LEGALLY CLONED - A Legal Perspective on Cloning

God made man. A man named Ian Ilmut. Ian Ilmut made a sheep. A sheep called Dolly. And Dolly made news. First, as the world’s first cloned creature and subsequently, in 2003, for being euthanized due to “age related” diseases. Incidentally as per some reports, Dolly aged very fast and by the time she was hardly five suffered “diseases of old age” such as arthritis among others.

In the brouhaha following the news of the first ever successful cloning, there was a hue and cry and debates galore over the ethics of cloning.

The maverick scientist Richard Seed and his ilk might have argued about the benefits that accrue to science and Research avenues that open up as a result of legalizing human cloning. Parallels may be drawn between the pioneering doctors of the medieval era who had to steal corpses to conduct their studies and the zealots of today parading as saviors of science.

Okay, let’s assume for a moment that cloning is legalized. What then?

Cloning, like any other technology is in itself neither bad nor good; but like all technology, lies at the mercy of the people using it. Advancement of technology is fine but the application of this technology needs to be monitored. Because, unlike inventions made so far, cloning is a completely different genre altogether.

It impacts those aspects of life that have not been touched before. It raises questions about issues not thought of before. It is not just about harvesting limbs and organs for transplantation. If the ends of cloning were that innocent, it wouldn’t have generated the kind of hysteria that it has.

Here we are talking about people being harvested in the sterile environs of the labs -persons with no parents, no siblings, but just a donor whose clones they would be!

The question is, not whether cloning should be allowed. It is rather, how to deal with the concept of cloning and its fall out on society. With the news of cloning pigs, cows and now even humans pouring in, cloning will become a commonplace and maybe even an accepted occurrence.

Let’s admit it. Like it or not, Cloning is here to stay!

The comedy of errors that cloning entails as shown in the myriad sci-fi movies is the least of our concerns. There are more serious concerns to address. Concerns that are more terra-bound and terrifying. The ethical issues of taking over God’s job notwithstanding, several hitherto unimagined legal and societal complications will arise.

My Clone: My Offspring, my Sibling or my Alter Ego?
Cloning will result in a paradigm shift in the way we perceive human relationships.
Say, I clone “X” and create “A”, what is the relationship that emerges between the two?
Is “A”, the son of “X”, his brother; or his alter ego? They are two different persons bound by the same DNA. What, then, about the emotional bond?

Legal concerns:
For instance, what are the rights of an individual vis-à-vis his clone. Is a clone his personal property? Can he exercise rights over his clone like he does over his dog, cat or other living pet?
What are the rights of the clone as an individual? Does he have the personal freedom as enjoyed by his donor, can he be a citizen of a nation, have voting rights, own property?
Can he have a share in the property of his donor? What if the clone murders someone, how does one nab the real murderer between the two? They are identical right down to their DNA. Remember?

Civil Liberties:
Will we one day see clone uprisings, clone armies and fights for Clone empowerment, for civil liberties of clones ,equality of clones with Humans…. ?
The possibilities are endless. All these may seem like problems of the future but the future will be here before you can say “Dolly”.

IPR Concerns:
Intellectual property relates to one’s intellectual domain. Because the clone actually originated from me, is he my property? If so, do I also have a right and responsibility as regards his thoughts and actions? What about works of art created by the clone. Do I have copyright over those too?

Einstein or Hitler? Neither.
The argument of creating an Einstein for every Hitler seems kindergartenish when one realizes that clones are Humans – in every sense of the term except for the fact that they were created in a lab.

A clone could be crudely described as a growth from your body. Something like a tumour. Only it is a walking, talking & thinking tumour. So, it is only natural that they are subject to the same emotions as we humans are. They are more than just flesh and bones; they have minds, thoughts, emotions, feelings of joy, anger, jealousy etc.
If we were to pause for a moment to consider how varied a single person’s responses to different situations are, we will realize that the environment is the most decisive factor in determining who we are and what we become.
There are instances where the most patient of us has lost his cool at one time or another and also times when the most heinous of crimes have been vindicated taking into consideration the surrounding circumstances.

The law itself implores the courts to take the “facts and circumstances” into consideration before passing a verdict. The argument that a clone would certainly take after the donor is most fallacious and needs reconsideration if that is the main argument either for or against cloning.

Let the issue of cloning not become the Frankenstein’s monster that we cannot handle. The future might see clones being harvested to meet the growing demand. In a way, it’s a throwback to the past where slaves from Africa were brought in droves to feed the growing slave needs of the Whites. So in the near future, if I need a slave, I can just create one in the lab. How convenient!

The present cloning methods mean the person grows just like a normal human being at about the same period of gestation and rate of growth. But the future might see hybrid clones that grow quickly in months. All I need to do is to cultivate them in a lab and harvest them, as need dictates.

For all the wonders of the esoteric science of cloning and its alleged benefits to the cause of science, one cannot get over the feeling that something is amiss, and strangely disturbing. Let us not rush in where angels fear to tread. While the idea of playing God may be quite tempting, let us not bite the apple too soon – lest we choke on it!

THE LAW AND THE LADY

Law as a profession has always held a charm all its own and was considered a surefire way to riches and recognition. And for sometime now, it has come into its own and is no longer only the last resort for wannabe doctors and engineers.What with the need for law pervading all spheres of activity and the need for persons with legal expertise increasing by the day, law as a career option has opened up a whole new world with immense opportunities encompassing diverse fields such as Intellectual Property Rights, Cyber Law, Alternate Dispute Resolution Services, Corporate Law, Private International Law etc.
If you are considering a career as a legal professional and don't quite know if you are cut out to be one, this article will help you to make that crucial decision.

Do I have what it takes ?
Yes! If you are assiduous, have good analytical and logical skills, sharp wits, drive, excellent communication skills- spoken & written, immense confidence and endless patience. You do? Then welcome to the world of the only people in the world who write a 100,000 word document and call it a brief !

Admission:
Though not as tough as the medical/engineering entance tests, admission to Law colleges is certainly not easy. Some Universities conduct their own entrance tests( sometimes with negative marking) to students who have passed the 10+2/HSC/PUC/. These tests essentially test your skills of reasoning, language comprehension, mathematics (std X level) and General awareness. Admission tests usually get over by May/June every year and application forms should reach them latest by Feb/Mar of that year.
Premium institutes such as the NLSIU, NALSAR and other National schools, have compulsory residential programmes and charge premiumtuition fees. So it helps to plan your educational expenses if you intend to join any of these intstitutes.

Courses offered:
The courses in Law currently being offered are: The three year course for graduates and the five year integrated course to be taken up after 10+2/ HSC/P.U.C.
While the three year course is advisable for those in employment looking for an additional qualification to further their prospects, for the young student serious about pursuing a career in law, the five year integrated course would be ideal.

Universities:
There are about 30 Universities nationwide, offering the five year course, and the number of papers offered differ from University to University ranging anywhere from 30 - 50 papers including Civil procedure code, Crpc, IPC, Insurance Law, Taxation law, Labour law, constitutional law, jurisprudence etc. Foremost among them is the National Law School of India University( NLSIU), Bangalore, offering a BA.LLB (Hons) degree. Some of the other institutes are the National Academy of Legal studies and Research (NALSAR) Hyderabad, the Bangalore University, Delhi University, Cochin and the WB National University of Juridical Sciences, Calcutta, which also offers a LLB(Hons) degree. Further details can be had from the respective universities.
Ordinary graduates can take up courses in subjects such as the PGD in Human Rights( one year- correspondence course) both offered by the NLSIU, the MLLW( labour laws), MLPM ( Labour Laws and personnel management)etc.


The Profession - And alternatives to practice:
Law is one of the few professions where a woman faces little chauvinism and gets recognition for her work. If she is not keen on practising, she may join a company as a legal advisor/manager. In house lawyering is another option, as also the defence forces where she can join as a lawyer in the Judge Advocate General (JAG) department. The state judiciary also is another option. A law degree is an asset to one appearing for the civil services as legal knowledge is essential for a bureaucrat.
A degree in law coupled with a Company secretary's course or an MBA could open up several employment opportunities. A degree in Law is also useful to the budding entrepreneur equipped as she is with the knowledge of taxation and other laws. Those interested in teaching, can do their Master's in law (LLM).

The Flip Side:
Not every law graduate starts off with a five figure salary. Law is not all about hi profile cases or cushy jobs in MNCs. It's also about cut- throat competition, paucity of cases, long hours and relentless hard work. The struggle for mere survival coupled with the pressure to make a mark and a very long waiting period make this a very unenviable career choice.
But for those who are willing to stick around and persevere in the face of constant discouragement success eventually comes.

CUSTODY

In the war between the parents it is the children who are the casualties. Parents engrossed in their war of egos should not forget their responsibility towards their children. This was apparently what prompted, Justice A.N.Sen, a Supreme Court judge, to observe,

“The husband and wife are the persons primarily responsible for bringing the children into this world and the innocent children become the worst victims of any dispute between their father and mother. Human beings with frailties common to human nature may not be in a position to rise above passion, prejudice and
Weakness…for very many reasons, it may unfortunately be not possible for the husband and wife to live together and they may be forced to part company. Any husband and wife who have irreconcilable differences, forcing them to part company, should have enough sense to understand and appreciate that they have their duties to their children. In the interest of their children who they have brought into existence and who are innocent, every husband and wife should try to compose their differences”

A rift in marital relations is fraught with severe consequences to the welfare of the children. It is for this reason that the welfare of the minor children is given paramount consideration when courts make any orders concerning them or affecting them in any way.

Power and duties of the courts:
Provisions have been made in law to safeguard the interest and welfare of children. All relevant provisions relate to minor children i.e. children below 18 years of age because, on becoming a major, a child has the right to decide which parent he/she wants to live with. The question of custody of children is dealt with in the Hindu Marriage Act, and the Indian Divorce Act and the Special Marriages Act.
Under the Hindu Marriage Act the courts have the two-fold power to
a) pass interim orders from time to time during the pendency of proceedings before it;
b) To make provisions in the decree passed.

Duties:
a) The court has the power to make an order of custody of child during the
Pendency of any matrimonial proceedings, be it for judicial separation,
divorce etc. Such orders are generally made in presence of the parties.
b) In any matrimonial suit where it becomes necessary to determine the rights
of the children, the courts may pass interim orders making provisions relating
to custody, maintenance and education of the minor children. If it thinks fit, it
may also, pass orders to place such children under the protection of the
courts.
c) While passing these orders, the wishes of the children will be given due
importance.
d) During the pendency of the proceedings or even after the decree is passed, if there are any changes in circumstances, the parties may petition the courts seeking modification of an order previously made. The courts may accordingly, revoke, suspend or vary any such order as and when time and need dictate.

Rights of the mother:
In any matter relating to the custody of children, where the child is below 5 years of age, it is usually the mother who is given custody because a child of such tender years requires constant attention and love and it is usually the mother who is in a position to provide such care.
In some cases where it is proved that the mother cannot take such care the father will be given custody.
But a woman does not lose custody of her child merely because she has remarried if she can show that the remarriage will not affect the child adversely.

Observation of the Supreme Court:
Sec. 6 of the Hindu minority and guardianship act says that father is the natural guardian and the mother will be considered only after him. However, the Supreme Court while deliberating the case of Sarita Sharma Vs Sushil Sharma (2000) 3 SCC 14 observed that “Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor.”
The Supreme court also observed that siblings should be brought up together as far as possible.
A mother who can show that she can provide her children (male or female) with a decent living in a wholesome atmosphere can get custody of the children because eventually, it is the duty of the court to act consistently with wishes of the children and in their interest.

In any matrimonial case the children are the worst hit, caught as they are in the crossfire between their parents. Given their age and the helpless situation, they suffer emotionally and socially without any mistake on their part. The courts do everything they can while aiding them in their transition to a single parent family. That is the reason their wishes are given paramount consideration while passing any order as to their custody, maintenance and education or any other matter concerning them.

"WILL" POWER

"Ignorantia juris neminem excusat."
"Ignorance of the law is no excuse."

Quite contrary to the caveat mentioned above, ignorance is what we profess when confronted with Law and legal problems, however minor they may be. Law is something we are not acquainted with, and lawyers are people we'd rather not acquaint with. But ignorance of law, though not fatal, is even at the best of times exasperating. A little knowledge of laws relevant to issues that concern us would go a long way in solving our problems.

Take for instance, wills. Though not unheard of, “will” is certainly an alien concept so far as the average Indian is concerned. Contrary to popular perception that wills are meant only for the very rich or the very old and sick , a will can be drawn even by a person in good health and with even a little property to his/her name.

What is a Will?
Before we get down to the nitty gritty of making a will, it would help us to know what a will is. Sec.3 of the Indian Succession Act 1925, which applies to all Indians except Muslims, defines a will as "...a legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death." Simply put, a will is a written statement of a person's intentions as to who shall inherit his property after his death, thereby in a way exercising control over his property even after his death. A testator is one who makes a Will.

Why make a will?
For more than one reason it makes sense to make a will irrespective of one's age or amount of property s/he owns. One, it helps avoid family skirmishes by setting out who should inherit what and to what extent. In the absence of a will, any dispute has to be settled only by taking recourse to lengthy court battles. Secondly, special family circumstances such as a physically or mentally handicapped sibling, invalid elders, etc, can be considered and provision be made accordingly. Also, the rights of an unfaithful spouse or an ungrateful offspring can be taken away. A will being an extremely personal document, the testator can be frank about his opinions regarding his family and friends without fear or ridicule. But the best part is that it is revocable anytime during the lifetime of the testator and alterations can be made in accordance with changing circumstances.

Who can make a Will?
Any person who is a major, of sound mind (ie, be able to understand their actions and their implications), and be the absolute owner of some property. Deaf, dumb, blind and other physically handicapped people also can make Wills provided they have full knowledge of the contents.
A woman can make a will of property over which she has all rights including the right to alienate.

Property that can be willed:
All kinds of property, movable or immovable, tangible or intangible (including shares, bank balances & even gas and electric connections) may be willed. However, the testator should be the absolute owner of the property; ie s/he should have full right over the property, and it should be self acquired property. If it is ancestral or joint family property, his/her share in the said property may be willed, even if that share happens to be an undivided part of a larger property.

Format:
Except for privileged Wills and Wills made by Muslims, every Will must be in writing. However, no specific format is required. The testator's intentions must be unequivocally set out in simple language on a plain sheet of paper. No stamp paper is needed. Typing, though not essential, is desirable so as to avoid the ambiguity that is usually associated with manuscripts.

Legal requirements:
Once completed, the testator shall sign the document or affix his thumb mark. It should be attested by at least two witnesses who have witnessed the will being made, but they need not be told the contents of the will. Attestation is insisted so as to rebut any doubts as to coercion, undue influence or fraud.
An attesting witness should be chosen with care as s/he may later be called upon to testify at the courts. S/he should preferably be well-known , younger in age, of sound social and financial status and a person of integrity, so as to rebut any doubt of being a purchased witness.
Neither the attesting witness nor his/her spouse may be a beneficiary under the will.

Codicil:
Sometimes, after making a will, and getting it attested, the testator may want to make some changes , or circumstances may necessitate changes such as inclusion or exclusion of some persons or properties. In such a case, s/he may make what is called a CODICIL; a supplement to a Will wherein required changes are incorporated, either on a sheet of paper appended to the Will, or endorsed on the original Will itself.

Registration:
Once attested, the will becomes a valid document. Registration, though not mandatory, is advisable as registration does not require stamp duty, and registration entails safe custody of the document as it is now in the records of the sub registrar's office, and therefore cannot be tampered with, destroyed, lost or stolen.
However, mere registration does not confer genuineness on the will. Conversely, a will cannot be challenged merely because it is unregistered.

Revocation:
A Will may be revoked by the testator anytime during his lifetime by;
i ) A subsequent will or codicil;
ii) A written declaration and execution of his intention to revoke the Will.
iii) By burning, tearing or otherwise destroying the same, or permitting some other person to burn, tear or destroy it in his presence with the intention of revoking it.
iv) By marriage.
Therefore, a subsequent Will effectively revokes the previous Will (though registered), by virtue of a revocation clause in it. However, to rebut any doubt as to its genuineness (which the testator will not be alive to prove), it is advisable to register the subsequent Will also.

Wills, thereby, essentially seek to secure the rights of the testator's family even after his/her death, in so far as the properties and assets are concerned.