by the child itself, or (2) being a life chosen to form part of the period in the rule against perpetuities."4 The Universal Declaration of Human rights (1948) enunciates certain fundamental human rights of every human being which are of special interest in the study of the ethics of circumcision. 5 It provides explicit protection to vulnerable groups such as children, women, aged persons, refugees etc. These are universal, moral rights which all persons possess inherently and equally because they are human beings. Therefore these are equally applicable to fetus and embryo. This protection is based on the principle that All people are endowed by their Creator with certain inalienable rights distinct from civil rights for instance right as not to be born artificially modified, right to equality and freedom, right to be free from bondage, right to be born in a socially safe environment and have a mother and a father, etc. The U.N Declaration of the Rights of the Child (1959), professed that The child by reason of his physical and mental immaturity needs special safeguards and care, including appropriate legal protection before as well as after birth. 6 Experimentation through Human Genetic Engineering: In the developing biotechnology, Human Genetic Engineering (HGE) can be defined in simple words, as a process of altering the genetic makeup (DNA- deoxyribonucleic acid) of an individual in an un-natural way with the use of genetic engineering tools and techniques.7 This technology can be applied to human embryos by way of germ-line engineering and somatic engineering. 8 Germ line engineering, targets the genes in eggs, sperm, or very early embryos. The alternation affect every cell in the body of the resulting individual, and are passed on to all future generations whereas somatic engineering, targets the genes in specific organs and tissues of the body of a single existing person without affecting genes in their eggs or sperm. Human genetic engineering has the potential to change human beings' appearance, adaptability, intelligence, character, and behaviour. It may potentially be used in creating more dramatic changes in humans. The technologies are developing into the fields of Genome Mapping, Genetic Recombinant Engineering, Designer Babies, Human Embryonic Stem cell, Cloning, Gene Doping, and Gene Splicing etc. Genetic Engineering has been applied to the field of human reproduction, pharmaceuticals and medicine. It has led to the development of superior and more sophisticated medicines. Bio-engineered insulin and the human growth hormone are two such examples. Genetic diseases are now being identified at the fetus stage to enable doctors to take remedial action. One of the primary goals of genetic engineering is the prevention or eradication of genetic diseases. Another objective is the use of gene therapy to find remedies to other non-genetic diseases. Over the last decade genetic engineering has already been harnessed, with great success, in treating autoimmune and cardiac diseases.9
4 5

Glanville Williams, Salmond on Jurisprudence. (London: Sweet and M axwell 1957) at 354 &355 Universal Declaration of Human Rights, 1948. available at http://www.un.org/en/documents/udhr/index.shtml 6 Declaration of the Rights of the Child (1959) G.A. res. 1386 (XIV), 14 U.N. GAOR Supp. (No. 16) at 19, U.N. Doc. A/4354 (1959) available at http://www.cirp.org/library/ethics/UN-declaration 7 K. Lee Lerner and Brenda Wilmoth (Ed.), Biotechnology: Changing Life through Science. (Detroit: Thomson Gale 2007) at 424. 8 Jack Silva, Human Genetic Engineering: An Uncertain Future, Sep, 2008. Available at http://www.scribd.com/doc/19759997/Human-Genetic-Engineering-PDF 9 Priya Johnson, Pros and Cons of Designer Babies available at http://www.buzzle.com/articles/pros and cons of designer babies.html.

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The effect of genetically altering an embryo would be generational and permanent. If a mutant baby is created it will grow up to have children of its own and they will all be mutant gene carriers too. This is because; genes injected into embryos and reproductive cells, such as sperm, affect every cell in the body and would be passed on to future generations. This raises a concern that is science playing God and/or inflicting abuse on the children who are still in the forming stage? Major Concerns about Genetic Abuse of Children: 1. Experimentation on Unborn: There are three major issues of great concern in this field. Firstly, is the use of living organisms, and not merely their tissues, for experiment; secondly, the sale of them; and thirdly, the medical application. The World Medical Associations (WMA) Declaration of Geneva (1948), binds the physician with the words that I will maintain the utmost respect for human life from the time of conception. 10 The subsequent amendment is heavily criticized for deleting the words from the time of conception. 11 However, destruction of one human life (fetus) to save mothers life in case of complications can be an exception. A clear implication of this ethical precept is that a distinction must be drawn between fetal tissues and the fetus as a living organism; the doctors obligations are different in the two circumstances. The use of tissues would not seem to raise any special problems, and the question of consent by the mother hardly arises if cells from disorganized fetal tissues that would otherwise be incinerated are used for experimental purposes. But what of a living fetus, removed after perhaps several months development? According to the World Medical Association, Declaration of Helsinki (1964), In the purely scientific clinical research carried out on a human being it is the duty of the doctor to protect the life and health of the person on whom clinical research is being carried out. It further emphasizes that the well-being of the human subject should take precedence over the interests of science and society 12 But is a human fetus obtained by an operation a human being, or is it to be linked to an excretion that may be put to any use not offending against public decency? The law protects only human beings who have been born alive i.e. totally extruded from the body of the mother and having a circulation independent of mother. Legal authorities give little assistance when considering the degree to which criminal courts might interfere in the conduct of experiments on a fetus. Nor does any other law provide a definite answer. 2. Female Foeticide through Sex Selection with Genetic Engineering: The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 regulates the use of pre-natal diagnostic techniques for the purpose of detecting genetic or metabolic disorders, chromosomal abnormalities or certain congenital malformations or sex linked disorders, and prevents the misuse of such techniques for the purpose of prenatal sex determination. But it is silent on the prevention of any type or kind of abuse to the fetus. The principle of the sanctity of human life demands that a new innocent life should not be taken or fiddled for any reason apart from saving the life of the mother.
10

Declaration of Geneva (1948). adopted by the General Assembly of World M edical Association at Geneva Switzerland, September 1948. Declaration of Geneva is an affirmation of ethical medicine adopted by the 2nd General Assembly of the WMA at Geneva in 1948 and amended in 1968,1984,1994,2005 & 2006. It is administered at the time of being admitted as a member of the medical profession. Originally the words were that I will maintain the utmost respect for human life from the time of it s conception; even under threat I will not use my medical knowledge contrary to the laws of humanity. After amendment the modified words are heavily criticized due to the deletion. It now says that I will maintain the utmost respect for human lif e. I will not use my medical knowledge contrary to the laws of humanity. M edical research is subject to ethical standards that promote respect for all human subjects and protect their health and rights. Some research populations are practically vulnerable and need special protection. These include those who cannot give or refuse consent for themselves and those who may be vulnerable to coercion or undue influence. 11 David, Albert Jones, The Hippocratic Oath II. The declaration of Geneva and other modern adaptation of the classical doctors oath, Feb, 2006 Catholic Medical Quarterly, available at http://www.catholicdoctors.org.uk/CM Q/2006/Feb/hippocratic_oath_ii.htm 12 Declaration of Helsinki, World M edical Association. available at http://www.wma.net/e/ethicsunit/helsinki.htm World M edical Association Declaration of Helsinki Ethical Principles for M edical Research Involving Human subjects, including research on identifiable human material and data, was adopted by the 18th WMA General Assembly, Helsinki, in 1964 and amended in 1975, 1983,1989,1996,2000,2002,2004,2008. Available at http://www.wma.net/e/ethicsunit/helsinki.htm

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Human Genetic Engineering procedures can separate sperm that carry the Y chromosome (male) from those that carry the X chromosome (female). If the sperm sample used to fertilize an egg has been selected for the Y chromosome, it simply increases the odds of having a boy (~90%) over a girl. Is this sex determination by sperm selection wise? A couple that already has a boy and simply wants a girl to balance their family, seems innocent enough. But why is it important? What fuels this desire? It's dangerous to take more and more control over our lives and leave the sovereignty of God far behind. 13 3. Deprivation of Love, Care and Protection: As per the 6th Principle of the Declaration of the Rights of the Child (1959), the child for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and in any case, in an atmosphere of affection and of moral and material security. 14 If the experimented fetus is developed by the scientists as a proper baby to live in this world; it raises another concern that who will be their parents. Who will love and take care of them? Every child requires, although not a fundamental right, biological parents, and protection, love and care. Are scientists going to adopt their creations and provide them every type of care and protection which a naturally born child requires or they would only be used for some further studies and experimentations, thus making them vulnerable to many unknown and untold kinds of exploitations and abuse? 4. Patent issues- Who will be the owner?: With the spread of bio-technology and ideas and liberalization of both minds and economics, the question of patenting of life has emerged as an important issue, especially because of the potential benefits that lie from the use of biotechnology. Keeping pace with these developments, the law in the area of life patenting has been developing in the West for the last two decades. Trade Related Aspects of the Intellectual Property Rights (TRIPS) (1994) is the first international treaty which makes it legal to patent life. India became a member of the WTO on 1 st January 1995; it is to comply with the TRIPS agreement. TRIPS obliges member countries to provide adequate standards and principles concerning the availability, scope and use of intellectual property rights and the effective means for the enforcement of these rights. TRIPS agreement, part II, s. 5, Article. 27 mandates the member countries to grant patents for all inventions including both the product and process patent irrespective of the field of technology, provided they fulfill the patentability criteria. However there are three exceptions allowed, the member countries to exclude from patentable inventions, those inventions whose commercial exploitation would be dangerous to public order or morality, including human, animal or plant life or health or which causes serious prejudice to the environment. Similarly, Article 27(3) (a) lays down that every member country may exclude from patentability; diagnostic, therapeutic and surgical methods for the treatment of humans and animals. Most patents statutes including the TRIPS, European Patent Convention (1973), The Indian Patent Act, 1970 or the UK Patent Act, 1977 do not have any definition of life or organisms though they all speak of the patentability of microorganisms. This mention of microorganisms is only to bar patent on higher life forms. There are basically two schools of thought, one of which supports patenting of life and the other who is against the patenting of life forms because they believe that animals, plants, humans, micro-organisms and their parts such as genes and cells are not to be patented, for the reason that they (life forms) are creations of God and nature. They cannot be brought under the term invention, even if they are genetically modified or are the products of human manipulation. Section 3 of Indian Patent Act 1970 has been amended in the light of Article 27(1) of TRIPs agreement and now it provides for the patent of microorganism as required by Article 27(1) of Trips agreement. Human genetic research raises issues as to appropriate legal and ethical ownership of both human biological materials and the information they contain. The next of kin of a descendent has a longrecognized quasi-property right over the corpse, but only for the purpose of arranging for its proper disposition, while living people are viewed as having control over their bodies and bodily integrity. The
S., M athew, Liao, The Ethics of Using Genetic Engineering for Sex Selection, Jan, 2004 Journal of M edical ethics available at http://www.smatthewliao.com/wp -content/uploads/2008/06/sexselection.pdf 14 Supra note 6.
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discussions of ownership of human biological materials have two major aspects. The most prominent argument revolves around the effects such ownership would have on our views about humans, and whether humans would become commodities? This view has been expressed forcefully with respect to surrogate motherhood and the selling of organs for transplantation purposes. Patents issued on human DNA would confer on the holder a monopoly on the right to use that invention. Whether such DNA patents are ethical, is however, controversial. Patents on human DNA have attracted opposition from many directions. Some opponents object, on religious grounds, to any claim of human ownership to divinely created creatures or their DNA. Others view the human genome, in particular, as a common heritage of mankind that should belong to all humanity. UNESCO International Bioethics Committee (IBC), 1991 in its Universal Declaration on the Human Genome and Human Rights (1997) highlighted the aim to protect the integrity of the human person from threats that arise from the capacity to remodel it at will. It recognizes the human genome in a symbolic sense, the heritage of humanity which deserves to be treated with the highest respect.15 The first president of the IBC, Noelle Lenoir of France raised the fundamental concern of the committee, to ensure that no ones rights would be violated, either because of discrimination based on genetic characteristics or because of lack of access to the benefits of pi-ogress in genetic science. Defining the concept of human dignity proved to be central to this task. Human dignity, the committee concluded, excludes all practices that tend towards the instrumentalization of human individuals, practices that make human beings the object rather than the subject of science. For instance, Article II of the Declaration explicitly prohibits the cloning of human beings. However, it is submitted that patenting of humans and human DNA should be banned, because it needs far more drastic changes in religious belief than required to make patenting of animals acceptable. It also raises, apart from the arguments enumerated above, other problems such as slavery. Could a patent holder on a modified human genome claim property rights over a child produced out of that genome? Would this not lead to a direct clash with the consent of absolute, inalienable human rights that has come to be accepted by all these developed countries? It is reasonable to assert that currently society will be unable to accept patenting of humans. Therefore it is put forward, that, patenting of humans should be banned so that at least this will not prove hurdle for patenting of other forms of modified life that could prove useful. 5. Genetically Modified Children as Commodities: In the pursuit of producing babies without any genetic defects or hereditary disorders, HGE should not be used by the scientists as a tool to end up producing super humans. Scientists through genetic engineering can pinpoint many specific genes including being lean, living a long life, improved self healing, thrill seeking behaviour and having an improved memory and many other incredible traits. 16 Hereditary advance could proceed through the creation of "high-grade" embryos that are implanted and brought to term. The wealthy families will opt to design their child with best genetic advantages to provide best opportunities in life, and to be with a leg up on the competition with other families doing the same. The issue arises that should these embryos be bought and sold? What sanctity a life will have if a price tag is put on the physical stature, intelligence, race, or eye or hair color, as well as relative freedom from disease. Wouldnt unborn children become commodities? What kind of society will emerge if everyone starts eyeing each others children as most do with each others cars, clothing and houses, mentally calculating "what that one must cost"? 6. Genetic Discrimination The impact on society will be a new alignment of classes, no longer people will only be separated by their ethnic differences, but also by the new division between the naturals and the GenRich, or genetically enhanced. The major worry here is that the genetic gulf between these two classes will become so wide that humans will become separate species. These replicates would possess enhanced strength, agility and endurance, but may remain mentally and emotionally unstable, and prone to acts of violence. Because of this, they will affect the society adversely.
15

International Bioethics Committee (IBC), 1991. available at http://www.unesco.org/ibc/uk/presentation/statutes.html; Universal Declaration on the Human Genome and Human Rights 1997 http://www.unesco.org/ibc/uk/genome/projet/index.html 16 Baxamusa Batul Nafisa, Genetic Engineering in Human, available at www.buzzle.com/articles/genetic-engineering-inhumans.html

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Concluding Observation: As of now human genetic engineering is in its trial stage as one of the upcoming latest biotechnological advancements. Experiments are being conducted by the scientists to tests its effectiveness and success for recommending it for curing certain incurable diseases, but time is not far that if any such project turns successful, these technological advancements may be eyed by many to remove genetic defects or cure the incurables. But the question of concern is: will this technology only be used for the medical purposes and not for any ulterior motives? Before this technology is freely accepted it is to be ensured that there are proper laws and regulations to prevent its misuse resulting into abuse, because so far there are no specific laws governing the genetic experimentation on human beings except certain guide lines regulating human research which are inadequate to handle such issues. This advancement apart from the medical grounds may be used or bought by the influentials to bring selective genetic traits in the children resulting in its disastrous misuse and abuse. Developments in biotechnology for public good and health are important but not at the cost of individual health and dignity. The genetic experimentation on humans, at any stage, will have permanent and long lasting effects and thus raises many moral, ethical and legal implications. As responsible citizens there is a need to take a right and mature decision at this threshold stage of such developments before putting our future generations in jeopardy. Therefore, there is an urgent need to ponder over the acceptance of human genetic engineering techniques, which are potential enough to give rise to a new form of genetic abuse of children likely to worsen the already existing situation of child abuse, beyond remedy.