Legal Status of Human Genetic Material– A Study Relating to Human DNA its Ethical Problems and Law A Thesis Submitted for the Award of Ph.D. degree of UNIVERSITY OF KOTA in the Faculty of Law By Surendra Kumar Under the Supervision of Dr. R.K. Upadhyay Associate Professor DEPARTMENT OF LAW UNIVERSITY OF KOTA KOTA (RAJ.) 2018 CHAPTER–I INTRODUCTION Every day in the newspapers of local, national and international level as well as the television of national and international channel, we read and hear the examples of complicated nature of offences of known and unknown nature. It happens in unknown places and manners and by known or unknown persons like several persons commit adultery with a woman or several persons commit gang rape with a woman or several persons join the commission of an offence or offences with an infant, insane, idiot, illusioned, intoxicated and the like. Sometimes such rape or adulterous relationship result into birth of a child. Therefore, a complicated question arises as to the paternity of the child because it is an age old maxim that “maternity is certainty and paternity is uncertainty”.1 In such matter, in earlier times, super human or super natural means and methods of power used to resolve such issue. But later on these started creating more complications than to resolve the issues. Hence, human being turned towards scientific manner and methods to solve such parentage, heritage, lineage, succession and crime’s issues. The advent of Forensic Science made a revolution in this regard and in the ambit of forensic science, DNA (Deoxyribo Nucleic Acid) test stands on the top. The use of DNA throughout the world annihilated the old scientific and other kind of investigations relating to offences and other issues. The so called most advanced country Great Britain in Kingship or Royal family, whenever there is marriage of a son with a women, the prospective bride of the King has to undergo DNA test for paternity and chastity and when it is established, then only her marriage would be finalized. So, in short, it can be said that DNA is dominating the investigation, enquiry, trial and adjudication. It has turned into an important, material and substantive piece of evidence. Regarding it’s evidentiary value, it is unquestionable. But at the same time it is like an “unruly horse” and sometimes ruin the “established home” and family and 1 Thomas Pollet and Daniel Nettle, “Contact frequencies between grandparents and grandchildren in a modern society: Estimates of the impact of paternity”, Journal of Cultural and Evolutionary Psychology, 4(2006) 3-4. 1 bring “tears from cheers”. Hence, it should be resorted in rarest of rare cases when there remains no alternative or recourse. In this regard, it can be said that the present world is the world of science and technology, and new researches are taking place in every field. The rate at which the world has progressed is commendable. Advanced scientific technology has given the world an effective and precise tool for criminal investigation, e.g., fingerprinting analysis by fingerprint experts, hand-writing analysis by hand- writing experts, brain fingerprinting, narco analysis, testing of blood samples and other biological materials by forensic science techniques. In fixing paternity, the DNA test technology is coming up as the latest method. DNA technology is helpful in tracing the criminals not only in recent times but in the past unsolved crimes also. A person can change his looks by manipulations and tampering but he cannot change his DNA in order to escape from the clutches of law.2 Many years ago, it was believed that there exist 48 chromosomes in a human being. But in 1956 J.H. Tjio and A. Leven from Sweden discovered 46 chromosomes and changed that belief. Their discovery was, later on, supported by C.E. Ford and J.L. Hammerton (in 1956), and by S. Makino and M.S. Sasaki (in 1961).3 By a famous scientist Garrod (1901) the fact was brought to light that “simply the most evolved and most intelligent living organism is the ‘MAN’ and almost all basic principles related to biology, including those of ‘genetics’ are, therefore, applicable to human beings just as well as are applicable to other organisms”; and he successfully interpreted some human diseases, e.g., alkaptonuria, phenylketonuria, etc. as traits inherited in accordance with Mendel’s Laws of genetics and heredity. This was the birth of the so called ‘Human Genetics’.4 Discovering the natural facts and principles that govern the “biology” of organism requires elaborate laboratory experimentation as well as field study. The 2 H.J. Walls, Forensic Science an Introduction to Scientific Crime Detection, Universal Law Publishing Co. Pvt. Ltd., New Delhi, First Indian Reprint 2002. 3 Makino, S. and Sasaki, M. (1961). A study of somatic chromosomes in a Japanese population. An. J. Human Genet 13: 47-63. 4 James F. Crow and William F. Dove, “Perspectives on Genetics: Anecdotal, Historical, and Critical Commentaries 1987-1998”, The University of Wisconsin Press, England in 2000. 2 facts and principles related to human genetics have, however, been mostly gathered from field study or are based upon the genetics of other organisms because human beings, due to social and some other biological phenomenon based factors, cannot be used as “experimental laboratory materials”.5 Therefore, from the above said facts, it can be said that ‘man’ is unsuitable and unfavorable, in experimental genetics. However, they still continue to be preferred for genetic studies because of different nature, traits and habits. Human genetic is a wide branch of the human biology wherein not only “heredity” or “inheritance” is studied but also the methods to determine human genetic traits and their Inheritance, i.e., pedigree analysis and study of twins; Blood groups and their inheritance (which includes Blood Group Antigens and Antibodies; Blood groups and their determination; Blood transfusion; Blood banks and blood donation; Heredity of blood groups; Blood grouping and legal suits, Rh-factor); Sex determination, Chromosomal aberrations, Human syndromes, Sex-linked characters and their Inheritance, Sex-influenced traits, Sex-limited traits, Eugenics, “Nature” and “Nurture”, Euthenics, Inborn errors in metabolism; and genetic analysis, chromosome-mapping and its use in Medical science as well as in Medico-legal and Forensic sciences.6 The DNA stands for deoxyribonucleic acid, the strands of identity that living beings receive from their ancestors. Outside of identical twins, no two people have the same DNA pattern. DNA fingerprinting also has certain distinctive features. In 1987, the DNA fingerprinting was utilised as a tool for criminal investigation, to establish blood relations and trace medical history. Investigators would find “anonymous DNA” at the crime scene and compare it with the DNA of suspects for possible matches. The investigator would generally use a swab to collect bodily substances from a suspect's mouth to match it with DNA collected from the crime scene. Prior to the use of DNA, identification was heavily based on finger prints, foot prints, blood, or other evidence that a suspect may have left behind after committing a crime. The process of matching a 5 Ibid. 6 Sturtevant AH , “The linear arrangement of sex-linked factors in Drosophila, as shown by their mode of association”, Journal of Experimental Biology., (1913), 14: 43–59 3 suspects DNA with DNA found at a crime scene has provided both law enforcement agencies and court officials with a higher probability of ascertaining the identity of offenders. The DNA fingerprinting has been very useful for law enforcement, as it has been used to exonerate the innocents. Unlike blood found at a crime scene, DNA material remains usable for an endless period of time. DNA technology can be used even on decomposed human remains to identify the victims. The Clinical trial and medical research has long been an important area of medical sciences as it has been referred to in large number of mythological and historical texts and scriptures.7 Charaka Samhita (textbook of medicine) and Sushruta Samhita (textbook of surgery) dating back to 200 B.C. and 200 A.D. respectively, focus on India’s age old proficiency in medical science. Today, there are number of laws which govern clinical research in India, some of them being: The Drugs and Cosmetics Act, 1940; The Medical Council of India Act, 1956 (Amended in 2002); The Central Council for Medicine Act, 1970; The Guidelines for exchange of Biological Material (MOH Order, 1997); and Right to Information Act, 2005. Since there are shortcomings in the existing legal provisions with regard to identification of individuals for specified purposes such as victims of disasters, missing persons, etc., the Department of Biotechnology came up with a draft Bill titled “The Use and Regulation of DNA-Based Technology in Civil and Criminal Proceedings, Identification of Missing Persons and Human Remains Bill, 2016.” On 27 September 2016, the draft Bill was forwarded to the Law Commission of India for examination and its revision, if required. DNA profiling technology, which is based on proven scientific principles8, has been found to be very effective for social welfare, particularly, in enabling the Criminal Justice Delivery System to identify the offenders. Such tests relating to a 7 271 Report of the Law Commission of India, July 2017. 8 The DNA test has 99.99 % chance of correct conclusions and is perceived as an objective scientific test which may be difficult for an individual to refute. See: Veeran v. Veeravarmalle & Anr., AIR 2009 Mad. 64; and Harjinder Kaur v. State of Punjab & Ors., 2013 (2) RCR (Criminal) 146. 4 party would definitely constitute corroborative evidence.9 Appreciating the use and regulation of DNA based technology in judicial proceedings, particularly, identification of persons accused of offences under the Indian Penal Code 1860 (IPC) and other laws, identification of missing persons and disaster victims apart from its use in medical sciences; a need has long been felt to have a special legislation to regulate human DNA profiling.