Legal and Ethical Issues of Human Cloning in the Philippines

by Chaz

Llanes and Peter Neil Trinidad

I.

Introduction: The history and science of human cloning.

II.

Issues on human cloning

A. The objection of the church with regard to human cloning. B. The scientific and socio political risk of human cloning.

III.

Would the prohibition of human cloning result to deprivation of the constitutional right of scientific inquiry?

A. Scientific inquiry as a right protected by freedom of expression. B. Scientific inquiry as an aspect of the right to liberty. C. Exercise of the States police powers to limit the constitutional rights of persons engaged in human cloning.

IV.

Is cloning covered by the procreative liberty under the Constitution and Family Code?

V.

The constitutional and statutory rights of a cloned human.

A. The constitutional right of a cloned human to the equal protection of the law. B. The constitutional right of cloned human against slavery and involuntary

servitude.
C. The constitutional right of clones against deprivation of life, liberty and property.

VI.

The legal status of the cloned human as citizen of the Philippines.

VII.

Legislative actions with regard to human cloning in the Philippines.

VIII.

Analysis and Conclusion.

The History and Science of Human Cloning

What once was purely fiction, not too long ago, has become a real and present reality. Cloning animals and humans is now a hotly debated issue of science versus values. This new science became a public reality in 1997 upon the first successful cloning of a sheep which was named Dolly as announced by Dr. Ian Wilmut, head of Roslin Institute in Edinsburgh, Scotland. Dolly had been cloned from the non-reproductive tissue of one adult female sheep so that she was genetically identical to her sole progenitor. The world was shocked at this scientific breakthrough. Dolly became a celebrity, a symbol of modern science and a source of hype and even hysteria. Almost immediately after news broke out about the cloning of Dolly, the world turned its imagination onto the possibility of applying the same technology to human being.

Cloning as genetics describes, is the making of an exact copy of an organisms DNA. Cloning is commonly done on small organisms, mostly plants, and on animals. The most controversial aspect of cloning is whether or not it should be done on humans. This includes the cloning of any and all human tissue, including organs. It has been a practical part of science utilized primarily for producing plant life, or for research on a molecular level. This phenomenon is common to us, the cells in our bodies are clones and the process of cloning is one that goes on continually. Our skin cells for instance turn over rapidly, therefore identical copies are identically produced to replace ones wear out.

Embryo cloning involves removing cells from a fertilized egg and allowing them to grow into duplicate embryos. This is how twins, and triplets come about. In effect, the egg of the female is fertilized with the sperm of the male outside the female body, and once the embryo is formed, it is forcefully separated so as to create two or more identical cell groups that would eventually develop into the same number of zygotes.

Another procedure was followed in cloning Dolly, it was called Somatic Cell Nuclear Transfer Cloning (SCNT). It involves the transfer of the nucleus of the somatic cell (any cell other than eggs or sperm cells) into an unfertilized egg that has had its own nucleus removed or would allow the creation of a human embryo through the replication of an adult differentiated cell. Thus, a single cell from any human being can serve as the source of a new human life. The procedure starts with enucleation or the nucleus removal from the egg. Once the egg has been enucleated, the nucleus of the donors cell is carefully selected and placed next to the empty, enucleated egg. A small electric current is then applied to the enucleated egg and donors cells. This process fuses the egg and the cells together, leaving the donors cells inside the egg that has now been re-nucleated. The electric current convinces the cell to begin dividing as though it has been united with a sperm. Once the dividing cell reaches a viable size, it is implanted into the uterus of a female, who then carries the fetus to term in the usual way. The resulting child becomes an exact genetic duplicate of the DNA donor.

The announcement of the possibility of cloning a human being had reached Philippine legal consciousness as evidenced by a bill to prohibit human cloning filed by Congressman Constantino Jaraula in the House of Representatives. Science is on the verge of what promises to be one of the greatest scientific breakthroughs of human existence, but it is being held back by the fact that the debates remain unresolved.

Issues on Human Cloning

Objection of the church with regard to human cloning

The Catholic Church is the foremost supporters against human cloning. The Catholic Bishop Conference of the Philippines has condemned all forms of human cloning technology for the reason that it is against human nature. Just like the Reproductive Health Bill, their objections mainly center on religious beliefs regarding family and procreation. The Philippines is a country composed of 86.8 million Christians, or 93% of the total population. People are greatly

influenced by the church, believing that practice of human cloning is a complete denial of religious faith. The church argues that such medical practice is a grave transgression to the dignity of a person as well as to the basic equality of the people. There are also several religious conflicts present, particularly the belief that human cloning is a form of Playing God. The church is also of the view that human dignity must be protected; that the continued use of cloning would run contrary to human worth; and that a clones shall be deprived of both social and spiritual identity, simply being a product of science by way of medical technology, and not procreated by sexual reproduction.

The scientific risk and socio political risk of human cloning

Scientists contend that the cycle of life depends on sufficient diversity of each kind of specie. To preserve the diversity of humans, society must be prepared for environmental changes. It is worth noting that every human trait is important for survival. Once one of these traits is extinguished, there could be harmful effects on human diversity. Manipulation of genes could be one of the causes of this abolition which is why even some scientific experts go against the practice of human cloning, where people can choose a trait over the others.

The society as a whole likewise has expressed their deviation from human cloning. Human cloning in a way promotes selective breeding, which many believe can lead to social inequalities. It could turn into a dangerous socio-political instrument that would abolish genetic diversity and possibly create discrimination. It must be remembered that clones are products of unnatural reproductive processes. They may not be accepted by society for being perceived as unnatural. They may even be deprived of basic rights available to humans born naturally.

Constitutional Right of Scientific Inquiry

Scientific inquiry as a right protected by freedom of expression

There is no Philippine jurisprudence yet regarding the issue on the right of scientific expression and the application of the right of freedom of expression on a scientist's profession. Experimentation is a huge part of a scientist's profession in order to create scientific conclusions. Thus, it can be argued that it must be granted protection. The right to freedom of expression involves the free discussion of all affairs that concern public interest. In a dissenting opinion of Justice Cruz in the case of National Press Club vs. COMELEC, he stated that "freedom of expression exists not only for the thought that agrees with us, but also for the thought that we abhor." Hence, it must be understood that every public issue must be decided with universality.

The Constitutional protection of free expression is a tool that promotes self-governance, which protects ideas and condemns suppression of such ideas. It is to enable every individual to publicly discuss and resolve any public concern without being punished or discriminated. This right is covered under Article III, Section 4 of the 1987 Constitution, which provides: No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Therefore, scientists must have the right to scientific inquiry and to express their ideas, which are only possible through experimentation and scientific work. A law that prohibits scientific research on human cloning would deprive scientists of their right to freedom of expression.

Scientific inquiry as an aspect of the right to liberty

Scientists can also be covered by the protection of the due process clause under the Constitution. Under Article III, Section 1, it is provided that "No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws." With this provision, it shall be understood that a person has every right to enjoy his properties, to pursue a career, to establish a business, and to enter into contracts.

Exercise of States police powers to limit the rights of persons engaged in human cloning

Freedom of expression and the right to liberty is not absolute. The right to freedom of expression and liberty may be subject to limitations in the form of the State's police powers. Police power is the most demanding and most pervasive among the three inherent powers of the State. With this power, the State can regulate liberty and property to promote general welfare. However, the judiciary was created in order to prevent the abuse of such power and to the prejudice of the rights of individuals. There must be a reasonable relation to every governmental purpose and the necessity of the use of such power to avoid any oppression or injustice.

The government measure must be one that affects public welfare. Science, as part of public welfare, is established in Article XIV, Section 10 of the Constitution, which provides: Science and technology are essential for national development and progress. The State shall give priority to research and development, invention, innovation, and their utilization; and to science and technology education, training, and services. It shall support indigenous, appropriate, and self-reliant scientific and technological capabilities, and their application to the country's productive systems and national life.

Science is a significant part of economic growth, which is why it must be a valid subject of police power. However, this does not mean that the State's police power will bar all forms of scientific research on human cloning. Any prohibition on scientific inquiry by the use of police power would be detrimental to the scientific community and would cause injustice to scientists and those engaged in the development of genetic technology. True, human cloning must be regulated. Nevertheless, it does not mean that legislation enacted to impair the right to scientific inquiry shall be considered a valid exercise of police power. Every law enacted must correspond to the purpose sought and must always be reasonable.

Procreative Liberty under the Constitution and Family Code

A couple enters into a marital union to procreate through a satisfying sexual relationship. This procreation would complete the married life of the family. However, not all people are able

to biologically produce an offspring by sexual intercourse. Some seek for medical developments that would answer their prayers of having their own child. Reproduction is the concept of procreative liberty, which is an important instance of personal liberty. It enables families to decide whether or not to have children. In relation to human cloning, couples could together participate biologically in the creation of a person. The laws of our land clearly protect rights relating to marriage, procreation and family relationships.

The right to procreate is enshrined in the Family Code, particularly Article 68, which provides: The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. This right was in fact recognized in the famous case of Chi Ming Tsoi vs. CA, where the Court ruled that the continued refusal of the couple to procreate and have sexual intercourse is within the scope of psychological incapacity. It was discussed that in a union between man and woman, one of the essential obligations of the married couple is to procreate. Refusal to do so renders the marriage a sham and must be declared void. The concept of impotency and sterility likewise comes into play in the issue relating to the right to procreate. An individual could experience humiliation that could affect his social interaction. Thus, the right to privacy is accorded to every citizen to bolster one's right to procreation. The essence of privacy is to have the proper defenses and standards to prevent unconstitutional invasions.

In the Philippines, there is no jurisprudence yet on whether non-coital forms of reproduction or assisted reproductions are constitutionally protected. These forms of reproductions include medical practices like in vitro fertilization, artificial insemination and cloning. If assisted reproduction is part of the protected activities under due process, then cloning must be covered by the protection. Now, how would you know if cloning belongs to the group of all other forms of reproduction? It has been discussed that cloning is reproduction and not replication. A clone human is unique given that it adapts to a different environment. We relate this to in vitro fertilization. In this procedure, the husband's sperm and the wife's eggs are mixed and the viable zygotes are put back in the women. If the woman is capable of completing

pregnancy, it shall develop normal babies just like in the natural way. In vitro fertilization has been an accepted mode of procreation and has been considered as within the scope of the natural conception of a child. In a way, cloning may be considered as similar to in vitro fertilization because they both involve embryonic cell transfer, where the cell is placed in the womb of the woman and carries it through a normal gestation period, and eventually gives birth in a natural way. Cloning and procreative liberty is somewhat related in this case particularly when the couple intends to raise a clone with the use of their own DNA. This involves the couples right to freely choose the form of reproduction, and which must include cloning. Therefore, it may be concluded that cloning should fall within the purview of the constitutional protection.

The Constitutional and Statutory Rights of a Cloned Human

The constitutional right of a cloned human to the equal protection of the law

The equal protection clause safeguards every cloned human from undue discrimination. This constitutional guarantee of equality has been upheld in several cases, particularly in the case of J. M. Tuason vs. Land Tenure Administration. To quote the words of the court in that case: "the ideal situation is for the law's benefits to be available to all, that none be placed outside the sphere of its coverage." The court further stated that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Hence, all persons similarly situated should be treated alike. The State may classify people but only if it is reasonable and must be based on a substantial differences. If there is legislation that clones are given distinct rights, this would deprive them of rights granted by the Constitution.

The constitutional right of clones against slavery and involuntary servitude

Article III, Section 18 (2) of the 1987 Constitution provides; "(2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have

been duly convicted." It has been argued that there is fear that cloning could cause slavery, as the cloned child may lack the same free will as that of a natural born child. However, Article III, Section 18 (2) is self-executing. There is no need of any legislation in order to prohibit slavery and involuntary servitude. Any form of restraint to force the individual to work for another is clearly a violation of the constitutional protection.

The constitutional right of clones against deprivation of life, liberty and property

Another concern on cloning is the belief that clones shall be forced to become organ donors. It has been established however that cloned humans must be considered persons under the law and must be protected by our laws. Being persons recognized by law, a clone cannot be forced to give anything that belongs to him such as his organs. Making him an organ donor against his will deprives him of his life or property without due process. This is embodied in the due process clause under Article III, Section 1, where every person must be protected, whether natural or artificial. Furthermore, even our penal laws provide penalties for acts that constitute violence to persons, which includes the forcible taking of organs or body parts. This is provided under Article 262 of the Revised Penal Code, which must equally apply to cloned humans considering that they are vested with legal personality under our penal laws.

The Legal Status of the Human Clone as Citizen of the Philippines

Legal rights of clones are accorded if their legal status is determined. A child created through cloning is fully human that contains a full complement of human genes, same as any other human being. Although the clone would share his or her genes with another, there is no legal obstacle in such case because they have distinct personalities, just like identical twins. The clone is not the same person as the DNA donor, giving him legal rights and a status recognizing him or her as a distinct person. Therefore, a clone shall not be considered property but as a person that is entitled to the full protection of the laws.

Article II, Section 12 of the 1987 Constitution provides: The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. The protection under the second sentence of the above provision extends to the unborn. However, it does not mean that the unborn shall be considered a legal person. It is likewise not an assertion that the life of the unborn is exactly of the same level of the life of the mother. To enjoy all the rights, one must be considered a person. According to Sanchez Roman, a person is any being, physical or moral, real or juridical and legal, susceptible of rights and obligations or of being the subject of legal relations. A person then acquires a personality and the capacity to act, or the power to do acts with legal effects. It is also important to note that birth is the ideal marker to acquire legal personality, which may take place either naturally or artificially. This is covered by the Civil Code, particularly Article 40 and 41, which states that the child shall be considered born for all purposes favorable to it if it is later born alive.

To sum it up, one must be a person in order to acquire legal personality and capacity, and with birth as the best indicator, the fetus then becomes a person and clearly acquires personality. From the foregoing, it can be gleaned that a clone is a human being with legal personality and capacity to act. It is clear that a clone is born and not simply produced in a laboratory. A clone is still delivered from the womb of the mother. If birth is the ideal gauge for a child to be considered a person, then clones are within the purview of such marker and shall be deemed persons. He or she must then be afforded with legal rights and must be protected by our laws. Moreover, clones are not replicas; they are reproduced. It is perfectly comparable to identical twins. They have similarities in their appearance and manners, but they will never have the same personality because of the environment they are in.

Legislative Actions with regard to Human Cloning in the Philippines

Human cloning research and experimentation is feared because of the threat it brings to the clone. This arises due to possible abuses of this procedure as well as to the cloned humans themselves. In the Philippines, due to Filipinos conformist orientation and deeply moral and ethical beliefs, and even by lack of understanding of the latest technological advances, human cloning technology has been strongly opposed for being against the laws of nature. In fact, there was even a bill filed, House Bill No. 1203, which will prohibit human cloning in the Philippines.

Cloning in the Philippines is possible through biotechnology. Modern biotechnology encompasses the concept of cloning, gene splicing and recombinant DNA. Here in the Philippines, biotechnology is still in its initiatory stage. We have the Biotechnology Association of the Philippines, Inc. (BAPI), which was organized to develop biotechnology in the country. However, because of the policy of the Philippine government against human cloning, there has been slow progress in research and development.

Analysis and Conclusion

Human cloning technology has developed around the world. It is actually growing at a paid rate. With this in mind, our government must be prepared and must determine its capabilities of dealing with the latest technology advancements and to carry out ways to develop a framework that would regulate these types of innovations. The ban on human cloning has been supported by the government. However, we must also bear in mind that a complete prohibition on this technology would raise constitutional concerns and could be injurious to public interests. Although we might not yet be ready to have human cloning as a legal mode of reproduction in the Philippines, it would be a step forward if we would give it consideration, taking into account that the issue here is human life. Regulation would probably be the best means to serve national interests, to balance the interests of both supporters and those who oppose it.