Consentia on Multidisciplinary Research

HUMAN RIGHTS IN THE WAKE OF NEW SOCIAL AND SCIENTIFIC DEVELOPMENT: A CRITICAL ANALYSIS

CHAPTER 1

INTRODUCTION

Human rights are “basic rights and freedoms that all people are entitled to regardless of nationality, sex, national or ethnic origin, race, religion, language, or other status.” Human rights are conceived as universal and egalitarian, with all people having equal rights by virtue of being human. These rights may exist as natural rights or as legal rights, in both national and international law. The doctrine of human rights in international practice, within international law, global and regional institutions, in the policies of states and the activities of non-governmental organisations has been a cornerstone of public policy around the world. It has been said that: “if the public discourse of peacetime global society can be said to have a common moral language, it is that of human rights.” Despite this, the strong claims made by the doctrine of human rights continue to provoke considerable skepticism, debates about the content, nature and justifications of human rights continue to this day.

Many of the basic ideas that animated the movement developed in the aftermath of the Second World War and the atrocities of the holocaust, culminating in the adoption of the Universal Declaration of Human Rights in Paris by the United Nations General Assembly in 1948. The ancient world did not possess the concept of universal human rights. Ancient societies had “elaborate systems of duties… conceptions of justice, political legitimacy, and human flourishing that sought to realize human dignity, flourishing, or well-being entirely independent of human rights” The modern concept of human rights developed during the early Modern period, alongside the European secularization of Judeo-Christian ethics. The true forerunner of human rights discourse was the concept of natural rights which appeared as part of the medieval Natural law tradition, became prominent during the Enlightenment with such philosophers as John Locke, Francis Hutcheson, and Jean- Jacques Burlamaqui and featured prominently in the political discourse of the American Revolution and the French Revolution.

From this foundation, the modern human rights movement emerged over the latter half of the twentieth century. Gelling as social activism and political rhetoric in many nations put it high on the world agenda. By the 21st century, Moyn has argued, the human rights movement expanded beyond its original anti-totalitarianism to include numerous causes involving humanitarianism and social and economic development in the Third World.

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

The modern sense of human rights can be traced to Renaissance Europe and the Protestant Reformation, alongside the disappearance of the feudal authoritarianism and religious conservatism that dominated the Middle Ages. Human rights were defined as a result of European scholars attempting to form a “secularized version of Judeo-Christian ethics”. Although ideas of rights and liberty have existed in some form for much of human history, they do not resemble the modern conception of human rights. According to Jack Donnelly, in the ancient world, “traditional societies typically have had elaborate systems of duties… conceptions of justice, political legitimacy, and human flourishing that sought to realize human dignity, flourishing, or well-being entirely independent of human rights. These institutions and practices are alternative to, rather than different formulations of, human rights”. The concept of universal human rights was not known in the ancient world, not in Ancient Greece and Rome, Ancient India, Ancient China, nor among the Hebrews; was slavery, for instance, justified in ancient times as a natural condition. Medieval charters of liberty such as the English Magna Carta were not charters of human rights, let alone general charters of rights: they instead constituted a form of limited political and legal agreement to address specific political circumstances, in the case of Magna Carta later being mythologized in the course of early modern debates about rights.

The basis of most modern legal interpretations of human rights can be traced back to recent European history. The Twelve Articles (1525) are considered to be the first record of human rights in Europe. They were part of the peasants’ demands raised towards the Swabian League in the German Peasants’ War in Germany. In Spain in 1542 Bartolomé de Las Casas argued against Juan Ginés de Sepúlveda in the famous Valladolid debate, Sepúlveda mainted an Aristotelian view of humanity as divided into classes of different worth, while Las Casas argued in favor of equal rights to freedom of slavery for all humans regardless of race or religion. In Britain in 1683, the English Bill of Rights (or “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown”) and the Scottish Claim of Right each made illegal a range of oppressive governmental actions. Two major revolutions occurred during the 18th century, in the United States (1776) and in France (1789), leading to the adoption of the United States Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen respectively, both of which established certain legal rights. Additionally, the Virginia Declaration of Rights of 1776 encoded into law a number of fundamental civil rights and civil freedoms.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights that among these are Life, Liberty and the pursuit of Happiness.

—United States Declaration of Independence, 1776

These were followed by developments in philosophy of human rights by philosophers such as Thomas Paine, John Stuart Mill and G.W.F. Hegel during the 18th and 19th centuries. The term human rights probably came into use some time between Paine’s The Rights of Man and William Lloyd Garrison‘s 1831 writings in The Liberator, in which he stated that he was trying to enlist his readers in “the great cause of human rights”

In the 19th century, human rights became a central concern over the issue of slavery. A number of reformers, such as William Wilberforce in Britain, worked towards the abolition of slavery. This was achieved in the British Empire by the Slave Trade Act 1807 and the Slavery Abolition Act 1833. In the United States, all the northern states had abolished the institution of slavery between 1777 and 1804, although southern states clung tightly to the “peculiar institution”. Conflict and debates over the expansion of slavery to new territories culminated in the southern states’ secession and the American Civil War. During the reconstruction period immediately following the war, several amendments to the United States Constitution were made. These included the 13th amendment, banning slavery, the 14th amendment, assuring full citizenship and civil rights to all people born in the United States, and the 15th amendment, guaranteeing African Americans the right to vote.

Many groups and movements have achieved profound social changes over the course of the 20th century in the name of human rights. In Western Europe and North America, labour unions brought about laws granting workers the right to strike, establishing minimum work conditions and forbidding or regulating child labor. The women’s rights movement succeeded in gaining for many women the right to vote. National liberation movements in many countries succeeded in driving out colonial powers. One of the most influential was Mahatma Gandhi‘s movement to free his native India from British rule. Movements by long-oppressed racial and religious minorities succeeded in many parts of the world, among them the African American Civil Rights Movement, and more recent diverse identity politics movements, on behalf of women and minorities in the United States.

The establishment of the International Committee of the Red Cross, the 1864 Lieber Code and the first of the Geneva Conventions in 1864 laid the foundations of International humanitarian law, to be further developed following the two World Wars.

The World Wars, and the huge losses of life and gross abuses of human rights that took place during them, were a driving force behind the development of modern human rights instruments. The League of Nations was established in 1919 at the negotiations over the Treaty of Versailles following the end of World War I. The League’s goals included disarmament, preventing war through collective security, settling disputes between countries through negotiation and diplomacy, and improving global welfare. Enshrined in its charter was a mandate to promote many of the rights later included in the Universal Declaration of Human Rights?

At the 1945 Yalta Conference, the Allied Powers agreed to create a new body to supplant the League’s role; this was to be the United Nations. The United Nations has played an important role in international human-rights law since its creation. Following the World Wars, the United Nations and its members developed much of the discourse and the bodies of law that now make up international humanitarian law and international human rights law.

The philosophy of human rights attempts to examine the underlying basis of the concept of human rights and critically looks at its content and justification. Several theoretical approaches have been advanced to explain how and why human rights become part of social expectations.

One of the oldest Western philosophies on human rights is that they are a product of a natural law, stemming from different philosophical or religious grounds. Other theories hold that human rights codify moral behavior which is a human social product developed by a process of biological and social evolution (associated with Hume). Human rights are also described as a sociological pattern of rule setting (as in the sociological theory of law and the work of Weber). These approaches include the notion that individuals in a society accept rules from legitimate authority in exchange for security and economic advantage (as in Rawls) – a social contract. The two theories that dominate contemporary human rights discussion are the interest theory and the will theory. Interest theory argues that the principal function of human rights is to protect and promote certain essential human interests, while will theory attempts to establish the validity of human rights based on the unique human capacity for freedom. The strong claims made by human rights to universality have led to persistent criticism. Philosophers who have criticized the concept of human rights include Jeremy Bentham, Edmund Burke, Friedrich Nietzsche and Karl Marx. A recent critique has been advanced by Charles Blattberg in his essay “The Ironic Tragedy of Human Rights.” Blattberg argues that rights talk, being abstract, is counterproductive since it demotivates people from upholding the values that rights are meant to uphold.

Human rights can be classified and organised in a number of different ways, at an international level the most common categorisation of human rights has been to split them into civil and political rights, and economic, social and cultural rights.

Civil and political rights are enshrined in articles 3 to 21 of the Universal Declaration of Human Rights (UDHR) and in the International Covenant on Civil and Political Rights (ICCPR). Economic, social and cultural rights are enshrined in articles 22 to 28 of the Universal Declaration of Human Rights (UDHR) and in the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The UDHR included both economic, social and cultural rights and civil and political rights because it was based on the principle that the different rights could only successfully exist in combination:

The ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his social, economic and cultural rights.

—International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights, 1966

This is held to be true because without civil and political rights the public cannot assert their economic, social and cultural rights. Similarly, without livelihoods and a working society, the public cannot assert or make use of civil or political rights (known as the full belly thesis).

The indivisibility and interdependence of all human rights has been confirmed by the 1993 Vienna Declaration and Programme of Action:

All human rights are universal, indivisible and interdependent and related. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.

Vienna Declaration and Programme of Action, World Conference on Human Rights, 1993

This statement was again endorsed at the 2005 World Summit in New York (paragraph 121).

Although accepted by the signatories to the UDHR, most do not in practice give equal weight to the different types of rights. Some Western cultures have often given priority to civil and political rights, sometimes at the expense of economic and social rights such as the right to work, to education, health and housing. For example, in the United States there is no universal access to healthcare free at the point of use. That is not to say that Western cultures have overlooked these rights entirely (the welfare states that exist in Western Europe are evidence of this). Similarly the ex-Soviet bloc countries and Asian countries have tended to give priority to economic, social and cultural rights, but have often failed to provide civil and political rights.

Opponents of the indivisibility of human rights argue that economic, social and cultural rights are fundamentally different from civil and political rights and require completely different approaches. Economic, social and cultural rights are argued to be:

  • positive, meaning that they require active provision of entitlements by the state (as opposed to the state being required only to prevent the breach of rights)
  • resource-intensive, meaning that they are expensive and difficult to provide
  • progressive, meaning that they will take significant time to implement
  • vague, meaning they cannot be quantitatively measured, and whether they are adequately provided or not is difficult to judge
  • ideologically divisive/political, meaning that there is no consensus on what should and shouldn’t be provided as a right
  • socialist, as opposed to capitalist
  • non-justiciable, meaning that their provision, or the breach of them, cannot be judged in a court of law
  • aspirations or goals, as opposed to real ‘legal’ rights

Similarly civil and political rights are categorized as:

  • negative, meaning the state can protect them simply by taking no action
  • cost-free
  • immediate, meaning they can be immediately provided if the state decides to
  • precise, meaning their provision is easy to judge and measure
  • non-ideological/non-political
  • capitalist
  • justiciable
  • real ‘legal’ rights

In The No-Nonsense Guide to Human Rights, Olivia Ball and Paul Gready argue that for both civil and political rights and economic, social and cultural rights, it is easy to find examples which do not fit into the above categorisation. Among several others, they highlight the fact that maintaining a judicial system, a fundamental requirement of the civil right to due process before the law and other rights relating to judicial process, is positive, resource-intensive, progressive and vague, while the social right to housing is precise, justiciable and can be a real ‘legal’ right.[20]

Another categorization, offered by Karel Vasak, is that there are three generations of human rights: first-generation civil and political rights (right to life and political participation), second-generation economic, social and cultural rights (right to subsistence) and third-generation solidarity rights (right to peace, right to clean environment). Out of these generations, the third generation is the most debated and lacks both legal and political recognition. This categorisation is at odds with the indivisibility of rights, as it implicitly states that some rights can exist without others. Prioritisation of rights for pragmatic reasons is however a widely accepted necessity. Human rights expert Philip Alston argues:

If every possible human rights element is deemed to be essential or necessary, then nothing will be treated as though it is truly important.

He, and others, urge caution with prioritisation of rights:

The call for prioritizing is not to suggest that any obvious violations of rights can be ignored.

—Philip Alston

Priorities, where necessary, should adhere to core concepts (such as reasonable attempts at progressive realization) and principles (such as non-discrimination, equality and participation.

—Olivia Ball, Paul Gready

Some human rights are said to be “inalienable rights“. The term inalienable rights (or unalienable rights) refers to “a set of human rights that are fundamental, are not awarded by human power, and cannot be surrendered.”

Modern international conceptions of human rights can be traced to the aftermath of World War II and the foundation of the United Nations. Article 1(3) of the United Nations charter states that one of the purposes of the UN is: “to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”. The rights espoused in the UN charter would be codified in the International Bill of Human Rights, composing the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly in 1948, partly in response to the atrocities of World War II. Although the UDHR was a non-binding resolution, it is now considered by some to have acquired the force of international customary law which may be invoked in appropriate circumstances by national and other judiciaries. The UDHR urges member nations to promote a number of human, civil, economic and social rights, asserting these rights as part of the “foundation of freedom, justice and peace in the world.” The declaration was the first international legal effort to limit the behaviour of states and press upon them duties to their citizens following the model of the rights-duty duality.

…recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

—Preamble to the Universal Declaration of Human Rights, 1948

The UDHR was framed by members of the Human Rights Commission, with former First Lady Eleanor Roosevelt as Chair, who began to discuss an International Bill of Rights in 1947. The members of the Commission did not immediately agree on the form of such a bill of rights, and whether, or how, it should be enforced. The Commission proceeded to frame the UDHR and accompanying treaties, but the UDHR quickly became the priority. Canadian law professor John Humphrey and French lawyer René Cassin were responsible for much of the cross-national research and the structure of the document respectively, where the articles of the declaration were interpretative of the general principle of the preamble. The document was structured by Cassin to include the basic principles of dignity, liberty, equality and brotherhood in the first two articles, followed successively by rights pertaining to individuals; rights of individuals in relation to each other and to groups; spiritual, public and political rights; and economic, social and cultural rights. The final three articles place, according to Cassin, rights in the context of limits, duties and the social and political order in which they are to be realized. Humphrey and Cassin intended the rights in the UDHR to be legally enforceable through some means, as is reflected in the third clause of the preamble:

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.

—Preamble to the Universal Declaration of Human Rights, 1948

Some of the UDHR was researched and written by a committee of international experts on human rights, including representatives from all continents and all major religions, and drawing on consultation with leaders such as Mahatma Gandhi. The inclusion of civil, political, economic, social and cultural rights was predicated on the assumption that all human rights are indivisible and that the different types of rights listed are inextricably linked. This principle was not then opposed by any member states (the declaration was adopted unanimously, Byelorussian SSR, Czechoslovakia, Poland, Saudi Arabia, Ukrainian SSR, Union of South Africa, USSR, Yugoslavia.); however, this principle was later subject to significant challenges.

The Universal Declaration was bifurcated into treaties, a Covenant on Civil and Political Rights and another on social, economic, and cultural rights, due to questions about the relevance and propriety of economic and social provisions in covenants on human rights. Both covenants begin with the right of people to self-determination and to sovereignty over their natural resources. This debate over whether human rights are more fundamental than economic rights has continued to the present day.

The drafters of the Covenants initially intended only one instrument. The original drafts included only political and civil rights, but economic and social rights were also proposed. The disagreement over which rights were basic human rights resulted in there being two covenants. The debate was whether economic and social rights are aspirational, as contrasted with basic human rights which all people possess purely by being human, because economic and social rights depend on wealth and the availability of resources. In addition, which social and economic rights should be recognised depends on ideology or economic theories, in contrast to basic human rights, which are defined purely by the nature (mental and physical abilities) of human beings. It was debated whether economic rights were appropriate subjects for binding obligations and whether the lack of consensus over such rights would dilute the strength of political-civil rights. There was wide agreement and clear recognition that the means required to enforce or induce compliance with socio-economic undertakings were different from the means required for civil-political rights.

This debate and the desire for the greatest number of signatories to human-rights law led to the two covenants. The Soviet bloc and a number of developing countries had argued for the inclusion of all rights in a so-called Unity Resolution. Both covenants allowed states to derogate some rights. Those in favor of a single treaty could not gain sufficient consensus.

In 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted by the United Nations, between them making the rights contained in the UDHR binding on all states that have signed this treaty, creating human-rights law.

Since then numerous other treaties (pieces of legislation) have been offered at the international level. They are generally known as human rights instruments. Some of the most significant, referred to (with ICCPR and ICESCR) as “the seven core treaties”, are:

The Geneva Conventions came into being between 1864 and 1949 as a result of efforts by Henry Dunant, the founder of the International Committee of the Red Cross. The conventions safeguard the human rights of individuals involved in armed conflict, and build on the 1899 and 1907 Hague Conventions, the international community’s first attempt to formalize the laws of war and war crimes in the nascent body of secular international law. The conventions were revised as a result of World War II and readopted by the international community in 1949.

International organizations

The United Nations (UN) as an intergovernmental body seeks to apply international jurisdiction for universal human-rights legislation. Within the UN machinery, human-rights issues are primarily the concern of the United Nations Security Council and the United Nations Human Rights Council, and there are numerous committees within the UN with responsibilities for safeguarding different human-rights treaties. The most senior body of the UN in the sphere of human rights is the Office of the High Commissioner for Human Rights. The United Nations has an international mandate to: achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, gender, language, or religion.

—Article 1–3 of the United Nations Charter

The United Nations Human Rights Council, created at the 2005 World Summit to replace the United Nations Commission on Human Rights, has a mandate to investigate violations of human rights. The Human Rights Council is a subsidiary body of the General Assembly and reports directly to it. It ranks below the Security Council, which is the final authority for the interpretation of the United Nations Charter. Forty-seven of the one hundred ninety-one member states sit on the council, elected by simple majority in a secret ballot of the United Nations General Assembly. Members serve a maximum of six years and may have their membership suspended for gross human rights abuses. The Council is based in Geneva, and meets three times a year; with additional meetings to respond to urgent situations.

Independent experts (rapporteurs) are retained by the Council to investigate alleged human rights abuses and to provide the Council with reports.

The Human Rights Council may request that the Security Council take action when human rights violations occur. This action may be direct actions, may involve sanctions, and the Security Council may also refer cases to the International Criminal Court (ICC) even if the issue being referred is outside the normal jurisdiction of the ICC.

The United Nations Security Council has the primary responsibility for maintaining international peace and security and is the only body of the UN that can authorize the use of force. It has been criticised for failing to take action to prevent human rights abuses, including the Darfur crisis, the Srebrenica massacre and the Rwandan Genocide. For example, critics blamed the presence of non-democracies on the Security Council for its failure regarding.

On April 28, 2006 the Security Council adopted resolution 1674 that reaffirmed the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity” and committed the Security Council to action to protect civilians in armed conflict.

A modern interpretation of the original Declaration of Human Rights was made in the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in 1993. The degree of unanimity over these conventions, in terms of how many and which countries have ratified them varies, as does the degree to which they are respected by various states. The UN has set up a number of treaty-based bodies to monitor and study human rights, to be supported by the UN High Commissioner for Human Rights (UNHCHR). The bodies are committees of independent experts that monitor implementation of the core international human rights treaties. They are created by the treaty that they monitor, except CESCR.

  • The Human Rights Committee promotes participation with the standards of the ICCPR. The eighteen members of the committee express opinions on member countries and make judgments on individual complaints against countries which have ratified an Optional Protocol to the treaty. The judgments, termed “views”, are not legally binding.
  • The Committee on Economic, Social and Cultural Rights monitors the ICESCR and makes general comments on ratifying countries performance. It will have the power to receive complaints against the countries that opted into the Optional Protocol once it has come into force.
  • The Committee on the Elimination of Racial Discrimination monitors the CERD and conducts regular reviews of countries’ performance. It can make judgments on complaints against member states allowing it, but these are not legally binding. It issues warnings to attempt to prevent serious contraventions of the convention.
  • The Committee on the Elimination of Discrimination against Women monitors the CEDAW. It receives states’ reports on their performance and comments on them, and can make judgments on complaints against countries which have opted into the 1999 Optional Protocol.
  • The Committee Against Torture monitors the CAT and receives states’ reports on their performance every four years and comments on them. Its subcommittee may visit and inspect countries which have opted into the Optional Protocol.
  • The Committee on the Rights of the Child monitors the CRC and makes comments on reports submitted by states every five years. It does not have the power to receive complaints.
  • The Committee on Migrant Workers was established in 2004 and monitors the ICRMW and makes comments on reports submitted by states every five years. It will have the power to receive complaints of specific violations only once ten member states allow it.
  • The Committee on the Rights of Persons with Disabilities was established in 2008 to monitor the Convention on the Rights of Persons with Disabilities. It has the power to receive complaints against the countries which have opted into the Optional Protocol.

Each treaty body receives secretariat support from the Human Rights Council and Treaties Division of Office of the High Commissioner on Human Rights (OHCHR) in Geneva except CEDAW, which is supported by the Division for the Advancement of Women (DAW). CEDAW formerly held all its sessions at United Nations headquarters in New York but now frequently meets at the United Nations Office in Geneva; the other treaty bodies meet in Geneva. The Human Rights Committee usually holds its March session in New York City.

International non-governmental human rights organizations such as Amnesty International, Human Rights Watch, International Service for Human Rights and FIDH monitor what they see as human rights issues around the world and promote their views on the subject. Human rights organizations have been said to “”translate complex international issues into activities to be undertaken by concerned citizens in their own community”. Human rights organizations frequently engage in lobbying and advocacy in an effort to convince the United Nations, supranational bodies and national governments to adopt their policies on human rights. Many human-rights organizations have observer status at the various UN bodies tasked with protecting human rights. A new (in 2009) nongovernmental human-rights conference is the Oslo Freedom Forum, a gathering described by The Economist as “on its way to becoming a human-rights equivalent of the Davos economic forum.” The same article noted that human-rights advocates are more and more divided amongst themselves over how violations of human rights are to be defined, notably as regards the Middle East.

There is criticism of human-rights organisations who use their status but allegedly move away from their stated goals. For example, Gerald M. Steinberg, an Israel-based academic, maintains that NGOs take advantage of a “halo effect” and are “given the status of impartial moral watchdogs” by governments and the media. Such critics claim that this may be seen at various governmental levels, including when human-rights groups testify before investigation committees.

Human rights defender is a term used to describe people who, individually or with others, act to promote or protect human rights. Human rights defenders (HRDs) are those men and women who act peacefully for the promotion and protection of those rights.

Multinational companies play an increasingly large role in the world, and have been responsible for numerous human rights abuses. Although the legal and moral environment surrounding the actions of governments is reasonably well developed, that surrounding multinational companies is both controversial and ill-defined. Multinational companies’ primary responsibility is to their shareholders, not to those affected by their actions. Such companies may be larger than the economies of some the states within which they operate, and can wield significant economic and political power. No international treaties exist to specifically cover the behavior of companies with regard to human rights, and national legislation is very variable. Jean Ziegler, Special Rapporteur of the UN Commission on Human Rights on the right to food stated in a report in 2003:

The growing power of transnational corporations and their extension of power through privatization, deregulation and the rolling back of the State also mean that it is now time to develop binding legal norms that hold corporations to human rights standards and circumscribe potential abuses of their position of power.

—Jean Ziegler

In August 2003 the Human Rights Commission’s Sub-Commission on the Promotion and Protection of Human Rights produced draft Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights. These were considered by the Human Rights Commission in 2004, but have no binding status on corporations and are not monitored.

International human rights regimes are in several cases “nested” within more comprehensive and overlapping regional agreements. These regional regimes can be seen as relatively independently coherent human rights sub-regimes. Three principle regional human rights instruments can be identified, the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights (the Americas) and the European Convention on Human Rights. The European Convention on Human Rights has since 1950 defined and guaranteed human rights and fundamental freedoms in Europe. All 47 member states of the Council of Europe have signed the Convention and are therefore under the jurisdiction of the European Court of Human Rights in Strasbourg.

The UDHR enshrines universal rights that apply to all humans equally, whichever geographical location, state, race or culture they belong to. Proponents of cultural relativism argue for acceptance of different cultures, which may have practices conflicting with human rights. For example female genital mutilation occurs in different cultures in Africa, Asia and South America. It is not mandated by any religion, but has become a tradition in many cultures. It is considered a violation of women’s and girl’s rights by much of the international community, and is outlawed in some countries.

Universalism has been described by some as cultural, economic or political imperialism. In particular, the concept of human rights is often claimed to be fundamentally rooted in a politically liberal outlook which, although generally accepted in Europe, Japan or North America, is not necessarily taken as standard elsewhere.

For example, in 1981, the Iranian representative to the United Nations, Said Rajaie-Khorassani, articulated the position of his country regarding the Universal Declaration of Human Rights by saying that the UDHR was “a secular understanding of the Judeo-Christian tradition”, which could not be implemented by Muslims without trespassing the Islamic law. The former Prime Ministers of Singapore, Lee Kuan Yew, and of Malaysia, Mahathir bin Mohamad both claimed in the 1990s that Asian values were significantly different from western values and included a sense of loyalty and foregoing personal freedoms for the sake of social stability and prosperity, and therefore authoritarian government is more appropriate in Asia than democracy. This view is countered by Mahathir’s former deputy:

To say that freedom is Western or un Asian is to offend our traditions as well as our forefathers, who gave their lives in the struggle against tyranny and injustices.

A. Ibrabim in his keynote speech to the Asian Press Forum title Media and Society in Asia, December 2, 1994 and by Singapore’s opposition leader Chee Soon Juan, who states that it is racist to assert that Asians do not want human rights.

An appeal is often made to the fact that influential human-rights thinkers, such as John Locke and John Stuart Mill, have all been Western and indeed that some were involved in the running of Empires themselves.

Cultural relativism is a self-detonating position; if cultural relativism is true, then universalism must also be true. Relativistic arguments tend to neglect the fact that modern human rights are new to all cultures, dating back no further than the UDHR in 1948. They also don’t account for the fact that the UDHR was drafted by people from many different cultures and traditions, including a US Roman Catholic, a Chinese Confucian philosopher, a French Zionist and a representative from the Arab League, amongst others, and drew upon advice from thinkers such as Mahatma Gandhi.

Michael Ignatieff has argued that cultural relativism is almost exclusively an argument used by those who wield power in cultures which commit human rights abuses, and that those whose human rights are compromised are the powerless. This reflects the fact that the difficulty in judging universalism versus relativism lies in who is claiming to represent a particular culture.

Although the argument between universalism and relativism is far from complete, it is an academic discussion in that all international human rights instruments adhere to the principle that human rights are universally applicable. The 2005 World Summit reaffirmed the international community’s adherence to this principle:

The universal nature of human rights and freedoms is beyond question.

—2005 World Summit, paragraph 120

With the exception of non-derogable human rights (international conventions class the right to life, the right to be free from slavery, the right to be free from torture and the right to be free from retroactive application of penal laws as non-derogable), the UN recognises that human rights can be limited or even pushed aside during times of national emergency – although the emergency must be actual, affect the whole population and the threat must be to the very existence of the nation. The declaration of emergency must also be a last resort and a temporary measure.

—United Nations. The Resource

Rights that cannot be derogated for reasons of national security in any circumstances are known as peremptory norms or jus cogens. Such United Nations Charter obligations are binding on all states and cannot be modified by treaty.

Examples of national security being used to justify human rights violations include the Japanese American internment during World War II, Stalin’s Great Purge, and the modern-day abuses of terror suspects rights by some countries, often in the name of the War on Terror.

Human rights violations occur when any state or non-state actor breaches any part of the UDHR treaty or other international human rights or humanitarian law. In regard to human rights violations of United Nations laws. Article 39 of the United Nations Charter designates the UN Security Council (or an appointed authority) as the only tribunal that may determine UN human rights violations.

Human rights abuses are monitored by United Nations committees, national institutions and governments and by many independent non-governmental organizations, such as Amnesty International, International Federation of Human Rights, Human Rights Watch, World Organisation Against Torture, Freedom House, International Freedom of Expression Exchange and Anti-Slavery International. These organisations collect evidence and documentation of alleged human rights abuses and apply pressure to enforce human rights laws.

Only a very few countries do not commit significant human rights violations, according to Amnesty International. In their 2004 human rights report (covering 2003), the Netherlands, Norway, Denmark, Iceland and Costa Rica are the only (mappable) countries that did not (in the opinion of Amnesty International) violate at least some human rights significantly.

There are a wide variety of databases available which attempt to measure, in a rigorous fashion, exactly what violations governments commit against those within their territorial jurisdiction. An example of this is the list created and maintained by Prof. Christian Davenport at the Kroc Institute – University of Notre Dame.

Wars of aggression, war crimes and crimes against humanity, including genocide, are breaches of International humanitarian law and represent the most serious of human rights violations.

When a government closes a geographical region to journalists, it raises suspicions of human rights violations. Six regions are currently closed to foreign journalists:

In June 2011, the Independent Commission for Human Rights published a report whose findings included that the Palestinians in the West Bank and the Gaza Strip were subjected in 2010 to an “almost systematic campaign” of human rights abuses by the Palestinian Authority and Hamas, as well as by Israeli authorities, with the security forces belonging to the PA and Hamas being responsible for torture, arrests and arbitrary detentions.

Events and new possibilities can affect existing rights or require new ones. Advances of technology, medicine, and philosophy constantly challenge the status quo of human rights thinking.

There are two basic conceptions of environmental human rights in the current human rights system. The first is that the right to a healthy or adequate environment is itself a human right (as seen in both Article 24 of the African Charter on Human and Peoples’ Rights, and Article 11 of the San Salvador Protocol to the American Charter of Human Rights). The second conception is the idea that environmental human rights can be derived from other human rights, usually – the right to life, the right to health, the right to private family life and the right to property (among many others). This second theory enjoys much more widespread use in human rights courts around the world, as those rights are contained in many human rights documents.

The onset of various environmental issues, especially climate change, has created potential conflicts between different human rights. Human rights ultimately require a working ecosystem and healthy environment, but the granting of certain rights to individuals may damage these. Such as the conflict between right to decide number of offspring and the common need for a healthy environment, as noted in the tragedy of the commons. In the area of environmental rights, the responsibilities of multinational corporations, so far relatively unaddressed by human rights legislation, is of paramount consideration.

Environmental Rights revolve largely around the idea of a right to a livable environment both for the present and the future generations.

In 1997 UNESCO adopted the Declaration on the Responsibilities of the Present Generation Towards the Future Generation. The Declaration opens with the words:

Mindful of the will of the peoples, set out solemnly in the Charter of the United Nations, to ‘save succeeding generations from the scourge of war’ and to safeguard the values and principles enshrined in the Universal Declaration of Human Rights, and all other relevant instruments of international law.

—Declaration on the Responsibilities of the Present Generation Towards the Future Generation

Article 1 of the declaration states “the present generations have the responsibility of ensuring that the needs and interests of present and future generations are fully safeguarded.” The preamble to the declaration states that “at this point in history, the very existence of humankind and its environment are threatened” and the declaration covers a variety of issues including protection of the environment, the human genome, biodiversity, cultural heritage, peace, development, and education. The preamble recalls that the responsibilities of the present generations towards future generations has been referred to in various international instruments, including the Convention for the Protection of the World Cultural and Natural Heritage (UNESCO 1972), the United Nations Framework Convention on Climate Change and the Convention on Biological Diversity (Rio de Janeiro, 1992), the Rio Declaration on Environment and Development (UN Conference on Environment and Development, 1992), the Vienna Declaration and Programme of Action (World Conference on Human Rights, 1993) and a number of UN General Assembly resolutions relating to the protection of the global climate for present and future generations adopted since 1990.

Although both the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights emphasize the importance of a right to work, neither of these documents explicitly mention trade as a mechanism for ensuring this fundamental right. And yet trade plays a key role in providing jobs.

Some experts argue that trade is inherent to human nature and that when governments inhibit international trade they directly inhibit the right to work and the other indirect benefits, like the right to education, that increased work and investment help accrue. Others have argued that the ability to trade does not affect everyone equally—often groups like the rural poor, indigenous groups and women are less likely to access the benefits of increased trade.

On the other hand, others think that it is no longer primarily individuals but companies that trade, and therefore it cannot be guaranteed as a human right. Additionally, trying to fit too many concepts under the umbrella of what qualifies as a human right has the potential to dilute their importance. Finally, it is difficult to define a right to trade as either “fair” or “just” in that the current trade regime produces winners and losers but its reform is likely to produce (different) winners and losers.

In November 2002, the United Nations Committee on Economic, Social and Cultural Rights issued a non-binding comment affirming that access to water was a human right: the human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights.

—United Nations Committee on Economic, Social and Cultural Rights

This principle was reaffirmed at the 3rd and 4th World Water Councils in 2003 and 2006. This marks a departure from the conclusions of the 2nd World Water Forum in The Hague in 2000, which stated that water was a commodity to be bought and sold, not a right. There are calls from many NGOs and politicians to enshrine access to water as a binding human right, and not as a commodity. According to the United Nations, nearly 900 million people lack access to clean water and more than 2.6 billion people lack access to basic sanitation. On July 28, 2010, the UN declared water and sanitation as human rights. By declaring safe and clean drinking water and sanitation as a human right, the U.N. General Assembly made a step towards the Millennium Development Goal to ensure environmental sustainability, which in part aims to “halve, by 2015, the proportion of the population without sustainable access to safe drinking water and basic sanitation”.

The Universal Declaration of Human Rights states that everyone has the “right to life”. According to many human rights activists, the death penalty violates these rights.  The United Nations has called on retentionist states to establish a moratorium on capital punishment with a view to its abolition. States which do not do so face considerable moral and political pressure. The Universal Declaration of Human Rights prohibits torture and other cruel, inhuman, and degrading punishment. Countries have argued that “enhanced interrogation methods”, which amount to torture, are needed for national security. Human rights activists have also criticized some methods used to punish criminal offenders. For example, corporal punishment is regarded by some as a violation of human rights. An example is caning, used in Malaysia, Brunei, and Singapore, and considered by Amnesty International to be cruel, inhuman, and degrading punishment. In Mexico, life imprisonment without parole is also considered to be cruel and unusual punishment. Other practices, such as police brutality and impunity for human rights violators are also seen as human rights issues.

Science and Technology has been around from the beginning of time. It evolved from the everyday efforts of people trying to improve their way of life. Throughout history, humankind has developed and utilized tools, machines, and techniques without understanding how or why they worked or comprehending their physical or chemical composition. Before we go any further a definition has to be given for both Science and Technology because they are both different in their own right even though the two are almost indistinguishable. According to the Oxford Dictionary, Technology can be defined as the knowledge or use of the mechanical arts and applied sciences, while Science can be defined as the branch of knowledge involving systematized observation and experiment. Science can be further divided into three separate categories; Pure, Applied and Natural Sciences. In addition technology is often defined as applied science, it is simply the application of scientific knowledge to achieve a specific human purpose, and however, historical evidence suggests technology is a product of science.

Technology and science are activities of central importance in contemporary life, intimately bound up with society’s evolving character, problems, and potentials. If scientific and technological pursuits are to further enhance human well-being, they and their effects on society and the individual must be better understood by non-technical professionals and ordinary citizens like us. Issues of professional ethics and social responsibility not only confront technical practitioners; We are also being asked with increasing frequency to pass judgment on controversial matters of public policy related to science and technology and make decisions requiring basic understanding of science and technology and their ethical, social, and environmental consequences. These circumstances require education befitting the complex socio- technical character of the contemporary era.  Science (from the Latin scientia, ‘knowledge’) is a system of acquiring knowledge based on the scientific method, as well as the organized body of knowledge gained through such research. Science as defined here is sometimes termed pure science to differentiate it from applied science, which is the application of scientific research to specific human needs.

The word science comes through the Old French, and is derived from the Latin word ‘scientia’ for knowledge, which in turn comes from scio – I know. The Indo-European root means to discern or to separate, akin to Sanskrit chyati, he cuts off, Greek schizein, to split, Latin scindere, to split. From the Middle Ages to the Enlightenment, science or scientia meant any systematic recorded knowledge. Science therefore had the same sort of very broad meaning that philosophy had at that time. In other languages, including French, Spanish, Portuguese, and Italian, the word corresponding to science also carries this meaning.

Today there are many technological advancement to enhance our daily activities, whether it be as simple as an IPod for entertainment purposes or as vital as an artificial heart for the survival of a human live, science and technology is the reason for its existence. Science and Technology can be traced from the origin of human life 2 million years ago and each era has significant advancement. The earliest known form of S&T were human artefacts found during prehistoric time about 2.3 million years ago, they were roughly shaped stones used for chopping and scraping, found primarily in eastern Africa. Some of the earliest record of science came from Mesopotamian cultures around 400 BC, disease symptoms, chemical substances and astronomical observations were some of the evidence of emerging science.

Science and technology have had a major impact on society, and their impact is growing. By drastically changing our means of communication, the way we work, our housing, clothes, and food, our methods of transportation, and, indeed, even the length and quality of life itself, science has generated changes in the moral values and basic philosophies of mankind. Beginning with the plow, science has changed how we live and what we believe. By making life easier, science has given man the chance to pursue societal concerns such as ethics, aesthetics, education, and justice; to create cultures; and to improve human conditions. But it has also placed us in the unique position of being able to destroy ourselves.[1]

Development in society is a continuous phenomenon, triggered by technological innovations, human values and a synergistic association of the duo. Such an association inevitably creates ripples of enhancement in productivity, solidarity and security of a society leading to developments in many a dimension of the social entity.

The Paper attempts to locate the association of information technology in social enhancement. The paper then explores in phases the Indian development scenario in the backdrop of information technology. It highlights the elements of technology and human values work in the socio-economic periphery.

Development is the process of continuously enhancing the capacity of society to respond to opportunities and challenges by increasing its level of organization.
The process of social development occurs by increasing the scope and complexity of the organization and the interactions between and amongst the societal values, beliefs and institutions. The movement involves a simultaneous development of the social fabric in quantitative terms of size and carrying capacity of social activities; in qualitative terms of enhancing the productivity; in geographical terms covering a wide segment of the population.
The physical application of mind for scientific discovery and technological invention and the social application of mind for organizational innovation have been powerful forces for social development over the past few centuries. The 20th century has been heralded as the century of the common man. Never before has the society been accorded with such value and consideration for the poorest and lowliest of its citizens. The granting of universal suffrage and acceptance of the goal of universal education are unprecedented steps.

Most people would agree that science and technology are of great importance in the world today. It is equally clear that science can alter our conception of ourselves and our conception in the universe. The most famous instance of this was the series of events known as the Scientific Revolution. During this turbulent time in the sixteenth and seventeenth centuries, Galileo and other scientists began to argue that the earth was not at the center of the universe, but whirled on its own axis, and orbited around the sun. Later, Darwin argued that humans arose as the product of natural process, not divinely wrought miracles. This century, the surprises have kept coming. Whatever the future holds, it seems certain that science will play a major part in shaping our view of the universe- and of ourselves.[2]

Though modern science is of relatively recent origin, having started with Galileo about 350 years ago, it has made very rapid progress and completely transformed outwardly the manner of our living. It is said that our life outwardly has changed more in the last one hundred years than it did in thousands of years earlier, because of the scientific knowledge accumulated over the last three centuries, and its application in the form of technology. So the impact of science on society is very visible; progress in agriculture, medicine and health care, telecommunications, transportation, computerization and so on, is part of our daily living.

It is in conjunction with technology, though, that science has had its most dramatic effects. We have seen the rapid onslaught of computerization and telecommunications. This has created a world- wide net of communication, and also wiped out employment for many millions of people throughout the world. Modern pharmaceuticals can cure the diseases which terrified our forefathers, and yet other diseases arise, sometimes from the effects of the drugs themselves. Clearly, these changes are important, and the workings of the science and technology which produced them must be understood. This is why it is important to study Science, Technology and Society.[3]

The scientific revolution marks the watershed of new imperium, the control of humanity by the imperium of technology virtually annihilating folk knowledge and arts, folk medicine and traditional wisdom, demonetized as obscurantism by the dictatorship of modern science and western dominance. ‘Progress’ is thus monopolized and common people’s native skills jettisoned so as to impose a new slavery and acquisition of inefficiency based on the omnipotence of modern science and its alleged excellence. Thus, very concept of development has been westernized and native primitive assets basterdized. Universal Human Rights and democracy have thus written off the native acquisitions of centuries in the name of high technology, throwing out of employment and drowning indignity millions of human, mostly Asians with their Asian culture. Technology versus people is death sentence on the human rights of rural and tribal billions.[4]

In spite of all this progress, the consequent development of technology and industry, and the conveniences, comforts and power we have got through this knowledge, in no part of the world are human beings happy, at peace with themselves, living without violence. It was hoped that the development of science would usher in an era of peace and prosperity, but that has been belied. On the contrary, if we look at the level of violence throughout the world during a ten-year period, from 1900 to 1910, or 1910 to 1920 and so on, in every decade, in every country, the graph is going up. So, on the one hand, greater prosperity — so-called globalization — and, on the other, greater violence, sorrow, tension, and newer diseases.[5]

Science and technology are the drivers of economic growth in any country. Science and technology is forming an ever-closer relationship with industry and society, and expanding its influence on our everyday lives.[6]

Over the past century, research and science have been driving forces behind technological advance and economic growth. However, many developing countries and their populations do not benefit from scientific and technological advancement. Too little of the knowledge and technology is accessible or applicable in these countries.

At the same time, scientific research is of utmost importance for development and poverty reduction. The development of vaccines against smallpox, polio and other childhood diseases, for instance, has done much to prolong life expectancy. The development and use of cheap oral dehydration therapy has prevented the deaths of millions of babies from diarrhea.

Science and technology in terms of access to information are also rapidly evolving, including developments, such as mobile telephones, internet and satellite television. The benefits have been enormous and have particular potential for developing countries. For example, in the past, education and research at university-level institutions was hindered by poor library resources. Nowadays, much academic research is internet based. However, there is still a great divide in equal participation in, access to and use of, information and communications technology.

This shows that there is an inherent link between the right to enjoy the benefits of scientific progress and other human rights, in particular the right to an adequate standard of living, the right to education, the right to health, the right to information and the right to food.

It should, however be noted, that scientific research and progress is not always inspired by human rights concerns. Investments in research are often determined by commercial interest, rather than by development needs. For example, much more funds are devoted to research to developing drugs for ‘erectile dysfunction’ and similar real or imagined illnesses of the rich, rather than to eliminating the scourge of malaria or other tropical diseases among the world’s poor. Scientific research with respect to food suffers from the same problems as medical and pharmaceutical research. It is often driven by profit, neglecting those who are the hungriest, for example by not investing in the most important crops of the poorest, because they are commercially not attractive.

Technology has affected society and its surroundings in a number of ways. In many societies, technology has helped develop more advanced economies (including today’s global economy) and has allowed the rise of a leisure class. Many technological processes produce unwanted by-products, known as pollution, and deplete natural resources, to the detriment of the Earth and its environment. Various implementations of technology influence the values of a society and new technology often raises new ethical questions. Examples include the rise of the notion of efficiency in terms of human productivity, a term originally applied only to machines, and the challenge of traditional norms.

Philosophical debates have arisen over the present and future use of technology in society, with disagreements over whether technology improves the human condition or worsens it. Neo-Luddism, anarcho-primitivism, and similar movements criticise the pervasiveness of technology in the modern world, opining that it harms the environment and alienates people; proponents of ideologies such as trans humanism and techno-progressivism view continued technological progress as beneficial to society and the human condition. Indeed, until recently, it was believed that the development of technology was restricted only to human beings, but recent scientific studies indicate that other primates and certain dolphin communities have developed simple tools and learned to pass their knowledge to other generations.

As a global society it is important that we make sure every one of our fellow human being’s global rights are protected.   It’s easy for national governments to make laws, and for international organizations such as The United Nations to say what qualifies as ethical treatment for people all around the world.   But enforcing these rules and ensuring that all humans are being treated fairly is not easy, and cannot be overseen simply by nation states and organizations. Ensuring that human rights are being protected not only needs to be enforced by governments, but it really begins with the individual members of society.   It is the individuals that can spread the word on whether people are being treated fairly, by creating awareness to what is going on. It is up to the national governments and organizations to listen to these people and take action.

In the aftermath of the Second World War, the Universal Declaration of Human Rights (1948) formalised the definitions, descriptions and importance of numerous rights mutually deemed fundamental to ‘freedom, justice and peace in the world’. Over the succeeding decades economists, policy makers and academics endeavoured to decipher the priorities, standing and practicalities of establishing human rights around the world.   However, it was not until after the Cold War, and the Vienna Declaration and Programme of Action of the United Nation General Assembly (1993) that an explicit connection was established between human rights, legitimacy, and growth.   Historically, development practice and theorising was centered on the importance of economic growth. The strong correlation between economic growth and human rights in more developed countries fostered a tendency to see a causal relationship leading to the argument that an initial degree of economic development is a pre-requisite for ensuring the adequate living standards and conditions in which human rights can be realized. Accordingly, whilst acknowledging human rights as a worthy long term end, the ‘orthodox growth centric’ approach saw the main short and medium term goals of development to be rapid GNP growth to ensure the realisation of rights in the long run

As it becomes evident from historical observations, research was creation of the curiosity which is caused by the human nature. A lot of the discoveries that occurred in the ancient years were achieved by luck.   After that they acquired experience and skills to explore more and more for new achievements. The acute interest on discovering new methods and ideas gave answers to questions which faced the society of each period. All this doubts could not be answered on their own. Some people had to make researches on specific subjects, they had to observe them and after a lot of work on it they had to present the result. They got experience on resolving problems of humanity and so science appeared. Nowadays, science is involved in every aspect of our life, even in subjects that we cannot imagine.

The American community, especially in the wake of the atrocities on September 11th, has been wholly absorbed by images broadcast on network television. Unfortunately, many issues have been fully discounted. The violation of human rights abroad should be given more attention, especially in civil conflicts. This moral issue is central to many of the deepest interests of the American public.

The loss of the United States seat on the United Nations Department of Human Rights brought some focus into this arena as journalists dismissed the removal as “contradictory, unjust, and flat out ignorant.” They somewhat addressed human rights concerns, but did not deal directly with any regimes. The main brunt of the argument was “the United States should be allowed to come back.”

That debate has cooled, while the coverage of human rights has cooled even more. Publications such as Human Rights Watch and Amnesty International give excellent coverage of these abuses. Unfortunately, they are solely limited to their respective websites and are only occasionally referenced by national media source.

Nearly everyone in America can remember at least one human rights violation in their time: Tiananmen Square, the Hutu/Tutsi massacres, or even Slobodan Milosevic’s ethnic cleansing in the Former Republic of Yugoslavia. It seems that the whole array of human rights issues is universally overlooked, but especially by American television broadcasting companies. I feel the violence in Zimbabwe under the ruthless, power hungry Robert Mugabe must be more publicly discussed. Also, there are violations in Angola, Sierra Leone, Cuba, China, Mexico, Brazil, and even the American prison system.

Throughout history, people’s human rights have been violated, but efforts have also been made to address the violations, and protect their rights. Human rights are rights as regarded belonging to all people. Today we are all entitled to the same rights. In a sense, we are all equal.
Human rights are rights and liberties that are guaranteed to everyone at birth. On December 10th 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights. It was made for every living human in this world to follow and obey. These rights originated after World War II because they don’t want such inhumanity event to ever occur again. So by the world agreeing to this declaration it is almost sure the lives of so many people isn’t to be lost again for unnecessary reasons. The main purpose of these rights are to enforce balanced rights of all people. Making sure that all humans have the right o freedom, justice, and peace in the world. It also says that everyone has the right to nationality, religion, and his or her own opinion. Despite the holocaust, abuses of human rights have continued in the post-World War 2 era.

One of the major abuses of Human Rights in the World War II era was the Apartheid in South Africa. After South Africa won its independence from Great Britain, the Afrikaner Nationalist party gained a whites only parliament. The nationalists set up a system of Apartheid, or complete segregation of races. Under this system blacks needed permission to travel, and had to carry a pass when doing so. Other Apartheid laws also created many segregated facilities and denied Blacks the right to vote. The apartheid violated many guidelines of the Universal Declaration of Human Rights, one of them were Article 1; “All human beings are born free and equal in dignity and rights”.

Man can circle the globe today in about one hour.   Such is the interesting advancement of science and technology.   If we carefully analyse, it will be clear that we use an awful lot of inventions and products in our daily life, which are the products derived from these shocking advancement of scientific technology.   To name a few from the endless list, rockets and spaceships, electronic techniques, atomic energy, antibiotics, the computer and robots, the simulation of the human gene, the internet, videoconferencing, cloning, wireless, telephone, telex, television, microwave oven, electric heater, air conditioner, high speed vehicles, high speed locomotives, airplanes etc. are a few inventions and products that have enormously affected human lives.   There is no doubt whatsoever all these have profoundly influenced the development of human beings and offered an improved living standard.

Progress of science and technology enhances directly the productivity of industry and agriculture.   This would of course increase the total value of national production and income and improve the national welfare and level of life.   One can argue that because of the benefits scientific technology offers to humankind, there is a tendency for us to be dependent.
It is inevitable that future society will be fully dominated by scientific technology.

Given the current state of technology, a researcher should have little difficulty in finding relevant definitions that embody a spirited understanding of underlying technical and societal interactions that craft a view of the technically literate person.   As an exercise, extracting the common elements from various experts’ definitions of technological literacy should result in a generalized perspective that would provide a foundation supporting further literacy definitions for aspects of technology such as computers or genetics.   However, this is easier than it sounds.   As Gagel (1997) confirms, “defining technological literacy has proven to be an unexpectedly complex and difficult task”.

The difficulty in defining technological literacy is exposed by a number of factors.   One factor relates to understanding perspective and determining whether the term is best defined by putting the emphasis on “technology” or “literacy” or whether the subject is best approached laterally. Indeed, Gagel describes the technological literacy from a technology perspective as opposed to defining literacy and then establishing parameters supporting technological literacy.   Perhaps this approach contributed to the author’s difficulty in defining the term.   As technology is so diverse and crosses many boundaries, perhaps the definition of technological literacy should do likewise, and not be restricted to either a “technology” or “literacy” perspective.

Another factor contributing to the difficulty in defining technological literacy involves the improperly weighting of computer influence on the term’s definition.   In a speech given by former President, Bill Clinton, this misunderstanding is propagated further.   He states, “Today, technological literacy, computer skills and the ability to use computers and other technology to improve learning, productivity and performance is a new basic that our students must master.”

 

 

 

 

 

CHAPTER 2

SCIENCE, SOCIETY & HUMAN RIGHTS

Humanism is the soul of justice and of all social sciences. Human rights are writ on a large canvas, as large as the sky. The lawmakers, lawyers and particularly, the judges, must make the printed text vibrant with human values, not be scared of consequences on the status quo order. The militant challenges of today need a mobilization of revolutionary consciousness sans which civilized systems cease to exist. We are all active navigators, not idle passengers, on spaceship earth as it ascends to celestial levels of the glorious human future.[7]

Taking into account the duration of man’s existence and various impacts on him, it is to be found that out of the approximately a million years, he has possessed writing for about 6,000 years, agriculture somewhat longer, though not much, and science, as a dominant factor in determining the beliefs of educated men, for about 300 years; and as a source of economic technique, for about 150 years. Considering the revolutionary power that science possesses, and that how recently it has risen to power, we are forced to believe that we are the very beginning of its work in transforming human life. The effects of science are of different kinds. There are direct intellectual effects: the dispelling of many traditional beliefs and the adoption of others suggested by the success of scientific method. Then, there are effects on technique in industry and war. Then, chiefly as a consequence of new techniques, there are profound changes in social organization which are gradually bringing about corresponding political changes. Finally, as a result of the new control over the environment which scientific knowledge has conferred, a new philosophy is growing up, involving a changed conception of man’s place in the universe.[8]

Change is one of mankind’s most mysterious creations. The factors that operate to cause it came into play when man produced his first tool. With it he changed the world forever, and bound himself to the artifacts he would create in order, always, to make tomorrow better than today. But how does change operate? What triggers a new invention, a different philosophy, an altered society? The interactive network of man’s activities links the strangest, most disparate elements, bringing together the most unlikely combinations in unexpected ways to create a new world.[9]

Science on the large scale, that is science dealing with the fundamentals of reality and the universe, has always had and still has a major effect on the non-scientific – social – general philosophic thinking of that science’s society and its leaders.[10] The spectacular advances in science and technology that have continued unabated during the past centuries have emphasized the urgency of the problems, the power of which to affect human society for better or for worse has increased with every step forward in science and technology. With every passing year that power increases and the need to use it in the interest of human rights grow correspondingly more urgent. The urgency grows on two fronts – the scientific and the practical – and in combination these two factors produce an exponential growth in the urgency and the magnitude of the problem.

Science and technology offer the opportunity par excellence for generating “productive patterns of interaction among all members of the international community.” Human rights is a vital field of attention in the drive to improve the human condition.[11] This vital aspect of the interaction between technological development and human rights must receive concerned attention if technology is to be used consciously for the betterment of society. The iron grip in which, from the time of the Industrial Revolution, society has been held and moulded by the demands of science and technology, needs to be seen in this light if there is to be liberation and social autonomy rather than passive subjection. Also, whereas in the past human rights tended to be asserted mainly against the state and its agents, modern technology as currently used has brought to the surface the question of human rights protection not only from the state but also from the private sector.[12]

When we speak about the relationships between technology and human rights, it is evident that we have to deal with the interrelations between some very complex phenomena: technology, science, society or systems of societies, and systems of rights of a universal nature.

There are a variety of ways to think about the intersections between science and human rights. Access to the products of scientific research might be a universal right; the same products might be threats to humanity. Scientists themselves possess human rights; they also promote them. With such broad concepts at hand, this variety of themes is inevitable and each could inspire a book in itself.[13]

To begin with the concept of technology, nearly all human societies have, or have had, technologies which are often very elaborate. As we know, archaeologists have used the occurrence of characteristic technologies as the basis for the classification of pre- historical societies. These classifications are largely based on artifacts left behind by the peoples who once used them. In view of the task in hand, however, we have no use for a general definition of technology which includes only artifacts or the material products of inventions. Our definition of technology must enable us to distinguish between the use of technology in pre-industrial and industrial societies and between industrial societies and post-industrial ones in terms of such factors as flexibility, rigidity, or its pervasiveness in social life.

In order to clarify the questions relating to the interactions between technology and society, we distinguish between:[14]

  1. Technology as sets of physical objects, designed and constructed by man. In an industrial society this term refers especially to “artificial things, and more particularly to modern machines: artificial things that

(a) require engineering knowledge for their design and production; and
(b) perform large amounts of operations themselves.”

In this context the term may also be used to refer to inventions and processes with extensive potentialities for application, such as laser technology, chip technology, and DNA recombinant technology, and the applications of such technologies within existing or new machines and production processes.

  1. Technology as a term which refers to human activities in connection with the utilization of artefacts. Moreover, technology implies the knowledge requisite to use these technical things. “Technological ‘things’ are meaningless without the ‘know-how’ to use them, repair them, design them and make them. As such this know-how can, partly at least, be systematized and taught, as in the various disciplines of engineering.” 9
  2. Finally, “technology” may refer to a body of knowledge that is necessary to generate new rules for the design, construction, and application of technical possibilities to different types of problems (such as, for example, the control of environmental pollution). Here the term technology refers to the theory of the application (logia), not just to “artificial things,” the ways in which they are used in practice and the transmission of this practical knowledge (“technics”: German, die Technik; French, la technique) as is emphasized in the first and second meaning of the concept “technology.”

In a very broad sense the concept of technology may refer to those aspects of culture which relate to the manipulation of the natural environment by man or “that whole collection of ways in which the members of a society provide themselves with the material tools and goods of their society – the collection of artefacts and concepts used to create an advanced socio-politico-economic structure.”[15]

Today, the contradiction lies between the wish to promote technological advances achievable only through research, and the wish to protect its participants. This has a direct reference to the protection of human beings and their rights against the various researches made which need their involvement and in turn prove to be derogatory to them. The technological advancements have positive as well as negative impacts but to arrive at a conclusion, human beings are made the victims to the research. Of course, many of the medical advances which now save countless lives are only possible because of medical research using human subjects. Indeed it has been said that society has a duty to engage in research. Medicines can only be released as available for general use when we are confident that they are safe to use.[16] However, on the contrary, there are more instances of misuse of the technology as well as the negative impacts they cause on mankind. On pervading ethical concern about the use of technology is the protection of confidentiality.[17]

Torture and psychiatric abuse are the important issues that confront, increasingly, physicians, lawyers, government officials and others. An important focus of concern that cannot be ignored is that health professionals- physicians, psychotherapists, and nurses- have sometimes abused medical ethics.[18]

SURROGACY

Surrogate motherhood or surrogacy has been known to exist for a very long time, but under circumscribed moral conditions. Under certain circumstances it might not only be good; it might also be noble. In the United States, the issue of surrogacy was widely publicized in the case of Baby M, in which the surrogate and biological mother of Melissa Stern (“Baby M”), born in 1986, refused to cede custody of Melissa to the couple with whom she had made the surrogacy agreement. The courts of New Jersey found that Mary Beth Whitehead was the child’s legal mother and declared contracts for surrogate motherhood illegal and invalid. However, the court found it in the best interests of the infant to award custody of Melissa to her biological father William Stern and his wife Elizabeth Stern, rather than to the surrogate mother Mary Beth Whitehead.

Like all achievements in the sciences, the technologies proposed for the application of these achievements can be either good or bad, depending upon the motives, the methods adopted, and the consequences. Like every other scientific achievement, this technology too can be used either to promote the good of the human person/s and of society, or for its debasement and ruin. In this view, there was a proposal to make surrogate motherhood legal in India, which is contained in the draft Bill: “Assisted Reproductive Technologies (Regulation) Bill, 2010.” The Preamble to the Bill states, inter alia, “The last nearly 20 years have seen an exponential growth of infertility clinics that use techniques requiring handling of spermatozoa or the oocyte outside the body, or the use of a surrogate mother. . .” The Preamble justifies the introduction of this Bill on the ground that “Besides the fact that every couple has the right to have a child, in India infertility widely carries with it a social stigma.” However, the Bill is not limited to assisting infertile couples to have babies with the help of assisted reproductive techniques. It goes much further by proposing to legalize surrogacy for purely commercial purposes.[19] There have been cases of clashes between surrogate mothers and the genetic parents; when unexpected complications with the fetus makes the genetic parents ask for an abortion even though the surrogate mother is opposing the abortion.[20]

There is no legal standard for surrogacy from state to state, or from country to country. However, it is almost always certain that any dispute will be heard in the jurisdiction where birth occurs.[21] The legal aspects surrounding surrogacy are very complex and mostly unsettled. There is a default legal assumption in most countries that the woman giving birth to a child is that child’s legal mother. In some jurisdictions the possibility of surrogacy has been legally allowed and as a result, the intended parents may be recognized as the legal parents right from the birth of a baby. Many states now issue pre-birth orders through the courts placing the name(s) of the intended parent(s) on the birth certificate from the start. In other states that do not issue such orders, the possibility of surrogacy is either not recognized (all contracts specifying different legal parents are void), or is prohibited.

The Assisted Reproductive Technologies (Regulation) Bill, 2010 suffers from a severe drawback in the sense that it is not concerned about protecting the rights of the child. The aim of this Bill is to establish control over the growing number of ‘infertility clinics’ in the country, centralizing it under the authority of the Indian Council of Medical Research’s “Department of Health Research”.

Some of the reasons all states haven’t found it easy to pass surrogacy legislation are related to moral and ethical issues of embryo creation, fees that some see as baby-buying (or baby-selling), and others.[22] Commercial surrogacy is legal in India, as recognized by the Supreme Court of India in 2002.[23] India is emerging as a leader in international surrogacy and a destination in surrogacy-related fertility tourism. Indian surrogates have been increasingly popular with fertile couples in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. Clinics charge patients between $10,000 and $28,000 for the complete package, including fertilization, the surrogate’s fee, and delivery of the baby at a hospital. Including the costs of flight tickets, medical procedures and hotels, it comes to roughly a third of the price compared with going through the procedure in the UK. The Honorable Supreme Court of India has given the verdict that the citizenship of the child born through this process will have the citizenship of its surrogate mother.

Commercial surrogacy arrangements are not legal in the United Kingdom. Such arrangements were prohibited by the Surrogacy Arrangements Act 1985. Whilst it is illegal in the UK to pay more than expenses for a surrogacy, the relationship is recognized under section 30 of the Human Fertilisation and Embryology Act 1990. Regardless of contractual or financial consideration for expenses, surrogacy arrangements are not legally enforceable within the United Kingdom. A surrogate mother still maintains the legal right of determination for the child, even if they are genetically unrelated. Unless a parental order or adoption order is made the surrogate mother remains the legal mother of the child. In United States, many states have their own state laws written regarding the legality of surrogate parenting. It is most common for surrogates to reside in Florida and California due to the surrogacy-accommodating laws in these states. California is especially popular due to its enforceable surrogacy agreements. Surrogacy is well developed around Camp Pendleton in California. With the accommodating laws of the State of California and the long overseas deployments of husbands, wives have found surrogacy to be a means to supplement military incomes and to provide a needed service. It is illegal to hire a surrogate in New York, and even embryonic transfers may not be done in New York. At this point, the laws surrounding surrogacy are well defined in the Commonwealth of Pennsylvania, and surrogacy is beginning to become common in the state of Delaware.

A study by the Family and Child Psychology Research Centre at City University, London, UK in 2002 concluded that surrogate mothers rarely had difficulty relinquishing rights to a surrogate child and that the intended mothers showed greater warmth to the child than mothers conceiving naturally. Anthropological studies of surrogates have shown that surrogates engage in various distancing techniques throughout the surrogate pregnancy so as to ensure that they do not become emotionally attached to the baby. Many surrogates intentionally try to foster the development of emotional attachment between the intended mother and the surrogate child. Instead of the popular expectation that surrogates feel traumatized after relinquishment, an overwhelming majority describe feeling empowered by their surrogacy experience. In fact, quantitative and qualitative studies of surrogates over the past twenty years, mostly from a psychological or social work perspective, have confirmed that the majority of surrogates are satisfied with their surrogacy experience, do not experience “bonding” with the child they birth, and feel positively about surrogacy even a decade after the birth.  Assessing such studies from a social constructionist perspective reveals that the expectation that surrogates are somehow “different” from the majority of women and that they necessarily suffer as a consequence of relinquishing the child have little basis in reality and are instead based on cultural conventions and gendered assumptions. Many surrogates form close and intimate relationships with the intended parents. When the greatness of their efforts is acknowledged, they recall their surrogacy experience in the years to come as the most meaningful experience of their lives.

Perhaps legislation is slow in coming because society has not yet been able to resolve the myriad of ethical and legal questions surrounding surrogate motherhood. Ethical issues abound. Many argue that surrogate arrangements depersonalize reproduction and create a separation of genetic, gestational, and social parenthood. Others argue that there is a change in motives for creating children: children are not conceived for their own sakes, but for another’s benefit. What is the degree of stress on the couple and especially on the surrogate mother? Can true informed consent ever be given by the surrogate, and can anyone predict the emotions associated with relinquishing a child? What are the possible adverse psychological effects on the child? What identity crisis might ensue, and will there be a desire on the part of the child to know his/her gestational mother? Will surrogate arrangements be used not only by infertile couples but also for the sake of convenience, or by single men or women? Should the surrogate be paid? Would this lead to commercialization of surrogacy and expose the surrogate mother to possible exploitation? What happens when no one wants a handicapped newborn? Should the couple and surrogate remain unknown to each other? Should the child be told? What kinds of records should be kept, and should the child have access to them? What kind of medical and psychological screening should be provided to all parties?[24]

Closely linked to such ethical questions are a multitude of legal questions concerning surrogacy, because laws were written for other circumstances, not specifically for surrogacy. Are surrogacy contracts enforceable? Are they illegal? Is payment of a fee in violation of baby-selling statutes, i.e., is it payment for services rendered or for the child? Is the contract counter to public policy? What happens if the surrogate decides to keep the child? What would be appropriate damages for breaches of the contract? Would they be monetary, or would they require specific performance? How could disputes over visitation rights be resolved? Who is the legal mother? How can the husband of the infertile woman establish his paternity rights? Who should participate in decisions affecting the welfare of the fetus and the newborn? Would prohibition of surrogate arrangements violate constitutional rights to privacy or rights to procreate?[25]

All couples contemplating surrogacy must be aware of the small possibility of bonding between the host and the child and that she can change her mind. Also, the physical bond can get closer as the pregnancy advances and strengthens from the birth of the child. The genetic couple has a responsibility toward the host. No pregnancy is without risk. Also the welfare of the host, her family must be protected. This is sometimes carried out by arranging an insurance policy. A guardian should be appointed to take care of the child if the commissioning couple predecease the child. Surrogacy arrangements will continue to require good will on both parties and the genetic couple will have to seek a change in parentage through the court. In United Kingdom, Section 30 of the Human Fertilisation and Embryology 1990 Act in order to issue a parental order, the following conditions must be applied[26]:-

  • The genetic (commissioning) couple must be married and over 18 years old.
  • One or both commissioning partners must be genetically related to the child.
  • One or both commissioning partners must be a UK resident.
  • The child must be in their care.
  • The host couple must have given their consent.
  • No money must have been paid.
  • Application for parental order should be made when the child is over 6 weeks old but less than 6 months old.

AMNIOCENTESIS

Amniocentesis and sex-selection in India has a very short history. Reproductive biology was identified as a major thrust area for R&D by the Government of India, as well as the medical research establishments from the 1960s, as the hysteria about the population crisis began to affect perceptions of the Indian intelligentsia. The All India Institute of Medical Sciences was one of the major centers of research in this field, and received substantial financial support for this purpose from national and international sources. In 1974, the Department started a sample survey with the aid of amniocentesis to detect foetal abnormalities. By 1975, the AIIMS knew that the tests were being followed by abortion of female foetuses.

Abortion was legalized by the Medical Termination of Pregnancy (MTP) Act (1971). Though the statement of objectives projected the legislation as an attempt to reduce criminal abortions in unsafe conditions, and maintained that the primary objective of the law was to protect the physical and mental health of women seeking abortion, there was little doubt that in the perception of the medical establishment and of the majority of the general public, it was viewed primarily as an instrument of population control. One of the conditions under which abortion services could be provided by authorized hospitals and health centers was ‘failure of contraception’. Studies on abortion under-taken by various scholars indicate that most abortions were performed on this ground in such institutions. Abortions for other reasons continue to be performed mostly by unauthorized doctors and clinics and/or unqualified practitioners.[27]

Amniocentesis is a diagnostic procedure for detecting abnormalities of the foetus; usually performed between the 16th and 18th weeks of pregnancy.  Using a hollow needle inserted through the mother’s belly, amniotic fluid (the liquid around the baby, which contains foetal cells and foetal waste products) is withdrawn from the womb for laboratory analysis.  Testing the sample obtained can, for example, show the sex of the foetus and can detect some genetic or biochemical foetal abnormalities either by analysis of the amniotic fluid itself or the foetal cells it contains. All amniocentesis procedures in the UK are now to be carried out under continuous ultra-sound guidance. This allows the obstetrician who is obtaining the amniotic fluid sample to “see” the tip of the amniocentesis needle at all times in order to make sure it is in the right place and does not damage the baby or the umbilical cord.[28]

A basic point of difference between various brands of western and third world feminism has been in the Importance they assign to sexual and reproductive freedom for the individual in the quest for equality. Third world women have a historic awareness that individually their struggle would not get them very far. Such powerful systems cannot be changed by individual protests – though they have a historic role.

If the protest has to be collective, social and constructive – then we have to rethink the importance of sexual and reproductive freedom or rights at the individual level as the foundation and core of women’s equality. Rights have to be interpreted within a historic, social context. Women’s quest for equality today faces two challenges – a) reinforcement of hierarchic, unequal order from the global to the national level – the original destroyer of women’s rights to equality: and b) the upsurge of various revivalist ‘fundamentalist’ movements, projecting a group identity, based on religion, ethnicity, language, culture etc. By their very nature, they need to control women’s reproductive capacity to preserve the ‘purity’ of the group.

Reproductive technology in the control of either or both these forces would destroy all hopes of women’s equality. But fighting them by defending individual freedom may not receive full support even from all groups of women. The counter ideology to motivate and mobilize women also needs a social goal which provides them with a higher sense of self-worth and moral courage. Justice, dignity, the rights of child, the good of the community, and women’s collective empowerment – along with participation to achieve all these – may provide a stronger base for struggle today than the notions of sexual or reproductive freedom. Reproductive health needs to receive far greater priority than it has done so far and control of reproductive technology needs to be rescued from the clutches of market forces. But theories and instruments like intellectual property rights are not going to make the task easy.[29]

CLONING

Human cloning is a means of reproduction (in the most literal sense), and so the most plausible moral right at stake in its use is a right to reproductive freedom or procreative liberty. The reproductive right relevant to human cloning is a negative right, that is, a right to use assisted reproductive technologies without interference by the government or others when made available by a willing provider. There is a different moral right which might be thought to be at stake in the dispute about human cloning— the right to freedom of scientific inquiry and research in the acquisition of knowledge. If there is such a right, it would presumably be violated by a legal prohibition of research on human cloning, although the government could still permissibly decide not to spend public funds to support such research. Leaving aside for the moment human subject ethical concerns, research on human cloning might provide valuable scientific medical knowledge beyond simply knowledge about how to carry out human cloning. Whether or not there is a moral right to freedom of scientific inquiry— for example, as part of a right to free expression— prohibiting and stopping scientific research and inquiry is a serious matter and precedent which should only be undertaken when necessary to prevent grave violations of human rights or to protect fundamental interests. But even for opponents of human cloning, the fundamental moral issue is not acquiring the knowledge that would make it possible, but using that knowledge to do human cloning.[30]

Human cloning belongs to the eugenics project and is thus subject to all the ethical and juridical observations that have amply condemned it. In the cloning process the basic relationships of the human person are perverted: filiation, consanguinity, kinship, parenthood. A woman can be the twin sister of her mother, lack a biological father and be the daughter of her grandfather. In vitro fertilization has already led to the confusion of parentage, but cloning will mean the radical rupture of these bonds. As in every artificial activity, what occurs in nature is “mimicked” and “imitated”, but only at the price of ignoring how man surpasses his biological component, which moreover is reduced to those forms of reproduction that have characterized only the biologically simplest and least evolved organisms. Human cloning must also be judged negative with regard to the dignity of the person cloned, who enters the world by virtue of being the “copy” (even if only a biological copy) of another being: this practice paves the way to the clone’s radical suffering, for his psychic identity is jeopardized by the real or even by the merely virtual presence of his “other”. Also, since the “clone” was produced because he resembles someone who was “worthwhile” cloning, he will be the object of no less fateful expectations and attention, which will constitute a true and proper attack on his personal subjectivity.[31]

In any case, such experimentation is immoral because it involves the arbitrary use of the human body (by now decidedly regarded as a machine composed of parts) as a mere research tool. The human body is an integral part of every individual’s dignity and personal identity, and it is not permissible to use women as a source of ova for conducting cloning experiments. It is immoral because even in the case of a clone, we are in the presence of a “man”, although in the embryonic stage. All the moral reasons which led to the condemnation of in vitrofertilization as such and to the radical censure of in vitro fertilization for merely experimental purposes must also be applied to human cloning. The “human cloning” project represents the terrible aberration to which value-free science is driven and is a sign of the profound malaise of our civilization, which looks to science, technology and the “quality of life” as surrogates for the meaning of life and its salvation. The difference should again be pointed out between the conception of life as a gift of love and the view of the human being as an industrial product.[32]

Physicians from the American Medical Association and scientists with the American Association for the Advancement of Science have issued formal public statements advising against human reproductive cloning. The U.S. Congress has considered the passage of legislation that could ban human cloning. Due to the inefficiency of animal cloning (only about 1 or 2 viable offspring for every 100 experiments) and the lack of understanding about reproductive cloning, many scientists and physicians strongly believe that it would be unethical to attempt to clone humans. Not only do most attempts to clone mammals fail, about 30% of clones born alive are affected with “large-offspring syndrome” and other debilitating conditions. Several cloned animals have died prematurely from infections and other complications. The same problems would be expected in human cloning. In addition, scientists do not know how cloning could impact mental development.[33]

The reasons for allowing human cloning can be cited as follows:-

  1. Infertility:- This can be done in case where a couple is unable to conceive a child.
  2. Super Humans:- Selecting the most perfect genetic donor in someone’s opinion, whether it is Albert Einstein, Michael Jordan, or some other above average person, changes the norms of society. Imagine a world with fewer variations of people who are either super-geniuses or super-athletes. On the other hand, advances in science and technology would grow at an even faster rate and more people would be healthier.
  3. Genetic illness: – If a person chooses not to have a child that is genetically their own because of a risk with passing on a genetic illness, then again adoption is a better solution for the reasons mentioned previously.
  4. Body replacements: – One of the stranger reasons for cloning humans is for a complete body replacement. This is only science fiction now, yet it may someday be a possibility in the distant future. While it will always unethical to kill another human being to save another person, what if the cloned human body replacement did not have a brain and was intentionally designed that way from the beginning? What about replacing an aged body with a new body by transplanting the human brain?
  5. Because we can: – Just because science gives humanity the ability to do something does not mean that humankind should. The reasons for doing any action must outweigh the reasons for not doing the action, therefore cloning a person should not be because of capability.

However, on the other hand, based on ethical and legal issues, there are numerous reasons why cloning in human beings should not be allowed:-

  1. Playing God
  2. Religion
  3. Sub- Human:- Imagine a new race of people that are docile with super strength yet low intelligence. Next, imagine how easily for this race to fall into slavery. Cloning humans should be for the advancement of mankind and not the lessening of individuals.
  4. Embryos at risk: – The process of human cloning increases the risk of harm to embryos and thus to the cloned person throughout their life. This reason is self-defeating; because as scientists learn more, cloning humans has the possibility of becoming safer than naturally developing embryos by replacing randomized risks and genetic defects.
  5. Embryos killed: – During the human cloning process, a lot of human embryos are created and tested for viability. Some are either discarded or frozen for future use.
  6. Expectations: – Expectations of cloned humans to be identical to the genetic original person would undoubtedly cause a lot of psychological pressure, especially while growing up. Since identical twins are genetically the same yet very different people, it is unwise to expect cloned people to behave or have the same intelligence as the original genetic person. Therefore, no one should have any expectations from cloned people.
  7. Human rights: – A lot of people worry that cloned people would not have full rights, since they are just copies.[34]

Thus, it can be seen that numerous arguments of varying persuasive force have been cited from time to time for justifying the ban on reproductive cloning. Even the UNESCO’s Universal Declaration on the Human Genome and Human Rights which recommends a ban on “practices which are contrary to human dignity, such as reproductive cloning”. Similarly, in 1998, the World Health Organization reaffirmed that “cloning for the replication of human individuals is ethically unacceptable and contrary to human dignity and integrity”. The Council of Europe’s Convention for the Protection of Human Rights and its Additional Protocol on the Prohibition of Cloning Human Beings states that: “the instrumentalization of human beings through the deliberate creation of genetically identical human beings is contrary to human dignity and thus constitutes a misuse of biology and medicine”. Finally, we are in danger of trivializing and degrading the potential normative value of human dignity. There seems little doubt that the rapid advances that are occurring in the field of science, and biotechnology in particular, will continue to create new social and regulatory challenges, many of which may also raise issues associated with notions of human dignity.[35]

EUTHANASIA

In India, euthanasia is absolutely illegal. If a doctor tries to kill a patient, the case will surely fall under Section 300 of Indian Penal Code, 1860. but this is only so in the case of voluntary euthanasia in which such cases will fall under the exception 5 to section 300 of Indian Penal Code,1860 and thus the doctor will be held liable under Section 304 of Indian Penal Code,1860 for culpable homicide not amounting to murder. Cases of non-voluntary and involuntary euthanasia would be struck by proviso one to Section 92 of the IPC and thus be rendered illegal. There has also been a confusion regarding the difference between suicide and euthanasia. It has been clearly differentiated in the case Naresh Marotrao Sakhre v. Union of India[36], J. Lodha clearly said in this case. “Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating one’s own act and without the aid or assistance of any other human agency. Euthanasia or mercy killing on the other hand means and implies the intervention of other human agency to end the life. Mercy killing thus is not suicide and an attempt at mercy killing is not covered by the provisions of Section 309. The two concepts are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is affected.”

The question whether Article 21 includes right to die or not first came into consideration in the case State of Maharashtra v. Maruti Shripathi Dubal[37]. It was held in this case by the Bombay High Court that ‘right to life’ also includes ‘right to die’ and Section 309 was struck down. The court clearly said in this case that right to die is not unnatural; it is just uncommon and abnormal. Also the court mentioned about many instances in which a person may want to end his life. This was upheld by the Supreme Court in the case P. Rathinam v. Union of India[38]. However in the case Gian Kaur v. State of Punjab[39] it was held by the five judge bench of the Supreme Court that the “right to life” guaranteed by Article 21 of the Constitution does not include the “right to die”. The court clearly mentioned in this case that Article 21 only guarantees right to life and personal liberty and in no case can the right to die be included in it.[40]

So far as the issue of human rights is concerned, euthanasia is a highly debatable subject. The dispute is regarding the conflicts of interests: the interest of the society and that of the individual. Which out of these should prevail over the other? The clash is between the unbearable pain of the patient (individual) and the interest of the society which aims at the peaceful and dignified life to all. From legal point of view, Article 21 of the Constitution of India provides for living with dignity. This has at times been construed as that the fact that person has a right to live a life with at least minimum dignity and if that standard is falling below that minimum level then a person should be given a right to end his life. It has pointed in favour of euthanasia that a patient will wish to end his life only in cases of excessive agony and would prefer to die a painless death rather than living a miserable life with that suffering and agony. Thus, from a moral point of view it will be better to allow the patient die painlessly when in any case he knows that he is going to die because of that terminal illness. Contrary to this, it is often argued that if such a right is allowed to terminally patients, there is likeliness of misuse of it.

Besides, there is intense opposition from the religious groups and people from the legal and medical profession. According to them it is not granting ‘right to die’ rather it should be called ‘right to kill’. According to them it is totally against the medical ethics. The decision to ask for euthanasia is not made solely by the patient. Even the relatives of the patient pay an important role in doing that. Thus, it is probable that the patient comes under pressure and takes such a drastic step of ending his life. Of course in such cases the pressure is not physical, it is rather moral and psychological which proves to be much stronger. Also added to that is the economical pressure. The patient starts feeling him to be a burden on the relatives when they take such a decision for him and finally he also succumbs to it. Opponents also point out that when suicide is not allowed then euthanasia should also not be allowed. A person commits suicide when he goes into a state of depression and has no hope from the life. Similar is the situation when a person asks for euthanasia. But according to the opponents, such tendency can be lessened by proper care of such patients and showing hope in them. Another argument of the opponents is regarding the slippery slope. According to this argument, if voluntary euthanasia will be allowed, then surely it will lead to consequently allowing involuntary and non-voluntary euthanasia also. Also, as has been pointed out earlier, euthanasia in itself is an ambiguous term. The term ‘terminally ill’ has nowhere been properly defined. Thus even the medical fraternity is not clear as to who are the terminally ill patients, leave aside the legal practitioners. Thus, opponents strongly argue that euthanasia should be allowed only in rarest of the rare cases. If this is not done then surely it will lead to its abuse.[41]

ORGAN TRANSPLANTATION

Few issues in medicine have generated as much controversy as has living organ donation.[42] Patients who suffer organ failure can now often have their lives greatly improved both in terms of quality and quantity of years. When a donor wishes to donate regenerative tissue, there are a few legal and ethical objections to this. The main issue is whether or not there is genuine consent to the donor. On the other hand, where a non- regenerative organ is involved, the issue is more problematic. In United Kingdom, there are three important legal principles here:[43]

  1. It is not permissible to consent to a procedure which causes death or serious injury. Therefore, a parent cannot donate a heart to a child, assuming the parent will die as a result of the donation. Donation of a single kidney, a segment of liver, or a lobe of a lung will be permissible if the donor is in good health.
  2. There must be consent to the procedure. The donor must understand fully the processes involved. In the case of an incompetent patient the donation will only be permitted if that can be shown to be in that person’s best interests.[44] It is doubtful whether it could ever be shown that donation of an organ would be in an incompetent person’s interest. The terms of Human Organ Transplantation Act, 1989 mean that if the donation is to someone not genetically related to the donor, it is extremely unlikely that it would be lawful for an incompetent person to donate.
  3. The procedure must be applicable under the Human Tissue Act 2004.

Living related donors donate to family members or friends in whom they have an emotional investment. The risk of surgery is offset by the psychological benefit of not losing someone related to them, or not seeing them suffer the ill effects of waiting on a list. The organ transplantation technology has advanced to such an extent that it now embraces various types of techniques.

The legal position regarding organ donation is different in different countries. In the United States, The National Organ Transplant Act of 1984 made organ sales illegal. In the United Kingdom, the Human Organ Transplants Act 1989 first made organ sales illegal, and has been superseded by the Human Tissue Act 2004. In 2007, two major European conferences recommended against the sale of organs. Iran has had a legal market for kidneys since 1988. Both developing and developed countries have forged various policies to try to increase the safety and availability of organ transplants to their citizens. Brazil, France, Italy, Poland and Spain have ruled all adults potential donors with the “opting out” policy, unless they attain cards specifying not to be. However, whilst potential recipients in developing countries may mirror their more developed counterparts in desperation, potential donors in developing countries do not. The Indian government has had difficulty tracking the flourishing organ black market in their country and have yet to officially condemn it. Other countries victimized by illegal organ trade have implemented legislative reactions. China has made selling of organs illegal as of July 2006 and claims that all prisoner organ donors have filed consent. However, doctors in other countries, such as the United Kingdom, have accused China of abusing its high capital punishment rate. Despite these efforts, illegal organ trafficking continues to thrive and can be attributed to corruption in healthcare systems, which has been traced as high up as the doctors themselves in China, Ukraine, and India, and the blind eye economically strained governments and health care programs must sometimes turn to organ trafficking.

The ethical issue of to be considered here is that the notion of “transplantation tourism” has the potential to violate human rights or exploit the poor, to have unintended health consequences, and to provide unequal access to services, all of which ultimately may cause harm. The practice of coercion could be considered exploitative of the poor population, violating basic human rights according to Articles 3 and 4 of the Universal Declaration of Human Rights. Even within developed countries there is concern that enthusiasm for increasing the supply of organs may trample on respect for the right to life.

Objections to selling body parts for transplantation are most commonly voiced independently of the issue of ‘property rights’, however, and instead insist that the donation of organs should be based on altruism.[45] The removal of organs for transplantation purposes clearly involves a degree of physical damage and permanent destruction of the human body, which would constitute an injury, in the ethical terms, if the intended use of the tissue was not ethically acceptable and appropriate.[46]

As regards living organ donation the central importance of consent is conceded by all. But the fraught and intimate family circumstances surrounding most living related donation decisions and the typically instinctive nature of the decision- making has called into question the suitability of existing legal and ethical frameworks for determining the validity of a particular consent. These proceed from an individualistic standpoint and assume the feasibility of autonomous independent decision- making. It is suggested by some that the complex relationships and circumstances should themselves form part of the legal and ethical evaluatory process, an ‘ethic of care’ framework. But, assuming a valid consent is given for organ removal, should this not be sufficient per se to justify organ removal where it is intended for a therapeutic process such as transplantation?[47]

GENE THERAPY

The central argument in favor of gene therapy is that it can be used to treat desperately ill patients, or to prevent the onset of horrible illnesses. Conventional treatment has failed for the candidate diseases for gene therapy, and for these patients, gene therapy is the only hope for a future.

The goal of gene therapy is to genetically reprogram patients’ “germline” cells — their sperm or egg cells. The technique could allow patients to prune unwanted genes from their family trees forever, and alter the genetic makeup of their unborn descendants.

Germline gene therapy has always been an ethically worrisome idea. Genes interact in complicated ways, and the eradication of certain so-called disease genes could have unexpected side effects in future offspring. Moreover, no technique is perfect, and an inadvertently introduced error would become a permanent part of a person’s genetic legacy, perhaps wreaking biological havoc for generations to come.[48]

Gene therapy is a broadly enabling technology. Research physicians have barely begun to scratch the surface of its plausible uses. Ironically, the better gene therapy works, the faster memory will fade that it started as therapy for genetic defects. Ultimately, we may need measures and pressures to ensure that victims of rare disease are not left therapeutic orphans once again, while the technology-revolution their suffering launched serves as a platform for treating more common health problems.[49]

In the future it may be possible to read off the sequences of the bases in the genes of any organism, to write down the sequence and keep it in a library and, at any later time, to reconstruct genes with that sequence and thence to restore the actual organism to the biosphere. However, we are not yet able to record or to restore any arbitrary sequence of the genetic code, still less to understand what a protein generated by an arbitrary length of code would do. ‘At present we have to keep actual specimens of the genes in a “seed-bank”. Proteins are necessary for the development and operation of an organism. “These are not transmitted directly from their ancestors. What is transmitted is only the information as to the sequence in which the components of the protein (some twenty different amino-acids) should be assembled. The actual materials are derived from the environment and are incorporated into the organism. The genetic stock, then, is just ‘information’, not material, although of course, the information is written in material, namely in the sequence of the four bases along the strands. of DNA. The whole operates after the fashion of a general machine tool working in metal which follows the instructions supplied to it as a sequence of holes in a punched paper tape, to make some artifact.[50]

In appraising gene therapy, these principles, at minimum, must be taken account of, and built upon. Each is drawn from international instruments[51]:

  1. The respect for human dignity and worth;
  2. The right to equality before the law;
  3. The protection of rights of vulnerable individuals;
  4. The right not to be subjected without free consent to medical or scientific experimentation;
  5. The right to the highest attainable standard of physical and mental health and associated rights to health care;
  6. The right to protection against arbitrary interference with privacy or with the family;
  7. The right to enjoy the benefits of scientific progress and its application; and,
  8. The right to freedom for scientific research.

Inasmuch as all present gene therapy constitutes medical and scientific experimentation, (and a rather extreme form of it), the right “not to be subjected without free consent” to it is guaranteed. “Free” consent implies informed consent, with no coercion. The Nuremberg Code was the foundation. That Code was formulated in the unusual context of the international war crimes trial, for purposes of stating the internationally-recognized principles that might permit researchers to engage in conduct that would otherwise be a violation of subjects’ rights (and indeed, where injury was risked or caused, a serious crime). The Declaration of Helsinki, prepared by the World Medical Association, derived from and builds on the Nuremberg Code. In turn, the World Health Organization (WHO) and the Council for International Organizations of Medical Science (CIOMS) based their influential “International Guidelines for Biomedical Research Involving Human Subjects” on the Helsinki Declaration. The guidelines’ purpose is to indicate how fundamental ethical principles should guide the conduct of biomedical research involving human subjects. In its most recent version (CIOMS/WHO, 1993), one finds as “general ethical principles”, the proposition that:

“All research involving human subjects should be conducted in accordance with three basic ethical principles, namely respect for persons, beneficence and justice”.[52]

The arguments in favor of and against human germ-line gene therapy can be summarized as: 1) germ-line gene therapy offers a true cure, and not simply palliative or symptomatic treatment; 2) germ-line gene therapy may be the only effective way of addressing some genetic diseases; 3) by preventing the transmission of disease genes, the expense and risk of somatic cell therapy for multiple generations is avoided; 4) medicine should respond to the reproductive health needs of prospective parents at risk for transmitting serious genetic diseases; and 5) the scientific community has a right to free inquiry, within the bounds of acceptable human research. Many persons who voice concerns about somatic cell gene therapy use a “slippery slope” argument against it. They wonder whether it is possible to distinguish between “good” and “bad” uses of the gene modification techniques, and whether the potential for harmful abuse of the technology should keep us from developing more techniques. Other commentators have pointed to the difficulty of following up with patients in long-term clinical research. Gene therapy patients would need to be under surveillance for decades to monitor long-term effects of the therapy on future generations. Some are troubled that many gene therapy candidates are children too young to understand the ramifications of gene therapy treatment.

Arguments specifically against the development of germ-line gene therapy techniques include: 1) germ-line gene therapy experiments would involve too much scientific uncertainty and clinical risks, and the long term effects of such therapy are unknown; 2) such gene therapy would open the door to attempts at altering human traits not associated with disease, which could exacerbate problems of social discrimination; 3) as germ-line gene therapy involves research on early embryos and effects their offspring, such research essentially creates generations of unconsenting research subjects; 4) gene therapy is very expensive, and will never be cost effective enough to merit high social priority; 5) germ-line gene therapy would violate the rights of subsequent generations to inherit a genetic endowment that has not been intentionally modified.[53]

 

EXPERIMENT ON HUMAN BEINGS

In biostatistics or psychological statistics, a research subject is any object or phenomenon that is observed for purposes of research. In survey research and opinion polling, the subject is often called a respondent. In the United States Federal Guidelines a human subject is a living individual about whom an investigator conducting research obtains 1) Data through intervention or interaction with the individual, or 2) Identifiable private information.

There are many categories and gradations of human experimentation. They range from noninvasive studies such as demographic analyses of ethnic groups in poverty areas to the experimental transplantation of heart and lungs into a dying patient. Regardless of the category or the quality of the study, the principles involved are the same. The purpose of research is to advance human knowledge in the hope that it may benefit society for the common good. But in spite of the fantastic advances in both knowledge and technical sophistication, it is not quite certain that people are better or happier as a result of research studies, although we may live longer.[54]

In one way or another, the theory and practice of modern medicine is confronting us with many dilemmas, chiefly though not exclusively of a moral character; the transplantation of organs, abortion and euthanasia are examples, and closely associated with these are more obviously conceptual problems such as definition of death and, for that matter, definition of life itself.[55] With the improvement in medicine in surgery during the last two centuries, the average lifetime of people has been greatly extended and the pain and disability following the various injuries and diseases have been greatly reduced. It is absolutely necessary for medical progress that there be experiments on humans because medicine and surgery have a strong basis in scientific knowledge. Undoubtedly, human experimentation is necessary and desirable.

However, there is also a dark side to human experimentation: a long history of dangerous and harmful experiments performed on nonconsenting patients. Many a times, not only was informed consent not obtained, but the physician often fraudulently described the experimental procedure as either a diagnostic procedure or a treatment for the patient’s condition, although the physician had no reason to believe that the patient might benefit from the experiment. History has shown that nonconsensual experiments are often performed on captive people in an institution, particularly people who society has regarded as “less worthy” (e.g., Jews in Nazi concentration camp, mentally retarded people in institutions, indigent patients, Negroes). Such people are unable to decline or reject the experiment and few people will ever know what really happened.

Regulation of medical experimentation on human beings must consider the following[56]:

  1. Rational need of researchers to have access to human subjects. Experiments on human subjects are performed after in vitro experiments and after experiments on animals have shown that a drug or technique has a reasonable possibility of benefiting human beings. In assessing the desirability and acceptability of the experiment, one should consider the severity of the disorder (e.g., terminal illness vs. minor inconvenience) together with the possible side effects of the experimental treatment.
  2. Potential subjects must give informed consent (i.e., consent after experimenter has made an honest, complete disclosure of risks). Informed consent is necessary for the personal autonomy of the subject.
  3. Researcher’s conflict of interest, in which researcher wants a large number of subjects to consent and then wants all of these subjects to complete the entire experimental program. However, the researcher, as a physician, also has an obligation to neither harm nor exploit the patients/subjects.

The regulation of research involving humans is governed by a patchwork of legislation, common law and the international regulation. The main sources of law governing research are the following:[57]

  1. The Declaration of Helsinki:-

The World Medical Association has developed the Declaration of Helsinki, which was originally agreed in 1964, but is regularly revised. Although the declaration is not binding in English law, according to one leading commentator it’ has become the benchmark against which current UK research projects are measured’.

  1. The criminal law:-

The research must be properly approved. So if the doctor is conducting her or his own study, but has not had it approved by an Ethics Committee, she or he could still be guilty of a criminal offence if she or he caused the patient harm, even if the patient had consented.

  1. Legislation:-

A variety of pieces of legislation can impact on the performance of medical research including the following:

Human Fertilization and Embryology Act 1990

Data Protection Act 1998

Health and Social Care Act 2001

Human Tissue Act 2004

Mental Capacity Act 2005

There are also the medicines for Human Use (Clinical Trials) Regulations 2004.

  1. The Human Rights Act 1998:-

To perform a human experiment on patients without their consent or legal authorization could infringe patients’ rights under the European Convention on Human Rights. A Research Committee would be a public authority and would be required to ensure that any approved research did not infringe participants’ human rights.

  1. The common law (tort or contract):-

A researcher will owe a participant a duty of care in the tort of negligence and could be sued for damages if she or he breaches that duty. It would be very unlikely for there to be contract between a researcher and participant, but in such a case there is the possibility of a claim for breach of contract.

  1. Professional and governmental guidance:-

The Governmental and Professional Bodies have produced guidance on the conduct of research. Breach of the guidance could lead to disciplinary measures being taken against them. Funders of research or local hospitals may also have particular requirements they impose in relation to research.

  1. Local and multi- center ethics committee:-

These committees have been created to regulate and oversee research in their particular areas. The committees can refuse to authorize a research project or place conditions on its operation. In practice, a researcher whose research proposal has been passed by a Local Research Committee is likely to feel that their research will not face legal challenges, although approval by an Ethics Committee does not guarantee that the research is lawful.

Research from a legal point of view will fall into one of three categories:

    1. Research which is illegal and if conducted would amount to a criminal offence.
    2. Research which is lawful but is regulated. If the regulatory requirements are not fulfilled it would amount to a crime or tort.
    3. Research which is lawful and is unregulated.

HUMAN RIGHTS AND RIGHT TO PRIVACY

Of all the human rights in the international catalogue, privacy is perhaps the most difficult to define and circumscribe. Privacy has roots deep in history. The Bible has numerous references to privacy. There was also substantive protection of privacy in early Hebrew culture, Classical Greece and ancient China. These protections mostly focused on the right to solitude. Definitions of privacy vary widely according to context and environment. In many countries, the concept has been fused with Data Protection, which interprets privacy in terms of management of personal information. Outside this rather strict context, privacy protection is frequently seen as a way of drawing the line at how far society can intrude into a person’s affairs. It can be divided into the following facets:[58]

  • Information Privacy, which involves the establishment of rules governing the collection and handling of personal data such as credit information and medical records;
  • Bodily privacy, which concerns the protection of people’s physical selves against invasive procedures such as drug testing and cavity searches;
  • Privacy of communications, which covers the security and privacy of mail, telephones, email and other forms of communication; and
  • Territorial privacy, which concerns the setting of limits on intrusion into the domestic and other environments such as the workplace or public space.

Even with the adoption of legal and other protections, violations of privacy remain a concern. In many countries, laws have not kept up with the technology, leaving significant gaps in protections. In other countries, law enforcement and intelligence agencies have been given significant exemptions. Finally, in the absence of adequate oversight and enforcement, the mere presence of a law may not provide adequate protection.

There are widespread violations of laws relating to surveillance of communications, even in the most democratic of countries. The U.S. State Department’s annual review of human rights violations finds that over 90 countries engage in illegally monitoring the communications of political opponents, human rights workers, journalists and labor organizers. In France, a government commission estimated in 1996 that there were over 100,000 wiretaps conducted by private parties, many on behalf of government agencies. In Japan, police were recently fined 2.5 million yen for illegally wiretapping members of the Communist party. Police services, even in countries with strong privacy laws, still maintain extensive files on citizens not accused or even suspected of any crime. There are currently investigations in Sweden and Norway, two countries with the longest history of privacy protection for police files. Companies regularly flaunt the laws, collecting and disseminating personal information. In the United States, even with the long-standing existence of a law on consumer credit information, companies still make extensive use of such information for marketing purposes.[59]

The actual law on privacy was not created by any judge, but by parliaments of various nations when they introduced the legislations dealing with Human Rights. The statutes afford special protection for freedom of the press but also require invasions of privacy to be justified, for example by showing that the information is in the public interest. This essentially creates a balancing act between the interests of the press and the public at large, and the interests of individuals. If the press and the tabloids in particular, reveal information that is in the public interest and responsibly reported, they will be in a strong position.[60]

As technology has advanced, the way in which privacy is protected and violated has changed with it. In the case of some technologies, such as the printing press or the Internet, the increased ability to share information can lead to new ways in which privacy can be breached. It is generally agreed that the first publication advocating privacy in the United States was the article by Samuel Warren and Louis Brandeis[61] that was written largely in response to the increase in newspapers and photographs made possible by printing technologies.

New technologies can also create new ways to gather private information. For example, in the U.S. it was thought that heat sensors intended to be used to find marijuana growing operations would be acceptable. However in 2001 in Kyllo v. United States[62] it was decided that thermal imaging devices that can reveal previously unknown information without a warrant does indeed constitute a violation of privacy.

Generally the increased ability to gather and send information has had negative implications for retaining privacy. As large scale information systems become more common, there is so much information stored in many databases worldwide that an individual has no way of knowing of or controlling all of the information about themselves that others may have access to. Such information could potentially be sold to others for profit and/or be used for purposes not known to the individual of which the information is about. The concept of information privacy has become more significant as more systems controlling more information appear. Also the consequences of a violation of privacy can be more severe. Privacy law in many countries has had to adapt to changes in technology to address these issues and maintain people’s rights to privacy as they see fit. But the existing global privacy rights framework has also been criticized as incoherent and inefficient. Proposals such as the APEC Privacy Framework have emerged which set out to provide the first comprehensive legal framework on the issue of global data privacy.

When the convention was incorporated into British law, via the Human Rights Act, the press was deeply concerned – justifiably, as it turns out – that judges would try to develop a privacy law for the first time. In order to stop this happening, Lord Wakeham, then chairman of the Press Complaints Commission, sought additional safeguards. The Bill was amended to instruct the courts that when it came to balancing the right to privacy with right to free speech under Article 10, they should have “particular regard” to the importance of the latter. A high threshold – emphasising public interest and free speech – was put in place for granting injunctions against publication. At the time, the Government said that this meant such injunctions were only likely to be granted in the most exceptional circumstances. For years, this worked as intended; it does so no longer. The root of this problem lies in the way the Human Rights Act was framed and later interpreted by the courts. It needs to be resolved.[63]

CHAPTER 3

HUMAN RIGHTS AND SCIENTIFIC DEVELOPMENT

Science and technology are the drivers of economic growth in any country.[64] At present, scientific and technological developments have a massive impact on the daily lives of people.[65] When the relationship between technology and human rights is being discussed, it is evident that one has to deal with the interrelations between some very complex phenomena such as technology, science, society or systems of societies, and systems of rights of a universal nature.[66]

Today, the technological situation which has dehumanized homo sapiens is best brought out from the following quotes:[67]

“The computer ‘replaces’ man, while automation ‘relieves’ him of the need to take a direct hand in material production. Where then is the place of man himself? What happens to him? In the age of electronics and informatics, computers and robots, capitalism just makes new millions of people redundant. Redundancy afflicted not only the youth, not only the unskilled labour, it affects those who only recently considered themselves to be irreplaceable, e.g. draftsmen, designers, highly skilled assembly workers, welders, and workers of other trades have become unnecessary. A new term has been coined, ‘the new poor’, meaning those who recently listed themselves among the ‘middle class’, with roof over their heads and well-paid jobs, but who lost all overnight, joining the ranks of the ‘traditionally poor’.

“The rich grow richer, the poor, poorer still— such is one of the inevitable consequences of scientific and technological progress in modern capitalist society.

“The naïve notions of scientific and technological progress being an irresistible force pushing society upward the ladder of social progress gave way to more cautious attitudes to the potentialities of science and technology.

More than that, it became clear that they could bring about not only the deliverance of humanity from nay maladies of modern civilization, but plunge it into the vortex or calamities and disasters capable of blotting out the entire history of mankind.

“Achievements of biotechnology make it possible to solve the acute food problem, create miraculous medicines, wipe out lethal diseases and tap new sources of energy. But here, too, there is an alternative. Development of biological and chemical weapons from which there will be no escape, manipulation of man’s consciousness by means of special psychotropic preparations, and creation of zombies ready to obey the evil genius— all this is not the nightmarish fantasies of the sick mind or images created by monster films. All this is quite feasible if the results of modern biotechnology are put to inhuman uses. Hunger, war, droughts and floods, a direct threat to man’s physical and spiritual world— these are also possible implications of the development of science and technology”.

Over the past century, research and science have been driving forces behind technological advance and economic growth. However, many developing countries and their populations do not benefit from scientific and technological advancement. Too little of the knowledge and technology is accessible or applicable in these countries. At the same time, scientific research is of utmost importance for development and poverty reduction. The development of vaccines against smallpox, polio and other childhood diseases, for instance, has done much to prolong life expectancy. The development and use of cheap oral dehydration therapy has prevented the deaths of millions of babies from diarrhea. Science and technology in terms of access to information are also rapidly evolving, including developments, such as mobile telephones, internet and satellite television. The benefits have been enormous and have particular potential for developing countries.[68]

The present chapter brings forth the concept of human rights and the impact of scientific and technological development on the same in different countries all over the world.

 

Human Rights and Scientific and Technological Development in Venezuela[69]

Taken literally, some contemporary definitions of human rights in relation to scientific and technological development would seem to imply a radical questioning of the standard conceptions of science and technology. The dominant conceptions of Western scientific and technological development in terms of objectivity, neutrality, and universalism, the technocratic conceptions of science and technology as the domain of the expert and the specialist, as well as the necessary identification of scientific and technological development – conceived in these terms – with freedom and well-being for all, are severely questioned and relativized by the conceptions of human rights as they are now debated within the United Nations system. The main issue here is whether these definitions of human rights will remain as abstract declarations of principle (a product of the third-world voting majority at the United Nations General Assembly), with no practical or political significance, or if, on the contrary, they can become instruments for the furtherance of human rights in the realms of scientific and technological development.

To conceive of scientific and technological development as universal, neutral, and objective necessarily implies a lack of choice in relation to these processes, both in broad historical terms (the expansion of Western science and technology understood as an inexorable march towards overall human progress), and in terms of the day-to-day decision-making process in relation to science and technology (experts know best and there is no place for democratic participation by the lay, ignorant, public in the complex affairs with which specialists have to deal).

The Western model of scientific and technological development is not, however, simply a set of neutral instruments compatible with any social goal or purpose that a society might define. On the contrary, this model of scientific knowledge and of the technological transformation of nature can only bear its full potential when strictly guided by the aims and ends of instrumental rationality. The historical process of the making of the modern scientific and technological system of Western society is a process through which scientific and technological activities have become detached, separated, from any normative orientation different from the efficient control of nature and society. The unfolding – with no limitation – of modern scientific and technological development is based on the fact that within the realm of science and technology there can be no other criteria, no moral, ethical, or political value or norm different from the search, control, and manipulation of “reality.” Any attempt to incorporate any other standard- apart from instrumental rationality – within the scientific-technological process would hinder the full development of its potential. When, in the Western world, instrumental rationality was limited by cultural, political, and religious constraints, its development was severely thwarted. The full development of the potential of science was achieved only as part of the modern process of separation of the different spheres of reason, when the scientific enterprise was able to do away with these external restrictions. This is the essential difference between Western culture and other cultures in which the control of nature and material abundance are not assumed to be the supreme values of life.

Science as we know it – the scientific and technological development of modern industrial society – is not the natural way in which man relates to nature once he has managed to get rid of the limitations and inhibitions imposed by magic, religion, or any other tradition. According to the Eurocentric and objectivist interpretations of science, the full development of this natural human potential has not been possible in other traditions because of cultural obstacles that would need to be eliminated to advance in the direction of human progress based on scientific and technological development. This is the approach of the Sociology of Modernization. Any cultural difference between a traditional society and modern society (that is, Western industrial society) is seen as an impediment to modernization (be it family patterns, religion, the conception of time, or whatever). It is assumed that these societies have to supersede these peculiarities to achieve the goals of modernity.

However, scientific knowledge has no ontological foundation in human nature. It is not the “superior” form of human knowledge, but a particular type of knowledge developed in a society that has established the radical and absolute priority of the values of production, work, prediction, and control. The historical development of an instrumental rationality with no limit or external control is not the development of a sort of Hegelian reason through which the abstract laws of universal development express themselves. It is, on the contrary, a particular historical process, in which -as a result of a complex set of cultural, political, and economic conditions – Western culture assumes a basic cultural option, the unilateral priority of those values that could be achieved through instrumental reason.

When human rights related to scientific and technological development are thought of in terms of the right to “self-determined development,” the right to carry out traditional economic activities, the “right to uphold cultural traditions” (especially by indigenous, peasant, and fishing communities), “the rights of protection against possible harmful effects of scientific and technological developments,” “the right of access to scientific and technological information that is essential to development and welfare (both at the individual and collective levels),” and the “right of choice or the freedom to access and choose the preferred paths of scientific and technological development,”  there is a common and basic premise implied: there is a choice, and people have a right to decide among different possible alternatives. This would seem to imply a radically new perspective in relation to scientific and technological development. Science and technology are not seen as having one linear, predetermined universal path. Since different alternatives are possible, and the options between these alternatives have a cardinal bearing on the shaping of the future, these decisions cannot be left in the hands of experts and technocrats. Likewise, if there is no universally valid paradigm of a “good life,” people must have the right to choose and not have the set of values related to material production, to the manipulation and control of nature and society, imposed upon them as the supreme, unquestioned universal values of mankind, as values which can justify the denial of all other values or cultural alternatives. There cannot be such a thing as democratic society and people cannot be thought of as sovereign – if the future is predetermined and there is simply no option. In the words of Adam Przeworoski, individuals acting on the basis of their current preferences are collectively sovereign if the alternatives open to them are constrained only by conditions independent of anyone’s will. Specifically, people are sovereign to the extent that they can alter the existing institutions, including the state and property, and if they can allocate available resources to all feasible uses.

Scientific and Technological Developments as Political Issues

As long as the Western model of science and technology is seen as equal to human progress and as necessarily positive in its impact on living conditions and human rights, there will be little public concern over these issues. Because of scientific and technological development there is more freedom, less work, and an ever-rising standard of living. In these conditions there is little or no demand for public, democratic participation in relation to scientific and technological decisions.

Scientific and technological development and their relationship to human rights have become political issues in recent decades as a result of two parallel and often interrelated processes. On one hand the possible negative or perverse consequences of scientific and technological development with no control or limits is becoming increasingly clear. The destructive potential of nuclear arms (which threaten that most basic human right, the right to life for present and future generations), and the massive destruction of the natural environment because of industrial society’s aggressive exploitation of nature, act together to unsettle our blind faith in science and technology. Simultaneously, in different parts of the world, as a consequence of different processes, and at diverse rhythms, there is an ever-increasing demand for citizen participation in those issues that can have an impact in their individual or collective lives.

This new political significance of scientific and technological decisions has a double dimension. On the one hand is the acknowledgement of the possible positive or negative effects of science and technology on the rights of citizens (the right to life, the right to welfare, the right to privacy, the right to a non-contaminated natural environment, etc.). On the other hand, it refers to a new political demand, seen as a human right: the right to have access to information in relation to important technological matters and the right to participate in the decision-making process in relation to scientific and technological issues that might have a significant impact on people’s lives in the short or long term.

Nuclear plants; the use of animals for scientific research; toxic waste disposal; the impact of massive chemical use in modern agriculture; research and development in biotechnology, especially in the field of recombinant DNA; major airport construction; big dams – these are just some problems that have become the focus of organized resistance that has transformed them into significant political issues. Diverse social movements, especially anti-nuclear movements (both the peace movement and movements against nuclear energy) and ecological movements struggling against the destructive impact on nature of unlimited economic growth, demand the right to full public information and citizen participation in major scientific and technological decisions that might have an impact on human rights.

Because of public pressure, many countries over the last two decades have commenced the development of initiatives leading to “increased public involvement in planning and decision-making” 10 in relation to science and technology. Some of these participatory experiments have led to genuine democratic participation that has, in some cases, resulted in major changes in technological decisions. Frequently, however, far from implying a significant increase in citizen participation in the decision-making process, they have been oriented toward legitimizing questionable technological decisions.

Human rights-related issues in scientific and technological development obviously occupy a lower political priority in societies where the most basic human rights (as these have been traditionally defined both in civic-political and in social-economic terms) are by no means guaranteed. The possibility of having some say in scientific and technological decisions is likewise severely limited by the current vogue of neo-liberal economics imposed upon almost all countries in the periphery by international financial institutions as a condition for the renegotiation of the foreign debt. At stake are both the possibility of democratic debates and decisions in relation to the goal of a desired society and the means for achieving it (which would obviously imply some technological options), and national sovereignty. If all the main economic decisions (and, by implication, scientific and technological options) are left to market forces, and the resources required for these decisions are highly concentrated in the hands of multinational corporations, a very significant proportion of the relevant decisions pertaining to the definition of the present and future of these societies is drastically excluded from the political arena.

A further significant difference in the relationship between scientific and technological development and human rights in industrial societies and the situation in most of the third world has to do with the availability of economic resources. Thanks to their ample wealth, industrialized countries can invest in technological measures that compensate for economic activities which have particularly negative impacts. They have managed to control and even reverse some of the harm done by certain technologies. This is particularly so for environmental hazards related to industrial activities. When technological alternatives, or the technologies required to limit harmful environmental consequences or effects on people’s health, prove to be too expensive, there is always the possibility of relocating these activities or the resulting toxic wastes in some third-world country. The limitation in the availability of resources, along with the lack of the necessary know-how, sets limits to the matters relating to science and technology that are likely to become political issues in the third world. Even when technological alternatives to specially damaging industrial activities are well known, it is unlikely that there will be significant opposition to such activities if the costs of the alternative are deemed to be beyond the country’s capacity to bear, or if, for example, the affected employees in a particularly polluting petrochemical or steel mill have no alternative means of subsistence besides employment in that plant. Likewise, rigorous technological assessment requires both the resources to carry out studies and a basic trust in the results of such endeavour. This, again, tends to restrict the scope for technological decisions to become political issues.

Human Rights and Scientific and Technological Development in Thailand[70]

The term “human rights” raises different interpretations in Thai society. In past decades, it was much influenced by the political struggles to cast off the vestiges of authoritarianism in Thailand. In the 1970s, a student-led movement managed to oust a dictatorial regime, but was later crushed by a military-led backlash. The advocacy of human rights during that era was very much based upon the call for democracy and freedom of expression. The aspirations of the time gave a political meaning to the term “human rights” as an umbrella for self-determination. It provided justification for protection of the advocates of democracy, and for the release of political prisoners.

On the other hand, beyond the political spectrum, there is a whole array of socio-economic and cultural issues which have come to the fore in recent years.

Evidently, the scope of human rights in Thai understanding now goes beyond merely political questions. There are issues of development and under-development which raise questions concerning a wider dimension of human rights. In a way, it parallels the global interest in the right to development, defined by the 1986 General Assembly Declaration as constituting “an inalienable human right by virtue of which every human person and all people are entitled to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.”

In passing, one should note that Thailand voted for the 1948 Universal Declaration of Human Rights. However, since then she has rarely acceded to international human rights instruments. For example, she has not become a party to the 1966 human rights Covenants. The reason seems to be the perception that to accede to external instruments would be to invite scrutiny which may be detrimental to national security and executive discretion. However, beyond governmental circles, non-governmental entities often voice concerns on human rights issues by reference to international standards.

In this respect, one can hark back to the wisdom of the following comment made during the First United Nations Development Decade (1970s), when the exhortation to states to improve their GNP at the macroeconomic level, without sufficient regard to income distribution and resource reallocation among the population in pursuit of equity, was subject to criticism. It warned as follows:

One of the greatest dangers in development policy lies in the tendency to give to the more material aspects of growth an overriding and disproportionate emphasis. The end may be forgotten in preoccupation with the means. Human rights may be submerged and human beings seen only as instruments of production rather than as free entities for whose welfare and cultural advance the increased production is intended.

The reorientation of thought is encapsulated in the following yardsticks later propounded by the UN:

  1. The realisation of the potentialities of the human person in harmony with the community should be seen as the central purpose of development;
  2. The human person should be regarded as the subject and not the object of the development process;
  3. Development requires the satisfaction of both material and non-material basic needs;
  4. Respect for human rights is fundamental to the development process;
  5. The human person must be able to participate fully in shaping his own reality;
  6. Respect for the principles of equality and non-discrimination is essential; and
  7. The achievement of a degree of individual and collective self-reliance must be an integral part of the process.

It is probably easier to specify what technology is not, rather than what it is. It is not merely hardware in the form of machinery and tangible materials. It also incorporates “knowledge,” embodied in the term “software.”

The nuances are rendered more complicated by the unsettled notion of technology transfer. Four tendencies are visible from the documentation available. The first suggests that there is a transfer of technology “when it is used effectively in a new environment. No attention is paid to the origin of inputs of production. As long as new technology is employed efficiently, for example even if the whole factory is run by foreigners, technology is considered transferred.”

The second tendency is based upon whether “the local work force is able to take charge of the imported technology and to do so efficiently.” By contrast, according to the third tendency, technology transfer takes place “when technology spreads to other local productive units in the recipient economy,” such as through sub-licensing agreements. Finally, the fourth tendency emphasizes a process of indigenization, i.e. technology transfer takes place when “imported technology is fully understood by local workers, and when these workers begin to adapt the imported technology to the specific needs of the environment.”

Much of the discussion at the international level concerns not so much the puzzle “what is technology transfer?” but “what is international technology transfer?” This is germane to efforts under the aegis of UNCTAV to draft a Code of Conduct on the Transfer of Technology. All drafts agree that a transaction is international, and thus within the scope of the draft code, if the technology is “transferred across national boundaries.”  Beyond that, there is less agreement. What if the parties are not located in different countries, but one of them is controlled by a foreign entity and the technology transferred has not been developed in the technology-acquiring country? Within the UNCTAD forum, opinions diverge on this. Developing countries view such situations as “international,” thereby falling under the draft code. However, the developed world disagrees, thus excluding parent-subsidiary situations from the instrument where the subsidiary located in a country transfers technology to another party in that same country.

Historically, many forms of technology were found in Thailand thousands of years ago. There are remnants of technology concerning the use of seeds from as far back as 7,000-9,000 years ago. From 5,000-7,000 years ago, there is evidence of metal and copper utilization. In the Middle Ages (Sukothai era), there was ample use of ceramics, drainage, and building construction. Some three centuries ago, with the advent of Europeans in the region, medical instruments, irrigation, printing presses, and guns arrived at Thailand’s doorstep. Then came all the trappings of modernization, including telegraph and postal communications, railways, roads, and electricity. Interestingly, the first rice mill was set up with the help of the United States in 1858.

Currently, it is the Ministry of Science, Technology and Energy which oversees policy on technology. The national policy is shaped by the Sixth National Economic and Social Development Plan (1987-1991) (“The Sixth Plan”), whose guidelines include the following:

(1) To develop the country’s policy-making and planning capacities in science and technology;

(2) To develop the basic organizational structure, together with the laws and regulations necessary for science and technology development;

(3) To develop manpower efficiency in science and technology by improving the quality and use of manpower, particularly in engineering, science, agriculture, technical and vocational education, and secondary education;

(4) To encourage efficiency in national research and development;

(5) To encourage technology transfer from abroad and increase its effectiveness in benefiting the economic and technological development of the nation;

(6) To develop a new data and information system for science and technology; and

(7) To promote the role of the private sector in developing and using technology.

At the transnational level of technology transfer, technology has arrived in Thailand via the private sector, bilateral aid, and international organizations. Thailand has no law on such technology transfer, and the policy is one of acceptance with open arms. Japan ranks first in this field in terms of direct investment in Thailand. It is difficult to know how much technology has come into the country, particularly via the private sector, as there is no repository of technology contracts. The only two national entities which carry out some monitoring of these contracts are the Board of Investment, for the purpose of granting investment incentives, and the Bank of Thailand, for the purpose of repatriation of investment profits.

On scrutiny, one should observe that there is still under development of technology at the local level, thereby restricting the benefits of the laws and incentives concerning intellectual property. For instance, there have been relatively few applications by Thais to register patents; the majority have been foreigners. This indicates that indigenous technological developments, particularly in the industrial sector, leave much to be desired. The consequence is that one is too dependent on foreign technology without having the power to adapt it fully to local uses.

Implications

As implied earlier, the litmus test for assessing the linkage between human rights and technology is to look at a domain much broader than the political field. This involves socio-economic factors, environmental aspects, and a comprehensive overview of development. The following sectors are selected to illustrate the ambivalent repercussions of technology in Thailand when viewed from a human rights perspective.

Rural development

The majority of the world’s population live in rural areas. This is the case in Thailand, where some 70 per cent of the population are rural-based. They are also disadvantaged by limited access to basic services and belong to the poorer stratum of the community. For this reason, they deserve particular attention when there is talk of human rights and technology. How to reduce poverty, how to overcome unemployment and inequality, how to lessen the migration to urban areas, how to increase the yield of rural occupations, and how to promote greater self-reliance are recurrent questions for Thailand’s development process.

When the country first started to have national development plans in the early 1960s, rural areas were much neglected. The two decades that followed the First Development Plan (1961-1966) were biased in favour of infrastructural development, for example, roads, electricity, and dams, which tended to favour urban rather than outlying rural areas. Reappraisal came with the Fifth National Economic and Social Development Plan (1982-1986) (“The Fifth Plan”), with its accent on rural poverty eradication. The Fifth Plan acknowledged past failings, including a top-down development process which expected a trickle-down effect to take place from growth at the national level, the superimposition of welfare efforts on rural people without their participation, limited understanding by policy makers of rural problems, and the lack of basic necessities in rural areas. The Plan identified as special target areas villages (“backward rural areas”) in 37 provinces for upgrading on a priority basis. The philosophy began to change with the enunciation of these precepts:

  1. To be area specific, giving top priority to the high poverty concentration areas;
  2. To develop high poverty concentration areas so that the people will have enough to eat and to clothe themselves. Basic public services will be made available in sufficient supplies;
  3. To initiate people’s self-help programmes;
  4. To solve the poverty problems in all localities with emphasis on low-cost and self-help techniques;
  5. To encourage the maximum participation by the people in solving their problems.

Technology has come in extremely handy to collate the data and mobilize help for rural people in relation to the above. Basically, two types of information are gathered: that collected by the heads of households, which is then synthesized by the sub-district development committee and sent to the province; and that collected independently by the same committee as basic data concerning the village. These data are channeled to the provincial rural development center and are computerized before being sent to Bangkok for further computerization at the national level. The data are used as means for preparing projects to meet the basic minimum needs of the villagers and for mobilizing resources to help them. Three types of situations may call for resources (including technology) as follows:

  1. The villagers’ own resources, e.g. in planting vegetables.
  2. The villagers’ own resources coupled with those of the government, e.g. in setting up a credit scheme or fund in the village.
  3. Governmental funds, e.g. basic welfare services.

As the actual use of these indicators is in the nascent stage, it is difficult to assess their true impact, subject to these observations. First, owing to the variety of questionnaires (at least four), which have to be synthesized and reduced to percentages, the system is complex. Second, despite the complexity, the data gathered are an invaluable source of information concerning the state of villages all over Thailand. Third, where there is a lack of certain basic necessities, the information has led to programmes and budgets to help raise the standards to meet the basic minimum needs. Some 70 per cent of the projects of this nature which were sent to the Ministry of the Interior for support have met with a favourable response.

Fourth, some provinces are adopting indicators other than the 32 mentioned, especially if their level of development is already high. In one province, an indicator has been adopted to assess land tenure, an issue not raised in the 32 indicators mentioned. This reflects the need to review the status quo and move towards more redistribution of wealth. But the officials concerned may be afraid that this type of indicator will raise expectations and invite rights advocacy. Fifth, the 32 indicators are still weak on various issues, for example, they do not cover broadly the interests of specific groups such as women, children, and the aged, particularly in relation to their legal rights and well-being.

In practice, in spite of improvements in the livelihood of some villagers, others remain in a deprived position. The current land purchase and investment boom has also meant greater readiness by villagers to sell land for short-term benefits, thereby losing their means of self-reliance in the long run. Although the population growth has declined in recent years, demographic pressures continue to cause migration to urban areas and encroachment upon national forest land.

While well-intentioned, the rural development policies mentioned tend to be top-down in effect; policies and budgetary resources depend very much upon the Bangkok administration. This is compounded by the failure to decentralize power from the center and devolve resources to local leaders. The dimension of human rights and technology, in this respect, can be broadened by reference to other issues such as agriculture, rural industrialization, and environmental concerns elaborated below.

Human Rights and Scientific and Technological Development in Eastern Europe and Poland[71]

The theoretical concept of human rights in the socialist countries of Eastern Europe was, throughout the first 40 years of their existence, determined by the philosophical doctrine of Karl Marx. Its essence lies in two propositions: first, the necessity to subordinate the particular interests of the individual to the collective interests of society as a whole, and, second, the necessity to concentrate on basic citizens’ rights.

According to Marx, human needs are formed by two groups of factors. On the one hand “man is an implicitly natural being. As a natural being he is endowed with natural forces, with vital forces, and is an active natural being. These forces exist as his dispositions and abilities, as his impulses.” At the same time, as a “natural, corporal, sensual and objective being, he is a passive, experiencing, conditioned and limited being.”  In other words, man is, according to Marx, an absolutely flexible creature that changes together with changing social relations. This means that although man at his birth already has some specific dispositions and abilities which provide a framework for his individual development, the character, content, and scope of this development are determined by historically changing social conditions, which create a socially situated, concrete human individual. According to Marx, every man has the right to utilize his abilities, the whole richness of his personality.

In Marx’s view capitalism, through alienation and the treatment of human beings as objects, creates social relations which make it impossible to satisfy even the most basic human needs. The selfish needs of the owners of capital are simply incompatible with the ideal of the equal right of every human being to self-realization. In capitalism “every man thinks of how to awake a new need in another man, which leads to a new dependence.”  In this sense capitalism creates many false needs that make the self-realization of a man impossible.

In contrast to capitalism, as Marx put it, socialism creates genuine needs which result from man’s striving to achieve to realization of his abilities. They can be satisfied only on the basis of the prevalence of social property and socialist relations in production. Thus, in socialism the satisfaction of the needs of an individual acquires a collective character. This happens to be so because the opportunities for individual (intellectual, emotional, and biological) development strictly depend on the availability of opportunities for development to the whole of society, and are opportunities which are equal for all groups in society. It is here that the “just” character of socialism lies. Obviously, taking advantage of equal opportunities by particular individuals depends on their individual abilities.

The above Marxian interpretation of human rights and their division into “genuine” and “false” exerted considerable influence on the empirical approach to human rights in the practicing socialist countries of Eastern Europe

In these countries special stress was laid, first, on the so-called rights and freedoms of citizens and, second, on the subordination of individual human rights to collective rights.

The main cause of the subordination of the latter was the social revolution which took place in the countries of Eastern Europe. In the Soviet Union (1917) and Yugoslavia (1945) the social revolution was carried out by their own internal forces. In the rest of the East European countries the revolution was brought about by the Soviet army, which freed these countries from Nazi occupation. Nevertheless, irrespective of its sources, the revolution resulted in the substantial redistribution of national income for the benefit of the lowest income groups and at the expense of the minority who enjoyed fairly good or good living standards. Because of the resistance of the latter, the revolution could not be carried out in conditions of liberal democracy and drastic state interference was resorted to.

The egalitarian and collectivist system which emerged as an outcome of these changes in the countries of Eastern Europe had many features typical of social revolutions that have taken place in economically underdeveloped countries. This was so whether the revolutions were spearheaded by leftist-Marxist movements (as in Russia or China) or by nationalist movements (as in Indonesia or Burma). Everywhere they Ied to the establishment of etatistic and populist dictatorships, as the most pressing needs of the societies of these countries were stable employment and improvement of the living standards of young people, who were mostly of peasant parentage. Industrialization become a major priority.

Therefore, until the mid-1980s, in the East European countries human rights were interpreted in a selective way, with special stress being placed on equal opportunities for all members of society in their access to basic goods, such as food, clothing, and housing, and to social services such as health protection, education, or science. The above services were regarded as basic components of citizens’ rights. In this sense, the rising degree of satisfaction of the fundamental needs of society was identified with an increasing degree of realization of human rights.

This interpretation determined, to a considerable degree, the approach to economic development adopted in the socialist countries of Eastern Europe and, consequently, was bound to determine the role of technology in economic development. Special attention was focused on the right to work. Article 23 of the Universal Declaration of Human Rights, adopted and proclaimed by General Assembly resolution 27 A(III) of 10 December 1948, states:

  1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
  2. Everyone, without any discrimination, has the right to equal pay for equal work. This is an idea which has been regarded as a basic aim of socialism.

Equal importance attached to the right to an existential minimum:

  1. Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood on circumstances beyond his control (Article 25 of Universal Declaration).
  2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection, the right to education (Article 26 of Universal Declaration).
  3. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit, and the right to participate in scientific advancement and its benefits (Article 27 of Universal Declaration).

The attitude of the East European countries towards international commitments on human rights, codified principally in three UN documents – the Universal Declaration of Human Rights, 1948; the International Covenant on Economic, Social, and Cultural Rights, 1966; and the International Covenant on Civil and Political Rights, 1966 – had for many years been ambiguous. These documents were ratified by the East European countries with considerable reluctance. From a formal point of view, legislation in these countries remained in some respects in conflict with commitments on human rights. The relevant legislation provided for obligatory work, the prosecution of those evading work, much scope for compulsory labour, strong anti-emigration restrictions, limitations on the choice of places of residence, etc. These restrictions were incompatible with the Universal Declaration of Human Rights. Moreover, the provisions of law that prohibited the founding of political parties and trade unions, infringements of the concept of equality before the law, and the principle of the leading role of the party were incompatible with the Covenant on Civil and Political Rights. The actual state of affairs was even worse than the formal and legal situation, especially in so far as protection of the so-called right to privacy was concerned. There was mass control of correspondence, illegal interception of telephone calls, and a large degree of abuse of power by the police. The law, for its part, hampered the protection of individual rights. Solicitors had only limited access to investigations and the independence of the courts of law was only formal.

Despite the fact that the countries of Eastern Europe violated, particularly in practice, a number of individual human rights, the governments of these countries for a long time enjoyed the support or consent of a major part of their population, especially those whose social and material status improved. However, the support was not identical in all the countries of the region. Uniform development patterns were reflected in full employment, egalitarianism in the distribution of the means of consumption, common education, and rapid urbanization coupled with large-scale housing projects. Industrialization, especially the concentration of resources for development on heavy and engineering industry, however, brought about differentiation of development opportunities in particular East European countries. At the time of the introduction of the socialist system, i.e. in the late 1940s and early 1950s, most of these countries were economically underdeveloped. This was reflected in the low level of industrialization and urbanization, huge overpopulation, low per capita income and vast areas of poverty, especially in Bulgaria and Romania, as well as in Poland, and partly also in Hungary. The situation was different in Czechoslovakia (with the exception of Slovakia) and the GDR, which inherited a relatively high level of development from the pre-socialist period. Thus, whereas in the countries with the lowest level of development the adopted model guaranteed noticeable and quite rapid socio-economic advancement, in the countries with the highest level of development the model limited development opportunities in comparison with other countries of the world that had similar conditions.

Technological progress in this system performed functions that were subservient to the achievement of the fundamental goals presented above, especially full employment, securing an existential minimum, etc. Particularly in the period devoted to the implementation of socialist principles, technological progress in the East European countries was slower than in the economically advanced countries. There were several reasons for this. First, owing to the traditional technological underdevelopment of most of the countries in the region, and their lack of advanced industry and backwardness in education and science, these countries were not in proximity to centers stimulating technological progress. Secondly, imports of modern technology to the countries of the region were low as a result of the embargo imposed on such imports during the so-called “Cold War” period, as well as of the limited capital resources of these countries. Thirdly, the application of over-sophisticated technology was deliberately avoided where there was a traditionally low level of technical culture (especially in Romania and Bulgaria, but also in Poland and Hungary) and low professional qualifications among employees, most of whom were recruited from agriculture to industry.

Therefore, the consequences of adopting the pattern of technological development described above in Eastern Europe were different in the different countries. This was due to the different cultural values and socio-economic levels of these countries, which were introduced to identical patterns of development in the late 1940s and early 1950s.

In the traditionally underdeveloped countries this led ultimately to their living standards and economic development being brought up to a higher level. However, the benefits gained by the countries which represented the highest level of development were relatively smaller. Labour-intensive technologies introduced by these countries resulted in labour shortages and their low level of technological advancement started to exert an adverse effect on their overall development. These countries soon began to suffer from indirect consequences affecting the everyday life of their population, as well as from environmental pollution, unreliable equipment, etc.

The economic benefits of this model, which had been diminishing since the mid-1960s, contributed to the fact that the fascination with the solutions adapted by the East European countries after the Second World War started to subside. Even those social and economic rights which were observed, both de jure and de facto, particularly the right to work, the right to equal pay for equal work, the right to an existential minimum, the right to rest and leisure, the right to education, the right to health protection, etc., were fulfilled at a low level likely to cause discontent.

Social discontent, even if it assumed greater dimensions later, was at first directed towards the inconsistent fulfilment of those collective human rights that were identified as the main objectives of socialism, especially egalitarianism in income and access to consumer goods, social services, national rights, etc. The broader individual human rights were given less attention and environmental protection was not even mentioned.

Awareness of the need to introduce changes in this traditional model of socialism started to grow quickly in the countries of Eastern Europe. This occurred as soon as social groups interested not only in social but also in political democracy began to perform a more significant role. Over the years social movements and rebellions gain momentum and their character becomes more and more complex. Popular demands and pressure for more egalitarianism continue to be strong but the demands for more democracy, far-reaching economic reforms, and changes in the socio-economic system become more and more apparent, especially in the most influential circles. The demands put forward by environmentalists are at last voiced as a result of increased environmental damage in many regions and general world trends. An analysis of demands expressed by social movements in Eastern Europe confirms the evolution outlined above (Poland and Czechoslovakia 1968, Poland 1970, Poland 1980, USSR 1986, Poland, GDR, Bulgaria, Czechoslovakia, and Romania 1989).

The pressure for change did not occur at the same time and with the same intensity in all East European countries. In the countries where there was a real social base for the revolution and where it was carried out without external interference, as in the Soviet Union and Yugoslavia, authoritarianism was stronger and more repressive, involving a more negative approach to human rights than in the countries on which the system had, to a considerable degree, been imposed, as, for example, in Poland, Hungary, the GDR, and Czechoslovakia. Differences between the countries that belonged to the victorious anti-Nazi coalition and those that were defeated in the Second World War were also of some importance. In the former the resistance against the new order introduced by the Soviet Union was stronger, e.g. Poland and Yugoslavia, whereas the countries defeated in the war turned out to be more submissive for two generations. Examples of these were the GDR, Romania, and Bulgaria. Social behaviour was also influenced by differences arising from the cultural standard and level of economic advancement of the countries concerned. The strength of movements for democratization and reform was most noticeable in Poland,

Hungary, Czechoslovakia, and Yugoslavia, and less so in Romania and Bulgaria. At the same time the theoretical approach to human rights had been under-going changes in the East European countries. Over the years the stress had been shifted from collective to individual rights and the number of basic rights had been extended. This, to a large extent, reflected changes taking place both in theory and practice in Western countries.

Preference for individual human rights seemed to mark a return to the liberal conception of those rights, on the one hand granting a superior status to the interests of the individual as opposed to the interests of the community and, on the other, presenting the individual as a creature separate from the society, an abstract and formally equal citizen lacking any characteristic features resulting from his position in the social structure. This approach involves thinking only in terms of individuals when considering the issue of human rights. Each case of violation of those rights is considered from the point of view of the situation and interests of a given human being. Institutional guarantees are also directed towards solving issues in their individual expression.

This preference for a liberal conception of human rights, which occurred in the late 1980s and early 1990s in the theoretical considerations of some East European countries, is at variance with the rising world tendency for simultaneous consideration of both individual and collective (group) human rights. This situation should be seen as a natural reaction to a doctrine subordinating individual rights to collective rights which had been binding in Eastern Europe for more than 40 years. Therefore, it can be expected that the present-day fascination with the liberal conception of human rights will have a temporary character in Eastern Europe. Although the view that all economic and social rights are exclusively collective human rights is an oversimplification, it is also wrong to claim that the reverse is the case, i. e. that these rights are of an exclusively individual character. Fulfilment of many rights is by its very nature of a collective character, since it involves cooperation within the framework of a given human community. Besides, self-determination and sovereignty over natural resources, socio-economic development, peace, environmental protection, and other rights that require international cooperation have a collective character, and human communities represented by appropriate state agencies are natural subjects of this cooperation. This is why the so-called “third-generation” human rights, e. g. the right to develop, are entirely of a collective character. They extend the mechanisms for human rights protection to issues that directly determine the chances of fulfilment of individual rights and require close international cooperation.

Changes in the approach of theoreticians in the East European countries to basic human rights are reflected, first of all, in the stress laid on the right to a natural environment, on providing a balance between man and his ecosystem, on the right to personal security, and on the right to participation in a political system of a society.

The first of these, the right to a sound natural environment, is based on the conviction that disturbing the balance of the natural environment, whether by industrial destruction of the natural environment or by wasteful exploitation of natural resources, has a crucial impact on the ability to satisfy basic, existential human needs.

The right to personal security is one of the rights especially emphasized by theoreticians in the East European countries and this is due first of all to violations of these rights in the past. The right to personal security can be divided into several categories, namely the right to protection of human life, the right to protection against violence, the right to protection against inhuman treatment, the right to protection of human dignity and others. The first of them is especially important in the light of rapid technological progress. One of the main issues here is what act marks the beginning of the legally protected human life, birth or conception. Equally important also are deviations from the principle of the right to life. In the case of the right to protection against violence, its scope involves not only direct physical violence but also psychological violence, which, although it does not cause direct physical damage, psychologically damages the individual and in extreme cases causes the destruction of human personality. It is also in this context that technological progress is of relevance. The implementation of the right to protection against inhuman treatment includes preventing administrative callousness and obliging social institutions to treat a human individual as a living being, possessed of specific needs and feelings, and not as a statistical number. This right acquires considerable importance in the context of the development of computer systems and other automated systems of public service. Finally, the observance of the right to protection of human dignity should mean a prohibition of all actions which could degrade a human individual. This can assume the form of discriminatory practices which may deprive an individual of his sense of self-esteem and his equality in relation to other people. A human being cannot become a physically and morally incapacitated object. This is also of particular significance in the conditions of development of modern technology, which is utilized by a narrow group of people who are owners or users of that technology. This refers primarily to contemporary data-processing systems, systems of economic management, and so on.

The right of an individual to participate in a political system is, at present, included among basic human rights in literature on the subject in the East European countries. It can be summarized in a number of principles. First is the principle of general access to all information important for the formulation of political decisions. The main issue here is the elimination of private control over information resources and the prevention of manipulation of information through a monopoly of information which makes it impossible for individuals to take an active part in political life. Limitations on the free availability of information should be of an exceptional nature, e. g. where state defense is involved, and not be designed to prevent individuals from taking an active part in political life. The criteria for applying limitations to the free dissemination of information should be known to the public and their practical application should be controlled by democratic institutions.

Second, the right of an individual to participation in a political system should be reflected in the principle of freedom of expression in all its forms in regard to political attitudes, views, and interests. This should not be limited only to a formal or theoretical freedom but should also include actual facilities for expression, i.e. access to the material means which make it possible to voice specific views and attitudes.

Third is the principle of freedom of assembly and creation of political organizations, contributing to the effective exertion of influence by citizens on the political system and consequently to the more efficient functioning of that system. Without this an individual who is not a decision maker is deprived of the ability to make an impact on the political system.

Fourth is the principle of political power being of a representative character, opening up an opportunity for efficient control of the socio-economic policies of the state, information policy, etc. The observance of this principle is reflected in the norms defining the rules for creating and changing political power.

On the threshold of the 1990s the necessity of observing the human rights outlined above was declared by all socialist states of Eastern Europe. The first to do so were Poland, Hungary, and the Soviet Union, followed by Bulgaria, the GDR, Czechoslovakia, and Romania. Collective human rights such as the rights to employment, existential minimum, education, etc., which had been binding in these countries for more than 40 years, lost their importance to the benefit of individual human rights.

As a result of these changes, the countries of Eastern Europe faced the dilemma of whether to maintain the principles of their political system that had prevailed hitherto or to replace them with rights similar to those existing in the Western democracies. This dilemma became especially acute in Poland.

Human Rights and Scientific and Technological Development in Ethiopia[72]

Scientists seem now to agree that man originated at the foot of the eastern African mountains (500-800 m above sea-level). He developed and improved his first technologies there and added new ones to them before moving further afield.1 Further refinement of existing technologies and the addition of new ones occurred as man’s ancestors migrated to the Ethiopian plateau and to higher latitudes in Eurasia.2 In environments more hostile than those at his center of origin, where he had developed his earliest repertoire of technologies, man was perhaps stimulated to improve those technologies, and to add new ones, by the need to make the environment less hostile.

The existence of technologies of various degrees of sophistication on the African continent is an important factor to be borne in mind in assessing the impact of modern technology on any part of the continent. Since the impact of modern technology on the traditional straddles so many areas of social, economic, and political life, this study had to make a choice of some selected areas for detailed study. We have chosen one which is primarily political and another which is primarily social in its impact. The two selected areas are firearms technology and the impact of technology on the traditional work of women. Both are examined against their historical setting without reference to which they cannot be adequately understood. It should be emphasized that these are only two among the vast spectrum of issues from which a selection could be made.

It is appropriate to begin a study of the impact of European technology on the traditional with a brief reference to the Industrial Revolution in Europe – the most dramatic technological development that has occurred in the last 300 years. The beginnings of this revolution were in post-Renaissance south-western Europe. North-western Europe soon caught up with and overtook the southwest. As the Industrial Revolution wrought vast improvements both in the scale and in the sophistication of industrial production, the technologies of warfare shared in these benefits and advanced to a level of attainment impossible but for that revolution. These technologies provided Europe with the means of colonization of other territories, especially those in which the technology of warfare lagged far behind. Southern and eastern Europe and the parts of Asia at approximately similar latitudes to Europe were technologically not inferior enough for Western Europe to try to colonize them. Africa and southern Asia were inferior enough, at least in the technologies of warfare, to be occupied, and they became European colonies. Likewise, the Americas and Australia, which did not have a level of technological development comparable to that of northern Europe, also became colonies.

Colonization provided the backdrop for the introduction of the other technologies of the West.

The European technologies introduced by the colonial powers were often so different from the normal repertoire of native technologies that they could not be incorporated into those native technologies. Some modern technologies introduced into indigenous societies could not even be effectively maintained, let alone developed de novo. Predictably, therefore, the usual reaction of the native populations in many parts of Africa was either to accept any and every European technology that could be obtained, including the non-technological trappings associated with it – for example, the eating of wheat bread and the rejection of traditional foods – or to reject totally all European technology. Given the efficiency of the European technologies, many of the more important native African technologies died out in the process.

This did not happen uniformly throughout Africa. In northern Africa and the Horn of Africa, for example, the acceptance of the new technologies was less uncritical. As a result, much more traditional industry exists in these regions than in the rest of Africa.

Before the advent of European technology, the African homestead, as a functional component of the village in which it was found, was self-sufficient in producing, or receiving through exchange, and applying its technological hardware. The exceptions were the production of iron and iron implements, weaving (where this technology was traditionally in use), pot-making, and, in some areas, tanning, where the technological expertise was confined to a distinct group or caste. There was thus very little specialization of labour. The little specialization that existed tended to divide the society into castes or caste-like groups which were often considered inferior. At the same time, these groups came to be viewed with some degree of fear because of the special powers they seemed to exercise through their technology – a power that came to be associated with the supernatural.

These attitudes led, in many African societies, to the violation of human rights because the specialized group was often given a lower status and this status became hereditary. In Kefa in Ethiopia, for example, craftsmen were barred from giving evidence at court.4 This state of affairs had in turn a detrimental effect on technology, which was prevented from reaching its full stature because of such attitudes. This was an additional reason why the colonizers found local technology in an underdeveloped state when they entered Africa. If technology is to progress in any community, the Ethiopian experience examined here underscores the need for the exponents of that technology to receive adequate social recognition. If they are downgraded and despised, the possible contribution of their technology to the uplifting of that society is greatly undermined.

By contrast, perhaps because of their proximity to Europe, and also perhaps because their pre-colonial and cohesive Islamic and Arab culture gave them a degree of homogeneity, the North African Arab countries coped with European technologies more successfully. Moreover, even though their environment was not generally as favourable as that of some other parts of Africa for agricultural development, those of them that relied entirely on agriculture had quite sophisticated technologies and relatively efficient production. In modern times, with the additional advantage that many have of oil resources, they have been able to maintain their technology at a higher level, feed their populations and meet their other basic needs. This is, however, not true of the Sudan, which, largely because of its heterogeneity, has been too deeply embroiled in civil wars to develop itself effectively. In this context, the Sudan is more like a state of the Horn of Africa than of North Africa.

In terms of area and population size, Ethiopia constitutes the bulk of the Horn of Africa. Since we will look at Ethiopia in more detail, we need not say much more here. Not only culturally, but also ethnically, both Somalia and Djibouti are similar to the lowlands of eastern Ethiopia. Their colonial history, which could have given them a different technological dimension, does not seem to have done so. Somalia has turned out to be in as much difficulty as Ethiopia, not only in coping with European technology, but even in coping with internal dissent and consequent civil wars. Djibouti, perhaps because of its small size, has remained peaceful and belongs to the francophone camp.

The coming into Ethiopia of Western technology in the form of firearms started a process that shook the entire society and drastically changed the class stratification of the Middle Ages. The details of this process cannot be fully treated here.

The European technological introductions, which increased dramatically in the twentieth century, were often governed by the same philosophy as that of King Sahle Sllasie, though, owing to the overall increased awareness in the country, much less blatantly so. Respect for human rights was generally secondary to questions of gains in personal power, wealth, and other advantages on the part of the top members of the aristocracy. Transportation and telecommunications technology and the associated infrastructure made it possible for the few in the center to accumulate power in their hands, thus eroding whatever autonomy peripheral areas might have enjoyed. Even cultural difference from the established center came to be viewed as tantamount to declaring oneself not to be Ethiopian. The long established pluralism of Ethiopia, therefore, started to be diluted.

In short, European technologies have been used to centralize power and to erode traditional group and individual human rights. In the context of meeting basic needs for survival (health, food, shelter), however, there have been some noticeable gains. Even if modern medicine is not accessible to all Ethiopians, its availability has been increasing and more and more people are thus saved from suffering and premature death. The small gains in housing construction arising from the availability of new building materials, has, however, been more than offset by the unhygienic conditions arising from people crowding into urban slums.

A subsistence agricultural economy is often prone to famine. Because of the international mass media, such famines are brought to the attention of the world and modern transportation facilities bring food donated from various countries to the starving. But these facilities, which bring food into the country, cannot be used to address the more basic problem of transporting food within the country from surplus to deficit areas. Moreover, if there has been any improvement in the subsistence agricultural system attributable to modern technologies, it has been more than offset by increases in the overall population and especially in the number of urban people who need food from the countryside.

Since the revolution of 1974, though the government has enacted legislation to enable it to foster more actively than hitherto the development of science and technology, it has been too deeply embroiled in civil war to make substantial headway in implementing it. The civil war situation has also increased the use of modern technologies for destruction and human suffering. However, there have also been some efforts to use science and technology for the betterment of human life, for example in the provision of safe piped water to village communities.

A number of factors contribute towards creating this sorry state of science and technology in Ethiopia. There is as yet no coherent science and technology policy, though, for the first time in the country’s history, a draft has now been developed by the Ethiopian Science and Technology Commission and is being discussed. As a result, the importation and adoption of modern technologies has been haphazard. The combination of this lack of policy and the country’s overall poverty has made the funding of science and technology woefully inadequate.

Technological hardware is, to a large extent, determined by existing factories and enterprises. Most of these were created in pre-revolution days by individual entrepreneurs from all over the world, who made their investments in the context of a total absence of science and technology policy. They therefore bear little relationship to the technological needs and capabilities of other factories and cottage industries or even to the natural resources that should have complemented or supplemented them. Even enterprises and institutions established by the post-revolutionary government are not entirely free of this problem, as the “advisors” that influenced the technical decisions on them hailed from different countries with varied backgrounds and interests.

Research and development (R&D) is in its infancy in most scientific fields. It depends mainly on donor funding. This means that R&D priorities are largely set haphazardly by the whims of individual donors.

As a result of all these factors, the development of science and technology in Ethiopia has been very unsatisfactory. To make matters worse, the uncritical importation of technological hardware has killed and is continuing to kill cottage industries. For example, enough iron used to be smelted in traditionally constructed kilns to make the country self-sufficient in iron. Now, the smelting cottage industry has totally disappeared and the country imports all its iron and steel. Some cottage industries (e.g. spinning and weaving) have survived and even continued to develop. For example, because Ethiopians value their traditional costumes and these have also become attractive items for visitors and for export, the traditional technologies to produce these have not been replaced by modern technologies. The working conditions for the people have also been improved, particularly where workers’ cooperatives have been set up.

As described in the preceding section, Ethiopia has a complex background and includes many nationalities. As a result of this heterogeneity, Ethiopia had no codified uniform norms constituting a legal system. Such norms as existed were, by and large, customary. This meant that it had as many norms as nationalities- and even more, for it was often the case that more than one norm existed in a nationality. These norms, moreover, were amorphous.

This does not mean that Ethiopia is entirely without written law. There was some written law in Ethiopia as far back as the sixteenth century. The Fetha negest, the law of the kings, proclaimed by Emperor Zera Yacob, dealt with both spiritual and temporal matters. There are also the Bible and the Koran.

When modernization of the country’s legal system commenced in the twentieth century, however, insufficient effort was made to study the country’s customary and written laws with the aim of using them as possible sources. Instead, the eclectic “importation” of legal norms was preferred. This brought about the promulgation of constitutions and codes comparable to those of the developed countries as far as their modernity was concerned. This took place up to the middle of the 1960s, beginning with the promulgation of the country’s first Constitution in 1931. This constitution did not, however, deal extensively with human rights, unlike the Revised Constitution of 1955.

The incorporation of human rights in Ethiopia’s legal system began with the federation of Eritrea with the rest of Ethiopia on 11 September 1952. Eritrea had been made an Italian colony in 1890 and had remained so until 1941, when it became a British protectorate. The constitution for Eritrea was drafted under the auspices of the United Nations during the process of federation. Thus, it is no wonder that its provisions on the rights of citizens were almost identical with those embodied in the United Nations Universal Declaration of Human Rights of 1948.

Ethiopia is one of the founding members of the United Nations. The country’s Revised Constitution of 1955 incorporated norms for human rights that have equivalents in the United Nations Universal Declaration of Human Rights of 1948 and the Eritrean Constitution. Whatever norms on human rights existed at that time in Ethiopia were by and large customary and hence amorphous.

The outbreak of the 1974 Ethiopian Revolution was a milestone in the development of norms for human rights in Ethiopia. This had been preceded by the International Covenant on Economic, Social, and Cultural Rights of the United Nations of 1966, which formulated the rights of man as a whole. Given this background, it is not surprising that the Constitution of the People’s Democratic Republic of Ethiopia of 1987 embodied both political and economic human rights.

Human Rights and Scientific and Technological Development in China[73]

Independence and sovereignty of a country is political guarantee for human rights development. Since the founding of New China, development has claimed priority following the political guarantee of the right of the Chinese to subsistence. It is directly concerned with the support by the people, the prosperity of our undertaking and social progress. It has become a key to solving all problems and also a key to developing human rights. The CPC and the government have paid particular attention to all aspects of economic and social development and never stopped search for laws governing the development of socialism. At the beginning of reform and opening up, the people had generally a very low level of living, with the per capita GDP being less than US$300. It is, therefore, a pressing task for the CPC and the government and also the burning desire of the people to make economic development the central task and accelerate production and enhance the national strength so as to end hunger and poverty. So economic growth speed and amount were placed in the first place, with the annual economic growth kept at over 9 percent, creating an economic miracle in the world. Development has enabled the living standards of the more than billion population to rise rapidly. In a very short span, China effectuated a double leap from poverty to adequate food and clothing and from adequate food and clothing to a well-off life. In 2005, the per capita GDP reached US$1,300, quadrupling that at the beginning of reform and opening up, making the people really feel the benefits brought about by development. The right to subsistence and other rights have improved greatly. The whole nation hails the development. The convincing achievements have accelerated the pace of China’s modernization and uplifted China’s national power and international status and changed the image of China in term of human rights. It is exactly the development in the past that has brought about marked changes in human rights today and laid the foundation for further development.

But development has its laws. It is not that development is good on all counts. We have had a number of historical lessons. In the years under the planned economy, development seemed to be a bizarre cycle: when it was too rigid, the economy stagnated; when it was too free, it would fall into disorder and out of proportion. It shows that it is not feasible to have a backward production relations or development transcending production forces. We also paid a heavy price for the development at the beginning of reform and opening up: the pursuit for speed, the extensive growth mode and high economic growth at the expense of natural resources characterized by high input, high consumption, low efficiency and heavy pollution knocked the economic and social development and natural environment out of balance, the over-consumption of resources and energy and the sabotage of the natural environment made it difficult for future development and control. Secondly, the imbalance of economic and social development, regional and urban/rural disparities, the imbalance in interest distribution and the imperfection of social security have caused new contradictions between man and society and among people, thus affecting social stability and harmony. The third is that we did not get out of the bizarre cycle of development first and environmental control second. This has misled some leading officials into believing that “development, whatever it is, is the hard truth” and “development can be realized only at a high speed” and “so long as there is development, there is wealth.” So these became the major indicators for assessing the political and economic performance of leading bodies at all levels. Such blind worship of GDP resulted in a mid-reading of the scientific development approach and jeopardized the practical work. Such situation has not undergone fundamental changes till today, thus seriously affecting the shift to the scientific development approach. In general, although the problems in the past development are the result of the burning desire for development and limitations in thinking, it is hard to totally avoid it. But the impact and jeopardy cannot be ignored. Historical experience shows that development has the dual character of both positive and negative and both blind and scientific. It is, therefore, necessary to have a correct understanding of the scientific development approach.

The scientific approach of people-centered, coordinated and sustainable development is the result of the deepening of knowledge about China’s economic and social development and formed on the basis of summing up and drawing on the experience and lessons at home and abroad. This is exactly the fundamental issue China has to answer and resolve in human rights. People-centered and everything for the people is the essence and purpose of the scientific approach to development. All-round, coordinated and sustainable development is the core of such approach. According to such requirements, all development that makes people both the starting and ending point will inevitably follow the path of developing production for a better life and better ecology, optimizing production structure, raising efficiency and quality, making efficient use of resources and energy, protecting the environment and reducing pollution so as to achieve quicker and better results. It would be an inevitable road for all regions, all trades and services to develop in well-coordinated steps; it would be an inevitable road to an all-round development in the economic, political, cultural and social areas; it would be an inevitable road to a harmonious development between man and society and between man and nature; it would be an inevitable road of sustainable development for the future. It should also be a road of harmonious development between domestic construction and international environment and between the Chinese people and the people of the other parts of the world. This is exactly the issue that must be solved and the lofty goal of pursuit in human rights development. This approach has deepened the understanding of not only development but also human rights development. The implementation of the approach is an important hallmark of the new stage of development in China. What we say about development is scientific development. The central authorities have stressed time and again the necessity of strictly acting upon scientific development and using it to command the whole situation in economic and social development so as to bring development onto the orbit of healthy, scientific and benign cycle and better benefit mankind.

Scientific development approach and human rights

Following this approach is of great practical and long-term significance in realizing an all-round development of human rights. This approach is closely associated with human rights development. They are inseparable. First, using the approach to command the whole situation of economic and social development includes human rights; secondly, the approach is an important guarantee for realizing the right to subsistence, the right to development and therefore it should serve as a powerful driving force to promote human rights in China; thirdly, the approach is a guiding principle, world outlook and methodology in human rights development; fourthly, human rights development should be centered round people; fifthly, following this approach would mean peaceful development, which will contribute to creating a good international environment, the implementation of the foreign policy of peace, cooperation and development and to anti-war threats and terrorism and the opposition to hegemonism and power politics and to peace of humanity and human rights development in the world.

The approach has a direct bearing on human rights and therefore is of special significance. It has not only enriched the spiritual contents of human rights but also exhibits alarming identity and profoundness. Fundamentally, scientific development is the key to all problems and so is it to human rights development, which should be rooted in economic and social development and progress. The approach is people centered, stressing that development is in the interests of man. This has revealed the essence of human rights. It shares the same development goal as human rights development. But specifically, the scientific development and human rights when viewed from different angles are not totally the same.

First, development is a kind of change, a change from small to big, from simple to complex and from a lower order to a higher order. The approach of scientific development conforms to the changes in the objective law governing nature and economic and social development. Human rights are a kind of right, the dignity and basic rights of man. Right is the right exercised by citizens or corporate persons and the interests they enjoy? It is protected by the state and the law. The November 1991 white paper China’s Human Rights Conditions points out that “the Chinese government sets great store by safeguarding and realizing the right of the state, all nationalities and individuals in economic, cultural, social and political development.” The political reports of the 15th and 16th National Party Congress all stated the necessity of respecting and protecting human rights. The 2nd Session of the 10th National People’s Congress wrote the provision “the State respects and protects human rights” into the fundamental law of the Constitution of the People’s Republic of China.

Secondly, the state is the leader of development. In China, the CPC and the state are the leaders of scientific development, who formulate development strategy and policies, make unified planning and coordinate development. The subjects of human rights are people, social persons and natural persons, the people of the whole country and all individuals. They enjoy the fruits of development and create development and therefore they are respected and protected by the CPC and the state. The strong link between human rights and development has figured prominently in United Nations deliberations for more than half a century. In 1986, the right to development was made explicit in the Declaration on the Right to Development, which states that “States have the primary responsibility for the creation of national and international conditions favorable to the realization of the right to development,” and “States have the right and the duty to formulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting therefrom.”

Thirdly, the state is a leader of development of a country and also the party that enjoys collective human rights. The state, Minzu (all ethnic groups) and the society enjoy collective human rights or social human rights. In this perspective, the state has the dual character of leading development and exercising collective human rights, which should be equally respected and protected as human rights of individuals. The collective right to development and individual rights to development should be equally respected and protected. (The right to development of the state and Minzu-ethnic groups-should receive special protection by international law.) Scientific development is the fundamental way of protecting and improving the basic rights of citizens and also the basic human rights of collectives and individuals. China pays attention to both collective human rights and individual human rights. The development of collectives and individuals are in perfect unity, aimed at promoting an all-round development of people. China’s Constitution, other laws and practical work have constantly uplifted the positions of individuals and strengthen legal protection of the property, interests and safety of individuals.

Fourthly, everything for the people is the essence and purpose of scientific development. This is determined by the essential features of socialism. It is derived from the concept of building up the Party for the public and ruling the country for the people. It is also derived from the concept that the Party and state are organizers and leaders at all levels. Everything for the people is the starting and ending point of all work. It reflects the full attention of the Party and state to human rights. From the perspective of human rights, people are the subjects and the motive force of development. As human rights of collectives and persons as individuals, people are not only the party that enjoys the right to development but also, and more important at that, the party that undertakes scientific development and creators of material wealth and propellers of social progress. In a word, the original meaning and essence of the right to development is to do everything for the people and rely on the people, unifying rights and obligations and fully exercising the rights of “people” and undertake the responsibility of economic and social development.

The UN Declaration on the Right to Development clearly points out that “the human person is the central subject of the development process and that development policy should therefore make the human being the main participant and beneficiary of development.” Some people ask whether human rights are the result of development or the motive force of development. I think human rights are the result of development and the motivation for development and even more so. Development beneficiaries and participants are a unity and they are also interactive. Only when there is scientific development, it is possible to have good results.

CHAPTER 4

IMPACT OF SCIENTIFIC DEVELOPMENT ON HUMAN RIGHTS AND SOCIETY

We may define science as knowledge and technology as science in action.[74]Science can broadly be defined as the knowledge of the general laws of nature and a systematic study of any event experienced by Man in its perception.[75] The concept of technology may refer to those aspects of culture which relate to the manipulation of the natural environment by man or “that whole collection of ways in which the members of a society provide themselves with the material tools and goods of their society – the collection of artefacts and concepts used to create an advanced socio-political-economic structure.”[76]

Human Rights are those minimum rights which every person should necessary get because he is member of human society meaning of this is that those Rights which human gets because he is a human being, to get these rights there is no need of any quality or specialty that means no person can ignore being a person. In the same way human rights cannot be ignored nor can be made ignored. Basically human rights are an achievement of all that circumstances which person can develop his internal qualities which nature has blessed him.

With every step forward in science and technology, the power of these forces to affect human society for better or for worse has increased. The impact of technology has ranged from the peaceful penetration of useful technologies to the “violent entry” of destruction technologies. This vital aspect of the interaction between technological development and human rights must receive concerned attention if technology is to be used consciously for the betterment of society.[77]

There is need for an ethical component in science, not just in terms of ethics of science, but really ethics in terms of why and for whom this science and what kind of impact it is going to make. The main challenge before Indian science today was the tendency to look for big challenges, forgetting the little details that make up life. It is actually becoming a challenge in the face of development today, which is leading to a growing toxification of the environment – pollution of water and rivers, air pollution, very high health costs – something that is not understood, not anticipated, certainly not built into policy systems. At the same time there is growing poverty, cycles of drought, decreasing productivity of our lands, which means we are really facing a double crisis. Human rights and human dignity should be the most important concern of any activity of human being, whether it is science or social science. And that often is overlooked, which brings in the question of survival and equity.[78]

HUMAN RIGHTS WHICH ARE PARTICULARLY AFFECTED BY SCIENTIFIC AND TECHNOLOGICAL PROGRESS[79]

Among the human rights enumerated in the Universal Declaration of Human Rights, the following rights would seem to be particularly affected by scientific and technological progress:

– The right to life (Article 3), in the sense that science (biology, medicine, etc.) as well as technology (gene technology, nuclear technology, 2 etc.) can determine or influence birth and death. Problems posed by abortion, in vitro fertilization, embryo transplantation, euthanasia techniques, untested drugs, are examples.

– The right to physical and spiritual integrity (Article 5 stipulates that no one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment). Use of drugs and other chemical controls of the mind, psychological and physical testing methods, and behaviour therapy are still often used in interrogation.

– The right to privacy (Article 12 stipulates that no one shall be subjected to arbitrary interference with his privacy, family, home, or correspondence, nor to attacks upon his honour and reputation. . . ). The developments in recording, surveillance devices, personality tests, and other communication techniques based on electronics, optics, and acoustics, as well as new reproduction techniques, have considerably changed the ways in which privacy could be protected.

– The right to freedom of opinion and expression and the right to information (Article 19). Developments of micro-electronic communication technology have changed the conditions in which this right is exercised.

In a less precise way, the exercise of the following rights is influenced by scientific and technological progress:

– The right to property (Article 17) 3 Developments of new forms of property, such as software, has given rise to new thinking about the right to property.

– The right to work (Article 23). Developments of new technologies have changed market structures affecting the right to work.

– The right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care and necessary social services (Article 25). Scientific and technological progress can engender new forms of discrimination in the exercise of this right. Lack of access to medical information can also affect adversely the right to health.

– The right to education (Article 26). Developments in communication and information technology can promote this right but they can also create new forms of discrimination in education.

– The right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits (Article 27). Scientific and technological developments do not in themselves guarantee this right, but combined with the reinforcement of freedom of expression, the right to information and the right to education, this right can be promoted, thanks to a better communication technology.

Thus, scientific and technological progress can have both negative and positive impacts on human rights. The effects depend often on the right to information and freedom of expression. Inasmuch as technological progress produces conditions favourable to disinformation and cultural indoctrination, the right to information and freedom of expression seems to be a crucial factor in transforming scientific and technological progress into conditions conducive to a better respect of human rights.

The international norms so far developed to cope with human rights problems arising from scientific and technological progress seem to have ignored this crucial dimension – the right to information and freedom of expression – which inevitably intervenes when dealing with these problems.

Industrialisation and Human Rights[80]

The notion of traditional technologies refers to means of reducing the share of man’s manual work through technical appliances, especially mechanization and automation.23 Traditional technologies are characterized by their double impact on human rights. On the one hand, they can facilitate the fulfillment of certain rights, and on the other hand they can hamper the fulfillment of other rights.

Traditional technologies exert a positive impact on a number of human rights. First of all, they lead to the raising of the standard of living through more efficient production, improved labour conditions, and the creation of new and better-quality products. As a result of mechanization and automation, the structure and volume of employment undergo changes. It should be pointed out that the impact of mechanization is different from that of automation.

Mechanization reduces the demand for physically strong employees expected to contribute intensive physical labour. On the other hand, women gain broader access to jobs.24 at the same time, mechanization creates jobs for low-skilled workers, able to service a limited part of the production process. For that reason it exerts a positive impact on the fulfillment of human rights in countries with an underdeveloped industry and a surplus of unskilled labour. In highly industrialized countries with a small proportion of unskilled labour, mechanization can bring about problems.

Unlike mechanization, “automation usually leads to a decline in the demand for unskilled workers and is accompanied by regional shifts in the distribution of resources, obsolescence of skills, dislocation of the labour force and a need for retraining and similar adjustments.” 25 Its impact on the situation in the field of human rights cannot be unequivocally determined since it is different in countries with labour shortages and in countries with an abundance of manpower. In the former, automation makes it possible to overcome the shortage of manpower by its redistribution and better utilization. By the same token it contributes to an increase in output, speeding up economic development and the growth of well-being. In countries with a surplus of manpower, automation leads to increased unemployment and thus, from the point of view of the right to work, it cannot be called an unequivocally positive phenomenon.

Both mechanization and automation also influence human rights other than the right to work. From the point of view of the individual worker, a common complaint is nervous tension brought about by the faster pace of work and lack of control over it, exposure to noise, the need for constant concentration and alertness on the job, and increased responsibility. Other frequent problems are boredom, which can result from the performance of monotonous, repetitive tasks, the injurious effect on professional pride of the decline of craft skills, and the feeling of isolation among a mass of machines. The physical adjustments the worker has to make to adapt to automated industry are also a source of stress. Workers have little, if any, physical exercise and lack the rhythm of muscular work associated with non-automated processes. Furthermore, because of the high cost of sophisticated modern machinery and the consequent need to maintain production on a round-the-clock basis, there has been an increase in shift work. Concern at the possible ill-effects of such work on sleeping and eating patterns and upon family and social life has been expressed.26 These developments bring about a number of new diseases as an outcome of industrialization, especially mechanization. They pose a serious threat, particularly for women and their children.

A major problem is environmental damage. Mechanization and automation play a leading part in this field. The deterioration of the human environment due to scientific and technological development has been a by-product. Until recently this was generally regarded as inevitable, in view of the interference with the environment which was necessary for the realization of the right of everyone to “a standard of living adequate for the health and well-being of himself and his family,” as laid down in Article 25(1) of the Universal Declaration of Human Rights.27 The deterioration of the environment is a threat to the right to life, which is proclaimed in Article 3 of the Universal Declaration of Human Rights. The deterioration of the human environment reduces the enjoyment of life of millions, the right to which is implied in the reference to an adequate standard of living in Article 25 of the Declaration. A threat to health and even life is posed by the pollution of the air due to industrial activity, traffic, domestic heating, and other factors, as well as by excessive waste creation and inefficient waste disposal.

Industrialization, including mechanization and automation, creates a threat to the world food supply by erosion and other forms of soil deterioration, water pollution by domestic sewage, industrial wastes, drained-off chemical fertilizers and pesticides, and thermal pollution.

All those positive and negative effects of technological development on human rights find their reflection in reality in Poland. They can also be found in the experience of other countries of Eastern Europe.

The notion of advanced technologies refers here both to technical appliances and to methods of their usage, leading to the replacement not only of manual work but also of the mental work of man. In this sense, an example of advanced technology is electronic communication techniques.29 These, like traditional technologies, have a double impact on human rights. On the one hand they may contribute to the fulfillment of certain rights, and on the other they may simultaneously hamper the fulfillment of other rights. This relationship can also be inverse, with some human rights speeding up the introduction of advanced technologies and others making the adoption of such technologies impossible.

Advanced technologies exert a positive influence on labour productivity, the improvement of quality, and other modern features of production. They eliminate a whole range of adverse side-effects of mechanization and automation, such as noise, air pollution with chemical substances, dust, etc. In countries suffering from a shortage of trained labour, advanced technologies make it possible to overcome this barrier.

Advanced technologies completely change the position of man in the process of his interaction with nature. His role in some ways becomes more and more superior, and in others increasingly subservient. Superiority comes from his increased power over nature and subservience from his increasing dependence on the technology.

Right to Environment – Derived from the Right to Life: Right to life, implies the right to live without the deleterious invasion of pollution, environmental pollution, environmental degradation and ecological imbalances. Everyone has the right to life and a right standard of living adequate for health & wellbeing of himself and of his family. States should recognise everybody’s right to an adequate standard and to continuous improvement of living conditions. Thus, inherent right to life shall be protected by law.[81]

Principle 1 of the declaration of UN Conference on Human Environment, 1972 proclaimed that man has the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well-being. After this Stockholm Declaration, references to a right to decent, healthy and viable environment was incorporated in several Global and Regional Human Rights Treaties and in resolutions of International Organisations.

The Indian Supreme Court, being one of the most active judiciaries in the world, also created a landmark in the quest of international judicial activism by developing the concept of right to healthy environment as a part of right to life under Art 21 of our Constitution.

Besides that various laws has been framed in India for the protection of environment from the effect of industrial pollution and some of these are cited below-

  1. i) Section 268 to 290 of Indian Penal Code deals with public nuisances. Public nuisance means pollution of air, water, blasting, excessive smoke, filth and other polluting activities.
  2. ii) Section 133 and 143 of Code of Criminal Procedure Code and Section 91 of Code of Civil Procedure envisages that a person may approach a Magistrate and District Judge respectively by filing a complaint or petition about the public nuisance.

iii) Under Law of Torts, special damage can be claimed from nuisance maker/violator of environment.

  1. iv) The Water (Prevention and Control of Pollution) Act’1974,
  2. v) The Environment Protection Act’1986,
  3. vi) The Wildlife (Protection) Act’1972,

vii) The Air (Prevention and Control of Pollution) Act’1981,

viii) The Prevention of Cruelty of Animals Act’1960,

  1. ix) The National Environment Tribunal Act’1995.

Problem of pollution is the outcome of urbanization, overpopulation and industrialization. In modern times, therefore, it needs more effective legal opinions to counter the above. Accordingly Indian parliament passed The Environment Protection Act’1986 to safeguard the environmental degradation. The Indian Penal Code has few provisions on the subject, but they are ineffective when faced with the problems of an industrialized society. The first problem to attract the attention of certain state legislation in India was water pollution. But it was only in 1974 that a Central Act was enacted on the subject to be followed by The Water (Prevention and Control of Pollution) Cess Act’1977 and thereafter most drastic law had been enacted as Environment (Protection) Act’1986. India first got the taste of environmental disaster by two catastrophes that befell India – the Bhopal disaster in 1984 and Sri Ram Fertilizer Plant leak in 1985.

The Bhopal Gas Leak Disaster (Processing of claims) Act’1985 gave the Central Government the sole authority to represent (in litigation) the victims of Bhopal for compensation claims against the Union Carbide Company. Sri Ram gas Leak did not generate legislative activity but prompted Mr. M. C. Mehta (On behalf of Hindustani Andolon) and certain other organizations to start to use the effective legal tool in the form of Public Interest Litigation (PIL). This gave the Supreme Court an opportunity to enunciate certain important doctrine on tort law, corporate law (particularly the civil liability of directors for wrongs committed by the corporate body).

 Everyone as a human has a right to live in a pollution free environment. This right has been given to all be wider interpretation of Article 21 of the constitution. Recently, Supreme Court has broadly and liberally interpreted the Article 21 and transgressed into the area of protection of environment and held that the protection of environment and citizen’s right to live in eco-friendly atmosphere interpreted as the basic right guaranteed under Article 21. Recently to mitigate the needs of environment related litigation, “Green Benches” had been constituted in many High Courts in the Country. Some of the following decisions of Supreme Court of India has a great ramification towards the protection and safeguarding the environment and maintain the ecological balance.[82]

  1. Vellore Citizen’s Welfare Forum –Vs- Union of India[83]

When the environmental pollution caused by tanneries in the State of Tamil Nadu, the Supreme Court held that it is not necessary for the Supreme Court to monitor these matters and the Madras High Court would be in a better position to monitor these matter and the Chief Justice of Madras High Court was directed to constitute special bench- “Green bench”, to deal with the cases related to environmental matter.

  1. 2. Indian Council for Enviro-Legal Action –Vs- Union of India[84]

This case relates to pollution created by private industrial houses and governments agencies and authorities had not taken any action to prevent the same. The Supreme Court intervened and found that the private industrial houses were flouting the provisions of law, viz, The Environment (Protection) Act’1986, The Water (Prevention and Control of Pollution) Act’1974, The Air (Prevention and Control of Pollution) Act’1981, The Hazardous wastes (Management and Handling) Rules’1989 and accordingly held that the right to life as guaranteed under Article 21 was invaded and seriously infringed by the private industrial houses.

  1. B.L. Wadhera –Vs- Union of India[85]

This case relates to ecology non – performance of mandatory duties of Municipal Corporation, like garbage clearance, scavenging and cleaning Delhi city. Supreme Court held that non availability of funds, machinery, etc. cannot be pleaded as non – performance of statutory obligation. Direction issued to clean Delhi city every day and also appoint Municipal magistrates for trial of offence under Corporation Act.

  1. Buffalo Graders Welfare Association –Vs- Maneka Gandhi[86]

In this case Idgah Slaughter House of Delhi was directed to stop functioning in the city w.e.f. 30.11.96 to stop unhygienic atmosphere in the residential locality.

  1. M.C.Mehta –Vs- Union of India[87]

In this case Supreme Court held that mining activity in the vicinity of tourist resorts of Bad Kal Lake and Surajkund are bound to cause several impact on the ecology and directed that mining activity should be stopped within 3 km of the tourist resort.

  1. M.C.Mehta –Vs- Union of India[88]

This case was based on Polluters Pay Principle. In this case Calcutta tanneries discharging untreated poisonous effluents into the river of Ganges. Accordingly Supreme Court issued directions for unconditional closure of tanneries, relocation, payment of compensation by them for reversing the damage. Green Bench of Calcutta shall also further monitor the case.

  1. 7. T.N. Goda Varman Thiru Mulkpad –Vs- Union of India[89]

This matter relates to usefulness of modern Shrimp (Prawn) farming and traditional shrimp farming. Commercial aquaculture farming in the coastal area caused depletion of mangrove eco system. Supreme Court held that modern shrimp farming is violative of Environment Protection Act and cannot be permitted. However traditional farming is pollution free and directed to constitute High Power Authority to scrutinize each and every case.

  1. M.C.Mehta –Vs- Union of India[90]

This is very famous case relating to preservation of Tajmahal at Agra. Industries situated near the Tajmahal Trapezium Zone (TTZ) are directed to use natural gas instead of coke or coal as the use of the same causes serious impact on the Tajmahal and people living in the area. Otherwise industries were directed to stop functioning and relocate to other area.

  1. 9. T.N. Goda Varman Thiru Mulkpad –Vs- Union of India[91]

PIL was filed for conservation of forests and disposal / utilization of illegally felled timber.

  1. World Saviours –Vs- Union of India[92]

In this case it was directed that state electricity connection shall not be given to any industry without No Objection Certificate from the State Pollution Control Board.

  1. 11. T.N. Goda Varman Thiru Mulkpad –Vs- Union of India[93]

Writ petition was filed for relocation of wood industries and ban for timber trade in the North Eastern States was filed. Supreme Court held that complete ban on timber trade is not feasible or desirable and directed the State governments of North Eastern states to notify industrial area for location of wood based industrial units.

  1. Goa Foundation –Vs- Union of India[94]

Recently Supreme Court comprising the bench of Mr. Y.K Shabbarwal and Mr. P.P. Naolekar passed an order on 22-02-05 directing the Central Government to issue directives to close down 218 industrial units across the country to close down for flouting environmental norms.

  1. A PIL filed before the Hon’ble Gauhati High Court.[95]

A PIL was filed before the Hon’ble Gauhati High Court in the year 1996, against the unchecked growth of deadly poisonous plant called “Parthenium Histerophorous Linn” in the city of Guwahati. The above named plant was a serious hazard for public health and ecology. The said plant causes itching, skin deseases and naso bronchial allergies to the affected persons and animals Parthenium also prevents other harbecacious plant species from growing. The Hon’ble Gauhati High Court by order dated 7-12-98 directed the Health Department to create public awareness and also directed the municipal department to uproot and check the growth of the said plant. It was also directed that the health department shall also study the matter and to implant another plant named “Cassia Sericcia” to check the growth of “Parthenium”.

Impact of Medical treatment on Human Rights[96]

Progress in medical sciences and advanced treatment methods involves new challenges to humanity and the traditional regulation of societies. With the biomedical development, new opportunities and life perspectives have been created for those with previously intractable complications or health problems. Not only have the boundaries of life and handicaps been removed but, at the same time, new forms of procreation have been developed which have an enormous impact on our definitions of parenthood, family, descent, heredity, titles, and other concepts.

As a general proposition it should be stated that the provision of health care must never be a means to curtail patients’ rights, but should be aimed at the promotion of the autonomy and well-being of all persons.

While after the Second World War the establishment of health-care services, the development of new remedies, and the introduction of advanced treatment methods were in full swing, attention was also drawn to the rights and freedoms, of patients. The inherent tensions between these two developments were acknowledged and studies on the dilemmas for human rights that might arise from further developments in science and technology were recommended. It was obvious that any new methods of treatment or drugs could only be introduced after being carefully pre-tested, and this could well be on human beings. Thus, experimentation with treatment methods and drugs is a conditional stage in achieving higher standards of health.

There was a great impact caused by court opinions concerning the trial of persons accused of “war crimes and crimes against humanity,” including “experiments with human beings.”

In addition to the protection of one’s family life, home, and correspondence, the right to privacy also protects the individual’s particular identity, integrity, intimacy, autonomy, private communication, and sexuality.

Autonomy means that an individual is completely free to arrange his/her private life in accordance with his/her own ideas and is responsible for his/her own life, as long as he/she does not interfere with the rights and freedoms of others. There is no consensus concerning the question of to what extent autonomy is fully covered by the right to privacy, or if this right has its own legal basis. Particularly in health law literature, autonomy, sometimes called “individual self-determination,” is often referred to as a separate and inalienable right of individuals. The right to individual autonomy is not explicitly enshrined in any of the major international human rights instruments but can, at least partially, be derived from the right to privacy. Some scholars consider this right as one of the pillars of the internationally recognized human rights law.

Apart from this discussion, there is agreement that autonomy ensures the right over one’s own body, which even includes the right to suicide and to inflict physical harm on oneself. Consequently, every medical treatment, examination, or experimentation constitutes an interference with the autonomy of the individual. In the absence of any legitimate restriction of the right to privacy, medical treatment, examination, and experimentation may only be performed with the voluntarily given and informed consent of the person concerned.

Medical treatments also touch upon another aspect of the right to privacy, the protection of an individual’s integrity. This particular right, which was inserted as a reaction to the medical experimentation performed in the Nazi concentration camps, only applies to medical experiments (and thus not to examinations and treatments) which amount to torture or cruel, inhuman, or degrading treatment. Whereas these serious interferences with a person’s personal integrity are prohibited under international law without exception (even in times of a public emergency), even less serious medical treatments, examinations, or experimentations, such as compulsory testing against poliomyelitis or a compulsory blood test after an accident, constitute interferences with the right to personal integrity deriving from the protection of one’s privacy. Consequently, these and similar interferences are only permitted if they can be justified under the limitation clauses contained in the relevant provisions of international human rights treaties.

In the context of advanced forms of medical treatment and examinations, the protection of health and of the rights and freedoms of others seems to be the most relevant objective which could justify a particular interference with the right to privacy. A deeper analysis of the legal texts, the drafting history of the relevant treaties and clauses, and the jurisprudences of the competent organs shows what conditions eventually need to be fulfilled before a restriction of the right to privacy can be said to be justifiable.

Since international human rights treaties are concluded by states, only states parties are directly bound by their provisions. Consequently, the obligations contained in such treaties, in particular the obligation to respect and ensure to all individuals the human rights enlisted therein, are obligations of states. In principle these obligations have an effect on the vertical relations between the individual and the state only. If, for example, a police officer is found guilty of having tortured a detainee, the state concerned has violated the right of the victim to physical integrity. If, on the other hand, a man is sexually abusing his wife and children, he commits a crime, but the state where this occurs cannot be held responsible for such crimes of private individuals. Only in exceptional circumstances, e.g. if the legal order does not at all prohibit and/or prevent the ill treatment of children or where a state incites hatred and encourages the use of force against certain population groups, the state concerned may be held responsible for a violation of the prohibition of torture on the horizontal level. This comparatively limited duty of states to protect human rights between private individuals (horizontal effects) derives from the obligation under international treaties.

Since the physician-patient relationship is normally one between two private individuals, the horizontal effect of the right to privacy is of major importance for the evaluation of state obligations to prevent, inter alia, certain practices relating to mandatory medical examinations or genetic engineering. Thus, although in most countries the physician-patient relationship is covered by private law provisions, parties are not completely free to determine the contents of their contractual agreements. Following the positive obligations imposed upon states by the above-mentioned human rights treaties, there is a clear duty for states to protect individuals, particularly the “weaker contractual parties” (the patients) from inhuman and degrading treatment, medical experimentation, etc.

As regards advanced treatment methods and developments in the medical sciences to improve health-care provisions, we meet with a certain paradox. While the health-care system is built up to assist human beings in the preservation and promotion of their health, at the same time this system may threaten the privacy and integrity of individuals. Medical research may be conducted both in the general interest (scientific research) and in the individual interest (diagnostic research), and these need, not necessarily overlap. Human rights law has been structured to prevent human beings being used as “study and experimental objects” for health-care providers, instead of being the primary beneficiaries of the newest treatment methods. However, bio-medical sciences are developing very fast and are taking forms unforeseen by the drafters of most human rights treaties in force today. It may already be necessary to review and adopt legal safeguards to ensure that they will provide sufficient legal protection for the individual right to privacy under these changed circumstances. Health care, in the first place, should always be aimed at preserving and restoring a person’s health, as this is considered a condition for the enjoyment of individual autonomy. However, it is debatable if an individual can be forced to undergo all kinds of medical treatment considered to be for the benefit of his/her own life. Here we come to the key question of to what extent an individual’s will, in the form of “informed consent,” is to be the basis of any form of interference with an individual’s privacy and integrity, and under what situations others are permitted to make decisions on behalf of an individual.

While discussing patients’ rights we should also be aware of the limitations on these rights and the possible counterbalancing duties of patients. In many countries, not only those restricted to the European region, the authorities have en forced regulations such as those relating to the mandatory notification of certain diseases, tracing of contacts, partner/contact notification, restrictions on the rights to freedom of movement, to found a family, or to work, and schemes for compulsory screening for certain diseases and physical disabilities.

 

 

 

Female foeticide

This is sadly the reality for women not just in India but in any country that practices son-preferences. The technological advances are giving tools in the hand of wrongdoers. [97]The recent technological developments in medical practice combined with vigorous pursuit of growth of private health sector have let to the mushrooming of variety of sex-selective services. This has happened not only in urban areas but deep within rural country side also. Female infanticide in most places has been replaced by female foeticide. Female foeticide or sex-selective abortion is the elimination of the female foetus in the womb itself. The sex of the foetus is determined by methods like amniocentesis, chrion villus Biopsy and now by the most popular technique Ultrasonography. Once the sex of the foetus is determined, if it is a female foetus, it is aborted. The increase in female foeticide has seen the proportionate decrease in female sex ratio which has hit an all-time low especially in the 0-6 age group and if this decline is not checked the very delicate equilibrium of nature can be permanently destroyed.

There is emerging debate on addressing female feticide as the murder of female foetuses and acknowledging female feticide and infanticide as crimes against humanity. The pro-choice point of view opposes the consideration of feticide as the murder of a foetus, thus giving rise to the question of foetal “personhood.” The condition that differentiates female feticide from abortion is its gender-discriminatory nature. Therefore, female feticide deserves to be treated as a separate category and not viewed in a simplistic way, in terms of the abortion of an unwanted pregnancy.

Female feticide and infanticide are widespread and systematic. Although mothers aborting female foetuses appear to be the perpetrator of the attack, they are actually the victims. Families may seem to choose female feticide and infanticide voluntarily, but it is the onslaught of government policies, socio-cultural compulsions, and the effects of globalization directed against the population that often leaves them with no choice and amounts to a systematic attack against the female gender. Government policies that promote female feticide include the small family norm, unregulated genetic technology, an uncontrolled market economy, and unofficial acceptance of female feticide as a means of population control. Knowledge of the fast decreasing numbers of the female population due to feticide and infanticide and corresponding concerns, including threats to the female gender’s survival as a result of these practices, continues to grow.

Due to excessive female infanticide in the northern and western states of India there were strong agitations and protests to curb the evil of female foeticide. The state of Maharashtra became the first in country to ban pre-natal sex determination through the enactment of Maharashtra regulation of prenatal diagnostics techniques act. Similar efforts at the national level resulted in the enactment of the Central pre-natal diagnostic techniques (Regulation and prevention of misuse) Act 1994.[98]

The act has two aspects viz., regulatory and preventive. It seeks to regulate the use of pre-natal diagnostic techniques for legal or medical purposes and prevent misuse for illegal purposes. The act provides for the setting up of various bodies along with their composition powers and functions. There is a central supervisory board, appropriate authorities and advisory committees.[99]

Enforcement and effectiveness:

In India, the policy environment is supportive of the reproductive choices of women and men. The medical termination of pregnancy act is legal and it allows for induced abortions where pregnancy carries grave injury to women’s health. A negative outcome of the PNDT act was that the practice of sex determination was driven nonetheless and the availability of services proliferated correspondingly. Ultra sound machines continued to be widely available and simple to use. In such an environment it is very difficult to enforce a law which sought to control information that travels through informal channels and can operate secretly. Law cannot control the information that is conveyed through a mere smile or frown face. Unsurprisingly the enforcement if law becomes weak. there is still utmost controversy as to whom will serve as the watch dog to control the misuse of the practice of female foeticide and its implementation is difficult and considering it can only be the doctor who carries out the abortion or mother of the foetus who can be punished. This is very ambiguous as many women are indeed forced by family members to go ahead with an abortion of a female foetus. Thus, once again putting life of thousands of women in danger. Other reasons for limited effectiveness of the law include lack of political will to ensure enforcement. Experience has shown that in general the role of legislation is subverting a social practice is limited.[100]

The ministry of health and family welfare had proposed a series of amendment to the 1994 act. Although there was a central act regulating and preventing the misuse of pre-natal diagnostic techniques the menace of female foeticide continued. So there was need for much more stringent rules to curb this evil. These were given parliamentary approval. The act was amended in 2002 and in 2003 Rules were framed by the central government under section 32 of the act. These rules may be called Pre-conception and pre-natal diagnostic techniques (Prohibition of sex selection) rules 1996.

Public interest litigation was also file in Supreme Court by concerned health activists. Centre for enquiry into Health and allied themes CEHAT v. Union of India.[101]

In response to the petition, the court issued in notices to the central and state governments to file replies to central government. The Central Supervisory board, State Governments under the administrations and to appoint appropriate authorities at district and sub-district level. Directions stated that the list of the members appointed should be published in the print and electronic media. Appropriate authorities were further directed to send a quarterly report to the central supervisory board. Public awareness against the practice of pre-natal sex determination.

Supreme Court directed state governments to take further steps to enforce the law and the secretary. Department of family welfare was directed to file an affidavit indicating the status of actions taken. Supreme Court directed 9 companies to supply the information of the machines sold to various clinics in the last 5 years. Details of about 11,200 machines from all these companies and fed into a common data base. Addresses received from the manufacturers were also sent to concerned states and to launch prosecution against those bodies using ultrasound machines that had filed to get themselves registered under the act. The court directed that the ultrasound machines/scanners be sealed and seized if they were being used without registration. Three associations’ viz., The Indian Medical Association [IMA], Indian Radiologist Association [IRA], and the Federation of Obstetricians and Gynecologists Societies of India [FOGSI] were asked to furnish details of members using these machines. Since the supreme court directive 99 cases were registered and in 232 cases ultrasound machines, other equipment and records were seized Today there is an estimated 25000 ultrasound machines in the country, of these 15000 have been registered. State governments have communicated to the central government in writing the according to official reports received, they are satisfied that sex determination services are no longer being provided in their respective states.[102]

Also, the introduction of a United States patented sex determination kit called ‘Baby Gender Mentor Home DNA Gender Testing Kit’ have raised fears about back-door foetus determination tests. The kit, priced at $275 was popularly known as ‘Jantar Mantar’ in rural Punjab. It had a built-in-equipment for collecting and sending a finger-prick blood sample to a Massachusetts laboratory from where confidential results were sent via e-mail within 48 hours. Technology is advancing but, alas, the thinking is still barbaric.

  1. EUTHANASIA

Right to life is one of the basic as well as fundamental right without which all other rights cannot be enjoyed. It along with all its dimensions has primacy over all other human rights. But the question arises that if a person has right to live, whether he has right not to live, i.e., whether he has right to die? The ultimate right we have as human being is right to live; an inalienable right, not even the person who possesses it can never take that away. It is similar to the fact that our right to liberty does give us the freedom to sell ourselves into slavery. The Andhra Pradesh High Court in Chenna Jagadeeshwar v. State of Andhra Pradesh,[103] held that right to die is not a fundamental right and does not come within the purview of Article 21 of the Indian Constitution.[104]

Euthanasia relieves the intolerable immense pains and sufferings of an individual. It relieves the terminally ill people from a lingering death. The terminally ill people are those who need special care and protection from family, social and economic pressures and particularly vulnerable to such pressures because of chronic pain, depression, etc.[105] in many developing and under-developing countries like India, there is lack of funds and shortage of hospital space. So the energy of doctors and hospital beds can be used for those people whose life can be saved instead of those who want to die. [106]

Advances in medical science have enabled us to keep people artificially alive by using respirators and methods of artificial feeding. Acceptance of Euthanasia as an option could exercise detrimental effect on the societal attitude and on the doctor-patient relationship and jeopardizing in particular the fate of vulnerable. The people could get away with cold-blooded murder for money and property in this era of family disputes. The doctor-patient relationship is based on mutual trust and it is feared that this trust may be dismissed if euthanasia is legalized. [107]

 The idea in favour of Euthanasia to some extent can be found from Constitutional interpretations. Article 21 has enough of positive content in it.[108] The originating idea in this regard is the view expressed by Field J. in Munn v. Illnois,[109]  in which it was held that the term ‘life’ (as appearing in the 5th and 14th amendments to the United States Constitution) means something more than ‘mere animal existence’. This view was accepted by a Constitution Bench of this Court in Kharak Singh v. State of U.P.,[110] to which further leaves were added in Board of Trustees Port of Bombay v. Dilip Kumar,[111] Vikram Dev Singh v. State of Bihar,[112] and Ram Sharan v. Union of India[113]. In these decisions it was held that the word ‘life’ in Article 21 means right to live with human dignity and the same does not merely connote continued drudgery. It takes within its fold “some of the finer graces of human civilization, which makes life worth living”, and that the expanded concept of life would mean the “tradition, culture and heritage” of the concerned person.

It would be relevant to note the decision in State of Himachal Pradesh v. Umed Ram[114]. It was observed that the right to life embraces not only physical existence but the quality of life as understood in its richness and fullness by the ambit of the Constitution.

Maruti Shripati Dubal v. State of Maharashtra[115], in 1987, the Bombay High Court struck down S.309, IPC as ultra vires vide Article 21 of the Constitution which guarantees ‘right to life and liberty’. The Court said that the ‘right to life’ includes the ‘right to live’ as well as ‘right to end one’s life’ if one so desires. Justice P. B. Sawant said: “…who make suicide attempt on account of acute physical ailments, incurable disease, and torture, decrepit physical state induced by old age or disablement, need nursing homes and not prison to prevent them from making the attempts again.”

  1. Rathinam / Naghbhusan Patnaik v. Union of India[116], In 1994, a Division Bench of the Supreme Court comprising of Justices R. M. Sahai and B. L. Hansaria, while allowing petitions upheld the Bombay and Delhi High Courts’ decisions (in Maruti Shripati Dubal’s case and Sanjaya Kumar’s case) and overruled Andhra ruling (in Chenna Jagdeshwar’s case). The two petitioners assailed the validity of S. 309 of the IPC by contending that the same is violative of Articles 14 and 21 of the Constitution.

While striking down S.309, IPC, the apex court said ‘it is a cruel and irrational provision violative of Article 21 of the Constitution’. Expanding the scope of Article 21, the Court upheld that, ‘right to life’ includes ‘right not to live a forced life’; i.e., to end one’s life if one so desires.

But the idea was cleared by the Supreme Court in Gian Kaur v. State of Punjab[117], said that it is well settled that the right to life guaranteed by Article 21 of the Constitution does not include the right to die. The Court held that Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of the imagination can extinction of life be read into it. To give meaning and content to the word ‘life’ in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself.

If we carefully examine the opposition to the legalization of euthanasia, we can conclude that the most important point that the opponents raise is that it will lead to its misuse by the doctors. Thus, it is humbly submitted that when a patient or his relatives can willingly put his life in the hands of the doctor trusting him, then why can’t a doctor be given such discretion to decide what will be in favour of his patient. Another doubt that is often raised is that if the doctors will be given discretion to practice voluntary euthanasia then surely it will gradually lead to asking for involuntary or non-voluntary euthanasia. But it is humbly submitted that a separate legislation should be made allowing only voluntary euthanasia and not involuntary or non-voluntary euthanasia. As has already been pointed out earlier, we also have to keep in mind the limited medical facilities available in India and the number of patients. This question still lies open that who should be provided with those facilities; a terminally ill patient or to the patient who has fair chances of recovery. As the patient himself out of his pain and agony is asking for death, doctor should not increasing that pain of his should allow euthanasia. It has been ruled in the Gian Kaur case that Article 21 does not include right to die by the Supreme Court. But one may try to read it as is evident in the rights of privacy, autonomy and self-determination, which is what has been done by the Courts of United State and England. Thus, we can see that as the said right has been included in the ambit of Article 21, so this can also be included in Article 21. This question was not raised in the case earlier. Again the point that remains unanswered is regarding the abuse of this right by the doctors. But relevant safeguards can be put on this right and thus its abuse can be avoided. One of the safeguards can be that a proper quasi-judicial authority having a proper knowledge in the medical field can be appointed to look into the request of the patient and the steps taken by the doctor. To make it more foolproof some two or three assistant officials including one from the legal field can also be appointed. This will avoid any abuse of this right granted to the terminally ill patients. Here, we have to regard the painful situation in which the patient is and top priority should be lessening his pain. Now when we already know that he is anyways going to die today or tomorrow and he himself is asking for death, there is no point that he should be denied with this right of at least leading a life with minimum dignity and willingly. Otherwise his life will be no better in that situation. Thus, considering the financial and medical facilities also, the question still lies open that what will be better-allowing euthanasia or not allowing euthanasia[118].

  1. SURROGACY

Surrogacy means the practice whereby one women carry the child for another with the intention that the child should be handed over after birth. A distinction is often made between partial and full surrogacy. In partial surrogacy, the eggs of the commissioning mother are fertilized and placed into the surrogate, whereas in the full surrogacy, surrogate mother’s eggs are used and so she is both the genetic and gestational mother.[119]

Starting from this general and broad understanding of the role of technology, let us examine the proposal to make surrogate motherhood legal in India, which is contained in the draft Bill: “Assisted Reproductive Technologies (Regulation) Bill, 2010.” The Preamble to the Bill states, inter alia, “The last nearly 20 years have seen an exponential growth of infertility clinics that use techniques requiring handling of spermatozoa or the oocyte outside the body, or the use of a surrogate mother. . .” The Preamble justifies the introduction of this Bill on the ground that “Besides the fact that every couple has the right to have a child, in India infertility widely carries with it a social stigma.” However, the Bill is not limited to assisting infertile couples to have babies with the help of assisted reproductive techniques. It goes much further by proposing to legalize surrogacy for purely commercial purposes.

The fundamental flaw of the Assisted Reproductive Technologies (Regulation) Bill, 2010 is that it has been conceptualized as an instrument to control a ‘production process’ and is not really concerned about protecting the Rights of the Child. The draft conveys the clear impression that the primary purpose of the Bill is to establish control over the mushrooming “infertility clinics” in the country and to centralize this control under the authority of the Indian Council of Medical Research’s “Department of Health Research.” The draft Bill proposes an elaborate structure, both at the Central as well as at State levels, to register IVF clinics and to monitor their functioning, specially the maintenance of records of donors, recipients, surrogates and children produced as a result of these procedures. The Bill does not address the basic question of the licitness of in vitro fertilization. It simply assumes that this procedure is normal and will continue without let or hindrance. And this is where, precisely, the core of the problem really lies.

The attitude underlying the ART Bill is unquestionably and demonstrably violative of the Rights of Children. Children who are ‘produced’ as a result of assisted reproductive techniques are viewed simply as products of laboratory manipulations; not as human persons who have inalienable rights. They might as well be equated with other commercial products from a production line similar to a food processing plant or an automobile manufacturing plant. The rights of the child are simply ignored in this Bill. Incidentally, it must be remembered that “Rights” are inherent to Human Beings and are not conferred by any human authority, least of all the State. Human Rights have to be acknowledged and respected by the Government, which has the obligation to ensure that these Rights are protected. Since Human Rights are not conferred by any human authority, they cannot be violated by any human authority. In this context also, it must be remembered that apart from the right of every couple to have a child, every citizen has the right to food, clothing, education, shelter and employment. These rights are also fundamental human rights which demand acknowledgment, not only in principle, but also in practice.

It has been biologically established that at the very moment of the fusion of a sperm and an ovum, the zygote which comes into being, is a human person, in the fullest sense of the word, and therefore demanding the respect due to a human person. This is not just a philosophical question which is open to a diversity of opinions. It is an ontological fact confirmed by science. To treat the zygote, the embryo or the foetus as a commodity, therefore, is to do grave violence to the dignity of the human person. How can a human individual not be a human person? The underlying assumption of the ART Bill, that a zygote or an embryo or a foetus can be manipulated according to the whims and fancies of the technologists is, fundamentally wrong and ethically abhorrent. It follows, logically, that the entire organizational structure envisaged by the ART Bill is immoral and in violation of Human Rights.

The Bill does not discriminate between married couples, unmarried couples, single persons or those living in a homosexual or lesbian relationship. It treats them all on an equal footing in the context of the production of babies and in allocating these babies. To treat the production of babies as a purely chemical process is the ultimate fallacy of the proposed legislation. It violates the fundamental law of nature which requires that human babies be produced as the result of an intimate exchange of love between a man and a woman who have solemnly pledged to give themselves to each other and to accept the gift of life which results from their physical, emotional and spiritual union. Nature has prescribed the biological and moral boundaries within which procreation should take place. Pro-creation is concomitant with Co-creation, which requires the free, loving and informed choice of a married couple to have a baby. To distort the order of Nature invites dire consequences, indeed. Technology is not the ultimate arbiter of what ought to be, or not to be done. Technology has to conform itself to the moral universe. There is a feeble recognition of this in Section 25 of the draft ART Bill, which deals with Sex Selection. Presumably, this section regarding sex selection has been necessitated by the fact that India has seen a massive destruction of female babies, foetuses and embryos which has resulted in a demographic imbalance of frightening proportions. However, it needs to be remembered that sex discrimination is only one of many abuses made possible by the new biotechnologies. Cloning, the creation of inter-species beings, eugenics and other aberrations are a truly frightening prospect. At the root of all this is the attitude that science and technology has the final say in how human beings ought to regulate their lives and build their civilization. Technology is good only as long as it conforms to morality. Humankind has already witnessed the many tragedies which have resulted from the disregard of moral precepts which should determine our individual behaviour and our social programmes. He who sits on a tiger, advises an ancient Hindu sage, should beware of dismounting.[120]

Commercial surrogacy is legal in India. Surrogacy in India is unregulated as they yet don’t have legislation controlling surrogacy although the Indian Council of Medical Research (ICMR) has set “national guidelines” to regulate surrogacy, these are simply guidelines. All that this means is that surrogate mothers need to sign a “contract” with the childless couple. There are no stipulations as to what will happen if this “contract’ is violated.[121]

It was in Manji’s case in 2002 that Supreme Court of India held that commercial surrogacy was legal in India.[122]

In Jan Balaz v Union of India, the Gujarat High Court conferred Indian citizenship on two twin babies fathered through compensated surrogacy by a German national in Anand district.[123] The case is still pending on appeal before the Supreme Court of India.

 In countries like India, where there is no legislation regulating surrogacy contracts, the parties participating in surrogacy arrangements can be covered under the informal system as they are not covered and not regulated under the formal system which provides formality and protection of law to the corners of the society taken on board in terms of precise definition . Thus the parties under the informal system come up with own norms to regulate their social relations with each other which also implies that whether law recognizes or not, range of people do exist and function while organizing their own affairs independent of law which attaches much more centrality to the individual as compared to the formal system. The rights model of dynamic jurisprudence is based on mutual respect for running a relationship of trust and intimacy. Thus the surrogate mother and adoptive parents have to recognize the rights of each other and develop respect through which flexible norms can be created considering interests of both parties as well as the child. However a correlative relation can been observed between the rights and duties of the parties which is based on constant negotiations for example, a surrogate mother has a right to get medical expenses which is correlative of the duty of the adoptive parents to incur her medical expenses. Another dimension of such correlative relation is that it is the right of the adoptive parents to have a healthy child and it is the duty of the surrogate mother to ensure that she does not indulge into activities like smoking, drinking, consuming drugs or having a careless attitude. The jurisprudence of the informal sector ought to have an impact on formal jurisprudence when boundary is permeable.[124]

Though these norms are created by the parties themselves, in absence of regulation, exploitation is most likely to occur. Thus permeability should be allowed in terms of regulation under formal system but in a manner which does not completely do away with the informal system of managing their own affairs, i.e. trace of forms of dynamic jurisprudence are ought to be located in the formal jurisprudence. It may make more practical sense to regulate surrogacy providing the parties with some legal recourse against exploitation rather to ban it completely as in case of formal system. The regulation would be in terms of eligibility to enter into such contracts, age limit and free consent. It would also impose certain liabilities on the professional doctors in case the guidelines set are violated.

In such a way, the rights of the parties and interests of the child would be secured, however commercializing would be rendered illegal and a surrogacy contract would not be enforceable if economic consideration is involved or free consent is absent. By not completely banning surrogacy arrangements, space is provided to a surrogate mother to enjoy her right to procreate in a Right based society without state intervention.

Surrogacy contract which disregards the interests of the child cannot be justified. Not all contracts are challenged in the court, only the ones in which the agreement broke and the disputes which did not come before the court is to be decided by the parties to the contract. In cases of altruistic surrogacy, where the countries are silent in terms of regulation like India, contract laws and courts are prevented from being used as recourse to solve conflicts among participants in the surrogacy contract which also implies that questions of family and social control within families as not the business of the State; they are private matters to be resolved by individuals rather than an adjudicator.

  1. CLONING

The asexual production of a new human organism, i.e., at all stages of development, genetically, virtually identical to a currently existing or previously existing human being. It would be accomplished by introducing the nuclear material of a human somatic cell (donor) into an oocyte (egg) whose own nucleus has been removed or inactivated yielding a product that has a human genetic constitution virtually identical to the donor of the somatic cell. Clone, then, is a group of cells that have identical DNA sequences to the “parent group of cells”.[125]

It is widely accepted that to attempt human cloning with the present state of scientific knowledge would pose unacceptable risks. The rates of miscarriages in attempted cloning of animals have been high and there is a real risk that any child successfully produced would suffer from illnesses or diseases. The rates of disability likely to result from cloning are similar to those associated with traditional sexual reproduction, human cloning to produce a child should not be attempted. The cloning can also limit the genetic diversity of the gene pool, rendering the human race more susceptible to extinction by a particular disease or virus.[126]

A cloned person will feel to be like or indeed unlike, their clone will deprive their right to be an individual and live out their own version of life.[127]

Cloning is likely to work against the interest of women. Cloning is likely to be particularly attractive to infertile men. The risks, pains, and discomfort of ova stimulation, ova retrieval and embryo transfer necessary for cloning will all fall on women, in addition, of course, to the burdens of gestation and child birth. It has been claimed that for each human cloning attempt there will be a need for several hundred ova, and there is a high risk of late foetal deaths.

Since ancient times it has been thought that intra-uterine environmental conditions have a major impact on the future development; personality and behaviour of a growing embryo. It is speculated that in the epic Mahabharta, Abhimanyu, son of Arjuna learnt how to move into the Chakravyuha in the womb of his mother. Also in an experiment performed in England, it is proved that the embryo starts paying attention to the outside environment and the activities of the mother at least after 20 weeks of pregnancy. This example confirms that not only the genes carried by the embryo but also the external environment play an important role in the personality development of the embryo. So it is emphasized that human clones would not strictly be identical, at least a gap of one generation will definitely influence their development as they will face a different environment. Knowingly also, the traditional Indian Community is not ready to give a tacit consent to the technique of cloning because of many other ethical, moral issues and of the rights related to it.

Education on this technique after the lecture program has no doubt brought a marginal shift from the dogmatic view to a little advanced view to use the technique for medical purposes though the percentage is very small. This shows that there is a need for a correct, complete and convincing knowledge to be spread among the people. It is also required that such latest and concerned issues should be selected for curricular material without confusing statements.

Commercialization of cloning even for a good cause, as said by scientists like Dr. Richard Seed, raises a question are we not patenting ourselves for the sake of money? In the countries like America they do not give any exemption for patenting living organisms. So it is required that such laws should be made to avoid the misuse of this technique. The Indian view seems to remain relatively placid over the use of this technique, and it is emphasized to exact legal prohibitions over the commercialization of this technique will also put a question mark on the autonomy of being a human.

The technique of cloning has raised many doubts on the traditional view of childbirth. The Indian community, in particular the Tamilian Community, considers that “Born of a women” is the natural and preferable method of human reproduction. Since the news of “Dolly” becoming a mother through natural way of procreation, it has raised the matter for discussion, that no matter what be the mode of birth, if the individual has potential for normal behaviour and exist normally in the environment, it should or should not be deprived off its rights on the concern of its birth.

The question of categorizing cloning as a natural process or artificial process is difficult to answer. Ian Wilmut while cloning the sheep used the term “asexual”. However in the present paper a new generic term “non-sexually sexual” has been introduced taking into considerable the involvement of both a differentiated somatic cell and a gamete.

With the advent of a new and more reliable cloning technique with which more than 50 carbon copies of mice extending upto 3 generations, a question is raised whether cloning could be related to inbreeding, will it divert the genome or maintain or reduce the genomic potential? As it is believed that during the course of evaluation the switch on and switch off of genes is related to the condition of the ovum. It is a subject matter taken into consideration.

Another conflicting issue includes the right to bring up the cloned child especially when the incidents of children like “Jaycee Buzzanca” are heard who are born out of surrogacy and later becoming “No body’s child”. In such cases children could neither be called as orphans nor be of parents nor of society. This is a mind boggling thought as in vitro fertilization technique is understood to have been socially accepted. There is a question mark over the future of cloned humans. The concept of parenthood needs to be debated and rights to be advocated.

We should also discuss whether we should be subjective or objective while utilizing this raging technique for either purpose. Education is the necessary tool to overcome uncertainty in the responses. The survey has highlighted sensitive areas which need immediate attention? These include the areas where judicial use of cloning would be applicable like use for medical purpose and in extreme cases of infertility. Of course we should avoid the use of this to clone humans. People are also against any alteration in the human genome tentatively, even for creating headless humans to serve as “Organ banks” for organ transplantation. The respondents also see no justification to clone world famous personalities.[128]

Cloning in India is not regulated by legislation but by ethical guidelines adopted by authoritative bodies. The Department of Biotechnology of the Ministry of Science and Technology has adopted ethical policies on the human genome, which have laid down inter alia India’s position on cloning.  The text, “Ethical Policies on the Human Genome, Genetic Research and Services,” states that, “as a principle, human cloning shall not be permitted.”

Consistent with this policy document, the Indian Council of Medical Research has developed “Ethical Guidelines for Biomedical Research on Human Subjects.”  One of the concerns in these guidelines is respect for embryos with regards to research. It is established that “respect for the embryo’s moral status can be shown by careful regulation of conditions of research, safeguards against commercial exploitation of embryo research, and limiting the time within which research can be done to 14 days, i.e., when the primitive streak appears…At this time, the development of the nervous system begins and the embryo begins to become a distinct individual.” Special attention is given to the prohibition of cloning (through nuclear transplantation or embryo splitting). The Council states, “since its [cloning’s] safety, success, utility and ethical acceptability is not yet established, research on cloning with the intent to produce an identical human being…is prohibited.”

Finally, the Indian Council of Medical Research and the Department of Biotechnology have recently drafted guidelines for stem cell research in which they recommend that embryos should not be generated for the sole purpose of obtaining stem cells. Any research related to reproductive cloning and the transfer of human blastocysts generated by somatic cell nuclear transfer into a human or non-human uterus is also prohibited under the draft guidelines.

 

  1. ORGAN TRANSPLANTATION[129]

From its origins with the first successful transplant of banked cadaveric tissue in the first half of the 20th century, the transplantation of human tissues (HTs) has become a widely practised surgical procedure.[130] Today, HTs are transplanted across the globe not only to save lives, but also to improve lives through reconstructive and cosmetic interventions. Due to the growing demand for HTs and the increasing quality and safety standards required in tissue banking, many of the original hospital-based tissue banks, designed to meet local needs, have been replaced by national or multinational HT organizations which sell their products internationally and may operate on a for-profit basis.

In parallel, the transplantation of human cells (HCs) – haematopoietic progenitor cells in particular – has evolved into a widely used clinical activity. After the first successful bone marrow transplants in the 1960s, subsequent advances in immunosuppressive and antibiotic therapy have made haematopoietic progenitor cell transplantation an established treatment for

wide variety of genetic and malignant diseases.[131] As with HT, haematopoietic progenitor cells are exchanged globally today,[132] driven by the need to find a donor that closely matches the human leucocyte antigen type of the recipient. Profit-making has also been introduced into the field with the establishment of for-profit (private) autologous cord blood banks and a growing number of clinics offering experimental cell transplants.[133]

Current practices in HC/HT transplantation raise several questions that need to be addressed jointly by clinicians, scientists, health regulators and ethicists as well as representatives of civil society, in particular HC/HT donors and recipients. The increasing commercialization of HC/HT products has multiplied opportunities for profit-making and increased the risk of clinically unsafe and unethical practices (particularly in HT procurement). Recent scandals in the United States of America[134] and other countries[135] involving non-consented procurement underline the urgent need for a common global technical and ethical framework. Although a number of regulations on HC/HT transplantation have been adopted in the past several years or are currently under discussion,[136] national regulation and oversight of HC/HT transplantation is non-existent or inefficient in many countries.

Moreover, regulation is no longer merely a national matter because HCs/HTs can be processed, preserved and easily transported around the globe. While the international circulation of HCs/HTs can facilitate access, it can also spread tainted material, create global inequities in donation or accentuate inequities in access to HC/HT services. The lack of ethical guidance and the existence of unmonitored or unregulated HC/HT procurement and distribution represent a serious international risk to both donors and recipients of cells and tissues.[137]

The increasing demand for organs has greatly intensified organ trafficking around the world and the challenges of transplantation are pushing ethical concerns about trafficking and its victims, including women and children, to the top of the international agenda. There is no reliable data on organ trafficking – or indeed transplantation activity in general – with brokers reportedly charging between $ 100, 000 and $ 200, 000 to organize an organ transplant for wealthy patients. Frequently, impoverished and ill-educated donors may receive, as little as $ 1000 for a kidney. Our speakers will explore the ethical issues of organ trafficking with a focus on shortage of organs for transplantation, lack of organ donors, ‘black-market’ organ trafficking, some problems with organ transplantation such as possible immune rejection and keeping organs alive outside the body, among others.[138]

 In India the Transplantation of Human Organs (HOTA) Act, passed in 1994, was a significant step towards regulating transplantation of human organs and preventing commercial dealings in human organs. The Centre is in the process of modifying the Transplantation of Human Organs Act, 1994, to bridge the huge gap in the requirement and availability of human organs for transplantation. Maintaining the present ethical guidelines, the Act would be modified to simplify the procedures involved in transplantation, Union Health Minister Anbumani Ramadoss. said at the 54th annual conference of Tamil Nadu Ophthalmic Association at JIPMER that “The Act would be self-regulatory” and special emphasis would be given in the Act to expand the scope of eye donation, which at present was not satisfactory. The country needs around 1 lakh eyes for transplantation but every year only 25,000 eyes were available. More eye banks, including facility to store cadaver eyes, would be opened in all parts of the country. One such bank had already been opened in Delhi.[139]

THREATS TO PRIVACY

The increasing sophistication of information technology with its capacity to collect, analyze and disseminate information on individuals has introduced a sense of urgency to the demand for legislation. Furthermore, new developments in medical research and care, telecommunications, advanced transportation systems and financial transfers have dramatically increased the level of information generated by each individual. Computers linked together by high speed networks with advanced processing systems can create comprehensive dossiers on any person without the need for a single central computer system. New technologies developed by the defense industry are spreading into law enforcement, civilian agencies, and private companies. [140]

According to opinion polls, concern over privacy violations is now greater than at any time in recent history.[141] Uniformly, populations throughout the world express fears about encroachment on privacy, prompting an unprecedented number of nations to pass laws which specifically protect the privacy of their citizens. Human rights groups are concerned that much of this technology is being exported to developing countries which lack adequate protections. Currently, there are few barriers to the trade in surveillance technologies.

It is now common wisdom that the power, capacity and speed of information technology is accelerating rapidly. The extent of privacy invasion — or certainly the potential to invade privacy — increases correspondingly.

Beyond these obvious aspects of capacity and cost, there are a number of important trends that contribute to privacy invasion:

GLOBALISATION removes geographical limitations to the flow of data. The development of the Internet is perhaps the best known example of a global technology.

CONVERGENCE is leading to the elimination of technological barriers between systems. Modern information systems are increasingly interoperable with other systems, and can mutually exchange and process different forms of data.

MULTI-MEDIA fuses many forms of transmission and expression of data and images so that information gathered in a certain form can be easily translated into other forms.

THE TECHNOLOGIES OF PRIVACY INVASION[142]

The report found a number of technologies were causing new concerns about the protection of privacy. Many of these technologies were being adopted and implemented outside legal protections.

Identity systems

Identity (ID) cards

Identity (ID) cards are in use in one form or another in virtually all countries of the world. The type of card, its function, and its integrity vary enormously. While a majority of countries have official, compulsory, national IDs that are used for a variety of purposes, many developed countries do not have such a card. Amongst these are the United States, Canada, New Zealand, Australia, the United Kingdom, Ireland, and the Nordic countries. Those that do have such a card include Germany, France, Belgium, Greece, Luxembourg, Portugal and Spain.

ID cards are established for a variety of reasons. Race, politics and religion were often at the heart of older ID systems. The threat of insurgents, religious discrimination or political extremism have been all too common as motivation for the establishment of ID systems which would force enemies of the State into registration, or make them vulnerable in the open without proper documents. In Pakistan, the cards are used to enforce a quota system.

In recent years, ID cards have been linked to national registration systems, which in turn form the basis of government administration. Thus the cards become a fusion of a service technology, and a means of identification. At the heart of such plans is a parallel increase in police powers. Even in democratic nations, police retain the right to demand ID on pain of detention.

In a number of countries, these systems have been successfully challenged on constitutional privacy grounds. In 1998, the Philippine Supreme Court ruled that a national ID system violated the constitutional right to privacy. In 1991, the Hungarian Constitutional Court ruled that a law creating a multi-use personal identification number violated the constitutional right of privacy.[143]

Biometrics

Biometrics is the process of collecting, processing and storing details of personal physical characteristics for the purpose of identification and authentication. The most popular forms of biometric ID are retina scans, hand geometry, thumb scans, finger prints, voice recognition, and digitized (electronically stored) photographs. The technology has gained the interest of governments and companies because unlike other forms of ID such as cards or papers, it has the capacity to accurately and intimately identify the target subject.

The most controversial form of biometrics — DNA identification — is benefiting from new scanning technology which can automatically match DNA samples against a large database in minutes. Police forces in several countries such as the United States, Germany and Canada are creating national databases of DNA. In the United Kingdom and the U.S., police have been demanding that all individuals in a particular area voluntarily provide samples or face being placed under scrutiny as a suspect.

Surveillance of Communications

Nearly all countries have established some form of wiretapping capability over telephone, fax and telex communications. In most cases, these intercepts are initiated and authorized by law enforcement agencies. Wiretapping abuses have been detected in most countries, sometimes occurring on a vast scale involving thousands of illegal taps. The abuses invariably affect anyone “of interest” to a government. Targets include political opponents, student leaders and human rights workers.[144]

The U.S. has led a worldwide effort to limit individual privacy and enhance the capability of its police and intelligence services to eavesdrop on personal conversations. The campaign has had two legal strategies. The first made it mandatory for all digital telephone switches, cellular and satellite phones and all developing communication technologies to build in surveillance capabilities; the second sought to limit the dissemination of software that provides encryption, a technique which allows people to scramble their communications and files to prevent others from reading them.[145]At the same time, the United States has taken a lead in promoting greater use of electronic surveillance and the weakening of bank secrecy laws.

Internet and email interception

Over the past decade the Internet has become an important tool for communication and research. The technology is growing at an exponential rate, with millions of new users going on line each year. The Internet is also used increasingly as a tool for commercial transactions. The capacity, capability, speed and reliability of the Internet is constantly improving, resulting in the constant development of new uses for the medium.

“Anonymous remailers,” which strip identifying information from emails, can stop traffic analysis. They are the Internet equivalent of PO Box addresses. They have also generated opposition from police and intelligence services. In Finland, a popular anonymous remailer had to be shut down due to legal challenges that forced the operator to reveal the name of one of the users.

The recording of information about specific Internet activities has become one of the biggest emerging threats to Internet privacy. Every time a user accesses a web page, the server holding the page logs the user’s Internet address along with the time and date. Some sites place “cookies” on a users machine to help track people’s activities at a much more detailed level. Others ask for the users name, address and other personal details before allowing access. Internet purchases are similarly recorded. On-line stores value such data very highly, not least for the potential to sell the data on to marketers and other organizations.

Video Surveillance

In recent years, the use of video surveillance cameras (also called Closed Circuit Television, or CCTV) throughout the world has grown to unprecedented levels. In the UK alone, between 150 and 300 million pounds per year is now spent on a surveillance industry involving an estimated 200,000 cameras monitoring public spaces.[146] Most towns and cities are moving to CCTV surveillance of public areas, housing estates, car parks and public facilities. Growth in the market is estimated at fifteen to twenty per cent annually. Many Central Business Districts in Britain are now covered by surveillance camera systems involving a linked system of cameras with full pan, tilt, zoom and infrared capacity. Their use on private property is also becoming popular.[147]

The CCTV trend is not confined to Britain. Sweden — once strongly opposed to such surveillance — is considering relaxing its privacy laws to permit public surveillance, while CCTV activity in Norway has prompted specific inclusion of such surveillance in the data protection act. Meanwhile, CCTV activity has grown markedly in North America and Australia to monitor public squares. In Singapore, they are widely employed for traffic enforcement and to prevent littering.

Workplace surveillance

Employees in nearly every country are vulnerable to comprehensive surveillance by managers. Legal protections are generally more lax in such circumstances because surveillance is frequently imposed as a condition of employment. In many countries employers can tap phones, read email and monitor computer screens. They can bug conversations, analyze computer and keyboard work, peer through CCTV cameras, use tracking technology to monitor personal movements, analyze urine to detect drug use, and demand the disclosure of intimate personal data.

The technology being used to monitor workers is extremely powerful. It can analyze “keystrokes” on a terminal to determine whether employees are making efficient use of their time between telephone conversations. Software companies call this process “performance monitoring.” Even in workplaces staffed by highly skilled information technology specialists, bosses demand the right to spy on every detail of a workers performance. Modern networked systems can interrogate computers to determine which software in being run, how often, and in what manner. A comprehensive audit trail gives managers a profile of each user, and a panorama of how the workers are interacting with their machines. The software also gives managers total central control over the software on each individual PC. A manager can now remotely modify or suspend programs on any machine.

The technology being used extends to every aspect of a worker’s life. Miniature cameras monitor behavior. “Smart” ID badges track an employee’s movement around a building. Telephone Management Systems (TMS) analyze the pattern of telephone use and the destination of calls. Psychological tests, general intelligence tests, aptitude tests, performance tests, vocational interest tests, personality tests and honesty tests are all electronically assessed. Surveillance and monitoring have become design components of modern information systems.

In Britain and the United States, there are few legal constraints on video surveillance, unlike the laws of Austria, Germany, Norway and Sweden, under which employers are obliged to seek agreement with workers on such matters.

This situation has been challenged in the European Court of Human Rights. Former British Assistant Chief Constable Allison Halford had complained that following her sex discrimination complaint against the police, her office phone had been bugged. While the British government asserted that this was an entirely lawful and proper activity, Halford maintained that it breached the right of privacy contained in the European Convention on Human Rights. The court agreed, and ruled that the police had acted improperly in bugging Ms. Halford’s phone.[148]

In India the recent Information Technology (Amendment) Act, 2008 made changes to the Information Technology Act, 2000 and added the following two sections relating to Privacy:

Section 43A, which deals with implementation of reasonable security practices for sensitive personal data or information and provides for the compensation of the person affected by wrongful loss or wrongful gain.[

Section 72A, which provides for imprisonment for a period up to 3 years and/or a fine up to Rs. 5,00,000 for a person who causes wrongful loss or wrongful gain by disclosing personal information of another person while providing services under the terms of lawful contract.

Dealing with a public interest litigation filed by an NGO, People’s Union for Civil Liberties (PUCL) drawing the attention of the Court to the rampant phone-tapping being undertaken by the Government, the Supreme Court not only declared right to privacy as an invaluable right of an individual and that phone-tapping was a violation of this right, the Court went on to lay down the guidelines required to be observed by the Government before going ahead with tapping any telephonic conversation.[149]

Nuclear Menace to Life

One of the major threats to life is the menacing presence and proliferation of nuclear power and tests and bombs. Technology comes closest to thanatology (science of death) when the nuclear Frankenstein’s monster, be it a bomb or humbler reactor, goes out of control and kills all life, radioactively destroys or damages generations and, indeed, as happened in Chernobyl, makes life out of bounds for territories intensively affected by atomic burst. The right to life in perpetual fear of another Chernobyl disaster or Hiroshima horror and yet the nuclear nonsense remains triumphant. Nuclear cultists conceal the leaks, the malignant potential of radiation, the high hazards of nuclear waste and other terrors to which the society may be victimized. And the concentrated power generation is often for tycoons, not the common humans.[150]

Courts have often held against the use of inherently hazardous instrumentality as it affects a wide array of human rights of the living and the unborn. And now that terrorism is ubiquitous, mafia global and nuclear thefts and sabotage, nuclear wastes and negligence-caused calamities omnipresent, society is constantly vulnerable to this grave governmentally practiced atomic danger in hiding.[151]

The safety of nuclear power and the strategy for the future is a matter of moment for mankind and so the International Atomic Energy Agency (IAEA) formulated a Convention in Vienna (1991) and India has joined it. The leader of the Indian delegation to the Convention (Gopalakrishnan) actively participated in the discussions resulting in the Convention of 1994 in Vienna. Article 6 of the Convention obligates the contracting parties to ensure safety of Nuclear installations to be scrutinized at the International Peer Review Meetings.[152]

“What are the specific problems with our nuclear installations? The risk of a hydrogen explosion at Tarapur is high because the containments have been inserted, the emergency core cooling systems at Madras and Rajasthan plants are totally dated, the potential for radioactive leaks from these reactors at Trombay and Tarapur is high, and the seismicity of sites of old structures like Cirus at Trombay and Tarapur has gone up.”[153]

Nuclear Jurisprudence: Indian’s right to life:[154]

Thus, there is a need for a new Nuclear Jurisprudence which gives expression to the right of the citizens to know and defend the Indian’s right to life. Risks in extraordinary and irreversible processes cannot be decided by experts with self-interest. Therefore, human rights must be given priority in grave risk domains.[155]

Nuclear weapons are unique – their impacts are primarily on innocent civilian noncombatants particularly women and children; they are intrinsically indiscriminate; they are largely uncontrollable; they are instruments of mass murder on a scale unparalleled in human history.

Nuclear weapons have security, economic and political implications. In the ultimate analysis, however, the issue of nuclear weapons is an ethical question. It is question or right and wrong, good and evil, morality. Even though it is not the fashion for scientists to discuss moral questions, there is growing interest in India in these morality issues as shown for instance by recent contributions, to the pages of the journal Current Science.

After Pokhran II, there was a distressingly and disappointingly small minority of Indian scientists who spoke up against the nuclear tests. Though I was one of them, my attitude intensified after a visit the Poland in September 1999. There a World Energy Assessment meeting that I attended in Cracow in Poland enabled me to visit the infamous Nazi concentration camps of Auschwitz and Birkenau that are now preserved as museums.

During World War II, about 15 lakhs of innocent victims from all over Nazi – occupied Europe, over whelmingly Jews, either went directly to their death in the gas chambers and crematoria at Auschwitz and Birkenau, or indirectly via the camps they were held prisoners until they were too weak to labour. The tour of the campus left me with a completely unexpected feeling. The scale of human extermination was so enormous that I had to remind myself, particularly because there campus has been unpopulated since 1944, that there used to be human beings there. Human belongings – toothbrushes, shoes and suit cases – were pulled from floor to ceiling in huge rooms, a separate room for each item, but the aggregate was more reminiscent of factory inputs. Even the room full of human hair looked like raw material for an industry, in the Auschwitz case, the manufacture of tailor’s lining cloth.

The powerful impression that persisted was of detailed engineering resulting in “… the immense technological complex created… for the purpose of killing human beings.” The meticulous organisation and rigorous management were characteristic of mega industries, “gigantic and horrific factories of death.” The main gate of Auschwitz displayed the inscription “Arbeit macht frei” (Work brings freedom). Perhaps a more apt announcement would have been “Technology completely decoupled from values.”

As the scale of killing increases, the technology often (but not always) becomes more and more sophisticated – from knives to guns to machine guns to bombs to gas chambers and crematoria to atomic bombs. Also, with increasing scale, not only does the distance from victims become greater, but also the complexion becomes more and more technical. Burial is sufficient for one body but for hundreds or thousands of bodies, the thinking id in terms of “throughput”, “air/fuel ratios” and burning capacity”.

In Auschwitz, it is obvious that nothing happened spontaneously. Everything was deliberately designed and planned. The poison Cyclone B was developed by the Nobel Prize winner, Fritz Haber. One of Germany’s top chemical industries, IG Farben, produced the poison for exterminating people in the gas chambers. Careful experiments were done to determine the time it would take for a person to be poisoned. An engineering firm designed the crematoria furnaces to process 350 bodies per day in Auschwitz I. So, there must have been engineers preoccupied with the technical problems. Perhaps, like Oppenheimer talking about the atomic bomb, some even thought that the problem was “technically sweet”. Or, like the Department of Atomic Energy scientist at the Bangalore Kaiga debate in 1989 who said: “Hiroshima provided as with the fortunate opportunity to study radiation effects!”

Once the problem was defined as eliminating hundreds and thousands of people per day, the Auschwitz solution was inevitable. But, who defined the problem and promulgated there order? By and large, it is political decision – makers that defined the problem. There was a conference at Wannsee, a suburb of Berlin, on January 20, 1942, at which the Nazi leadership less than two hours (before lunch!) on what became known as the “final solution” to exterminate the Jews. Ethnic superiority, racial/ religious hatreds and fundamentalist views are well known bases foe decisions with far reaching destructive impacts on human beings.

Why was this definition of the problem so widely accepted? There could be several reasons. The population had been inoculated against moral judgements so that there is a pervasive moral indifference. The informed were silenced and the articulated dissidents became the first input to the campus. The media and journals were not allowed to reveal the truth. As a result, many citizens genuinely claimed ignorance as an excuse.

I must add an important footnote here. The New York Times Magazine of Sunday February 13, 2000, has an article entitled: “The Good Germans” by Peter Schneider which shows that plenty of Germans protected Jews in the midst of Nazi terror, thus challenging “the theory mass guilt and deepening the culpability of the collaborates.”

The most serious “explanation” for the wide spread acceptance of the Nazi definition of the problems is the plea of duty and the obligation to carry out orders. The reader may recall the movie “judgement at Nuremberg” with Spencer Tracy as true judge trying the Nazi judges for furthering the extermination of Jews. These judges defined themselves by pleading that they were just carrying out orders. The judgement delivered at Nuremberg was unambiguous – a human being has to take full responsibility for the consequences of his /her actions and that the excuse of obeying orders is inadmissible.

Apart form the above factors that operate in the case of officials and technical personnel, there is the additional device of taking a top down macro view with arguments of national security, geopolitical compulsions, deterrence, etc. In such a macro view, numbers and statistics replace human beings. New proxy words dominate the discussions – “burning capacity” replaces “the number of corpses burnt”, “kilotons yield” replaces “kilo deaths”, etc.

Functionaries, however, cannot avoid contact with the prisoners and victims to keep the system going. What is over whelming and astounding in Auschwitz and Birkenau is the unbelievable cold bloodedness of the operation. It appears that the guards treated inmates inhumanly because they believed that the victims were sub human things rather than people. Once such a belief is propagated and accepted, anything goes – as in the growing number of examples of ethnic cleansing and genocide (Native Americans, Hindus and Muslims in Partition, Rwanda, Bosnia, Kosovo, and East Timor).

Walking through the scene of genocide in Auschwitz, I began to think of historical parallels. In particular, I wondered whether there was a difference between the Nazi concentration camps and the development of the atomic bombs at Los Alamos, the test at Alamogordo and the bombing of Hiroshima and Nagasaki resulting in the virtually instantaneous annihilation of hundreds of thousands of civilians. Of course, the Allies in the World War II were not driven by the racism of the Nazis, and they were not pursuing a final solution of extermination of any particular religious group. But with regard to the scale of killing, the recruitment of capable minds, the harnessing of science and technology (some perhaps hoping that the weapons would never be used and others even opposing the use of the weapons after they were developed), the extent of organisation, the report of the effective management, and the choice of the targets to maximise annihilation of Japanese civilians, the Manhattan project and its follow-up were like the concentration camps, the fact, even more horrendous in their impact.

Walking inside the barbed-wire fences of Auschwitz, I wondered about the implications for India. Since May 1998, the country has witnessed the scientist-politician nexus underlying the nuclear tests at Pokhran, the use of national security arguments to advance party agendas and self-serving jingoism of the scientists. Of even greater importance has been the silence of its journals with a few notable exceptions, the obfuscation of ugly reality and the virtual absence of intellectual dissent. Each of these phenomena deserves greater scrutiny.

After an initial silence on the subject (as if it never happened), the journal Current Science dealt with the testes in an interesting way. It discriminated between obviously correlated concepts by publishing kiloton yields and suppressing kilo-death estimates. It publicized the official/ government version of the “kilotons yield” of the test bombs but rejected estimates of the hundreds of thousands of innocent non-combatants who would be killed if even a primitive atomic bomb were exploded on Mumbai/Karachi. This is a glaring example of the unpleasantness of the discussing the mass annihilations of the human beings being circumvented by the alerting the vocabulary of their discourse. Thus considerations of the kilo deaths that would result from nuclear explosions are evaded by focusing of discussions of the kilotons yields, a seemingly innocuous term.

Further, with regard to the official/government estimates of the yield of the Pokhran II tests, what not worthy is not that they were published, but that counter views were not pro-actively elicited and revealed. In doing so, Current Science behaved like an official mouthpiece of the establishment, rather than as an independent Nature like forum facilitating discourse and discussion and encouraging scientists to express t an opinion that is contrary to what is perceived as an accepted establishment view. Interestingly, though Current science abdicated its responsibility of encouraging a scientific discussion of yields, Frontline which is general magazine initiated such a debate.

Viewing the Indian nuclear program through the Holocaust Lens raises other questions. Are the institutions on the Indian sub-continent necessarily more robust and moral than those in the Germany of the 1930s and 1940s? Are Indian politicians and parties less prone to exploit religious animosities? Are Indian scientists and engineers less eager to get political support for their next ego trip or power play (e.g., neutron bombs because they kill but don’t destroy.) Once the nuclear tripped miseries are deployed, are their guarantees against “some crazy fool doing some crazy thing.”? It is certain that Pokhran will not lead as inevitably to Lahore and to Mumbai as Alamogordo led to Hiroshima?

The nuclear tests exposed the internal condition of Indian science. Faced with a complexity of issues raised by the tests – issues of (internal and external) security, trade and economics, politics, ethics, national traditions – it would have be natural for the body intelligent and creative scientists to develop the spectrum of the views. Instead, the virtually unanimous euphoria was astonishing. And, the silence of the present and past leaders of science, their academies and their journals was deafening. Since, it is statically unlikely that almost all the whole body of scientists had independently arrived at a single view, one has to probe deeper to find an explanation.

Free India started with the Nehruvian idea of science as an essential accoutrement of a modern society. Today, the nuclear tests have shown the determination of the rules to make Indian science a servant of the State and its internal and external political ambitions. The idea that science is the people’s Astra (weapon) against poverty is being jettisoned. The Jai Vigyan Pronouncement symbolizes this attempt by the government to co-opt scientists.

But this is not an unrequited one sided desire to embrace. In turn, scientists have been wooing the ruling establishment with a desperate desire to be in the corridors of power. When the government kept them at an arm’s length – as seems to have been the case in the Narasimha Rao regime – scientists felt quite bitter and rejected. They even considered that period as the nadir of post – independence Indian Science.

In contrast, the giants of the Indian Science, in particular Raman and Saha, considered their independence from government on the years immediately after 1947 to be a matter of pride. But, power was irresistible to the lesser scientists who followed. And the only way this desire could be fulfilled was to woo government through its scientific ministries and their secretaries. Scientific academies courted secretaries of scientific ministries to be their presidents and office bearers. There was no regret that, in the process, the academies lost their independence. Or, that their voices could be distinguished from those of government. This lacuna is in a country where there are very few other institutions that are independent enough to come up with perspectives different from the government. In the West, the universities provide independent policy studies, but such independence is rare in India.

Thus scientists wanted to be, and became, a pressure group. All this has become clear after the tests when a former Prime Minister revealed how the nuclear scientists lobbied the government to give them a chance to prove their capability. The scientists had not done a comprehensive cost benefit analysis of the tests and their fall out. They did not reveal a national perspective. Despite this, they perused a narrow departmental, if not personal agenda, perhaps emulating their political masters.

An understanding of science society interactions in India has to take in to account, on the one hand, the existence of a dual society, and on the other hand, its strong interaction with the industrialized countries. The coupling with the industrialized countries leads to the dominants of foreign collaborating industry based on the import of the technology, and the dual character of the Indian society results in an overwhelmingly elitist thrust of indigenous technology. Further, even these indigenous technological efforts consist almost wholly of the imitation and adaptation of foreign technology, rather of innovation.

This almost complete decoupling of science and technology from each other has a profound impact on science in India and produces its first major abnormality. Because of the preponderance of technology, imports of the imitative character of indigenous technology the initial part of the innovation chain (consisting of research, design and development, and engineering – for – manufacturing) hardly exists in the country. As a result, its scientific system is not subject to the pressure of basic problems emerging from technology. And, without this pressure from technology, indigenous science is deprived of a powerful driving source. The vitality of science in a society depends upon the challenges thrown up the innovation chain leading to technology as well as upon its internal momentum arising from the backlog unresolved problems.

If Indian science is to flourish, it must depend solely upon its internal momentum, which is the product of the “mass” of scientists and the “velocity” or pace of scientific research. The pace or tempo of research activity depends upon the existence and maintenance of an atmosphere of excitement, which in turn requires a conviction of being ” hot on the trail ” of important discoveries. Such an atmosphere is facilitated by rapid communication between scientists through personnel contracts, seminars, symposia and conferences and through well referred journals that ensure quick publication.

The pace of research is usually set by outstanding scientists who attract a following. The point is that scientists tend “to hunt in packs” behind leaders.

The “mass” of scientists depends upon the size of the scientific body, but not merely upon the number of scientists. What is required is a Community of interacting scientists with the well-established traditions of a peer system. Scientific peers are crucial for discussions, brain storming and testing it ideas, for acquiring different ways of looking at a problem, for enhancing the quality of seminars, symposia and conferences, for rigorous assessment and constructive criticism of work, for help in improving its quality, for weeding pot defective work, for a process of recognition that is appreciated, and so on. In short, without an environment of an actively interacting scientific community, there cannot be the natural selection of scientific ideas and data that alone will ensure that the fittest theories and experiments survive.

Natural selection of ideas implies competition and diversity. It cannot arise if there is a monoculture of views. Truth cannot emerge if there is an absence and/ or exclusion of dissent, and certainly not triumph, if dissenters are branded anti – scientific and anti – national. It is against this background that one notes with regret that in recent decades that they have not been major scientific controversies within the Indian scientific establishment. Bitter enmities between some leaders of Indian science are well known, but they are only mere conflicts on scientific issues. They only controversies that have arisen – the Bhopal gas disaster, the Sardar Sarovar project, nuclear power, etc., – have arisen from scientists who are outside the establishment or are treated as renegades and ignored.

The standard way of avoiding genuine controversy and peer review is to exclude unorthodox views from seminars, committees, journals, and other forums (including the peer reviewing process). So, one finds internationally acclaimed experts not being invited to meetings on their subjects because they hold “unacceptable” views they are not in the hierarchy. The dialectic of truth is frustrated even in so called institutes of “advanced” studies. Of course, all this distortion of scientific tradition cannot survive if there were transparent democratic functioning. That is why there is a striking lack of transparency, undemocratic functioning and manipulation of peer review.

Underlying all this violation of the scientific tradition and its codes of behaviour is the fact “he who pays the piper calls the tune.” Government and quasi government sources are responsible for the overwhelming share of science funding so that scientific activity depends strongly on this funding, and almost all scientists are on the government pay roll or perk roll. There are also a number of cash carrying prizes and awards that act as further inducements to conform, rather than dissent. No wonder there was a stampede of scientists to applaud the nuclear tests and prove their patriotism as perceived by the establishment. Fortunately, in spite of all this pressure for conformity, there were some scientists who dissented and their numbers grew with the warning of the initial euphoria.

With regard to the directions of Indian science, discussions on must start with the country’s poverty – for, this is its defining characteristic and fundamental reality. In 1951, India’s poor numbered 164 million; in 1993-94, the number had increased to 312 million, that is, double the number people at independence who could not meet their daily subsistence requirements. Between 1950-51 and 1993-94, the population below the poverty line declined by less than 1% per year. One in three Indians go to bed hungry. Life expectancy is about 60. Half the Indian population cannot read or write. The Human Poverty index (HPI) is about 37% — this index is a composite of Longevity (19. 4% of the population expected to die before the age of 40), knowledge (48.8% are illiterate), and standard of living (19% are without access of safe drinking water, 15% without access to health services and 53% of the children are malnourished and underweight). India belongs well and truly to the club of poorest nations. The country can move out of this cursed club only through sustainable development, not through nuclear explosions.

It is this Indian reality that must guide the direction of Indian science. Instead, what is observed is a lack of correspondence between the thrust of Indian science and the problems of the Indian people. Going by the expenditures on R & D, it appears that the bulk of the expenditure (about two-thirds) goes to the Defence Research and Development Organisation, Department of Space and Department of Atomic Energy, all of which have overt and/or covert military implications. Of the balance, a large percentage goes to industrial research, but this caters largely to the needs of the elite. In fact, going by the militarist-elitist expenditure pattern of Indian R & D, one would think that the primary problem of Indian society concern external security and upper class consumption wants, rather than poor health, illiteracy and basic needs.

This mis-orientation of Indian science is not a surprise. It follows from the fact that the country consists of small islands of urban splendour amidst vast oceans of rural misery. This situation is often referred to as a “dual society” – a small, politically powerful elite (constituting a mere 10-15% of the population and consisting of industrialists, landlords, bureaucrats, professionals and white-collar labour) living in conspicuous affluence amidst the abject poverty of the politically weak masses. The human rights if the poor have been ignored.

Scientists escape responsibility for the misdirection of science by the clever excuse if the amorality and neutrality of science. For example, the well-known statement of the otherwise saintly, sincere and dedicated Kalam that “he is only an engineer” and that “his missile can also be used for delivering flowers”.

The amorality and neutrality emerge from two conventional prescriptions for the relationship between the scientist (the subject) and the object of scientific study. Firstly, the scientist is urged to separate and distance himself/herself from the object of study even when the object is living. The second “commandment” for the scientist is to eschew feelings from the analysis so that the study is a cerebral non-subjective activity devoid of emotion and values. Thereby, science claims objectivity. Thus, modern science has been based on two dichotomies: (a) separation of the subject from the object and (b) separation of feelings and emotion (the non-cognitive self) from thought and analysis (the cognitive self). However, the first dichotomy leads inevitably to degradation of the objects of study (even humans) into things, and the second, to the removal of feelings for objects (plants, animals and finally human beings of different castes, tribes, nationalities and religions). The amorality of science stems from this isolation of the subject from the object and this removal or absence of emotions and feelings and values. And when the object of the study includes human beings, then the perception of people as “things”, lead inevitably to science becoming the instrument of violence, oppression and evil. Hence, the roots of the disjunction between Indian science and morality go much deeper.

The submission here is that there is a way out of the moral dilemma. The relationship between the scientist (the subject) and the object of scientific study must be such that Initial separation (and distance) ends in subsequent unification (and embrace). Further, the suppression of emotion during analysis must give way to emotion after analysis. The functioning of scientists as individuals, groups and institutions must be constrained and limited by moral strictures and taboos. Otherwise, the synergism between the isolation of the subject from the object and the removal or absence of emotions and feelings leads inevitably to science becoming the instrument of violence, oppression and evil. Science, therefore, must not be neutral and amoral. It can be – and must be – encoded with life-affirming values, in particular, the rights of under-privileged human beings.

From this standpoint, there are no life-affirming values associated with the nuclear tests and the attitude of the Government to weaponization. In fact, if there are any values at all, they are life-destroying. And the Prime Jai Vigyan pronouncement is tantamount to eulogizing activities of science that can end up killing lakhs of non-combatants-children, women and men-in a nuclear attack. There is a pernicious values system underlying all this Jai Vigyan stuff which is only a ploy of the rulers to win over scientists to the militarization of Indian science. By going euphoric over science as an instrument of mega-death, the Government is sending a message commending the nexus between science and evil. The link between science and morality must be re-established.

A crucial safeguard is to insist that, quite apart from the top-down macro view of security, yields, kill-ratios, etc., there must be a bottom-up micro view based on human beings and their rights. We must see beyond the numbers and the statistics, we must see children and parents and grandparents, lovers and married couples, siblings, friends and comrades and above all the down-trodden.

The nuclear tests and threat of weaponization have exposed the serious weaknesses of Indian science. They have shown that Indian science is responding more to the militaristic and consumption ambitions of the elite than to the rights and problems of the poverty-stricken Indian masses. Rather than be a force that balances the demands of the state and civil society, the tests have revealed that Indian science has become a servant of the state whilst pressuring the state to advance the vested interests of Indian science and its scientists. The tests have revealed that the science-state nexus is strong. Indian science has betrayed the humanistic heritage left behind by Mahatma Gandhi and Lord Buddha. Sheltering behind the argument that science is amoral and neutral, Indian science may become an instrument of violence, oppression and evil. It has not encoded itself with life-affirming values. Immediately after the nuclear tests, the majority of Indian scientists echoed the official line in a regimented fashion. They did not show the independence of perspective and diversity of views characteristic of a community of interacting scientists with the well-established traditions of science.

CHAPTER 5

INTERNATIONAL DECLARATIONS AND RESOLUTIONS

  1. UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948

“The destiny of human rights is in the hands of all our citizens in all our communities.”

……………Eleanor Roosevelt.

The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General Assembly on 10 December 1948 at Palais de Chaillot, Paris. The Declaration arose after the experience of the Second World War. It represents a global expression of rights to which all human beings are inherently entitled. It consists of 30 articles which have been elaborated in subsequent international treaties, regional human rights instruments, national constitutions and laws. The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols. In 1966 the General Assembly adopted the two detailed Covenants, which complete the International Bill of Human Rights; and in 1976, after the Covenants had been ratified by a sufficient number of individual nations, the Bill took on the force of international law.[156]

As individual human beings, we each have an innate sense of the fundamental rights and freedoms that belong to us and that cannot be denied by any government. A basic understanding and recognition of human rights is in our nature. The notion of human rights can be successfully traced through the linguistic, literary, cultural, and political structures of all societies. The world’s major legal systems all bring important contributions to our understanding of human rights as do the most widely practiced religious beliefs, including Buddhist, Christian, Confucian, Hindu, Islamic and Jewish traditions[157].

Philosophers and humanists such as St. Thomas Aquinas, Baruch Spinoza, Gottfried Wilhelm Leibniz, Hugo Grotius, John Locke and Jean Jacques Rousseau contributed to the concept of “natural law” which set the stage for wide recognition of human rights and freedoms. Natural law holds that people are born in an innately “good” state, and that certain fundamental rights can be reasonably deduced from this fact. Although the philosophy of natural law lent much to the conceptual basis for human rights, with time, it became increasingly important to translate vague concepts of rights derived from nature into specific written laws which would provide concrete protection to the rights of the individual within the larger framework of society. Great precedents in the recognition and protection of specific human rights lie in such documents as the British Magna Carta, the United States Bill of Rights, and the French Declaration of the Rights of Man[158].

During the Second World War the allies adopted the Four Freedoms: freedom of speech, freedom of assembly, freedom from fear and freedom from want, as their basic war aims. The United Nations Charter “reaffirmed faith in fundamental human rights, and dignity and worth of the human person” and committed all member states to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”.[159]

When the atrocities committed by Nazi Germany became apparent after the Second World War, the consensus within the world community was that the United Nations Charter did not sufficiently define the rights it referenced.[160] A universal declaration that specified the rights of individuals was necessary to give effect to the Charter’s provisions on human rights.

In late 1945, leaders of the world’s nations met in San Francisco to form the United Nations. Inspired by the great South African pre-apartheid leader Field-Marshall Smuts, they included in the preamble to the Charter of the UN, an important reference to human rights[161]. The relevant part of the preamble said[162]:

 “We the peoples of the United Nations [are] determined – .. to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”.

 The Article 68 was also included which required the Economic and Social Council to set up commissions in the human rights and economic and social fields. The outcome was the establishment of a Commission on Human Rights. Thus the Commission is one of the very few bodies to draw its authority directly from the Charter of the United Nations[163].

The Universal Declaration was adopted by the General Assembly on 10 December 1948 by a vote of 48 in favour, 0 against, with 8 abstentions (all Soviet Bloc states [i.e., Byelorussia, Czechoslovakia, Poland, Ukraine and The USSR],Yugoslavia, South Africa and Saudi Arabia).[164] The following countries voted in favour of the Declaration: Afghanistan, Argentina, Australia, Belgium, Bolivia, Brazil, Burma, Canada, Chile, China, Colombia, Costa Rica, Cuba, Denmark, the Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, France, Greece, Guatemala, Haiti, Iceland, India, Iran, Iraq, Lebanon, Liberia, Luxembourg, Mexico, Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Thailand, Sweden, Syria, Turkey, United Kingdom, United States, Uruguay, Venezuela.[165]

The human rights standards established since the founding of the United Nations have become widely recognized in the world today. Starting with the adoption of the Universal Declaration of Human Rights in 1948, the United Nations succeeded in enacting the two Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights, as well as a host of more specialized conventions on the Prevention and Punishment of the Crime of Genocide, on the Elimination of All Forms of Racial Discrimination, against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, etc. Much of the norm-creating work was carried out in the first 25 years of the United Nations. The main efforts during this period were devoted to the promotion of human rights.[166]

The very name emphasizes that UDHR was to set a standard of rights for all people everywhere – whether male or female, black or white, communist or capitalist, victor or vanquished, rich or poor, for members of a majority or a minority in the community[167]. In the words of the first preamble to the UDHR, it was to reflect “recognition of the inherent dignity and equal and inalienable rights of all members of the human family “… and through that recognition provide “the foundation of freedom, justice and peace in the world”.

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood[168].
The reason for including it in the main text is to state firmly the basis of all human rights, the rationality of human persons and their obligation to deal fairly with everyone else, regardless of race, sex, wealth and so on[169]. Article 7 follows up this theme by saying that all are to be equal before the law and have a right to protection against any form of discrimination. It says “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”[170].

No single phrase in recent human history has been more privileged to bear the mission and burden of human destiny than the phrase “Human Rights”. The reason behind it is that “the millions of men, women, youth and children around the world will be born, live and die and never know they are owners of human rights” says Ivanka Corti, former chairperson, CEDAW[171]. Human Rights means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International covenants and enforceable by courts in India.[172]

Various provisions of Universal Declaration of Human Rights also talks about the basic human rights required for the development of the human personality in proper way. They include rights like right to life, liberty and security of person[173]. It also says that everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty[174].

It says no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms[175]. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment[176]. Everyone has the right to recognition everywhere as a person before the law[177].

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination[178]. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law[179]. No one shall be subjected to arbitrary arrest, detention or exile[180].

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him[181]. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense[182].

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks[183]. Everyone has the right to freedom of movement and residence within the borders of each state. Everyone has the right to leave any country, including his own, and to return to his country[184]. Everyone has the right to seek and to enjoy in other countries asylum from persecution[185]. Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality[186].  Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution[187]. Everyone has the right to own property alone as well as in association with others which one should be not deprived of his property[188].

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance[189]. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers[190].

Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. Everyone has the right of equal access to public service in his country[191].

Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment. Everyone, without any discrimination, has the right to equal pay for equal work. Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. Everyone has the right to form and to join trade unions for the protection of his interests[192]. Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay[193].

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control[194].

Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. Parents have a prior right to choose the kind of education that shall be given to their children[195].

Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author[196]. Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized[197].

Everyone has duties to the community in which alone the free and full development of his personality is possible. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations[198] Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein[199].

  1. UNIVERSAL DECLARATION OF HUMAN RIGHTS AND NATIONAL LEGAL SYSTEM

In Chairman, Railway Board v. Chandrima Das[200],emphasizing upon the applicability of the Universal Declaration of Human Rights and principles thereof in the domestic jurisprudence, it was held by the Supreme Court that our “Constitution guarantees all the basic and fundamental human rights set out in the UDHR,1948, to its citizens and other persons. The chapter dealing with Fundamental Rights is contained in Part-III of the Constitution. The purpose of this part is to safeguard the basic human rights from the vicissitudes of political controversy and to place them beyond the reach of the political parties who, by virtue of their majority, may come to form the Government at the Centre or in the State. Further emphasizing the importance of the UDHR, the court has observed that the “Human Rights Jurisprudence is based on the Universal Declaration of Human Rights,1948, which has the international recognition as the ‘Moral Code of Conduct’ having been adopted by the General Assembly of the United Nations.”

Kelsen in his ‘Pure Theory’ of law discussed about Grundnorm. According to him Grundnorm is the highest standard of norm which ought to be obeyed by the society. He said that there exists a hierarchy of norms and in that hierarchy grundnorm is at the top. Kelsen also applied his theory to the system commonly known as ‘international law’. Therefore, in context of Human Rights, Universal Declaration of Human Rights (UDHR) can be presupposed as a grundnorm from which all other norms on Human Rights derive their validity. Like ICCPR, ICESCR, CEDAW etc. have been derived from UDHR[201]. In India the National Human Rights Commission (NHRC), which was established by the Protection of Human Rights Act, 1993 is the main body entrusted with promoting and protecting human rights.

There are no explicit provisions in the Indian Constitution regulating the incorporation and status of international law in the Indian legal system. However, one of the directive principles of state policy, states that: “The State shall endeavor to foster respect for international law and treaty obligations in the dealings of organized people with another[202].”

International treaties do not automatically become part of national law. They have to be transformed into domestic law by a legislative act. The Union has the exclusive power to implement international treaties[203]. The status of customary international law in domestic law follows the common law of England[204]. Accordingly, a rule of customary international law is binding in India provided that it is not inconsistent with Indian law.

The Supreme Court has even gone a step further by repeatedly holding, when interpreting the fundamental rights provisions of the Constitution, that those provisions of the International Covenant on Civil and Political Rights, which elucidate and effectuate the fundamental rights guaranteed by the Constitution can be relied upon by courts as facets of those fundamental rights and are, therefore, enforceable.[205]

The civil liberties movement was a product of the emergency. Arbitrary detention, custodial violence, prisons and the use of the judicial process were on the agenda of the civil liberties movement[206]. In the late ‘70s, but more definitively in the early ‘80s, the Supreme Court devised an institutional mechanism in public interest litigation (PIL). PIL opened up the court to issues concerning violations of rights, and nonrealisation of even bare non-negotiables[207] by diluting the rule of locus standi; any person could move the court on behalf of a class of persons who, due to indigence, illiteracy or incapacity of any other kind were unable to reach out for their rights. In its attempt to make the court process less intimidating, the procedure was simplified, and even a letter to the court could be converted into a petition.[208] In its early years, PIL was a process which • recognized rights and their denial which had been invisibilised in the public domain. Prisoners, for instance, hidden amidst high walls which confined them, found a space to speak the language of fundamental and human rights.

  • led to ‘juristic’ activism, which expanded the territory of rights of persons. The fundamental rights were elaborated to find within them the right to dignity, to livelihood, to a clean environment, to health, to education, to safety at the workplace….The potential for reading a range of rights into the fundamental rights was explored.

Individuals, groups and movements have since used the court as a situs for struggle and contest, with varying effect on the defining of what constitute human rights, and prioritising when rights appear to be in conflict.

In PUCL v. Union of India[209] child workers employed in homes and in commercial workplaces, were subjected to ill-treatment. The chaining of bonded child labour in the carpet industry near Varanasi so that they could not escape was reported. Injuries on the person of domestic child workers in Delhi sometimes resulting in death, have been reported intermittently in the press. In Maharashtra, a civil liberties organisation took the state and a contractor to court when the latter ill-treated, resulting in death, one of the young boys he had brought with him from Tamil Nadu.

Sexual Harassment at the Workplace acquired visibility with the decision of the Supreme Court in Vishaka[210]. Earlier efforts at having the problem addressed, as, for instance, in the Delhi University, has drawn strength from the guidelines set out in the judgment. It was widely reported, however, that it was still proving difficult to get institutions to adopt the guidelines and act upon it. The Madras High Court, for instance, was reportedly averring that the guidelines did not apply to the court; and allegations of sexual harassment by a senior member of the Registry were given short shrift. The process of setting up a credible grievance redressal mechanism was reportedly being watered down in the recommendation of a committee to the Delhi University. In Kerala, a Commission of Inquiry was set up after Nalini Netto, a senior official of the Indian Administrative Service, pursued her complaint of sexual harassment against a serving minister of the state cabinet – which is seen as a diversion from a representative investigative and redressal forum. P E Usha, in Kerala, faced hostility in her university when she followed up on her complaint of sexual harassment. There have been allegations of sexual harassment of women employees by senior persons within institutions working on human rights, and in progressive publications, which too have shown up the inadequacy of the redressal mechanisms.

  • Translating the guidelines into norms in different institutions and workplaces;
  • finding support systems for women who are sexually harassed
  • Breaking through thick walls of disbelief are reckoned to be the priorities. This has also been introduced into programmes on gender sensitisation for judicial officers. Sexual harassment accompanied by violence has become a common feature with cases of acid throwing where there is unrequited love,[211] and harassment which has culminated in the murder of a hounded girl.[212]

The resolution of these areas of conflict of rights, and of answerability to affected populations could influence/set the agenda for human rights activity, and activism, in the next decade.

  1. UNIVERSAL DECLARATION ON THE HUMAN GENOME AND HUMAN RIGHTS

The General Conference , recalling that the Preamble of UNESCO’s Constitution refers to “the democratic principles of the dignity, equality and mutual respect of men”, rejects any “doctrine of the inequality of men and races”, stipulates “that the wide diffusion of culture, and the education of humanity for justice and liberty and peace are indispensable to the dignity of men and constitute a sacred duty which all the nations must fulfil in a spirit of mutual assistance and concern”, proclaims that “peace must be founded upon the intellectual and moral solidarity of mankind”, and states that the Organization seeks to advance “through the educational and scientific and cultural relations of the peoples of the world, the objectives of international peace and of the common welfare of mankind for which the United Nations Organization was established and which its Charter proclaims.”[213]

At its 27th session, by its Resolution 27 C/5.15 (15 November 1993) the General Conference of UNESCO asked the Director-General to prepare an international instrument for the protection of the human genome. The 29th Session of the General Conference adopted the Universal Declaration on the Human Genome and Human Rights, unanimously and by acclamation, on 11 November 1997[214]. By Resolution 29 C/I7 entitled ‘Implementation of the Universal Declaration on the Human Genome and Human Rights’, the General Conference laid out the methods for the follow-up of the implementation of the Declaration. Aware of the significance and scope of this Declaration, the United Nations General Assembly endorsed the Declaration by its Resolution AIRES/53/152 on 9 December 1998 at its 53rd session.[215]

Recognizing that research on the human genome and the resulting applications open up vast prospects for progress in improving the health of individuals and of humankind as a whole, but emphasizing that such research should fully respect human dignity, freedom and human rights, as well as the prohibition of all forms of discrimination based on genetic characteristics, proclaims the principles that follow and adopts the present Declaration.

The human genome underlies the fundamental unity of all members of the human family, as well as the recognition of their inherent dignity and diversity. In a symbolic sense, it is the heritage of humanity.[216] Everyone has a right to respect for their dignity and for their rights regardless of their genetic characteristics. That dignity makes it imperative not to reduce individuals to their genetic characteristics and to respect their uniqueness and diversity[217]. The human genome, which by its nature evolves, is subject to mutations. It contains potentialities that are expressed differently according to each individual’s natural and social environment including the individual’s state of health, living conditions, nutrition and education[218].

This declaration also says that research, treatment or diagnosis affecting an individual’s genome shall be undertaken only after rigorous and prior assessment of the potential risks and benefits pertaining thereto and in accordance with any other requirement of national law. In all cases, the prior, free and informed consent of the person concerned shall be obtained. If the latter is not in a position to consent, consent or authorization shall be obtained in the manner prescribed by law, guided by the person’s best interest. The right of each individual to decide whether or not to be informed of the results of genetic examination and the resulting consequences should be respected. In the case of research, protocols shall, in addition, be submitted for prior review in accordance with relevant national and international research standards or guidelines. If according to the law a person does not have the capacity to consent, research affecting his or her genome may only be carried out for his or her direct health benefit, subject to the authorization and the protective conditions prescribed by law. Research which does not have an expected direct health benefit may only be undertaken by way of exception, with the utmost restraint, exposing the person only to a minimal risk and minimal burden and if the research is intended to contribute to the health benefit of other persons in the same age category or with the same genetic condition, subject to the conditions prescribed by law, and provided such research is compatible with the protection of the individual’s human rights[219].

Every individual shall have the right, according to international and national law, to just reparation for any damage sustained as a direct and determining result of an intervention affecting his or her genome[220]. In order to protect human rights and fundamental freedoms, limitations to the principles of consent and confidentiality may only be prescribed by law, for compelling reasons within the bounds of public international law and the international law of human rights[221].

No research or research applications concerning the human genome, in particular in the fields of biology, genetics and medicine, should prevail over respect for the human rights, fundamental freedoms and human dignity of individuals or, where applicable, of groups of people[222]. Practices which are contrary to human dignity, such as reproductive cloning of human beings, shall not be permitted. States and competent international organizations are invited to co-operate in identifying such practices and in taking, at national or international level, the measures necessary to ensure that the principles set out in this Declaration are respected[223].

Benefits from advances in biology, genetics and medicine, concerning the human genome, shall be made available to all, with due regard for the dignity and human rights of each individual. Freedom of research, which is necessary for the progress of knowledge, is part of freedom of thought. The applications of research, including applications in biology, genetics and medicine, concerning the human genome, shall seek to offer relief from suffering and improve the health of individuals and humankind as a whole[224].

The responsibilities inherent in the activities of researchers, including meticulousness, caution, intellectual honesty and integrity in carrying out their research as well as in the presentation and utilization of their findings, should be the subject of particular attention in the framework of research on the human genome[225]. It should be ensured that research results are not used for non-peaceful purposes. Committees should be established by the state to assess the ethical, legal and social issues raised by research on the human genome and its application. Research on the identification, prevention and treatment of genetically based and genetically influenced diseases; in particular rare as well as endemic diseases which affect large numbers of the world’s population should be promoted.

Relevant international organizations should support and promote the initiatives taken by States for purposes like Assessment of the risks and benefits pertaining to research on the human genome to be carried out and abuse to be prevented, the capacity of developing countries to carry out research on human biology and genetics, taking into consideration their specific problems, to be developed and strengthened, developing countries to benefit from the achievements of scientific and technological research so that their use in favour of economic and social progress can be to the benefit of all, The free exchange of scientific knowledge and information in the areas of biology, genetics and medicine to be promoted.

States should take appropriate measures to promote the principles set out in the Declaration, through education and relevant means. It should make every effort to promote the principles set out in this Declaration and should, by means of all appropriate measures, promote their implementation[226]. It should take appropriate measures to promote, through education, training and information dissemination, respect for the above-mentioned principles and to foster their recognition and effective application[227]. The International Bioethics Committee of UNESCO should contribute to the dissemination of the principles set out in this Declaration and to the further examination of issues raised by their applications and by the evolution of the technologies in question. It should organize appropriate consultations with parties concerned, such as vulnerable groups. It should make recommendations, in accordance with UNESCO’s statutory procedures, addressed to the General Conference and give advice concerning the follow-up of this Declaration, in particular regarding the identification of practices that could be contrary to human dignity, such as germ-line interventions[228].

Nothing in this Declaration may be interpreted as implying for any state, group or person any claim to engage in any activity or to perform any act contrary to human rights and fundamental freedoms, including the principles set out in this Declaration[229].

So, faced with rapid developments in science and technology, with all their promises and risks, UNESCO has sought to affirm the need for controls in the area. For the first time, it proclaimed in a solemn Declaration the need to protect the human genome for the good of future generations, together with the rights and dignity of human beings, freedom of research and the demands of solidarity[230].

The Declaration limits itself intentionally to the human genome. Thus it does not define the bearers of the rights which it proclaims; it does not affirm that these rights belong to every human being from the moment when he or she emerges as an individual from his or her genetic heritage. Nor is there any reference to the embryo and the fetus. The question is delicate, especially as regards the embryo in the first 6-7 days of life. The fact that unborn human beings and human embryos are not explicitly protected opens the door, particularly in the field of genetic intervention, to the very forms of discrimination and the violations of human dignity which the Declaration seeks to ban[231].

  1. THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Members of the Council of Europe, considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948; considered this Declaration which aims at securing the universal and effective recognition and observance of the Rights therein declared. The aim of the Council of Europe is the achievement of greater unity between its Members and one of the methods by which the aim is to be pursued is the maintenance and further realization of Human Rights and Fundamental Freedoms.

This convention reaffirms their profound belief in those Fundamental Freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend.

This convention says everyone’s right to life shall be protected by law. Except in cases like:

(a) In defense of any person from unlawful violence;

(b) In order to effect a lawful arrest or to prevent escape of a person lawfully detained;

(c) In action lawfully taken for the purpose of quelling a riot or insurrection.

But in any other circumstance, no one shall be subjected to torture or to inhuman or degrading treatment or punishment. Article 4 of this convention says no one shall be held in slavery or servitude; No one shall be required to perform forced or compulsory labour.

As a general rule no one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

  • the lawful detention of a person after conviction by a competent court;
  • the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
  • the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
  • the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
  • the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;
  • the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

But this every such case, everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him. shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. He shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed[232]. Everyone has the right to respect for his private and family life, his home and his correspondence[233].

Everyone has the right to freedom of thought, conscience and religion. This freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others[234]. Everyone has the right to freedom of expression. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security.

Everyone has the right to freedom of peaceful assembly and to freedom of association with others. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety.

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity[235].

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status[236]. The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed[237].

For the purposes above mentioned to be undertaken by the High Contracting Parties in the present Convention, there shall be set up[238]:

  1. A European Commission of Human Rights hereinafter referred to as ‘the Commission’;
  2. A European Court of Human Rights, hereinafter referred to as ‘the Court’.

The members of the Commission shall be elected by the Committee of Ministers by an absolute majority of votes, from a list of names drawn up by the Bureau of the Consultative Assembly; each group of the Representatives of the High Contracting Parties in the Consultative Assembly shall put forward three candidates, of whom two at least shall be its nationals. As far as applicable, the same procedure shall be followed to complete the Commission in the event of other States subsequently becoming Parties to this Convention, and in filing casual vacancies[239]. The members of the Commission shall be elected for a period of six years. They may be re-elected.

The European Court of Human Rights shall consist of a number of judges equal to that of the Members of the Council of Europe. No two judges may be nationals of the State[240]. The members of the Court shall be elected by the Consultative Assembly by a majority of the votes cast from a list of persons nominated by Members of the Council of Europe; each Member shall nominate three candidates, of whom two at least shall be its nationals[241]. The members of the Court shall be elected for a period of nine years. They may be re-elected.

Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary- General of the Council of Europe that the present Convention shall extend to all or any of the territories for whose international relations it is responsible. The Convention shall extend to the territory or territories named in the notification as from the thirtieth day after the receipt of this notification by the Secretary-General of the Council of Europe. The provisions of this Convention shall be applied in such territories with due regard, however, to local requirements. Any State which has made a declaration in accordance with paragraph 1 of this article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Commission to receive petitions from individuals, non-governmental organizations or groups of individuals in accordance with Article 25 of the present Convention[242].

Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this article. Any reservation made under this article shall contain a brief statement of the law concerned[243].

This Convention shall be open to the signature of the Members of the Council of Europe. It shall be ratified. Ratifications shall be deposited with the Secretary-General of the Council of Europe. The present Convention shall come into force after the deposit of ten instruments of ratification. As regards any signatory ratifying subsequently, the Convention shall come into force at the date of the deposit of its instrument of ratification. The Secretary-General of the Council of Europe shall notify all the Members of the Council of Europe of the entry into force of the Convention, the names of the High Contracting Parties who have ratified it, and the deposit of all instruments of ratification which may be effected subsequently[244].

  1. THE AFRICAN CHARTER ON HUMAN AND PEOPLE’S RIGHTS 1981

The African Charter on Human and Peoples’ Rights is also known as the Banjul Charter. It is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent. Promotion and protection of human rights is essential for the survival and progression of humanity. From the days of the Magna Carta, different declarations concerning rights and freedoms have been prepared by and for the societies to which their promoters belonged. After Human Rights concerns were brought to the forefront of international diplomacy by the United States Policy under the President ship of Jimmy Carter, many States started speaking of Human Rights violations in international forums and more particularly of violations in some States of Africa. Populations under foreign domination, and more particularly those of Africa, have always been prevented from benefiting unreservedly from the protection afforded by human rights values[245].

Much of the history of Africa was hidden to outsiders because of the Sahara Desert, which shuts off the communications from North to South. Therefore the development of Africa was much left to itself. African history shows that prior to the arrival of foreigners and the imposition of their rule on Africans, the latter had lived traditional lives where the ‘Spirit of Africa’ had reigned – fairness, justice, honesty, discipline, obedience, collective responsibility, African virtues and values, and extended family codes had been enjoyed and shared since time immemorial. That was the essence of African socialism until European colonial rule began to dismantle it[246].

The Universal Declaration of Human Rights of 1948 did not have the effect of putting an end to the discriminatory practices resulting from colonization and thus, the anti-colonial struggle in the 1950’s led the African states to organize themselves primarily to eradicate colonialism. Furthermore, the African countries played but a minute part in the preparation of the Universal Declaration and for a long time afterwards, it was not applicable to the nationals of those countries. Civil, Political, Economic, Social and Cultural Rights were not applicable to them without restrictions. Therefore, it was to be reasonably expected that the former colonies, long prevented from enjoying public freedoms, would, once they had acceded to international sovereignty, set themselves up as a passionate defenders of human rights[247].

The African Charter on Human and People’s Rights 1981 was thus Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986. The African States immediately became members of the United Nations and unreservedly accepted its principles and norms, in particular the provisions of the Charter of San Francisco and those of the Universal Declaration of Human Rights. It is also important to acknowledge that African states have been active in the ratification of, or accession to, human rights conventions including the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESR)[248].

Recalling Decision 115 (XVI) of the Assembly of Heads of State and Government at its Sixteenth Ordinary Session held in Monrovia, Liberia, from 17 to 20 July 1979 on the preparation of a “preliminary draft on an African Charter on Human and Peoples’ Rights providing inter alia for the establishment of bodies to promote and protect human and peoples’ rights”[249];

The Preamble to the African Charter on Human and Peoples Rights draws its inspiration from the Charter of OAU and UNDHR. The Charter contains provisions dealing with rights and duties, on one hand and the organs for the protection and promotion of those rights and duties, on the other. It is a unique feature of the African Charter that it places same emphasis on the enforcement of the rights as well as the duties. The Charter incorporates the so-called third generation rights, i.e. the rights to peace, solidarity, a healthy environment and development having regard to Africa’s place in the conception of nations[250].

Article 1 of The African Charter on Human and People’s Rights 1981 says the Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them. Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status[251]. Every individual shall be equal before the law. Every individual shall be entitled to equal protection of the law[252]. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right[253]. Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained. Every individual shall have the right to have his cause heard. Every individual shall have the right to receive information. Every individual shall have the right to express and disseminate his opinions within the law[254].

Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.

Further this convention talks about various freedoms and rights like freedom of movement and residence within the borders of a State provided he abides by the law, the right to leave any country including his own, and to return to his country, right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions, right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law, right of equal access to the public service of his country, right of access to public property and services in strict equality of all persons before the law, right to property shall be guaranteed, the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work and right to enjoy the best attainable state of physical and mental health, right to education. All peoples shall be equal; they shall enjoy the same respect and shall have the same rights[255].

All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. States shall have the duty, individually or collectively, to ensure the exercise of the right to development[256]. All peoples shall have the right to national and international peace and security[257].

States parties to the present Charter shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood[258]. States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter[259].

Thus we see the Charter covers possibly all civil, political, economic, social and cultural rights including the third generation rights such as sovereignty over resources, development, international peace and environment. Each State party in accordance with the above obligation is required to submit every two years, a report on the legislative or other measures taken with a view to giving effect to the rights, duties and freedoms so recognized and that it has a duty to promote and ensure the respect of rights and freedom through teaching, education and publication so that these rights, duties and freedoms could be understood by the people. They shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institution entrusted with the promotion and protection of the above rights and freedoms[260].

Thus, for the safeguard of the rights it talks about the establishment and Organization of the African Commission on Human and Peoples’ Rights. The Commission shall consist of eleven members chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights; particular consideration being given to persons having legal experience[261].

The functions of the Commission shall be[262]:

  1. To promote Human and Peoples’ Rights and in particular:

(a) To collect documents, undertake studies and researches on African problems in the field of human and peoples’ rights, organize seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples’ rights, and should the case arise, give its views or make recommendations to Governments.

(b) To formulate and lay down, principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African Governments may base their legislations.

(c) Co-operate with other African and international institutions concerned with the promotion and protection of human and peoples’ rights.

  1. Ensure the protection of human and peoples’ rights under conditions laid down by the present Charter.
  2. Interpret all the provisions of the present Charter at the request of a State party, an institution of the OAU or an African Organization recognized by the OAU.
  3. Perform any other tasks which may be entrusted to it by the Assembly of Heads of State and Government.

In brief summary, the African Charter encompassed: an absolute endorsement of certain civil and political rights familiar to the liberal West; a conditional endorsement of other civil and political rights; mention of fundamental economic and social rights requiring considerable material resources for their application; a list of individual duties; and a list of “people’s” rights such as to existence, self-determination, and disposal of natural resources. In fact, it was said by some that especially individual duties and people’s rights reflected uniquely African approaches to internationally recognized human rights. It was also said that since the African Charter eschewed an African Human Rights Commission to oversee application of the Charter, this approach reflected African preferences for discussion and conciliation rather than adversarial adjudication[263].

African states were frequently negligent, in submitting reports to the Commission about how they were applying the Charter. The commission had neither the authority nor the power to correct the situation. When the Commission raised questions about the reports that were submitted, states tended toward silence. Likewise, when private communications were submitted to the Commission claiming a violation of the Charter, states tended to disregard the entire process of enquiry and friendly settlement that the Commission was trying to conduct.

As such, today, the African Charter functions not in isolation but as part of a network of human rights instruments and protective mechanisms on the continent, including domestic and the UN regimes as well as the work of civil society. While this means that there is a much more conductive environment for the protection of human rights in Africa today than was the case 30 years ago, commentators have also warned about the proliferation of human rights mechanisms in the African Union drawing on the same resources. The way in which the relationship between the Commission and the African Human Rights Court is managed, as well as other mechanisms such as the APRM, will be crucial to the role of the Charter in the future.

6. AMERICAN CONVENTION ON HUMAN RIGHTS, 1969

It was adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969 and it entered into force on July 18, 1978[264]. Its preamble talks about personal liberty and social justice based on respect for the essential rights of man. It says that the essential rights of man are not derived from one’s being a national of a certain state, but are based upon attributes of the human personality, and that they therefore justify international protection in the form of a convention reinforcing or complementing the protection provided by the domestic law of the American states. These principles have been set forth in the Charter of the Organization of American States, in the American Declaration of the Rights and Duties of Man, and in the Universal Declaration of Human Rights, and that they have been reaffirmed and refined in other international instruments, worldwide as well as regional in scope.

Part I of the convention talks about state obligations and rights protected in which chapter I specifically deals with general obligations.

Article 1 of the convention says that the States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. It further says every person has the right to have his life respected. It will be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply[265].

Every person has the right to have his physical, mental, and moral integrity respected. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. Punishment shall not be extended to any person other than the criminal. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvinced persons. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social re adaptation of the prisoners[266].

The convention further says that no one shall be subject to slavery or to involuntary servitude, which are prohibited in all their forms, as are the slave trade and traffic in women. No one shall be required to perform forced or compulsory labor. This provision shall not be interpreted to mean that, in those countries in which the penalty established for certain crimes is deprivation of liberty at forced labor, the carrying out of such a sentence imposed by a competent court is prohibited. Forced labor shall not adversely affect the dignity or the physical or intellectual capacity of the prisoner.

Article 7 says every person has the right to personal liberty and security. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto. No one shall be subject to arbitrary arrest or imprisonment. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies. No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for non – fulfillment of duties of support.

Further this convention also provides that every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.

No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit there from[267].

Article 11 talks about one of the very important topic i.e. Right to Privacy. It says that       Everyone has the right to have his honor respected and his dignity recognized. No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation. Everyone has the right to the protection of the law against such interference or attacks. The Freedom of Conscience and Religion are also mentioned in the convention which says Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one’s religion or beliefs, and freedom to profess or disseminate one’s religion or beliefs, either individually or together with others, in public or in private. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice[268].

Article 15 also recognizes the right of peaceful assembly, without arms. Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes. The exercise of this right shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others[269].

This convention talks about various other rights also like right to Family,[270] Name[271], Nationality[272], Property[273], Participate in Government[274], Equal Protection[275], Judicial Protection[276].

The Freedom of Movement and Residence is mentioned under Article 22. It says Every person lawfully in the territory of a State Party has the right to move about in it, and to reside in it subject to the provisions of the law. Every person has the right to leave any country freely, including his own. The exercise of the foregoing rights may be restricted only pursuant to a law to the extent necessary in a democratic society to prevent crime or to protect national security, public safety, public order, public morals, public health, or the rights or freedoms of others.

The following organs shall have competence with respect to matters relating to the fulfillment of the commitments made by the States Parties to this Convention[277]:

(a)  the Inter-American Commission on Human Rights, referred to as “The Commission;” and

(b)  the Inter-American Court of Human Rights, referred to as “The Court.”

The Inter-American Commission on Human Rights shall be composed of seven members, who shall be persons of high moral character and recognized competence in the field of human rights[278].  The Commission shall represent all the member countries of the Organization of American States[279].

The main function of the Commission shall be to promote respect for and defense of human rights. In the exercise of its mandate, it shall have the following functions and powers[280]:

(a) to develop an awareness of human rights among the peoples of America;

(b) to make recommendations to the governments of the member states, when it considers such action advisable, for the adoption of progressive measures in favor of human rights within the framework of their domestic law and constitutional provisions as well as appropriate measures to further the observance of those rights;

(c) to prepare such studies or reports as it considers advisable in the performance of its duties;

(d) to request the governments of the member states to supply it with information on the measures adopted by them in matters of human rights;

(e) to respond, through the General Secretariat of the Organization of American States, to inquiries made by the member states on matters related to human rights and, within the limits of its possibilities, to provide those states with the advisory services they request;

(f) to take action on petitions and other communications pursuant to its authority under the provisions of Articles 44 through 51 of this Convention; and

(g) to submit an annual report to the General Assembly of the Organization of American States.

The Court shall consist of seven judges, nationals of the member states of the Organization, elected in an individual capacity from among jurists of the highest moral authority and of recognized competence in the field of human rights, who possess the qualifications required for the exercise of the highest judicial functions in conformity with the law of the state of which they are nationals or of the state that proposes them as candidates. No two judges may be nationals of the same state[281]. Only the States Parties and the Commission shall have the right to submit a case to the Court[282].  Reasons shall be given for the judgment of the Court. If the judgment does not represent in whole or in part the unanimous opinion of the judges, any judge shall be entitled to have his dissenting or separate opinion attached to the judgment[283]. The judgment of the Court shall be final and not subject to appeal. In case of disagreement as to the meaning or scope of the judgment, the Court shall interpret it at the request of any of the parties, provided the request is made within ninety days from the date of notification of the judgment[284].

7. THE PROTECTION OF HUMAN RIGHTS ACT, 1993

This act has been enacted to provide for the constitution of a National Human Rights commission, State Human Rights Commission in States and Human Rights Courts for better protection of Human Rights and for matters connected therewith or incidental thereto. It has been enacted by the parliament in the forty-fourth year of the Republic of India.  It extends to the whole of India. Provided that it shall apply to the State of Jammu and Kashmir only in so far as it pertains to the matters relatable to any of the entries enumerated in List I or List lll in the Seventh Schedule to the Constitution as applicable to that State[285].

The Central Government shall constitute a body to be known as the National Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to it, under this Act[286]. The Commission shall consist of:

(a) a Chairperson who has been a Chief Justice of the Supreme Court;

(b) one Member who is or has been, a Judge of the Supreme Court;

(c) one Member who is, or has been, the Chief Justice of a High Court;

(d) Two Members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights.

The Chairpersons of the National Commission for Minorities, the National Commission for the Scheduled Castes and Scheduled Tribes and the National Commission for Women shall be deemed to be Members of the Commission for the discharge of functions specified in clauses (b) to (j) of section 12. There shall be a Secretary-General who shall be the Chief Executive Officer of the Commission and shall exercise such powers and discharge such functions of the Commission as it may delegate to him. The headquarters of the Commission shall be at Delhi and the Commission may, with the previous approval of the Central Government, establish offices at other places in India. The Chairperson and other Members shall be appointed by the President by warrant under his hand and seal[287].

A person appointed as Chairperson shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of seventy years, whichever is earlier. A person appointed as a Member shall hold office for a term of five years from the date on which he enters upon his office and shall be eligible for re-appointment for another term of five years. Provided that no Member shall hold office after he has attained the age of seventy years. On ceasing to hold office, a Chairperson or a Member shall be ineligible for further employment under the Government of India or under the Government of any State[288].

The Commission shall perform all or any of the following functions, namely: [289]:

(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, into complaint of

(i) violation of human rights or abetment thereof or

(ii) negligence in the prevention of such violation, by a public servant;

(b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;

(c) visit, under intimation to the State Government, any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates and make recommendations thereon;

(d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;

(e) review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures;

(f) study treaties and other international instruments on human rights and make recommendations for their effective implementation;

(g) undertake and promote research in the field of human rights;

(h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;

(i) encourage the efforts of non-governmental organizations and institutions working in the field of human rights;

(j) such other functions as it may consider necessary for the protection of human rights.

A State Government may constitute a body to be known as the……(name of the State) Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to, a State Commission under this chapter.[290] The State Commission shall consist of:

(a) a Chairperson who has been a Chief Justice of a High Court;

(b) one Member who is, or has been, a Judge of a High Court;

(c) one Member who is, or has been, a district judge in that State;

(d) Two Members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights.

The headquarters of the State Commission shall be at such place as the State Government may, by notification, specify. A State Commission may inquire into violation of human rights only in respect of matters relatable to any of the entries enumerated in List II and List lll in the Seventh Schedule to the Constitution. But if any such matter is already being inquired into by the Commission or any other Commission duly constituted under any law for the time being in force, the State Commission shall not inquire into the said matter.

For the purpose of providing speedy trial of offences arising out of violation of human rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district a Court of Session to be a Human Rights Court to try the said offences[291]. Provided that nothing in this section shall apply if in case a Court of Session is already specified as a special court; or a special court is already constituted, for such offences under any other law for the time being in force.

The Central Government may, by notification, make rules to carry out the provisions of this Act[292]. In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters namely :

(a) the salaries and allowances and other terms and conditions of service of the Members under section 8;

(b) the conditions subject to which other administrative, technical and scientific staff may be appointed by the Commission and the salaries and allowances of officers and other staff under sub-section (3) of section 11;

(c) any other power of a civil court required to be prescribed under clause (f) of sub-section (1) of section 13;

(d) the form in which the annual statement of accounts is to be pre pared by the Commission under sub-section (1 ) of section 34; and

(e) any other matter which has to be, or may be, prescribed.

Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament. The State Government may, by notification, make rules to carry out the provisions of this Act[293].

8. PRIVACY AND HUMAN RIGHTS

Privacy is a fundamental human right recognized in the UN Declaration of Human Rights, the International Covenant on Civil and Political Rights and in many other international and regional treaties. Privacy underpins human dignity and other key values such as freedom of association and freedom of speech. It has become one of the most important human rights issues of the modern age.

Nearly every country in the world recognizes a right of privacy explicitly in their Constitution. At a minimum, these provisions include rights of inviolability of the home and secrecy of communications. Most recently-written Constitutions such as South Africa’s and Hungary’s include specific rights to access and control one’s personal information.

In many of the countries where privacy is not explicitly recognized in the Constitution, such as the United States, Ireland and India, the courts have found that right in other provisions. In many countries, international agreements that recognize privacy rights such as the International Covenant on Civil and Political Rights or the European Convention on Human Rights have been adopted into law.

In the early 1970s, countries began adopting broad laws intended to protect individual privacy. Throughout the world, there is a general movement towards the adoption of comprehensive privacy laws that set a framework for protection. Most of these laws are based on the models introduced by the Organization for Economic Cooperation and Development and the Council of Europe.

In 1995, conscious both of the shortcomings of law, and the many differences in the level of protection in each of its States, the European Union passed a Europe-wide directive which will provide citizens with a wider range of protections over abuses of their data[294]. The directive on the “Protection of Individuals with regard to the processing of personal data and on the free movement of such data” sets a benchmark for national law. Each EU State must pass complementary legislation by October 1998.

The Directive also imposes an obligation on member States to ensure that the personal information relating to European citizens is covered by law when it is exported to, and processed in, countries outside Europe. This requirement has resulted in growing pressure outside Europe for the passage of privacy laws. More than forty countries now have data protection or information privacy laws. More are in the process of being enacted.

Privacy can be defined as a fundamental (though not an absolute) human right. The law of privacy can be traced as far back as 1361, when the Justices of the Peace Act in England provided for the arrest of peeping toms and eavesdroppers[295]. In 1765, British Lord Camden, striking down a warrant to enter a house and seize papers wrote, “We can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society, for papers are often the dearest property any man can have.[296]

Various countries developed specific protections for privacy in the centuries that followed. In 1776, the Swedish Parliament enacted the “Access to Public Records Act” which required that all government-held information be used for legitimate purposes. In 1792, the Declaration of the Rights of Man and the Citizen declared that private property is inviolable and sacred. France prohibited the publication of private facts and set stiff fines in 1858[297]. In 1890, American lawyers Samuel Warren and Louis Brandeis wrote a seminal piece on the right to privacy as a tort action describing privacy as “the right to be left alone.[298]

The modern privacy benchmark at an international level can be found in the 1948 Universal Declaration of Human Rights, which specifically protected territorial and communications privacy. Article 12 states:

No-one should be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honour or reputation. Everyone has the right to the protection of the law against such interferences or attacks[299].

Numerous international human rights covenants give specific reference to privacy as a right. The International Covenant on Civil and Political Rights (ICCPR), the UN Convention on Migrant Workers[300] and the UN Convention on Protection of the Child[301] adopt the same language[302].

On the regional level, these rights are becoming enforceable. The 1950 Convention for the Protection of Human Rights and Fundamental Freedoms,[303] Article 8 states:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health of morals, or for the protection of the rights and freedoms of others.

Article 11 of the American Convention on Human Rights sets out the right to privacy in terms similar to the Universal Declaration[304]. In 1965, the Organization for American States proclaimed the American Declaration of the Rights and Duties of Man, which called for the protection of numerous human rights including privacy.[305] The Inter-American Court of Human Rights has also begun to addresses privacy issues in its cases.

9. RIGHT TO HEALTH CARE

The Universal Declaration of Human Rights, adopted by the United Nations in 1948, proclaimed that “everyone has the right to a standard of living adequate for the health and well-being of oneself and one’s family, including food, clothing, housing, and medical care.”

Since 1991, the National Health Care for the Homeless Council has recognized that “every person has the right to adequate food, housing, clothing and health care” and has incorporated a human rights perspective into our work to assure health care for everyone and to ends homelessness. Policy changes that will advance implementation of the right to health care, along with other human rights such as housing, are described in the annual Policy Statements of the National Health Care for the Homeless Council[306].

The term “right to health care” has not been used in any of the major international human rights instruments. However, the right to health care can be derived from different formulations, such as: “a right to a standard relevant to health” (Article 25 of the Universal Declaration of Human Rights, UDHR); “a right to the enjoyment of the highest attainable standard of health” (Article 12 of the International Covenant on Economic, Social, and Cultural Rights, CESCR, and the Preamble to the Constitution of the World Health Organization, WHO); “a right to enjoy the best attainable state of physical and mental health” (Article 16 of the African Charter on Human and Peoples’ Rights, ACHPR); “a right to the preservation of health” (Article 11 of the American Declaration of the Rights and Duties of Man, ADRDM); “a right to health protection” (Article 11 of the European Social Charter, ESC) and “a state of complete physical, mental and social well-being, and not only the absence of disease or infirmity, is a fundamental human right and … the attainment of the highest possible level of health is a most important social goal” (Article 1 of the Declaration of Alma Ata). As a corollary to the obligations of states, individuals can invoke several rights and freedoms, which are inherent in the right to health care.

Three universally recognized human rights are particularly relevant for the protection of an individual’s health and well-being against impairments by others:

1. The right to life (Article 3 of the Universal Declaration of Human Rights, UDHR; Article 6 of the International Covenant on Civil and Political Rights, CCPR; Article 4 of the American Convention on Human Rights, ACHR; Article 4 of the African Charter on Human and Peoples’ Rights, ACHPR; Article 2 of the European Convention for the Protection of Human Rights and Fundamental freedoms, ECHR).

2. The prohibition of torture, maltreatment and medical experimentation (Article 5 of the Universal Declaration of Human Rights, UDHR; Article 7 of the Internation Covenant on Civil and Political Rights, CCPR; Article 2 of the UN Convention against Torture and other Cruel, Inhuman, and Degrading Treatment, CAT; Article 5 of the American Convention on Human Rights, ACHR; Article 6 of the Inter-American Convention to Prevent and Punish Torture, IACPPT; Article 5 of the African Charter on Human and People’s Rights, ACHPR; Article 3 of the European Convention for the Protection of Human Rights and Fundamental freedoms, ECHR; and the Preamble to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, ECPT).

3. The right to equality and non-discrimination (Article 2 of the Universal Declaration of Human Rights, UDHR; Articles 2, 3, 23, 24, and 26 of the International Covenant on Civil and Political Rights, CCPR; Articles. 2 and 3 of the International Covenant on Economic, Social, and Cultural Rights, CESCR; Preamble to the Constitution of the World Health Organization, WHO; Articles 2 and 18 of the African Charter on Human and Peoples’ Rights, ACHPR; Article 1 of the American Convention on Human Rights, ACHR; Article 14 of the European Convention for the

10. PROTECTION OF HUMAN HEALTH

Rights and Fundamental freedoms, ECHR; and the Preamble to the European Social Charter, ESC). National legislators and public health authorities should not restrict themselves to pursuing an active health-promotion and disease-prevention policy. As stated at the conference at Alma Ata (1978), health is more than the absence of disease or infirmity. Several other aspects are inherent in the right to share the benefits of health care. Health services should be geographically well distributed and accessible as well as affordable to all persons. The work of health-care providers and institutions must be of a high professional standard and based on practical, scientifically sound, and socially acceptable methods and technologies. Health education for the entire population and special educational and training facilities for health-care providers are essential to promote individual and community self-reliance. Health-care providers should work according to codes of professional medical ethics that can be assessed and judged by a competent administrative body, particularly in the event of a complaint by a patient. Special services and measures of prevention should be created for people who are sick or in need, such as pregnant women, children, handicapped persons, and other such groups.

The World Health Organization, WHO (with its Headquarters in Geneva and its Regional Office for Europe based in Copenhagen) has made (and makes) efforts to bridge the differences between the various nations and groups of nations by collaborating with all states. WHO has been particularly successful in the coordination of AIDS control and HIV prevention programmes[307]. With the support of public health experts from many countries, WHO tries to design a common strategy to fight AIDS/HIV infection, while respecting the rights and freedoms, as well as the human dignity, of people with AIDS and persons found to be infected with HIV, the agent causing AIDS. In times of epidemics, like AIDS, states may easily feel obliged to announce far-reaching and restrictive measures to control the disease and the behaviour of people infected.[308]

The European Parliament, the parliamentary forum connected with the European Communities (EC), has also taken some major initiatives, such as the Resolution in which it requested the drafting of a charter of patients’ rights (1984) and its Resolution on the elaboration of a European Charter on children treated in hospital (1986).[309] The European Commission, the executive and policy-initiating body of the EC, has also shown a deep concern with health issues during the last decade, although less with patients’ rights. Most attention has been paid to cancer, smoking, and AIDS.[310]

In general it could be said that there is a major trend towards transforming obligations for physicians into rights of patients. On a national level the rights of patients have been incorporated into civil law, administrative law, and special regulations. Patients have also been provided with remedies to enforce their rights before courts or to submit complaints before special tribunals. These remedies, however, are not always comparable to remedies available through ordinary civil and administrative procedures, and may even give rise to questions regarding the principles of effective remedy, and the independence and impartiality of tribunals (Article 8, 10 UDHR). Special provisions have been made with regard to the composition of the judicial bodies and conditions to be fulfilled before lodging a complaint or suing a physician, which may imply important restrictions on a patient in obtaining a legal verdict.

While discussing patients’ rights one should also be aware of the limitations on these rights and the possible counterbalancing duties of patients. In many countries, not only those restricted to the European region, the authorities have enforced regulations such as those relating to the mandatory notification of certain diseases, tracing of contacts, partner/contact notification, restrictions on the rights to freedom of movement, to found a family, or to work, and schemes for compulsory screening for certain diseases and physical disabilities.

In some cases the introduction of new treatment methods may cause new contradictions in society. Our point of reference will be internationally recognized human rights law i.e. rights recognized by law[311] – particularly as laid down and elaborated in the national and supranational legislative systems in our region, that is to say Western Europe. Scientific and technological developments can be used for the promotion of human rights and to ensure better protection of recognized rights and freedoms, although at the same time one may imply threats to the enjoyment of some of these rights.

 

CHAPTER 6

INTERNATIONAL SOCIETY RESPONSE TO SCIENTIFIC DEVELOPMENT

 

 

Globalization is inimical to human rights considerations in a variety of ways. A human rights approach is predicated on the centrality of protecting and nurturing human dignity and the common good. It evaluates science according to its ability to promote these goals. In contrast, commercialization and privatization place greatest emphasis on the profitability of science and its contributions to economic competitiveness.

Additionally, globalization encourages a reconceptualization of the role of the state, reducing its regulatory and redistributive functions and privatizing the performance of many services. The recognition of rights confers reciprocal duties and obligations for their realization, and human rights law usually vests these responsibilities in the state. Thus an ambitious human rights agenda, particularly in relationship to the realization of economic, social, and cultural rights, requires a strong and effective state. However, at century’s end, key elements of the welfare state model are being cast aside and the resources invested in the state are being downsized. In this reorientation, the state is increasingly viewed as a mechanism for establishing the conditions for private actors to fulfil their goals. This often comes at the expense of assuming direct responsibility for social welfare and the common good, as defined by human rights norms. In the process, governments are becoming increasingly responsive to major economic interests to the detriment of the effectiveness of institutions representing broader constituencies.[312]

Further there is something amiss with human rights. Little more than 10 years since the end of history was declared and a “new world order” created, respect for human rights has developed from a position of rhetorical imperative in international affairs to one of hesitancy and uncertainty. Rather than embedding themselves as irrefutable elements in a concept of “good governance” with universal application, human rights have become open to question once again. At one level it seems as though they are in danger of being transformed from norm to exception, carving out space in the international (and domestic) political arena only when all other interests in the name of security (financial, military, and even cultural) have been assuaged. At another, the rhetoric of human rights is becoming subject to an elasticity that stretches their purchase to the limits.[313]

In sum, there is every reason to question whether human rights are undergoing a crisis of confidence.[314]

A key characteristic of this crisis is an underlying uncertainty as to the nature of human rights. Politicians, jurists and activists alike have supreme difficulty in pinning down the concept. The term “human rights” is used with great frequency and there is a common assumption that “we know them when we see them” or perhaps more pertinently when we see them abused.

Human dignity is an increasingly high profile concept in legal discussions and it has become a standard ingredient of European constitutions, where it is enshrined on its own or as an adjunct to human rights, such as life, privacy, moral integrity, identity, and fairness of criminal procedure.[315] The concept has been used very proactively by some judges to stretch human rights interpretation to its limit and extend the scope of their protection. Although its use in relation to human rights is comparatively recent, human dignity has ancient roots in European philosophy, theology and law.[316] As a result it is today at the core of a complex web of intermingling layers of signification. Technically, human dignity has variously been defined as a constitutional right, as the supreme constitutional principle, or as a constitutional value. Although its substantive meaning has not yet been clarified with certainty, human dignity has been relied on in a number of important and controversial areas, being deployed for example as a key argument both in favour of and against the legalisation of euthanasia and abortion. Furthermore, while dignity is intimately related to the concept of autonomy, it has also been used to restrict individual freedom.[317] Whilst it has played an essential role in the constitutional orders of some European states, such as Germany, Hungary and France, in others its role is still emerging. For instance, in the United Kingdom, reliance on human dignity is perhaps a more recent development in the common law, but it has already attracted substantial attention from scholars and judges.

The mainstream legal definition of human dignity still draws on the 18th century philosophy of Enlightenment and in particular on Kant’s work, Groundwork for the Metaphysics of Morals . At the core of this definition is the concept of autonomy, an exclusively human attribute which distinguishes humans from other beings and allows them to be active participants in the making of the laws which bind them. This is also commonly expressed as a prescription not to treat a human person as an object, to which judges have referred in interpreting human rights legislation.[318] This approach to human dignity is an essential foundation of our current systems of human rights protection.

However, despite its unquestioned importance, the concept of autonomy arguably constitutes an incomplete foundation for defining dignity. Perhaps above all this is because the autonomy-based understanding of human dignity provides a very simplistic and partial legal picture of the complex reality of human lives and experiences. Consequently, its high level of abstraction, suited to the realm of philosophical reflection, is not so well suited to human rights protection, in particular through the process of adjudication. The highly autonomous subject of rights born with dignity, who goes through his theoretical life, apparently effortlessly asserting his political preferences and living a private family life, does not exist in reality. Real lives are complex and messy; people are not all born in dignity. Many of them lead a life of abject poverty and indignity. People fall ill and, while some of them recover, others do not. The process of dying, in relation to which the concept of dignity is increasingly being used, is not an abstraction and not many of us enjoy some autonomy in dying. In this light, moving beyond a strictly autonomy-focused analysis to one based on human dignity can be helpful. It is suggested here that reliance on dignity can highlight the depth and complexity of human emotions and needs. This more comprehensive understanding of individuals in terms of dignity can usefully complement the autonomy focus and can be seen to represent a shift from a mono-dimensional to a holistic, or pluri-dimensional, understanding of the concept. As such, dignity can, it is suggested here, be opened up in two “directions”: inwards, relating to the inner mental and emotional world of the person; and outwards, relating to the person’s social and relational identity and being.[319]

A crucial aim of human rights is to protect people against physical suffering through the prohibition of torture and the recognition of the right to physical integrity. Moreover, human rights law has begun to acknowledge the existence of mental suffering, such as anguish and stress, in the sense that beyond a certain level of severity, psychological suffering may constitute torture and/or inhuman and degrading treatment.[320] However, due to the theoretical underpinning of human rights these efforts to acknowledge emotions and feelings are arguably limited in several ways.

To ascertain the characteristics of human rights, first, the relief of suffering should be recognised as the unspoken central and active theme of human rights. Human rights invocations or articulations are publicly unassimilable without such a core understanding. This reflects an appreciation that does not restrict concern for suffering to “collective rights”,[321]  nor to the notion of “contemporary” as opposed to “modern” human rights “cultures”.[322] Rather it presupposes that whenever human rights have been expressed, their authenticity and purchase, their capacity in the past half century to provide a moral focus for outrage, resistance and adoption of responsibility for others, are gauged by their connection with alleviating suffering. Without such recognition, the “human” aspect of human rights is devalued.

Secondly, it is therefore actions in response to suffering and in the name of human rights, not simply the language used to describe and contain human rights, which expose us to their reality in practice. Whatever texts say, whatever language is adopted, it is the individual and collective practical determination to accept responsibility to help relieve suffering, and the nature of the action to be taken, which defines the practical limits of human rights notions. This is a reversal of much of the contemporary human rights “work”, which tends to begin with the human rights articulated in texts and then makes judgments according to what is found or heard that relates to that text.[323]

Thirdly, increasingly, it is through law in its modern, western, liberal guise that human rights responses and limits are socially structured and defined.

In recent years, the law has become increasingly involved in medical decision-making. Most significantly, the traditional reluctance of the legislature to make law encroaching upon the field of medical ethics has diminished to the extent that at least five pieces of legislation in this field have been passed in the last decade.[324]

William Felice, for instance, adopts the term “dignity” to encompass human rights both individual and collective that are “necessary to overcome suffering”.[325] Similarly, Thomas Pogge, following Amartya Sen and Martha Nussbaum, speaks of human “flourishing”,[326]  incorporating the “ethical and personal value of human life” where “secure access to the objects of human rights” not the implementation of legal rights per se is the key matter. One of those objects must surely be the alleviation of suffering. Consequently, whether we term it dignity or flourishing, human rights that are designed to preserve or encourage such conditions are particularly resonant in their negation of and resistance to suffering.

  1. GENE THERAPY AND CLINICAL TRIALS

A quick foray into the embryonic stem cell research (ESCR) debate in the USA would suggest that the fate of prenatal life is at its heart, with the controversy being the most recent manifestation of the American pre-occupation with abortion over the last several decades.[327] A big reason why stem cell research flourishes in India is the absence of any religious or political opposition.[328] The Hindu religion does not consider experimenting with human embryos developed by way of in vitro fertilization of human eggs (that creates test-tube babies) immoral, and “India in fact has an MTP [Medical Termination of Pregnancy] Act that allows [abortion] within 20 weeks of conception.[329]

ESCR contemplates the intentional creation of embryos solely for research purposes. Pro-life advocates (and others) ask: is it ethical to create or simply use embryos for purposes not therapeutic to the embryo at issue, especially when the embryo is deliberately created and deliberately destroyed for this use?

Many pro-life advocates answer in the negative. They view the embryo, and its zygote predecessor, as a developing human life from the moment of conception, akin to an ‘unborn child’. Prior to his death, Pope John Paul II declared the moral opposition of the Catholic Church to the use, let alone the creation, of embryos for stem cell research purposes, a view he personally communicated to President Bush.[330]

It is significant to note, however, that there are individuals who oppose abortion, but support ESCR for its potential therapeutic benefits.[331]

  1. The Science behind ESCR

Stem cells are cells with the ability to divide for indefinite periods in culture and to give rise to specialized cells.[332] Stem cells have the remarkable potential to develop into many different cell types in the body during early life and growth. In addition, in many tissues they serve as a sort of internal repair system, dividing essentially without limit to replenish other cells as long as the person or animal is still alive. When a stem cell divides, each new cell has the potential either to remain a stem cell or become another type of cell with a more specialized function, such as a muscle cell, a red blood cell, or a brain cell.[333] There are three types of stem cells: embryonic stem cells, foetal stem cells and adult stem cells.[334] Embryonic stem cells are extracted from the inner cell mass of the 4-5-day-old embryo, called the blastocyst, which consists of 50-150 cells.[335] Embryonic stem cells are pluripotent; they can develop into almost all cell types of the foetus and the adult body.[336] However, embryonic stem cells are not totipotent; they cannot develop into placental cells.[337] The only cells that are totipotent are fertilized eggs and cells of the first few divisions, which can develop into both foetal and placental cells.[338]

Foetal stem cells are derived from foetal tissues.[339] They are also known (somewhat confusingly) as embryonic germ cells because they come from the primordial germ cells of a 5-10-week-old embryo/foetus. Like embryonic stem cells, foetal stem cells are also pluripotent, but their properties are different.[340] Compared with embryonic stem cells, foetal stem cells have a more limited range of potential specialization, and a more limited lifespan.

Stem cells are not unique to embryos or foetuses. Stem cells are also present in adult tissues, such as bone marrow, blood, the cornea and retina of the eye, brain, skeletal muscle and skin.[341] These stem cells found in adult tissues are termed adult stem cells. Yet, embryonic and adult stem cells are of a different nature. Adult stem cells retain the ability to renew themselves for the lifetime of the organism, but can only generate a limited number of cell types.[342] For this reason, they are classified as multipotent cells. Adult stem cells are being developed for use in treatments for a variety of human conditions, ranging from blindness to spinal cord injury. However, adult stem cells do not have the same capacity to multiply as embryonic stem cells and cannot generate all cell types. Furthermore, adult stem cells are extremely rare and difficult to identify and isolate. Although it is a contested assertion, many researchers credit embryonic stem cells, compared with other sources, with the best promise of generating groundbreaking advances in the treatment of an array of life-threatening diseases. This is why, despite the presence of foetal and adult stem cells, there continues to be avid interest and attendant controversy in the ESCR.

Where then do the embryos from which embryonic stem cells are extracted originate? The surplus of embryos created by the sperm and ova of the clients of fertility clinics has been a critical source of embryos for research purposes. Yet, many believe that the supply of these surplus fertility embryos is insufficient to support the type of research that is contemplated with stem cells and may also be unsuitable because embryos derived from infertile donors incline towards higher rates of abnormality. A second frequently proposed method is cloning through somatic cell nuclear transfer (SCNT). SCNT refers to the cloning method and it was successfully used by a group of British scientists to clone the sheep ‘Dolly’ in 1996,[343] but human cloning (either reproductive or therapeutic) using SCNT method has never been successful.

This phenomenon generates intense controversy on its own even absent the cloning dimension because it involves the destruction of embryos. This raises the question of whether ESCR is possible without the destruction of embryos. In the USA, the President’s Council on Bioethics recently identified four possible options: ‘obtaining stem cells from embryos that are clinically dead, removing stem cells without harming the embryo, creating non-embryonic entities that produce usable stem cells, and converting adult cells into embryonic stem cells by a process of genetic reprogramming’. These options are not currently available; although a new method of extracting human embryonic stem cells without the destruction of the ex utero embryo has been very recently reported. Presently, at least, the controversial nature of non-cloning ESCR will persist as long as scientists and others remain eager to realize the imagined benefits.[344]

  1. What are the benefits and risks of ESCR?

What are these benefits? Perhaps, most significantly, embryonic stem cells are highly lauded for their promise in advancing regenerative medicine by replacing cells, tissue and organs that have been damaged by disease or otherwise. Stem cells are expected to lead to advances in the generation of cells to treat, among other things, heart disease, stroke, diabetes, spinal cord injuries, end-stage kidney disease, arthritis, Parkinson’s disease and Alzheimer’s disease, liver failure, and cancer.[345]  Stem cell research may facilitate the development of new forms of contraception as well as enhance knowledge in the areas of human development, embryology, cancer, diabetes and transplant biology. It may also enable researchers to test new drugs directly against human cell lines instead of relying on non-human animal testing and to develop better and safer drugs in general. Stem cell research would also benefit fertility treatment. Currently, the success rates–or the chance that an egg fertilized outside of the woman’s body will be successfully transferred into the uterus of the woman wishing to become pregnant and thereafter develop into a foetus and result in a live birth–for fertility clinics in the USA remain slim at around 20-35%. Stem cell research may improve clinical protocols for fertility treatment, thereby enhancing the rates of success. Finally, the ESCR would provide more information on human development in general.[346]

Despite the anticipated benefits of this research, opposition to it is well mobilized. The next section outlines the parties to and nature of the controversy.

“The biggest risk that embryonic stem cell treatment poses as a result is that of teratomas – tumors – and antigen-antibody reactions,” said Dr Satish Totey, stem cell research director at Manipal Hospital, Bangalore.[347]

  1. Stem cell regime in USA

As mentioned at the outset, federal funding for ESCR in the USA is largely unavailable. Only research involving embryonic stem cells that meet certain specified criteria are eligible to receive federal funds. These criteria are: (a) the stem cells must have been derived from an embryo whose destruction was initiated before 9 : 00 p.m. Eastern Standard Time on 9 August 2001; (b) the embryo must have been created for reproductive purposes; (c) the embryo is no longer required for reproductive purposes; (d) the embryo must have been donated from its genetic parents after informed consent was obtained, and (e) no financial inducements must have been involved in the donation of the embryo.[348]

  1. Underlying Rationales

It takes the view that life and personhood begin at conception and that embryos are sacred forms of life because they are human beings who deserve the respect and protection that being human affords. The instrumental use, creation and destruction of embryos are disturbing because persons are not supposed to be treated instrumentally.

They have argued that the line of reasoning is underpinned by commitments to human equality and human dignity.[349] For example, Eric Cohen argues that once fertilisation occurs there is a new entity that comes into being that is a member of the human species regardless of whether it will develop into a full-fledged human adult. They insist that fertilisation is not an arbitrary decision for when life begins. From this premise that embryos are humans and persons, the argument continues that to the extent a society values the principle of equal human dignity,  it must recognize the equal moral worth of the embryo to paradigmatic human persons and, to be consistent in treatment, refrain from killing it or engaging in other merely instrumental use.[350]

For one, the religious and Republican anti-abortion voices against ESCR are strong and the arguments marshalled there are the same ones used to oppose abortion: human life is sacred and personhood begins at conception.

Abortion remains one of the most fundamental issues marking the American political landscape especially now that the anti-abortion efforts ever since Roe have assumed a momentum to imperil the ruling.

Stem cell research invokes the idea of a moral use for embryos–the promise of long life and health. Consequently, she writes that the moral position becomes the one that favours embryonic research.[351] She also argues that this explains why some pro-life adherents have re-conceptualised support for ESCR as a position that is both pro-life and pro-family.[352] This position is premised on an entirely new understanding of the embryo–‘one that continues to define embryos as people, but begins to justify and qualify that definition’.[353]

  1. Abortion and bodily integrity

 

Canada legalised abortion nationwide under tightly prescribed circumstances in 1969 when it created an exception to the prior ban contained in section 251 of the then Criminal Code. A woman could only obtain an abortion if it was performed in an accredited hospital and approved by that hospital’s ‘therapeutic abortion committee’ (TAC). Approval was only forthcoming when the woman’s life or health was endangered.  In 1983, Dr Henry Morgentaler, a Montreal physician who provided abortions and advocated for abortion rights, was charged with performing unauthorised abortions. He challenged the law on a variety of constitutional grounds implicating the Canadian Charter of Rights and Freedoms.[354]  In a decision containing three concurring opinions and one dissent, a majority of the Court concluded that section 251 infringed women’s right to security of the person as protected under section 7 of the Charter.[355] It was held to do so for procedural reasons. The lengthy delays, lack of widely available TACs and time-sensitive nature of an abortion request were found to jeopardize a woman’s ability to receive effective health care, which, in turn, implicated her security of the person.[356] Only the decision penned by the lone female justice on the court articulated the right violated as one of liberty, freedom and choice over what happens to one’s body.[357]

A few years later, the Court, interpreting the Quebec Charter of Rights in a case wherein a man sought an injunction to prevent his ex-girlfriend from having an abortion,[358] decided that a foetus was not a ‘human’ or ‘person’ under the relevant right to life and bodily security provisions of that provincial rights document.[359] Since then, courts confronted with tangential issues surrounding abortion and mother-foetal relations (intervention in wanted pregnancies due to risky behaviour of pregnant women) have confirmed that the foetus is not a person in Canada; only a child born alive, that is, one that has fully emerged from the woman’s body, is considered a person with the panoply of rights that personhood entails.

Thus, in almost every consideration of foetal status in the courts or the legislature, the issue has been decided in favour of reproductive freedom for women over their bodies. This is perhaps to be expected given that women are the rights holders in these contests and it is the courts, rather than the political process, which are charged with giving meaning to constitutional protections. Yet, courts had the opportunity to recognise foetuses as rights holders, but declined to do so the given women’s reproductive rights. Parliament has not tried to intervene to erode the progressive developments in the case law. Today, Canada is one of three countries in the world where there is no direct abortion regulation at all.[360] From this global perspective, on abortion, Canada occupies a position at the extreme liberal end of the spectrum. This, of course, has not quelled anti-abortion views outright in Canada and a sizeable pro-life community persists. What it has done, however, is to push the ‘abortion debate’ in Canada from one over legalisation and the status of the foetus to one of access. In that regard, Canadian women are in a comparatively fortunate position visà-vis most of the world.[361]

First, there is a strong commitment to anti-commodification in the Act. Section 2 states that

(t)he Parliament of Canada recognizes and declares that (f) trade in the reproductive capabilities of women and men and the exploitation of children, women and men for commercial ends raise health and ethical concerns that justify their prohibition.

This principle is expressed with respect to commercial surrogacy and the selling of human reproductive materials such as sperm and eggs, all of which are banned. The genesis of the ban is a desire to protect vulnerable individuals in society, namely, women whose bodies will be most likely implicated in the procedures that would support these technologies and the children that could be born of them.[362]

Pros for the stem cell research[363]

  • “The benefits of stem cell research have such a great outcome that they outweigh the ethical issues.” (Cost-benefit-analysis)
  • “If someone is going to have an abortion, isn’t it better that we use it for something useful?”
  • Adult stem cells would not be that interesting because they do not have the same properties as stem cells from a fetus.
  • The research would give great insights about the basics of the body.

Cons[364]

  • Critics against stem cell research argued that the ethical issues of scientific work on aborted fetuses did not justify the possible benefits.
  • “A life is a life and that should never be compromised. A fertilized egg should be valued as a human life even if it is in its very first weeks. Destroying human life in the hopes of saving human life is not ethical.”
  • We should (and will) develop more ethical methods (such as using adult stem cells) which will enable us to research ethically. We should wait until those methods are available.
  • The scientific value has been overstated or has flaws. E.g. we do not know for sure that we can use stem cells to clone transplantable organs.
  1. RESEARCH INVOLVING HUMANS: HUMAN EXPERIMENTATION

The great problem for medical research … is the chasm between the society’s general interest in medical progress and the individual interest of the patient involved. Resolving these two conflicting interests is the task of the law.[365]

Research involving humans raises many ethical and legal issues, and its regulation essentially involves balancing the interests of the health professional/researcher conducting the trial, with those of medical science and progress generally, and the welfare of the humans who participate in it.

The importance of clinical trials, participant selection and ‘informed consent’ was dramatically highlighted by the Phase 1 clinical trials of TGN1412, held in London in March 2006.[366] TGN1412 is a monoclonal antibody, a genetically engineered protein that is part mouse and part human, designed to suppress an immune system reaction. It was developed to treat immunological diseases, including multiple sclerosis, some cancers and rheumatoid arthritis, and had previously been tested on non-human animals. On the first day of the Medicines and Healthcare products Regulatory Agency (MHRA)-approved clinical trial, six healthy volunteers required intensive care following allegedly hitherto unexpected side effects, including breathing difficulties and extreme inflammation in their tissues and organs. Despite extensive media coverage of the trial and outrage at the side effects thereby experienced, inquiries from people wanting to be involved in other clinical trials have apparently increased. Thus, far from deterring potential participants, the risks of side effects appear to be outweighed by the ability to help others and the financial benefit, £2,000[367] in the TGN1412 trial, which can accrue from involvement in trials. The selection of trial participants thus remains a relevant and important area of study.

Xenotransplantation as an example of a new wave of biotechnologies currently under consideration for use in humans, and employ this as a case study to explore ethical and legal guidance on offering new procedures and how selection decisions are made. The Department of Health (DH), UK defines xenotransplantation as ‘any procedure that involves the transplantation, implantation, or infusion into a human recipient of either live tissues or organs retrieved from animals, or, human body fluids, cells, tissues or organs that have undergone ex vivo contact with live non-human animal cells, tissues or organs.’[368] It is hoped that using organs from genetically modified pigs will help to resolve the shortage of human organs available for transplant. Xenotransplants between non-human animals and between non-human and human animals have been performed, but no whole organ nonhuman animal to human xenotransplant has been reported since 1992. Additionally, the xenotransplant of a genetically engineered pig whole-organ to a human has yet to occur.

Xenotransplantation presents a number of very specific problems to our current legal and ethical regulatory regimes. For example, there is a currently unknown and indeterminable risk that in xenotransplanting a pig organ into human, potentially fatal infectious diseases may thereby be transmitted across the species barrier. These diseases may infect the xeno-recipient, her close contacts, health care workers and the wider population.[369]

It was suggested by Welin that only patients at risk of dying and with no alternative treatment available should be included in a trial.[370] However, Kong proposes that participation in medical research should not be seen as a conflict between autonomy and beneficence, but as involving autonomy and justice. The benefits and burdens of research should be distributed evenly, and specific social groups should not be excluded from the potential benefits of research just because it is difficult to recruit them. Nor should easier to recruit groups be over-used. Instead, the outcomes and motivations of research should be analysed to ensure that a proposal to participate in research is ‘decent’, meaning that even if there appears to be a compelling societal interest in a piece of research being conducted, justice may limit the harms to which a person can be subjected.[371]

With regards to xenotransplantation, does offering the procedure to those with no other hope comply with these ethical principles? The requests we make ‘reflect how we, as a society, value individuals and what we consider to be fair and reasonable burdens’;  thus, it is important to consider whether it is fair to ask those with ‘no other hope’ and the terminally ill to participate in experimental treatment or research where we know it can only benefit the future dying. Does the very act of asking the question mean we are saying that the lives of these people are less valuable than those who are not? Can limits be placed on what researchers can ask of others and who can be asked because, by requesting involvement, we are placing some responsibility onto the person asked? We need to ensure that all research and experimental treatments are ethical–just because something is being performed on someone who is dying ‘anyway’ does not transform the unethical into the ethical.[372]

Those conducting the first xenotransplant experimental treatment and subsequent medical research programme will need to address these issues to ensure that the most seriously ill and understandably desperate patients are not used as mere research tools. As the xenotransplantation researchers Cooper and Lanza have said:

“A surgeon cannot justify performing an inadequately researched or tested procedure on the grounds that the patient knows he or she is dying and is willing to take the risks involved. A dying patient is frequently desperate, and a desperate individual does not always make decisions in the best interests of society at large or even of patients as a group. Desperate people do not even always make decisions that are in their own best interests.”[373]

With all experimental treatments or medical research, those conducting the trial will have a vested interest in its performance. Where the proposed treatment or research trial involves risks which go beyond the individual and it is unknown, despite research on non-human animals, what will happen to the human recipient is it appropriate for those doctors/experimenters/researchers to determine the selection criteria?[374]

In some cases, it has been cruel to offer a possible life-saving procedure that resulted in a long drawn-out painful death, instead of a relatively peaceful end. The offer of such a procedure in itself puts pressure on patients to accept – and may distort judgement. On the other hand, the Council said that those who wanted to contribute to medical research should be permitted to do so, provided there were ‘adequate safeguards’ to ensure that consent was ‘free and properly informed’.101 In this way, individual choice is respected and the law appears to accept this choice for those with capacity.[375]

  1. Fetus research

“A fetus is not a legal person, which means that it cannot be owed a duty of care.”[376]

The law maintains a bright line between the fetus and the baby “born alive”.[377] The former has no legal personality; the latter enjoys the same rights and protection as any older child.

Developments in science continue to blur the boundaries between the fetus and the infant. Some US scholars and neonatologists coined a new term the “fetal infant”.[378] Spanish law seems to acknowledge the existence of an intermediate legal category of “human beings” who are neither fetuses, nor yet babies.[379] Research on extremely premature infants continues to provide vital information to help advance neonatal care. Research on fetuses may offer new insights. However both also raise a plethora of legal and ethical issues.

In St George’s Health Care Trust v S[380], Judge L.J. said: “… each woman is entitled to refuse treatment for herself. It does not follow without any further analysis that this entitles her to put at risk the healthy viable fetus which she is carrying.” Let us now turn our attention to the criminal and the ancient (but still living) “born alive” rule (Attorney General’s Reference (No. 3 of 1994).[381] If a person either deliberately or grossly negligently injures a child in the womb and that child is born alive but later dies of his injuries the perpetrator can be criminally liable for murder or manslaughter.[382] And Lord Mustill has suggested that where injury does not cause death but lasting harm a prosecution for causing grievous bodily harm could lie.[383]

Thus it is contended that the common law recognises that any third party who intervenes in such a way as directly to impact on the fetus’s health owes a duty to the child to be born that is little different to the duty the neonatologist owes to the baby in his care.

In routine treatment the consent of both parents is not needed. But the courts have made it clear that in potentially contentious cases doctors should seek a dual consent.[384]

If conventional neonatal care is unlikely to reduce the gestational age at which an extremely premature baby has a reasonable chance of survival, other research options are highly likely to blur yet further the legal boundary between fetus and baby. One avenue of such research lies in ectogenesis, the creation of an artificial womb or device that can simulate the uterine environment and so would help sustain the lives of babies who might otherwise be born too soon to survive.[385]

Women who are willing to consent to ectogenic research on a fetus they want removed from their bodies but hope may have chance of life will be few and far between. What of those fetuses aborted after 18 weeks where the woman does not want the fetus to survive? She chooses abortion because she does not wish to be a mother to that child in any sense. But she would, for the benefit of future children, be prepared to consent to using the unwanted fetus in ectogenic research. She is fully aware that the chances that the fetus will survive are negligible; that is her desire. The fetus is doomed to be destroyed. Could it be used for “good ends”?[386]

As observed by Raskin and Mazor in the context of research on the early embryo:

We do choose, as a society, to make sacrifices if the benefit is agreed to be large enough. Research with in vitro fetuses carries its own benefits to our society. A major benefit of such research would be to increase knowledge of fetal development, understanding genetic deformities and treating horrible diseases. Other significant benefits would be to allow women who cannot gestate the opportunity to do so without using a surrogate, to protect a developing embryo/fetus from conditions in the womb that may be harmful, and to permit accessibility for corrective surgery to a fetus.[387]

Is there any good reason why embryo/fetus experimentation should not be permissible on the same terms as permissible abortion?

Willard Gaylin and Marc Lappe also questioned why a woman should be allowed to abort, but not to donate the fetus to specific fetal research:

Affording the fetus the same protection as the child (both innocent and non consenting subjects) seems ludicrous in the light of the prevailing public acceptance and government approval of abortion. In abortion we more or less readily condone procedures which subject the fetus to dismemberment, salt induced osmotic shock, or surgical extirpation; certainly no conceivable experiment would do the same.[388]

If pre-natal lives are going to be wasted anyway, why cannot some of that waste be redeemed?”

Research to improve fetal survival rates, to correct disability in utero, and to bring forward the threshold of viability for extremely premature babies forces a re-appraisal of the ancient “born alive” rule and the guidance governing fetal research. As the transition is made between fetus to baby, and the fetus moves from being located in a maternal womb to a neutral “technological womb”126 the claims of the father also merits reconsideration. We have argued that the law endorsing the right of the pregnant woman to determine the fate of the fetus she carries is dependent on its location within her and her claim to bodily integrity. Nothing can be done to her against her will, but she does not have an unfettered claim to determine what is done to the fetus.[389]

  1. Case Study : Pfizer Trial of Trovan in Africa

In recent years, there has been considerable discussion around research involving humans in developing countries. Issues around lack of informed consent and independent ethics review, as well as exploitation were raised in the Pfizer incident which took place in Nigeria in 1996. In that incident, Pfizer, an American multinational pharmaceutical company, conducted a trial of an antibiotic, Trovafloxacin (commonly called Trovan), at the site of the outbreak of meningitis epidemic in northern state of Kano.[390] About 15,000 people are alleged to have died from these epidemic outbreaks.[391]

 Pfizer’s main reason for conducting the clinical trials in Kano was to obtain approval from the United States Food and Drug Agency.[392] The trial was to investigate whether the oral form of Trovan was more effective and efficient in treating children infected with meningitis than other existing treatments, including Ceftrixacone, the gold standard treatment. Later, when charges of unethical conduct were made, Pfizer also alleged that another major reason for conducting the trials was to provide humanitarian services to the infected victims who were obviously in need of medical assistance at the time.[393] Sometime after the trial had ended, several allegations were made regarding the unethical manner in which Pfizer conducted the trials.[394]

Pfizer’s Trovan had not been previously tested in children. However, about 200 children infected with meningitis were enrolled in the Kano trials. 100 of the children were thus put on the Trovan while another 100 were put on the Ceftrixacone. Out of the enrolled number, it was alleged that 11 died in the trials, 5 of whom were on the experimental drug, Trovan, given orally, while the other 6 were on injections of the standard drug Cetrifaxone. It was also reported that other children involved in the trials suffered seizures, or became paralysed. The trials were conducted within two weeks and Pfizer left immediately thereafter.

The allegations made against Pfizer include that there was no informed consent, and no follow-up of the children after conclusion of the trial. The parents of the children alleged that they had not been adequately informed about the trial and would not have subjected their children to it had they been informed. No written consent was obtained, although Pfizer had prepared an informed consent form. Due to the illiteracy of the parents, only verbal consent was obtained after oral explanations had been made to the parents of the children in English and Hausa (the language of the participants).[395] Also, there was no follow-up of the children partly because many of them did not show up after leaving the hospitals, and also because Pfizer reportedly did not send people to check up on them.

There were also apparent procedural defects, for instance proper records of the trials were not kept as required in such trials. Further, there was no approval of the research protocol by an independent ethics review committee.

The parents of the children involved in the trials brought action in the Federal High Court in Nigeria alleging lack of informed consent, and seeking compensation from Pfizer.[396] This case was dismissed in 2002. Another suit was filed by thirty families in a District Court in the United States in August, 2001 while the case filed in Nigeria was pending, seeking punitive damages against Pfizer under the United States Aliens Tort Claims Act,[397] alleging that Pfizer had violated the law of nations due to its alleged non-conformity with international ethical standards for research.[398] The plaintiffs in this case sought to rely on internationally recognised guidelines for ethical clinical research, the Helsinki Declaration and the Nuremberg Code and the ICCPR. The suit was later dismissed by the District Court on the grounds of non forum conveniens finding that, despite acknowledged problems of corruption and bias, Nigerian law recognises medical malpractice, negligence and personal injury claims and Nigerian courts thus afforded an adequate forum for trying the matter. The plaintiffs appealed. The suit was remanded to the District Court by the Court of Appeals in October, 2003.[399] This suit was also recently dismissed in August, 2005 on similar grounds, with the court stating that Nigeria was the proper forum for action. In that case, the judge noted that language used in the instruments relied on by the plaintiffs was merely ‘aspirational’ language which could not be characterized as creating well-defined and universally accepted legal obligations under international law to sustain an action under the Aliens Tort Claims Act.

 The Nigerian government opened an inquiry of the incident in 2001. The findings of the panel of inquiry were not made public until the Washington Post obtained a leaked copy in May 2006. The panel found, among other things, that Pfizer had not obtained the informed consent of the participants in the trial since they were not informed that they were engaged in a trial and that no ethics approval was obtained. Recently, in June 2007, the Nigerian government instituted criminal proceedings against Pfizer.[400]

The Pfizer incident raises troubling questions about the motives of research sponsors, particularly pharmaceutical companies, in conducting research in African countries and the vulnerability of participants in these countries to exploitation. It also raises questions about the clarity of legal requirements for the conduct of research in developing countries. It is possible that concerns about clinical research in developing countries may be unfounded to some degree. These concerns may, however, stem from past allegations of unethical conduct. The erosion of trust in the clinical research process thus becomes one of the harms that arise when unethical conduct of research happens in other countries. In light of possible allegations of unethical trials in African countries, it is apparent that there should be a clear system of research oversight in these countries. The possibility of harm to participants, resulting in possible erosion of public trust thereby preventing essential research in African countries, makes such a system imperative. The question that arises is what form this research oversight system should take. While it is outside the scope of this paper to propose a complete system of oversight for all African countries, particularly given the heterogeneous nature of their legal systems, this paper argues that law in the form of formal legislation and regulations should be part of such system.[401]

International ethical guidelines such as the Helsinki Declaration, the most important statement of the principles guiding medical research,48 and the International Ethical Guidelines for Biomedical Research Involving Human Subjects 49 (CIOMS Guidelines) drawn up by the Council for International Organisation for Medical Sciences (CIOMS) in collaboration with the World Health Organisation (WHO) set general standards for the ethical conduct of research in countries around world.[402]

  • ISSUES OF DNA TESTING

DNA, or Deoxyribonucleic acid is its full name, is the genetic makeup of an organism. The DNA reveals how an organism will function and develop and this is why it is sometimes called a person’s blueprint. So the main concept of DNA is long term information storage. DNA is usually shown as a double helix such as the picture. The double helix is stabilized by hydrogen bonds.

The part of the DNA that decides your functions and development is your genetic code or genes.[403] A revolution has occurred in the last few decades that explain how DNA makes us look like our parents and how a faulty gene can cause disease.   This revolution opens the door to curing illness, both hereditary and contracted. The door has also been opened to an ethical debate over the full use of our new knowledge.  In the end, curiosity is the reason to learn about DNA.  Fittingly, curiosity is the driving force behind science itself.[404]

Few troubling questions have surfaced recently among a range of research subjects who have learned that their genetic material is being used in ways they weren’t consulted about; scientists are debating how to better apply the principle of “informed consent” to large-scale genetic research. At stake, they say, is the success of such research, which relies on voluntary participation by increasingly large numbers of human subjects. Some have proposed an international tribunal akin to the Helsinki human rights agreement, which would lay out the ethical obligations to research participants.

Others suggest staying in touch with subjects so they can be consulted on new projects – and because under current practices they tend to learn of breakthroughs based on their own DNA only if they become close readers of scientific journals. Courts have ruled that individuals do not have a property right to their cells once they are taken in the course of medical care, but they do, under federal guidelines, have a right to know how they will be used. Complicating matters is the increasing impossibility of ensuring that DNA data can remain anonymous. Do participants need to be told that their privacy cannot be guaranteed? Can “blanket” consent up front do the trick, or is even that misleading because researchers can’t adequately describe the scope of studies they have yet to design? Is it O.K. to use DNA collected for heart research to look for genetic associations with intelligence, mental illness, racial differences?[405]

Other cases have shown that people involved in medical trials and research want to be asked before their donated DNA is used for different purposes.[406] The European court of human rights in Strasbourg said that keeping innocent people’s DNA records on a criminal register breached article eight of the Human Rights Convention, covering the right to respect for private and family life.  Attacking the “blanket and indiscriminate nature” of the power to retain data, the judges said protections offered by article eight “would be unacceptably weakened if the use of modern scientific techniques in the criminal justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests”.[407]

However, the role of DNA in the human lives cannot be ignored. One of the significant achievements of DNA research of decades has been manifested in the criminal justice system. n 1992, when DNA testing for law-enforcement purposes was in its infancy, attorneys Barry Scheck and Peter Neufeld founded the Innocence Project to help wrongly convicted prison inmates prove their innocence through DNA tests and leave prison. Working out of the Benjamin N. Cardozo School of Law in New York, they represented for free inmates with legitimate innocence claims, helping them throughout the process, from getting their DNA tested and matched to the DNA found at the crime scene, to securing their release from prison.[408]

Today, advocates of post-conviction DNA praise the Innocence Project as the nation’s first major effort to give inmates access to DNA and educate the public about the importance of DNA testing in ensuring that the criminal-justice system works fairly. They also credit the Innocence Project with greatly helping convince law-enforcement authorities and federal and state politicians that DNA is an important crime-fighting tool.[409] Since 1992, 78 convicts have been exonerated nationwide after DNA tests excluded them, Neufeld said. The Innocence Project represented or served as co-counsel in 45 of those cases.[410]

  1. WHETHER ASSISTING SUICIDE A CRIMINAL OFFENSE—EUTHANASIA

Euthanasia (from the Greek εὐθανασία meaning “good death”: εὖ, eu (well or good) + θάνατος, thanatos (death)) refers to the practice of intentionally ending a life to relieve pain and suffering.[411] It means, “the intentional killing by act or omission of a dependent human being for his or her alleged benefit. (The key word here is “intentional”. If death is not intended, it is not an act of euthanasia).[412] The word “euthanasia” was first used in a medical context by Francis Bacon in the 17th century, to refer to an easy, painless, happy death, during which it was a “physician’s responsibility to alleviate the ‘physical sufferings’ of the body.” Bacon referred to an “outward euthanasia”—the term “outward” he used to distinguish from a spiritual concept—the euthanasia “which regards the preparation of the soul.”[413]

When a person carries out an act of euthanasia, he brings about the death of another person because he believes the latter’s present existence is so bad that she would be better off dead, or believes that unless he intervenes and ends her life, it will become so bad that she would be better off dead. The motive of the person who commits an act of euthanasia is to benefit the one whose death is brought about. (Though what was just said also holds for many instances of physician-assisted suicide, some wish to restrict the use of the latter term to forms of assistance which stop short of the physician ‘bringing about the death’ of the patient, such as those involving mechanical means that have to be activated by the patient.)[414]

There are different euthanasia laws in each Country. Euthanasia is categorized in different ways, which include voluntary, non-voluntary, or involuntary. Voluntary euthanasia is legal in some countries and U.S. states. Non-voluntary euthanasia is illegal in all countries. However, in the Netherlands, physicians can avoid prosecution by following well described and strict conditions. Involuntary euthanasia is usually considered murder.[415]

Historically, the euthanasia debate has tended to focus on a number of key concerns. According to Ezekiel Emmanuel, proponents of euthanasia have presented four main arguments: a) that people have a right to self-determination, and thus should be allowed to choose their own fate; b) assisting a subject to die might be a better choice than requiring that they continue to suffer; c) the distinction between passive euthanasia, which is often permitted, and active euthanasia, which is not, is not substantive (or that the underlying principle–the doctrine of double effect is unreasonable or unsound); and d) permitting euthanasia will not necessarily lead to unacceptable consequences.

Similarly, Emmanuel argues that there are four major arguments presented by opponents of euthanasia: a) not all deaths are painful; b) alternatives, such as cessation of active treatment, combined with the use of effective pain relief, are available; c) the distinction between active and passive euthanasia is morally significant; and d) legalising euthanasia will place society on a slippery slope, which will lead to unacceptable consequences.[416]

It is often argued that euthanasia is neither justifiable nor excusable homicide.[417] In this regard, a statute which makes it a crime for anyone who willfully, in any manner, advises, encourages, abets, or assists another person in taking his own life does not embrace “positive” (active) euthanasia.[418] Furthermore, where the undisputed facts were that the defendant placed pillows over his mother’s head and face, applied pressure to the pillows to prevent his mother from being able to breath, and held the pillows in place until his mother had suffocated to death, even assuming that the mother had attempted to commit suicide through a drug overdose, the undisputed fact was that the defendant knowingly and intentionally committed the act of suffocation which caused his mother’s death, and he committed murder as clearly defined by a state legislature, and not the crimes of causing or assisting a suicide.[419]

The general concern is with voluntary euthanasia — that is, with those instances of euthanasia in which a clearly competent person makes a voluntary and enduring request to be helped to die. In cases where there are no dependents who might exert pressure one way or the other, the right of the individual to choose should be paramount. So long as the patient is lucid, and his or her intent is clear beyond doubt, there need not be further questions.[420] There will be occasion to mention non-voluntary euthanasia — instances of euthanasia where a person is either not competent to, or unable to, express a wish about euthanasia and there is no one authorised to make a substituted judgment (in which case a proxy tries to choose as the no-longer-competent patient would have chosen had she remained competent) — in the context of considering the claim that permitting voluntary euthanasia will lead via a slippery slope to permitting non-voluntary euthanasia. Nothing will be said here about involuntary euthanasia, where a competent person’s life is brought to an end despite an explicit expression of opposition to euthanasia, beyond saying that, no matter how honourable the perpetrator’s motive, such a death is, and ought to be, unlawful.[421]

Those in favour of euthanasia think that there is no reason why euthanasia can’t be controlled by proper regulation, but they acknowledge that some problems will remain. For example, it will be difficult to deal with people who want to implement euthanasia for selfish reasons or pressurise into dying. This is little different from the position with any crime. The law prohibits theft, but that doesn’t stop bad people stealing things.

The arguments in favour of euthanasia is based on the idea that human beings have the right to die when and how they want to and each person has the right to control his or her body and life and so should be able to determine at what time, in what way and by whose hand he or she will die. Behind this lies the idea that human beings should be as free as possible – and that unnecessary restraints on human rights are a bad thing. And behind that lies the idea that human beings are independent biological entities, with the right to take and carry out decisions about themselves, providing the greater good of society doesn’t prohibit this. Allied to this is a firm belief that death is the end.[422] The pro-euthanasia supporters further substantiates their claim that without creating (or acknowledging) a specific right to die, it is possible to argue that other human rights ought to be taken to include this right. For example, the right to life includes the right to die:-

  • The right to life is not a right simply to exist
  • The right to life is a right to life with a minimum quality and value
  • Death is the opposite of life, but the process of dying is part of life
  • Dying is one of the most important events in human life
  • Dying can be good or bad
  • People have the right to try and make the events in their lives as good as possible
  • So they have the right to try to make their dying as good as possible
  • If the dying process is unpleasant, people should have the right to shorten it, and thus reduce the unpleasantness
    • People also have obligations – to their friends and family, to their doctors and nurses, to society in general
    • These obligations limit their rights
    • These obligations do not outweigh a person’s right to refuse medical treatment that they do not want
    • But they do prevent a patient having any right to be killed
  • But even if there is aright to die, that doesn’t mean that doctors have a duty to kill, so no doctor can be forced to help the patient who wants euthanasia.[423]

According to the Libertarian argument, this is a variation of the individual rights argument and that means

  • If an action promotes the best interests of everyone concerned and violates no one’s rights then that action is morally acceptable
  • In some cases, euthanasia promotes the best interests of everyone involved and violates no one’s rights
  • It is therefore morally acceptable

Opponents attack the libertarian argument specifically by claiming that there are no cases that fit the conditions above:

  • people sometimes think things are in their best interests that are not morally acceptable
    • The arguments that euthanasia is intrinsically wrong fit in here
  • people are sometimeswrong about what’s in their best interests
  • people may not realise that committing euthanasia may harm other people
  • euthanasia may deprive both the person who dies and others of benefits

Euthanasia is not a private act – we cannot ignore any bad effects it may have on society in general.[424] However, courts have held that in deciding whether to order termination of life supports or whether to affirm lower court resolutions of such questions, took the position that the interest of the state in the preservation of life does not necessarily outweigh or preclude recognition of an individual right to forego life-sustaining treatment upon which a termination order could be based.[425]

A very pertinent question to analyse the whole idea is whether death is a bad things? Since, if death is not a bad thing then many of the objections simply vanish. We tend to regard to death as a bad thing for reasons like human life is intrinsically valuable; life and death are God’s business with which we shouldn’t interfere; because most people don’t want to die and because it violates our autonomy in a drastic way. The first two reasons form key points in the arguments against euthanasia, but only if you accept that they are true. The last two reasons why death is a bad thing are not absolute; if a person wants to die, then neither of those reasons can be used to say that they would be wrong to undergo euthanasia.[426]

The Stanford Encyclopaedia provides a very good account of objections and counter-objections to moral permissibility of voluntary euthanasia.[427] They are as follows:

  1. It is often said that it is not necessary nowadays for anyone to die while suffering from intolerable or overwhelming pain. We are getting better at providing effective palliative care, and hospice care is more widely available.[428] Given these considerations, some have urged that voluntary euthanasia is unnecessary.

There are several flaws in this counter-argument. First, while both good palliative care and hospice care make important contributions to the care of the dying, neither is a panacea. To get the best palliative care for an individual involves trial and error, with some consequent suffering in the process. Far more importantly, even high quality palliative care commonly exacts a price in the form of side effects such as nausea, incontinence, loss of awareness because of semi-permanent drowsiness, and so on. A rosy picture is often painted as to how palliative care can transform the plight of the dying. Such a picture is misleading according to those who have closely observed the effect of extended courses of treatment with drugs such as morphine, a point acknowledged by many skilled palliative care specialists. Second, though the sort of care provided through hospices is to be applauded, it is care that is available to only a small proportion of the terminally ill and then usually only in the very last stages of the illness (typically a matter of a few weeks). Third, and of greatest significance, not everyone wishes to avail themselves of palliative or hospice care. For those who prefer to die on their own terms and in their own time, neither option may be attractive. For many dying patients, the major source of distress is having their autonomous wishes frustrated. Fourth, as indicated earlier, the suffering that occasions a wish to end life is not always due to the pain occasioned by illness. For some, what is intolerable is their dependence on others or on machinery; for these patients, the availability of effective pain control will be quite irrelevant.

  1. A second, related objection to permitting the legalization of voluntary euthanasia argues that we can never have sufficient evidence to be justified in believing that a dying person’s request to be helped to die is competent, enduring and genuinely voluntary.

It is certainly true that a request to die may not reflect an enduring desire to die (just as some attempts to commit suicide may reflect temporary despair). That is why advocates of voluntary euthanasia have argued that normally a cooling off period should be required before euthanasia is permitted. That having been said, to claim that we can never be justified in believing someone’s request to die reflects a settled preference for death goes too far. If someone discusses the issue with others on different occasions, or reflects on the issue over an extended period, and does not waver in her conviction, her wish to die surely must be counted as enduring.

But, it might be said, what if a person is racked with pain, or mentally confused because of the measures taken to relieve her pain, and so not able to think clearly and rationally about the alternatives? It has to be agreed that a person in those circumstances who wants to die should not be assumed to have a competent, enduring and genuinely voluntary desire to die. However, there are at least two important points to make about those in such circumstances. First, they do not account for all of the terminally ill,[429] so even if it is acknowledged that such people are incapable of agreeing to voluntary euthanasia that does not show that no one can ever voluntarily request help to die. Second, it is possible for a person to indicate, in advance of losing the capacity to give competent, enduring and voluntary consent, how she would wish to be treated should she become terminally ill and suffer intolerable pain or loss of control over her life. ‘Living wills’ or ‘advance declarations’ are legally useful instruments for giving voice to people’s wishes while they are capable of giving competent, enduring and voluntary consent, including to their wanting help to die. As long as they are easily revocable in the event of a change of mind (just as ordinary wills are), they should be respected as evidence of a well thought out conviction. It should be noted, though, that any request for voluntary euthanasia or physician-assisted suicide will not at present be able lawfully to be implemented outside of The Netherlands,[430] Belgium, Luxemburg, Switzerland, and the U.S. states of and Oregon[431] and Washington.[432]

  1. There is a widespread belief that passive (voluntary) euthanasia, in which life-sustaining or life-prolonging measures are withdrawn or withheld, is morally acceptable because steps are simply not taken which could preserve or prolong life (and so a patient is allowed to die), whereas active (voluntary) euthanasia[433] is not, because it requires an act of killing. The distinction, despite its widespread popularity, is very unclear.[434] Whether behaviour is described in terms of acts or omissions (a distinction which underpins the alleged difference between active and passive voluntary euthanasia), is generally a matter of pragmatics rather than anything of deeper importance. Consider, for instance, the practice (once common in hospitals) of deliberately proceeding slowly to a ward in response to a request to provide assistance for a patient subject to a ‘not for resuscitation’ code. Or consider ‘pulling the plug’ on an oxygen machine keeping an otherwise dying patient alive as against not replacing the tank when it runs out. Are these acts or omissions; are these cases of passive euthanasia or active euthanasia?

Further, the distinction between killing and letting die is unclear. Consider the case of a patient suffering from motor neurone disease who is completely respirator dependent, finds her condition intolerable, and competently and persistently requests to be removed from the respirator so that she may die. Even the Catholic Church in recent times has been prepared to agree that it is permissible, in cases like this, to turn off the respirator. But it seems odd to think that a case like this is best described as one in which the patient is allowed to die.

In rejoinder, it is sometimes said that the difference is found in the provider’s intention: if someone’s life is intentionally terminated she has been killed, whereas if she is no longer being aggressively treated, we can attribute her death to the underlying disease. But this is often implausible. In many cases, the most plausible interpretation of the physician’s intention in withdrawing life-sustaining measures is to end the person’s life. Consider the growing practice of withholding artificial nutrition and hydration when a decision has been made to cease aggressive treatment, and then see if we can generalise to cases like those of motor neurone sufferers.[435] Many physicians would say that their intention in withholding life-sustaining artificial nutrition is simply to respect the patient’s wishes. This is plausible in those instances where the patient is still able competently to ask that such treatment no longer be given (or the patient’s proxy makes the request); in the absence of such a request, though, the best explanation of the physician’s behaviour seems to be that the physician intends thereby to end the life of the patient. Permanently withdrawing nutrition from someone in, say, a persistent vegetative state, does not seem merely to be a matter of foreseeing that death will ensue, but, rather, one of intending their death. What could be the point of the action, the goal aimed at, the intended outcome, if not to end the patient’s life? No sense can be made of the action as being intended to serve to palliate the disease, or to keep the patient comfortable, or even, in the case of a person in a permanently vegetative state, of allowing the underlying disease to carry the person off. The loss of brain activity is not going to kill the person: what is going to kill the patient is the act of starving her to death.

Similarly, giving massive doses of morphine far beyond what is needed to control pain, or removing a respirator from a sufferer from motor neurone disease would seem, by parallel reasoning, to amount to the intentional bringing about of the death of the person being cared for. To be sure, there are circumstances in which doctors can truthfully say that the actions they perform, or omissions they make, lead to the deaths of their patients without them intending that those patients should die. If, for instance, a patient refuses life-prolonging medical treatment because she considers it useless, it might reasonably be said that the doctor’s intention in complying is simply to respect the patient’s wishes. The point is that there are many other circumstances in which it seems highly stilted to claim, as some doctors do, that the intention is anything other than the intention to bring about death — and hence, by an intention-based definition of killing, that the acts and omissions in question count as killings.

This itself is a problem only if killing, in medical contexts, is always morally unjustified — a premise that underwrites much of the debate surrounding this fourth objection. But this underlying assumption is open to challenge (and has been challenged in e.g. Rachels[436] 1986, chs. 7, 8; Kuhse[437] 1987). For one thing, there may well be cases in which killing, where requested, is morally better than allowing a death — namely, where the latter would serve only to prolong the person’s suffering. Further, despite the longstanding legal doctrine that no one can justifiably consent to be killed (on which more later), it surely is relevant to the justification of an act of killing that the person killed has autonomously decided that he would be better off dead.

Moreover, it is plausible to think that the fundamental basis of the right to decide about life-sustaining treatment — respect for a person’s autonomy — has direct relevance to voluntary euthanasia as well. Extending the right of self-determination to cover cases of voluntary euthanasia would not, therefore, amount to a dramatic shift in legal policy. No novel legal values or principles need to be invoked. Indeed, the fact that suicide and attempted suicide are no longer criminal offences in many jurisdictions indicates that the central importance of individual self-determination in a closely analogous setting has been accepted. The fact that assisted suicide and voluntary euthanasia have not yet been widely decriminalised is perhaps best explained along the lines that have frequently been offered for excluding consent of the victim as a justification for an act of killing, namely the difficulties thought to exist in establishing the genuineness of the consent. But, the establishment of suitable procedures for giving consent to assisted suicide and voluntary euthanasia would seem to be no harder than establishing procedures for competently refusing burdensome or otherwise unwanted medical treatment. The latter has already been accomplished in many jurisdictions, so the former should be achievable as well.

Suppose that the moral case for legalizing voluntary euthanasia does come to be judged as stronger than the case against legalization and voluntary euthanasia is made legally permissible. Should doctors take part in the practice? Should only doctors perform voluntary euthanasia? The proper administration of medical care is not at odds with an understanding of it that both promotes patients’ welfare interests and respects their self-determination. It is these twin values that should guide medical care, not a commitment to preserving life at all costs, or preserving life without regard to whether patients want their lives prolonged when they judge that life is no longer of benefit or value to themselves. Many doctors in The Netherlands and, to judge from available survey evidence, in other Western countries as well, see the practice of voluntary euthanasia as not only compatible with their professional commitments but also with their conception of the best medical care for the dying. That being so, they should not be prohibited by law from lending their professional assistance to those competent, terminally ill persons for whom no cure is possible and who wish for an easy death.

Courts have also taken the position that the interest of the state in maintaining the ethical integrity of the medical profession does not necessarily preclude recognition of an individual right to forego medical treatment on which court orders terminating such treatment could be based.[438]
In ordering discontinuance of life-support systems for a semicomatose patient for whom there was no hope of recovery, the court in Foody v Manchester Memorial Hospital,[439] took the position that its decision was called for by recognition of the patient’s right as a competent adult to refuse life-sustaining medical treatment and that that right was included within the individual right to self-determination. Noting that this was a right long recognized at common law, the court explained that this right entitled an individual to the possession and control of his own person, free from all restraint or interference of others except by clear and unquestionable authority of law.

Recently, in India, Supreme Court too ruled on March 14, 2011 that an Indian citizen has the right to die with dignity. There are understandable riders to this landmark judgment that said thousands of people leading a vegetative life could have their artificial support systems withdrawn and thus end their lives of misery.[440] Euthanasia is now allowed, but under very strict supervision.[441] The court said “the right to permit a terminally ill patient to refuse medical treatment would be given under guarded conditions to prevent its misuse.” Active euthanasia remains forbidden. The court said that injecting a lethal drug to end the life of a patient beyond hope of recovery could not be allowed under any circumstances, because it went against the very essence of the “right to life” principle in India’s Constitution. The court agreed to passive euthanasia. The guidelines for this include a declaration from the High Court after getting an OK from a medical board and the government of the state concerned. “If a person consciously and voluntarily refuses to take lifesaving medical treatment, it’s not a crime,” the legal bench said.[442]

  1. SURROGATE MOTHERHOOD : ISSUES OF PARENTAGE AND ETHICS

The development of reproductive technologies enabled humans “to access their very genesis and it caused a wave which still impacts on our understanding of ourselves”.[443]  Assisted reproduction affects assumptions about family, kinship, parentage and personal identity, and poses challenges for legislators who struggle to deal with the ethical and legal ramifications of these medical procedures. The aim of any legislation dealing with Assisted Human Reproduction should be to put in place an appropriate framework which affords people the opportunity to avail of the advances in medicine and genetics in order to have a child of their own, while at the same time ensuring that the treatment is safe, effective and protects the interests of all the parties involved, particularly the future child.[444]

Internationally, there is wide divergence in relation to the regulation of Assisted Human Reproduction. The development of IVF and its subsequent variations and extensions appears to have generated more interest and concern among religious leaders, bioethicists, and the general public than any other medical procedure. This widespread interest and concern has attracted the attention of the political process in many countries, but no single solution which can be adapted to the culture and values of different countries can be identified.

The word surrogate is derived from the Latin subrŏgare and simply means ‘to substitute’. Surrogate pregnancy (the practice of which is generally referred to as is a form of assisted conception, and is defined as the practice whereby one woman (the surrogate mother) carries a child for another person(s) (the commissioning couple) as the result of an agreement prior to conception that the child should be handed over to that person after birth.[445]

The woman who carries the child is the surrogate mother, or ‘surrogate’. She may be the genetic mother (‘partial’ surrogacy, also known as ‘traditional’ or ‘straight’ surrogacy) – i.e. using her own egg – or she may have a fertilized embryo which may be provided by the commissioning couple – implanted in her womb using in-vitro fertilisation (IVF) techniques (‘host’ or ‘full’ surrogacy). The implanted embryo could also result from anonymous donor insemination; this technique and any IVF involved must be carried out in a licensed clinic.[446]

There are different types of surrogacy,[447] which are as follows:

Traditional surrogacy

An arrangement between the intended parents of the child and a woman who agrees to donate her egg(s) to be artificially inseminated with the sperm of the intended father. In most states the intended mother does a step-parent adoption after the birth in order to establish her parental rights and so that the surrogate will relinquish her rights regarding the child.

Gestational surrogacy-

An arrangement between the intended parents of the child and a woman who agrees to carry the embryo(s) made from the egg(s) and sperm of the intended parents. The child(ren) of gestational surrogacy is/are the genetic child(ren) of the intended parents, and the surrogate carries the embryo/fetus to term in the role of “host” uterus. In this form of surrogacy, the surrogate may also be called the “gestational carrier”.

Donor/Egg or Gestational    Surrogacy
Arrangement between the intended parents of the child and a woman who agrees to carry the embryo(s) made from the egg(s) of a third party donor (who is often anonymous) and sperm of the intended father. The surrogate carries the embryo/fetus to term as a “host” uterus since there is no biological tie between the surrogate and the embryo/fetus. In this form of surrogacy, the surrogate may also be called the “gestational carrier”.

Surrogacy has been around for centuries. The existence of the concept of one woman bearing a child for another dates back to the Old Testament, when Hagar, the maidservant of Sarah, lies with Abraham to bear a child for her infertile mistress. However, the advent of in vitro fertilization (IVF) in 1978, with the birth of Louise Brown, exposed the potential for ‘full’ or ‘gestational’ surrogacy, in which a woman gestates a child created by IVF to which she is not genetically related, in order to surrender it at birth, usually to the family of one or both of the gamete providers.

After this, surrogacy was marketed as a solution for women with fertility issues. Firms and companies began to spring up dedicated to promoting surrogacy and taking care of surrogate mothers.[448]

Initial responses to the new vision of surrogate motherhood were vocal and polarized. Some condemned it as unnatural, exploitive and a moral outrage to be resisted by every means, including criminalization. Others saw it as giving the gift of a child’s life by one woman to another and a feature of emerging women’s empowerment. Feminist advocates were divided, but most were hostile to reproductive technologies in general, regarding them as men’s instruments applied against women, that value women only as mothers. They joined with conservative political and religious forces, not themselves supportive of women’s rights, in opposition. Worldwide attention to the claim of Mary Beth Whitehead in the 1987 Baby M case[449]  in New Jersey reinforced the view that surrogacy arrangements were undesirable, and could properly be legally discouraged if not positively prohibited and prosecuted. A middle ground gained support over time, indicating that some legal provision for surrogacy arrangements was socially tolerable, either to accommodate genuine altruism, or as regulatory damage-control or containment,[450] recognizing that partial surrogacy could be easily concealed and driven underground, where the most exploitive and objectionable practices would remain invisible. A common approach has been to prohibit commercial surrogacy[451] arrangements, but permit non-profit agreements under which expenses actually incurred can be reimbursed.[452]

In contrast to this, Israel has a single, fully fledged law on surrogacy (The Surrogate Motherhood Agreements (Approval of Agreement and Status of Newborn) Law 5756-1996).[453] Its enactment was one of the first in the world to establish a regulatory regime for approval of agreements, through a joint multidisciplinary and lay Committee for Approving Surrogate Motherhood Agreements. Regulations on Surrogacy in the United Kingdom came in to existence in 1985. In the previous year the ‘Warnock Report’ had suggested that surrogacy should be made illegal in the UK, but this was only partially accepted by the government. Doctors were advised by the British Medical Association (BMA) not to become involved in techniques or procedures that would lead to surrogate births, citing the idea as ‘unethical’. Surrogacy captured the imagination of the British public when on January 4th 1985 Kim Cotton gave birth to a baby girl which she had carried through a commercial surrogacy agency in the United States, in return for £6,500. She was prevented from leaving hospital with the baby, which was subsequently made a ward of court. After seven days (during which time Kim Cotton sold her story to a newspaper for £15,000) a court decreed that the baby could be adopted by the commissioning couple.[454]

A landmark year for surrogate mothers was 1986, with the “Baby M” case. In 1984, William and Elizabeth Stern had contracted Mary Beth Whitehead to be their surrogate mother. When it came closer to the birth date, Whitehead decided to void the contract and keep the baby, rejecting the money offered with the contract. Whitehead was arrested and brought to court, where several trials followed to determine the legitimacy of Whitehead’s claim: That the baby was indeed hers. In the end, the courts concluded that surrogacy contracts conflict with state public policy, but still permitted voluntary surrogacy. In effect, surrogacy contracts cannot be supported by law but are allowed to be created. In the case of Baby M, the Sterns were allowed to keep custody of the child, but Whitehead was granted visiting privileges.[455]

 

  1. Issues related to Surrogacy

Historically, claims about a right to procreate developed, first, in the context of forced sterilisation, to oppose any non-consensual infringement of the capacity to procreate, and, second, in claims not to have a child by ensuring access to abortion and contraceptives. It was used, for example, to ‘condemn’ the Chinese one-child policy.[456]  Feminists argued for a right to procreate to protect choices of whether and when to reproduce.[457]  As a result, the right represented two inherently contradictory claims. It was used (positively) in claims related to procreation and to support a desire to procreate, as well as (negatively) in claims where there was a desire not to procreate.[458]  The right illustrated the importance of the decision to have a child and to found a family, and also of refraining from so doing. In these various guises, the right has, on occasions, been understood as a moral right, and on other occasions as a legal right, both with their own characteristics.

 Traditionally, the purported legal basis of a right to procreate was found in the right to found a family, codified in Article 12 of the European Convention on Human Rights (ECHR), and, to a lesser extent, in Article 8, the right to respect private and family life. Article 12 seemed to suggest that there was a right to procreate and that the decision to found a family was a matter for the couple to decide.[459]

Given the emerging reproductive technologies that increase choice and create opportunities for individuals to have children and control procreation in ways that nature alone does not allow, right to procreate no longer seems to correspond with the right to found a family under its traditional interpretation, and, consequently, Article 12 no longer seems to cover the matter.[460]  Still, Article 8 does not provide an uncontested framework on the basis of which we can say that today the ECHR endorses a right to procreate. The Article establishes no more than a right to ‘respect’, which obscures the degree of protection that can be expected. The Article does not provide a straightforward right; the notion of ‘respect’ turns the right to private and family life into an ambiguous claim.[461]  Besides that, it is questionable whether the Article could provide any protection outside the usual private and family circle. Although reproduction seems to be a private matter when it results from a ‘natural’ process, this may not automatically be the case when a third party is required to assist in the reproductive process.  We can imagine instances where reproduction relies on the assistance by a surrogate mother, or the involvement of a fertility clinic.[462]

Although the likelihood of a surrogate mother changing her mind about relinquishing the baby to the commissioning couple is low, it may nonetheless result in a novel custody dispute if such an eventuality were to occur here. In the absence of legislative provisions to the contrary, it is probable that such a dispute would result in the court refusing to force the birth mother to relinquish her constitutional rights to the child in favour of another couple, even where the couple are the genetic parents of the child. For example, foreign couples are also increasingly travelling to other jurisdictions to make surrogacy arrangements where those jurisdictions, such as India, Ukraine and the United States, countenance the enforceability of such contracts. The risk for those couples is that they may face difficulties in attempting to get legal recognition for these arrangements when they seek to return with the baby to Ireland. In a recent UK case, Re X and Y (Foreign surrogacy),[463] a British couple went to Ukraine to avail of a surrogacy programme there. They conceived twins through use of an anonymous egg donor’s eggs, which were fertilised by the commissioning father’s sperm, and carried by a Ukrainian surrogate mother. Ukrainian law regarded the commissioning couple as parents of the twins and absolved the Ukrainian surrogate mother and her husband of any legal responsibility for them. However, this was directly contrary to the position under English law by virtue of which the legal parents of the twins were the surrogate mother and her husband, and the commissioning parents had no responsibility for them.

“The practical effect of this conflict over legal parenthood was that each system of law abdicated parental responsibility for each set of parents. The children were, therefore, born parentless, and, by extension, stateless (entitled to neither British nor Ukrainian citizenship)”.[464] The parents were given permission to bring the twins to England where they applied for, and ultimately were granted, a parental order, though this did not sit comfortably with the judge who regarded the outcome as almost a fait accompli. The relevance of this case in the Irish context is that it is likely that circumstances such as those which arose in X and Y will occur here in the near future with the result that a conflict of laws dispute will ensue in order to determine legal parentage of the child.[465]

Further, in contemporary paternity cases, there is a presumption about the value of both ‘knowing about’ and the subsequent ‘relating to’. In donor cases, this is not yet a presumption. Rather in these cases a child can discover non-identifying information about donors but cannot necessarily trace and meet the donor. However, there are now websites6 that do make it possible for children born from sperm donation to attempt to make contact with their genetic/donor fathers and arguments are already being formulated that children not only should know about but also should have relationships with donor kin (Freeman et al, 2009).[466] For example, Wallbank (2002)[467] has made this argument in relation to surrogacy. Her point is that the gestational mother in a surrogacy arrangement should be regarded as just as much a mother as the commissioning mother and that it is likely to be harmful to the child’s sense of self to be denied contact with this ‘first’ mother. The link between knowledge of parentage and the imposition of bonds is therefore taking shape – at least where children are concerned.[468]

The issue of the relative importance which should be attached to biological and social parenting relationships has surfaced again in relation to same-sex relationships. Is a lesbian “co-parent” to be treated as equal to the child’s biological parent? Should same-sex partners be permitted to adopt? Does the child have a right to a connection, and if so what kind of connection, with the donor father in the case of lesbian parenthood, or with the mother in the more unusual context of two men using surrogacy to produce a child? What rights, if any, do these surrogate mothers and fathers themselves have in relation to the child? These and other questions are newfound questions to be answered. In particular, The Human Fertilisation and Embryology Act 2008 (UK),[469] has increase the circumstances in which legal parentage could be conferred on those who are not the biological parents of the child. Specifically it has extended to women in civil partnerships and lesbian couples the provisions currently in the 1990 legislation which give legal parentage to the husband of a married woman or the male partner of a woman who receives fertility treatment in the context of a joint enterprise to produce a child.[470]  What this means in simple language is that a male civil partner or unmarried male partner could acquire legal parentage where his partner’s sperm was used in a surrogacy arrangement, but only after a welfare determination by the courts.[471]

Surrogacy may also threatens the traditional understanding of families as basic units of society that are created by the interaction of love and biology, by showing that families are also social constructs, outcomes of private ordering or choice and revocable arrangements, and incidents of market forces. By opening pathways to regularization of divorce, non-marital family life, same-sex marriage and commercial pregnancy, surrogacy is a natural target of conservative hostility.[472]

Notwithstanding all objections, it can be concluded that the negativism of the earliest theoretical analysts by considering the social and ethical transformation by which ‘surrogacy could be accepted as one way of forming families rather than as the embodiment of their dissolution’.[473]

CHAPTER 7

HUMAN RIGHTS, LAW AND SPECIFIC ISSUES

 

ORGAN TRANSPLANTATION

An organ transplant is a surgical operation where a failing or damaged organ in the human body is removed and replaced with a new one. An organ is a mass of specialized cells and tissues that work together to perform a function in the body. The heart is an example of an organ. It is made up of tissues and cells that all work together to perform the function of pumping blood through the human body. Any part of the body that performs a specialized function is an organ. Therefore eyes are organs because their specialized function is to see, skin is an organ because its function is to protect and regulate the body, and the liver is an organ that functions to remove waste from the blood[474].

A graft is similar to a transplant. It is the process of removing tissue from one part of a person’s body (or another person’s body) and surgically re-implanting it to replace or compensate for damaged tissue. Grafting is different from transplantation because it does not remove and replace an entire organ, but rather only a portion. Not all organs are transplanted. The term “organ transplant” typically refers to transplants of the solid organs: heart, lungs, kidneys, liver, pancreas and intestines. Animal and artificial organs may also serve as transplantable organs[475]. Other types of transplants that are less invasive or may require specialized procedures include:

  • Skin transplants or grafts
  • Corneal transplants (corneas are the outer layer of the eye)
  • Bone marrow transplants

Organ transplantation is the moving of an organ from one body to another or from a donor site on the patient’s own body, for the purpose of replacing the recipient’s damaged or absent organ. The emerging field of Regenerative medicine is allowing scientists and engineers to create organs to be re-grown from the patient’s own cells (stem cells, or cells extracted from the failing organs). Organs and/or tissues that are transplanted within the same person’s body are called auto grafts. Transplants that are performed between two subjects of the same species are called allografts. Allografts can either be from a living or cadaveric source[476].

Organs that can be transplanted are the heart, kidneys, liver, lungs, pancreas, intestine, and thymus. Tissues include bones, tendons (both referred to as musculoskeletal grafts), cornea, skin, heart valves, and veins. Worldwide, the kidneys are the most commonly transplanted organs, followed closely by the liver and then the heart. The cornea and musculoskeletal grafts are the most commonly transplanted tissues; these outnumber organ transplants by more than tenfold.

Organ donors may be living, or brain dead. Tissue may be recovered from donors who are cardiac dead – up to 24 hours past the cessation of heartbeat. Unlike organs, most tissues (with the exception of corneas) can be preserved and stored for up to five years, meaning they can be “banked”. Transplantation raises a number of bioethical issues, including the definition of death, when and how consent should be given for an organ to be transplanted and payment for organs for transplantation[477]. Other ethical issues include transplantation tourism and more broadly the socio-economic context in which organ harvesting or transplantation may occur. A particular problem is organ trafficking. Some organs, such as the brain, cannot be transplanted.

The transplantation of an organ from one body to another is known as the organ transplant. The person who gives the organ is called the donor while the one who receives is called the recipient. Organ transplant is done to replace the recipient’s damaged organ with the working organ of the donor so that the recipient could function normally[478].

Organ Transplantation is a boon to medical industry as it has helped in saving the lives of those who would have died otherwise. There is a great need for human organs for transplantation. In fact, the need far exceeds the supply of transplantable organs. This disparity has led to the formulation of various legislations, attempting to regulate the scare resources (transplantable human organs) and to help establish an equitable system to allocate the organs where they can do the most good. Legally, organ donation can take place from living, genetically-related individuals; from living, unrelated individuals in special circumstances where no unauthorized payment is made to the donor; or from cadavers. Live donation of a single kidney was the first done in 1954, but live donation of parts of other organs is a relatively recent innovation in the 1990s[479].

Although there have been advances in medical technology and donation, the demand for organ, eye and tissue donation still vastly exceeds the number of donors. Following is the detailed data report on the UNO Web site[480].

  • More than 100,000 men, women and children currently need life-saving organ transplants.
  • Every 10 minutes another name is added to the national organ transplant waiting list.
  • An average of 18 people die each day from the lack of available organs for transplant.
  • In 2009, there were 8,021 deceased organ donors and 6,610 living organ donors resulting in 28,465 organ transplants.
  • Last year, more than 42,000 grafts were made available for transplant by eye banks within the United States.
  • According to research, 98% of all adults have heard about organ donation and 86% have heard of tissue donation.
  • 90% of Americans say they support donation, but only 30% know the essential steps to take to be a donor.

Statistics

  • 110,541 Patients Waiting*
  • 60,758 Multicultural Patients*
  • 1,785 Pediatric Patients*
  • 28,663 Organ Transplants Performed in 2010
  • 14,502 Organ Donors in 2010

*as of March 2011

But there is an ethical concern regarding the protection of Human Rights and organ transplantation i.e., the existence and distribution of organ transplantation procedures in developing countries, while almost always beneficial to those receiving them, raise many ethical concerns. Both the source and method of obtaining the organ to transplant are major ethical issues to consider, as well as the notion of distributive justice. The World Health Organization argues that transplantations promote health, but the notion of “transplantation tourism” has the potential to violate human rights or exploit the poor, to have unintended health consequences, and to provide unequal access to services, all of which ultimately may cause harm. Regardless of the “gift of life”, in the context of developing countries, this might be coercive. The practice of coercion could be considered exploitative of the poor population, violating basic human rights according to Articles 3 and 4 of the Universal Declaration of Human Rights. There is also a powerful opposing view, that trade in organs, if properly and effectively regulated to ensure that the seller is fully informed of all the consequences of donation, is a mutually beneficial transaction between two consenting adults, and that prohibiting it would itself be a violation of Articles 3 and 29 of the Universal Declaration of Human Rights.

Even within developed countries there is concern that enthusiasm for increasing the supply of organs may trample on respect for the right to life. The question is made even more complicated by the fact that the “irreversibility” criterion for legal death cannot be adequately defined and can easily change with changing technology[481].

The Organ Donation process involves the following steps[482]:

  1. Donor referral : when a patient is about to die, the hospital’s representative requests confidential information from the New York Organ Donor Network to find out if the patient is a potential donor
  2. Medical evaluation : a transplant coordinator analyzes the medical suitability of the organ of the potential donor, interviews the next of kin and completes a medical and social questionnaire about the potential donor
  3. Declaration of death
  4. Consent for Organ Donation : a transplant coordinator furnishes detailed information to the next of kin and asks the kin to sign a consent form regarding the organs to be donated
  5. Medical Examiner/Coroner : a transplant coordinator must confirm from the Medical Examiner/Coroner whether the death is under jurisdiction
  6. Organ Allocation and Recipient Identification: the available organ is allocated as per the degree of match, medical urgency and time waiting. The transplant surgeon finalizes regarding whether the recipient is a proper match
  7. Organ recovery : the transplant coordinator oversees the work of the surgical recovery team consisting of surgeons, nurses, the transplant coordinator and an organ preservation technician
  8. Organ preservation: Hearts and lungs can be preserved for 4 hours after removal. Similarly, pancreas for 8 to 12 hours, livers for 12 to 18 hours, intestines for 8 hours and kidneys for 24 to 48 hours
  9. Donor family follow-up : letters are sent to the donor’s family, relevant doctors and nurses regarding the outcome of the donation
  10. Costs : all the expenses are billed to the New York Organ Donor Network which is reimbursed by the recipient’s transplant hospital which is further reimbursed by the recipient’s insurance company or Medicare

In India, on the transplantation of human organs, there are many legislations and rules worked for this like ‘The Transplantation of Human Organs Act, 1994’, ‘The Transplantation of Human Organs Rules – 1995 (GSR 571(E), dt.31-7-2008)’, ‘The Transplantation of Human Organs Rules – New Forms – 1995 (GSR 571(E), dt.31-7-2008)’, ‘The Transplant of Human Organs Act – Review Committee’.

Organ donation laws at the state and federal levels exist for two primary purposes. The first purpose of organ donation laws is to help ensure a safe and fair organ donation collection and distribution practice. The second type of organ donation laws has been enacted to widen the pool of potential donors in an effort to increase the number of organs available for transplant[483].

To attempt to overcome the uncontrollable trade in organs the Indian parliament passed a bill in 1994, in keeping with the WHO guiding principles, prohibiting commercial dealings. There are restrictions for removal and retrieval of human organs and also regulations of hospitals involved to ensure transparency by all concerned. The aim of the Transplantation of Human Organs Act is “to provide for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs”[484].

The passing of Transplantation of Human Organ Act heralded a new era in Indian medicine. This legislation was written on similar likes as the UK Transplant Act. The essence of this legislation was threefold:

  1. To accept brain death as also a definition of death.
  2. To stop commercial dealing in organs
  3. To define the first relative (father, mother, brother, sister, son, daughter and wife) who could donate organs without permission from the government.

Organ transplant law does not allow exchange of money between the donor and the recipient. According to the Act, the unrelated donor has to file an affidavit in the court of a magistrate stating that the organ is being donated out of affection. After which the donor has to undergo number of tests before the actual transplant takes place. The Authorization Committee set up for the purpose ensures that all the documents required under the act have been supplied. If it is found that the money has been exchanged in the process then both the recipients as well as the donor are considered as prime offenders under the law[485].

According to the Indian law, organ sales are banned and therefore no foreigner can get a local donor. Human organ transplant laws are very strict in India and the penalty incurred for organ trade is also very high.

In so far as the Act is concerned, the following amendments have been proposed:

  1. i) To empower Union Territories, specially Government of NCT of Delhi to have their own appropriate authority instead of DGHS and /or Additional DG (Hospitals).
  2. ii) To make the punishments under the Act harsh and cognizable for the illegal transplantation activities to deter the offenders from committing this crime.

iii) To provide for registration of the centers for removal of organs from the cadavers and brain stem dead patients for harvesting of organs instead of registration of centers for transplantations only.

However, the Chief Justice of India K.G. Balakrishnan feels that there is no need to amend the Human Organ Transplantation Act, as the present law is “sufficient” to serve the cause, and they just need to be implemented properly. The comment came at a time when the health ministry was considering to bring a change in the law to curb illegal organ transplants. Experts have said that nearly 15 percent of adults in urban India are diabetic and 40 percent of them are likely to develop kidney problems, and every year over 150,000 new patients require dialysis or kidney transplant[486].

Therefore, in order to promote donation of organs, the government has planned to give incentives to the donor’s family like lifelong free medical check-up and care in the hospital where the organ donation took place. Besides, a customized life insurance policy of Rs 2 lakh for three years with one-time premium to be paid by the recipient in case of mortality and preferred status in organ transplant waiting list if the next-of-kin of a brain-dead donor requires a transplant in future.

We must restore organ transplantation to where it really belongs – not as an example of all that is unethical and commercial but as a modern medical advance permitting one human being to make the gift of life to another.

EUTHANASIA

Euthanasia is the intentional killing of a human being, for reasons of compassion, resulting in death by unnatural means.  The definition involves three things: intention, motive and causation.  The intention is to kill.  The motive is to eliminate suffering.  And the cause of death is human intervention, not some underlying illness.  Where one or more of these defining elements is absent, it is not really a case of euthanasia[487].

Euthanasia literally means good death but in this context it means mercy killing. The debate is regarding the legalization of euthanasia. This debate is a continuing one as some people are of the view that life is sacred and no one has got the right to end it whereas on the other hand some say that life belongs to oneself and so each person has got the right to decide what he wants to do with it even if it amounts to dyeing.

In our day to day life we often come across terminally ill patients that are bedridden and are totally dependent on others. It actually hurts their sentiments. Looking at them we would say that death will be a better option for them rather than living such a painful life; which is painful physically as well as psychologically. But if on the other hand we look at the Netherlands where euthanasia is made legal, we will see that how it is abused there. So following its example no one wants euthanasia to be legalized in India. But the question that lies before us is which will be a better option. In this project, some basic points regarding euthanasia are discussed and then it is totally on the reader to decide which will be better: legalizing or not legalizing euthanasia. Although the Supreme Court has already given its decision on this point but still some doubts arise in our point which we need to analyze carefully and reach at a conclusion[488].

Euthanasia literally means “good death”. It is basically to bring about the death of a terminally ill patient or a disabled. It is resorted to so that the last days of a patient who has been suffering from such an illness which is terminal in nature or which has disabled him can peacefully end up his life and which can also prove to be less painful for him. Thus the basic intention behind euthanasia is to ensure a less painful death to a person who is in any case going to die after a long period of suffering. Euthanasia is also popularly known as ‘mercy death’ as it is given to lessen the pain of the patient. Euthanasia is practiced so that a person can live as well as die with dignity. Euthanasia (“good death”) is the practice of terminating the life of a terminally ill person or animal in a painless or minimally painful way, for the purpose of limiting suffering[489].

Euthanasia can be classified into active and passive or alternatively into voluntary, involuntary and non-voluntary. Active euthanasia means putting an end to the life of an individual for merciful reason by a medical practitioner by giving a lethal dose of medication to the patient. Passive euthanasia takes place where methods such as removing artificial life support systems such as ventilators, hydration, etc are resorted to.

On the other hand voluntary euthanasia means where a patient who is suffering a lot asks a medical practitioner to end his life whereas involuntary euthanasia is just the opposite of voluntary euthanasia that is where there is no consent of the patient but for it there can be many reasons such as if he is not mentally competent to give his consent and other such reasons.

There are various ways for euthanasia. The most popular methods include –

1) Lethal injection – Injection of a lethal dose of a drug, such as a known poison, KCl, etc.

2) Asphyxiation – The most popular gas used is Carbon monoxide (CO). Nerve gases like sarin & tabun etc. are also added in small amounts to fully ensure death.

3) One of the methods is also Dr. Jack Kevorkian’s death machine (mercitron, thanatron). He is also known as Dr.Death. It’s a unique method in which a person can end his life himself. With the use of this machine a person can end his life himself painlessly at the time chosen by the patient.

Court held in the case of Gian Kaur that Article 21 speaks of right to life. However the supporters of euthanasia emphasize that when a person suffering with a terminal disease can’t even take care of himself, then how can we think for him a dignified life. In that case it will be better if he is allowed to end his life as Article 21 speaks for a dignified life. But the court made it clear that according to Article 21, a person has a right to live a dignified life which also includes right to die with dignity. But here right to die means dying a natural death. Therefore, Article 21 nowhere mentions about right to die an unnatural death. Curtailing the natural span of life of a person who has a certain end to life cannot in any case be read into Article 21. If a person is terminally ill, it doesn’t mean he himself or anyone else can end his life. It will surely be a violation of the ‘sanctity of life’. Living a dignified life doesn’t at all means that a person can end his life unnaturally. Our Constitution nowhere provides for it. Thus, right to life does not include right to die. If a person’s life is being ended unnaturally it will surely be a violation of human right. By virtue of being a human being a person has right to live a life as he wishes to. But that doesn’t allow him to end his life as and when he wants. This life is given to him by God and thus, it should be ended at its natural span[490].

Now the question arises that ‘is refusing medical treatment euthanasia’? The answer is No.  The difference is between killing a person and letting a person die a natural death. The difference has to do with intention and causation.   When you or I pass on a ventilator or a feeding tube, our intention is to live, not to die.  It is to live our remaining time, however long that is, without artificial support.  We can be certain that was our intention, because when we refuse medical treatment and live, we never immediately try to commit suicide.  That means the intention in refusing medical treatment is life not death.  When we do die as a result of refusing medical treatment, our death is always the result of natural causes: the underlying disease or illness. The proximate cause of death is not human intervention.

There are various forms of Mercy Killing and current ‘social’ vocabulary distinguishes between

  1. a) Voluntary euthanasia — the deliberate ending of life in a painless manner at the request of a patient;
  2. b) Involuntary euthanasia — the deliberate ending of life in a painless manner without the consent of the patient;
  3. c) Convertible euthanasia — the deliberate ending of life in a painless manner when the patient is at the time unable to give consent but who has consented previously;
  4. d) Compulsory euthanasia — the deliberate ending of life in a painless manner against the wishes of the patient.

In addition to these terms, we also have the phrases ‘passive’ or ‘negative’ and ‘active’ or ‘positive’ euthanasia. The term ‘passive’ or ‘negative’ euthanasia is particularly dangerous because it sounds like the acceptable medical practice of ‘allowing a patient to die’. The term ‘euthanasia’ must never be used in the context of dying because euthanasia, with or without a qualifying adjective, always means killing.

The Law On Euthanasia

Presently, the main issue arises that ‘is euthanasia or assisted suicide legal’? The answer is No.  It’s illegal in Canada and most places in the world.  It’s legal however in Holland and Oregon.

Another issue is ‘whether refusing medical treatment legal’?  The known answer is Yes.  It’s legal virtually everywhere.  We know of no place where it’s illegal.  In Canada and the US, we’ve always had the moral and legal right to refuse unwanted medical treatment.  And that legal right is not limited to unnecessary or futile medical treatment.  We can refuse medical treatment that would be lifesaving.  That’s the law.  In Canada, the Supreme Court recently reaffirmed it in the case of Ciarlariello (1993).  In the US, the Supreme Court recently reaffirmed it in the case of Cruzan (1990).  Any doctor who treats us when we have said we don’t want to be treated commits an assault.  Those doctors can be prosecuted criminally and sued civilly[491].

Why is this distinction important?  It goes to the heart of the debate.  The debate is not about giving people the right to die naturally.  We have that right.  We’ve always had that right.  The debate is about creating or recognizing a new right: the right of doctors to kill their patients.

As far as Legal aspects is concerned, laws have evolved from their traditional religious underpinnings, certain forms of euthanasia have been legally accepted. In general, laws attempt to draw a line between passive euthanasia (generally associated with allowing a person to die) and active euthanasia (generally associated with killing a person). While laws commonly permit passive euthanasia, active euthanasia is typically prohibited[492].

In the country like Netherlands and Belgium, euthanasia is legal. Netherlands was the first country to legalize euthanasia and assisted suicide in 2001. The Dutch Parliament finally legalised euthanasia and assisted suicide, if following guidelines are adhered to:

  1. The disease is incurable;
  2. The patient’s suffering is unbearable;
  3. The patient’s condition is terminal;
  4. The patient requests death.

Belgium, in 2001, enacted legislation similar to the Netherlands’ legislation.

The State of Northern Territory of Australia in 1995 enacted ‘The Right of Terminally Ill Act, 1995’ to permit the terminally ill patients to opt for mercy killing, i.e., euthanasia under the strict supervision of medical practitioners in accordance with the guidelines provided in the Right of Terminally Ill Regulations, 1996. However, the life of the Act did not last long and it was finally turned down by the courts as unconstitutional and on March 24, 1997 the Australian National Senate repealed the Northern Territory’s law which permitted euthanasia.

In most of the states in the USA, it is a crime to aid another to commit or attempt to commit suicide, but patients may refuse to take even lifesaving medical treatment. On Nov. 8, 1994 Oregon became the first state in the US to legalise physician assisted suicide for competent, terminally ill adults by enacting Oregon Death with Dignity Act, 1994. This Act seeks to provide competent terminally ill patients with an opportunity to decide to hasten his or her death with certain safeguards to ensure that no one commits physically assisted suicide (PAS) involuntarily. These safeguards include:

  1. Restricted eligibility;
  2. Voluntariness;
  3. Patients’ capacity or competence;
  4. Informed decision-making;
  5. Waiting periods;
  6. Second medical opinions; and
  7. Witnesses.

Euthanasia is not lawful at common law in England. Similarly, in India, euthanasia is absolutely illegal. If a doctor tries to kill a patient, the case will surely fall under Section 300 of Indian Penal Code, 1860. But this is only so in the case of voluntary euthanasia in which such cases will fall under the exception 5 to section 300 of Indian Penal Code,1860 and thus the doctor will be held liable under Section 304 of Indian Penal Code,1860 for culpable homicide not amounting to murder. Cases of non-voluntary and involuntary euthanasia would be struck by proviso one to Section 92 of the IPC and thus be rendered illegal. There has also been a confusion regarding the difference between suicide and euthanasia. It has been clearly differentiated in the case Naresh Marotrao Sakhre v. Union of India [493]. J. Lodha clearly said in this case. “Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating one’s own act and without the aid or assistance of any other human agency. Euthanasia or mercy killing on the other hand means and implies the intervention of other human agency to end the life. Mercy killing thus is not suicide and an attempt at mercy killing is not covered by the provisions of Section 309. The two concepts are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is affected.”

The question whether Article 21 includes right to die or not first came into consideration in the case State of Maharashtra v. Maruti Shripathi Dubal[494]. It was held in this case by the Bombay High Court that ‘right to life’ also includes ‘right to die’ and Section 309 was struck down. The court clearly said in this case that right to die is not unnatural; it is just uncommon and abnormal. Also the court mentioned about many instances in which a person may want to end his life. This was upheld by the Supreme Court in the case P. Rathinam v. Union of India[495]. However in the case Gian Kaur v. State of Punjab[496] it was held by the five judge bench of the Supreme Court that the “right to life” guaranteed by Article 21 of the Constitution does not include the “right to die”. The court clearly mentioned in this case that Article 21 only guarantees right to life and personal liberty and in no case can the right to die be included in it.

In the case of R.Pretty (English case)[497], the House of Lords was confronted with a very complex and pathetic case. The appellant was critically ill and had no scope of recovery. She expressed her desire to her husband to help her in the process of bringing her life to a peaceful end as her physical incapacity was such that she could no longer, without help take her own life. Her husband agreed provided he was assured of not being prosecuted u/s 2(1) of the Suicide Act, 1961 for aiding and abetting suicide by the Director of Public Prosecutions u/s 2(4) of the Act. The Director, however, refused to accord any such undertaking. Being aggrieved by the refusal, Mrs. Pretty moved the Queens Bench “Division Court” for judicial review of the decision, which turned down the petition.

The appellant challenged the decision before the House of Lords and claimed that she has a right to her husband’s assistance and that sec. 2(1) of the Act prohibits his helping and prevents the Director’s undertaking not to prosecute if he does, is incompatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (as set out in Schedule 1 to the Human Right Act, 1998) is void.

The petitioner inter alia pleaded relief basing on the following provisions of the Convention, viz.,

  1. Article 2 on the ground that it protected a person’s right of self-determination in relation to issue of life and death;
  2. Article 3 prohibition against inhuman or degrading treatment – on the basis that the DPP’s refusal subjected her to such treatment;
  3. Article 8 on the basis that it recognized the personal autonomy of every individual and therefore necessarily involved a guarantee as against the State of a right to choose when and how to die;
  4. Article 9 on the basis that it entitled the petitioner to manifest her belief in assisted suicide by committing it; and
  5. Article 14 on the basis of prohibition of discrimination in the enjoyment of Convention rights on the basis of that the petitioner was treated less favourably than those who were physically capable of ending their lives.

Decision: Upholding the decision of the Director of ‘not according permission to the plaintiff for assistance of her husband in ending her life’, as justified, their Lordships observed that:

‘The subjects of euthanasia and assisted suicide have been deeply controversial long before the adoption of the Universal Declaration of Human Rights in 1948, the arguments and the counter-arguments have ranged widely. There is a conviction that human life is sacred and that the corollary is that euthanasia and assisted suicide are always wrong. The Roman Catholic Church, Islam and other religions support this view. There is also a secular view, shared sometimes by atheists and agnostics, that human life is sacred.

On the other side, there are many millions who do not hold these beliefs. For many the personal autonomy of individuals is pre-dominant. They would argue that it is the moral right of individuals to have say over the time and manner of their death. On the other hand, there are utilitarian arguments to the contrary effect. The terminally ill and those suffering great pain from incurable illnesses are often vulnerable. And not all families, whose interests are at stake, are wholly unselfish and loving. There is a risk that assisted suicide may be abused in the sense that such people may be persuaded that they want to die or that they ought to want to die.

Another stand is that, when one knows the genuine wish of a terminally ill patient to die, they should not be forced against their will to endure a life they no longer wish to endure. Such views are countered by those who say it is a slippery slope or the thin end of the wedge. It is also argued that euthanasia and assisted suicide, under medical supervision, will undermine the trust between doctors and patients. It is said that protective safeguards are unworkable. The countervailing contentions of moral philosophers, medical experts and ordinary people are endless.’

Pretty’s review petition to the European Court of Human Rights against UK court decisions on the ground the refusal of immunity from prosecution her husband deprived her of rights guaranteed to her pursuant to Articles 2, 3, 8, 9 and 14 of the Convention was rejected.

In the case of Quill (United States)[498], respondent physicians and three gravely ill patients who have since died, brought action challenging the constitutionality of New York statutes making it a crime to aid persons in committing suicide or attempting to commit suicide on the ground that it violates the equal protection clause of the 14th Amendment to the U.S. Constitution. The United States District Court, Southern District of New York dismissed the claim, and physicians appealed. The Court of Appeal affirmed in part and reversed in part. Certiorari was granted and matter came before U.S. Supreme Court.

The Doctors asserted that although it would be “consistent with standards of their medical practice” to prescribe the lethal medication for “mentally competent, terminally ill patients” who are suffering great pain and desire a doctor’s help in taking their own lives, they are deterred from doing so by New York’s ban on assisting suicide.

Decision: Rejecting the petitioner-respondent’s contention, the U.S. Supreme Court unanimously held that there is a difference between the patients’ common law right “refuse treatment”, and “assisting a person to commit suicide.” It is based on the principle of “right to hasten death,” but on well established “traditional rights to bodily integrity and freedom from unwanted touching.”Rejecting the petitioner-respondent’s contention, the U.S. Supreme Court unanimously held that there is a difference between the patients’ common law right “refuse treatment”, and “assisting a person to commit suicide.” It is based on the principle of “right to hasten death,” but on well established “traditional rights to bodily integrity and freedom from unwanted touching.”

In the case of K.Venkatesh (Indian case)[499], The Andhra Pradesh High Court was confronted with a very pathetic case of a terminally ill boy of 25 years seeking court’s permission to a peaceful end, so that he could donate his organs to someone needy before he is finally pronounced dead. K. Venkatesh, a budding chess player whose career was cut short by a crippling attack of muscular dystrophy was on life support system at the city’s Global Hospital in Hyderabad. He was conscious and understood what he was being told. But, he cannot speak. Muscular dystrophy leads to a slow decay of muscles and is incurable. The disease struck Venkatesh when he was only 10 years old and he has been bound to wheelchair since.

Venkatesh’s muscles from his legs to neck have stopped functioning and the life support system let him breathe. Doctors say that he won’t survive once he is taken off the ventilator. The doctors at the hospital have refused to entertain Venkatesh’s appeal for ‘mercy killing’ for it is illegal to take a patient who is alive off life support. Doctors say, “The hospital cannot do a thing as long as the law of the land does not approve of mercy killing.” Doctors at the hospital reported that Venkatesh developed serious chest infection besides dystrophy. His days were numbered but he wants to die before his organs are infected. After his death organs will be in no shape for harvesting and cannot be used for any person.

Decision:         The petition was rejected by the Honourable High Court.The Honourable High Court turned down the humanitarian appeal of an ailing man on deathbed, who wanted to donate his organs to someone needy before he could die. With due respect, it is submitted that the Honourable Court could have taken a pragmatic view and applied the law keeping in view the objective and purpose for which the request was made which was obviously to save a human life instead of applying the dead letter of law literally. No doubt, ‘right to life’ is an absolute right and non-negotiable, but in the particular case the request was made to save the ‘right of life’ of someone who is on deathbed by giving a chance to get his defunct organs replaced from Venkatesh’s organs, whose days were numbered as already medically pronounced by the doctors. In such a case Venkatesh was having the most pious objective of igniting the candle in the life of someone unknown by granting a lease of life.

Perhaps it would have been better in the fitness of things that the Court before taking a final decision should have carefully examined the pros and cons of the entire issues after thoroughly studying the decided cases on the subject in different parts of the world and arrived at a reasonable decision considering humanitarian appeal of a poor boy to fulfil his ‘last wish’ without arbitrarily rejecting the request.

There is a constitutional dilemma between ‘Right to Die vis-à-vis Right not to Die’. According to Article 21 of the Constitution: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’.

Section 309 of I.P.C.: Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year [or with fine, or with both]. Section 309 of I.P.C. has been questioned not only on the grounds of morality but also on the ground of constitutionality of the said provision. There have been many cases dealing with the question of whether S.309 is constitutionally valid or not. There have been conflicting opinions expressed in these cases regarding the constitutional validity of the section – one holding section constitutionally valid, while the other striking it down being violative of Article 21 of the Constitution which guarantees ‘right to life,’ which would reveal that there is ample force in both the contentions. Now, lets make a careful perusal of these conflicting rulings of the apex court.

Maruti Shripati Dubal v. State of Maharashtra[500], in 1987, the Bombay High Court struck down S.309, IPC as ultra vires vide Article 21 of the Constitution which guarantees ‘right to life and liberty’. The Court said that the ‘right to life’ includes the ‘right to live’ as well as ‘right to end one’s life’ if one so desires. Justice P. B. Sawant said: “…who make suicide attempt on account of acute physical ailments, incurable disease, torture, decrepit physical state induced by old age or disablement, need nursing homes and not prison to prevent them from making the attempts again.”

  1. Rathinam / Naghbhusan Patnaik v. Union of India[501], In 1994, a Division Bench of the Supreme Court comprising of Justices R. M. Sahai and B. L. Hansaria, while allowing petitions upheld the Bombay and Delhi High Courts’ decisions (in Maruti Shripati Dubal’s case and Sanjaya Kumar’s case) and overruled Andhra ruling (in Chenna Jagdeshwar’s case). The two petitioners assailed the validity of S. 309 of the IPC by contending that the same is violative of Articles 14 and 21 of the Constitution.

While striking down S.309, IPC, the apex court said ‘it is a cruel and irrational provision violative of Article 21 of the Constitution’. Expanding the scope of Article 21, the Court upheld that, ‘right to life’ includes ‘right not to live a forced life’; i.e., to end one’s life if one so desires.

Gian Kaur v. State of Punjab[502], However in 1996, a five member Constitution Bench of the apex court overruled its decisions of 1994 in P. Rathinam / Naghbhusan Patnaik.

Dismissing the petition challenging the constitutionality of S.306 on the ground that it punished an act which was nothing but assistance to a person in the enforcement of his fundamental ‘right to die’ under Article 21 as S.309 was held unconstitutional, the apex Court held S.306, IPC as constitutional and said that the ‘right to life’ doesn’t include ‘right to die’. Extinction of life is not included in protection of life. The Court further held that S.306 constitutes a distinct offence and can exist independently of S. 309, IPC. There is no correlation between the two sections.

As regards S.309, IPC is concerned, the Court said that the ‘right to life’ guaranteed under Article 21 of the Constitution did not include the ‘right to die’ or ‘right to be killed’, and therefore, an attempt to commit suicide under S.309, IPC or even abetment of suicide under S.306, IPC are well within the constitutional parameters, and are not void or ultra vires. The ‘right to death’, if any, is inherently inconsistent with the ‘right to life’, as is death with life.

There are certain questions arises like ‘Is S.306, IPC Constitutionally Valid’?. Section 306 of IPC: If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. The question of constitutionality of S.306, IPC has been aptly answered by the Supreme Court in Gian Kaur’s case.

So, if we carefully examine the opposition to the legalization of euthanasia, we can conclude that the most important point that the opponents raise is that it will lead to its misuse by the doctors. Thus, it is humbly submitted that when a patient or his relatives can willingly put his life in the hands of the doctor trusting him, then why can’t a doctor be given such discretion to decide what will be in favour of his patient. Another doubt that is often raised is that if the doctors will be given discretion to practice voluntary euthanasia then surely it will gradually lead to asking for involuntary or non-voluntary euthanasia. But it is humbly submitted that a separate legislation should be made allowing only voluntary euthanasia and not involuntary or non-voluntary euthanasia. As has already been pointed out earlier, we also have to keep in mind the limited medical facilities available in India and the number of patients[503]. This question still lies open that who should be provided with those facilities; a terminally ill patient or to the patient who has fair chances of recovery. As the patient himself out of his pain and agony is asking for death, doctor should not increasing that pain of his should allow euthanasia. It has been ruled in the Gian Kaur case that Article 21 does not include right to die by the Supreme Court. But one may try to read it as is evident in the rights of privacy, autonomy and self-determination, which is what has been done by the Courts of United State and England. Thus, we can see that as the said right has been included in the ambit of Article 21, so this can also be included in Article 21. This question was not raised in the case earlier. Again the point that remains unanswered is regarding the abuse of this right by the doctors. But relevant safeguards can be put on this right and thus its abuse can be avoided. One of the safeguards can be that a proper quasi-judicial authority having a proper knowledge in the medical field can be appointed to look into the request of the patient and the steps taken by the doctor. To make it more foolproof some two or three assistant officials including one from the legal field can also be appointed. This will avoid any abuse of this right granted to the terminally ill patients. Here, we have to regard the painful situation in which the patient is and top priority should be lessening his pain. Now when we already know that he is anyways going to die today or tomorrow and he himself is asking for death, there is no point that he should be denied with this right of at least leading a life with minimum dignity and willingly. Otherwise his life will be no better in that situation[504]. Thus, considering the financial and medical facilities also, the question still lies open that what will be better-allowing euthanasia or not allowing euthanasia.

In case of euthanasia there are different views that there are pros and cons on the society. Perhaps the strongest argument made on behalf of legalizing euthanasia or assisted suicide is that it, like abortion, is a “choice” issue. Proponents argue that euthanasia/assisted suicide is “the ultimate civil right,” and that to deprive mentally competent, terminally ill people who want to end their suffering of a peaceful “aid in dying” is to fundamentally disrespect their right to personal autonomy. Proponents also argue that legalizing euthanasia/assisted suicide is a necessary “insurance policy” that will ensure that no one dies in painful agony or unremitting suffering. Advocates contend that euthanasia/assisted suicide is little different from pain control since both use strong drugs and patients’ deaths are occasionally unintentionally hastened as a side effect of the narcotics used in palliation. They also claim that doctors commonly engage in euthanasia/assisted suicide surreptitiously and promote legalization as a way to protect vulnerable patients from abuses inherent in the current “unregulated” practice. Acknowledging worries about potential abuses, advocates assure that “protective guidelines” would protect the vulnerable from wrongful death while still permitting suffering patients who are eligible for euthanasia/assisted suicide to obtain a desired, peaceful “death with dignity.” Proponents also claim that opposition to euthanasia/assisted suicide is based primarily in religion and that laws prohibiting the practice are thus unconstitutional because they violate the division between church and state[505].

Opponents counter that legalizing euthanasia/assisted suicide would lead society down a dangerous “slippery slope” with legalized killing eventually being permitted for disabled, elderly, and depressed people, as well as for those who are not mentally competent to request to die. Protective guidelines “do not protect,” opponents declare, pointing to the Dutch experience with euthanasia as “proof” of both the reality of the slippery slope and the relative meaninglessness of guidelines. Opponents also argue that the economics of modern medicine would promote euthanasia/assisted suicide as a form of health care cost containment, noting that the drugs in an assisted suicide cost only about forty dollars, while proper care for a dying patient can cost tens of thousands of dollars. They also note that forty-four million Americans do not have health insurance, and that medicine is sometimes practiced in a discriminatory manner against racial and other minorities. Thus, they argue that “the last people to receive medical treatment will be the first to receive assisted suicide.” Opponents also deny that there is widespread surreptitious euthanasia practiced in clinical medicine, citing several published studies as proof, and urge that hospice care and proper medical treatment provide the morally acceptable answers to the difficulties that are sometimes associated with the process of dying[506].

GENE THERAPY

Gene therapy is an experimental technique that uses genes to treat or prevent disease. In the future, this technique may allow doctors to treat a disorder by inserting a gene into a patient’s cells instead of using drugs or surgery. Researchers are testing several approaches to gene therapy, including:

  • Replacing a mutated gene that causes disease with a healthy copy of the gene.
  • Inactivating, or “knocking out,” a mutated gene that is functioning improperly.
  • Introducing a new gene into the body to help fight a disease.

Although gene therapy is a promising treatment option for a number of diseases (including inherited disorders, some types of cancer, and certain viral infections), the technique remains risky and is still under study to make sure that it will be safe and effective. Gene therapy is currently only being tested for the treatment of diseases that have no other cures[507].

Gene therapy using an Adenovirus vector. A new gene is inserted into an adenovirus vector, which is used to introduce the modified DNA into a human cell. If the treatment is successful, the new gene will make a functional protein. Gene therapy is the insertion, alteration, or removal of genes within an individual’s cells and biological tissues to treat disease. It is a technique for correcting defective genes that are responsible for disease development. The most common form of gene therapy involves the insertion of functional genes into an unspecified genomic location in order to replace a mutated gene, but other forms involve directly correcting the mutation or modifying normal gene that enables a viral infection. Although the technology is still in its infancy, it has been used with some success[508].

Genes are units of heredity, which are usually a stretch of DNA that codes for specific protein. Proteins perform most important functions of cells and carry out normal function of living cell. Genes are carried on chromosomes and carry genetic information and hold the information to build or maintain an organism’s cell. But once a single gene is interpolated, a gene that encode for a protein will no longer be functional and unable to catty out their normal function thus, genetic disorders can result[509]. There is a saying of James Watson “We used to think that our fate was in our stars, but now we know that, in large measure, our fate is in our genes”. Here he is talking about fate that contained in our genes. This addresses a newfangled technique ‘Gene therapy’.

Gene therapy is a technique in which a gene that is responsible for disease development is replaced with a healthy gene, in other words defective gene is corrected. This is done by inserting number of genes into patient’s cells and tissues for the treatment of hereditary diseases in which a defective mutant allele that is causative for abnormal function of cells are supplanted with the a functional one[510].

There is various types of Gene Therapy and it is a controversial scientific and medical development that involves altering the genetic makeup of the cells in patients in order to treat or prevent certain medical conditions. There are two main categories of gene therapy; Somatic Cells and Germline Cells. Somatic cells represent the majority of cells in the human body, and are not passed on to future generations. Germline cells exist within eggs and sperm. The majority of gene therapy done is the Somatic variety. It is less controversial, and of course there are a lot more cells to work with. Somatic gene therapy is used to treat conditions such as cancer, cystic fibrosis, and muscular dystrophy. The sooner the genetic therapy is begun the more effective the results of the treatment. Some gentic therapy is even conducted in utero in order to prevent problems that would likely occur after the child is born[511].

Gene therapy may be classified into the two following types[512]:

Germ line gene therapyIn the case of germ line gene therapy, Germ cells, i.e., sperm or eggs, are modified by the introduction of functional genes, which are integrated into their genomes. Therefore, the change due to therapy would be heritable and would be passed on to later generations. This new approach, theoretically, should be highly effective in counteracting genetic disorders and hereditary diseases. However, many jurisdictions prohibit this for application in human beings, at least for the present, for a variety of technical and ethical reasons[513].

Germline gene therapy seeks to correct abnormalities within the genes that are involved in reproduction; in eggs and sperm. While potentially most effective, because abnormalities are identified far before they become an issue, many people believe this type of gene therapy is going too far and liken it to ‘playing God.’ Germline cell therapy is most effective during the embryonic stage, although unknown variables in this type of therapy have opponents concerned of potential negative consequences for future generations that no one can predict right now. And I can see their point. It’s one thing to be stricken with a genetic disorder through the luck of the draw. It’s another entirely to discover that it may have inadvertently been caused by your parents or grandparents even if they did have the best intentions in mind[514].

Somatic gene therapy – In the case of somatic gene therapy, the therapeutic genes are transferred into the somatic cells of a patient. Any modifications and effects will be restricted to the individual patient only, and will not be inherited by the patient’s offspring or later generations[515].

When somatic gene therapy is undergone with older children or adults there is greater risk that the results of the treatment will not last, because it is the nature of cells to regenerate themselves, to die and come back and the old model once again takes charge. Somatic Cell gene therapy is done in one of two ways, either Ex Vivo, where cells are removed from the body before they are treated. And In Vivo when cells are still inside the body. Cells from blood or bone marrow are removed and grown in a lab with the desired genetic alteration and the inserted back into the person’s blood stream where it is incorporated into their DNA[516].

But regardless of the controversy with either type, gene therapy shows a lot of potential, and has already worked miracles for many people. I imagine there will only be more testing to show the potential of this scientific phenomenon[517].

For the introduction of healthy gene into patient’s body doctors uses a vector (which may be a virus) to rescue their genes. Currently, scientists are seeking to get full vantage of virus capabilities by manipulating their genome by inserting therapeutic genes. But everything has its prunes and cons. Gene therapy has also its advantages and disadvantages[518].

In order to understand the advantages of gene therapy, one must understand the limitations of other therapies. In general, most conventional (not genetic) therapies use synthetic, or man-made drugs to treat a disease, or a symptom of a disease. These drugs normally don’t cure a patient of a disease; just limit the symptoms or progression of disease. Also, most drugs have side effects[519].

Gene therapy allows the body to make its own proteins, etc., so there are less “unnatural” substances working in your body. If things work out correctly, this equates into far fewer (if any) side effects. Also, with most drugs one must keep on taking a medicine to have the intended effect. With gene therapy, only a few treatments may be needed to have long term effects. In some hypothetical cases of gene therapy, the treatment may be enough to essentially cure a disease[520].

Following are the Disadvantage of Gene Therapy:

  • Before going to perform gene therapy, defective genes are searched and to find these genes, it is obligatory to perform genetic tests or genetic screening (susceptibility to find a particular disease) to see whether a defective gene that causes for example, cancer, is present or not. But because of this genetic testing some issues or legal problems stood up[521].
  • For the diagnosis of disease in a fetus or embryo before it is born prenatal testing is performed. If an unborn carries any defective gene then their parent’s definitely want to abort this child this may increase number of abortions. This is a braggy disadvantage of gene therapy. This creates many ethical problems.

Following are the advantages of Gene Therapy. Despite of this disadvantage of gene therapy, this technique has advantages as well[522].

  • Giving an advantage to someone who has born with a genetic disease by replacing non-functional gene with a functional one. This may give someone a chance of normal life.
  • A cancer patient can also get advantage of this technique by insertion of genetically altered vectors into human genome.

For the safety of gene therapy, the Weismann barrier is fundamental in the current thinking. Soma-to-germ line feedback should therefore be impossible. However, there are indications[523] that the Weismann barrier can be breached. One way it might possibly be breached is if the treatments were somehow misapplied and spread to the testes and therefore would infect the germ line against the intentions of the therapy[524].

Some of the problems of gene therapy include:

  • Short-lived nature of gene therapy – Before gene therapy can become a permanent cure for any condition, the therapeutic DNA introduced into target cells must remain functional and the cells containing the therapeutic DNA must be long-lived and stable. Problems with integrating therapeutic DNA into the genome and the rapidly dividing nature of many cells prevent gene therapy from achieving any long-term benefits. Patients will have to undergo multiple rounds of gene therapy.
  • Immune response – Anytime a foreign object is introduced into human tissues, the immune system has evolved to attack the invader. The risk of stimulating the immune system in a way that reduces gene therapy effectiveness is always a possibility. Furthermore, the immune system’s enhanced response to invaders that it has seen before makes it difficult for gene therapy to be repeated in patients.
  • Problems with viral vectors – Viruses, the carrier of choice in most gene therapy studies, present a variety of potential problems to the patient —toxicity, immune and inflammatory responses, and gene control and targeting issues. In addition, there is always the fear that the viral vector, once inside the patient, may recover its ability to cause disease.
  • Multigene disorders – Conditions or disorders that arise from mutations in a single gene are the best candidates for gene therapy. Unfortunately, some of the most commonly occurring disorders, such as heart disease, high blood pressure, Alzheimer’s disease, arthritis, and diabetes, are caused by the combined effects of variations in many genes. Multigene or multifactorial disorders such as these would be especially difficult to treat effectively using gene therapy.
  • Chance of inducing a tumor (insertional mutagenesis) – If the DNA is integrated in the wrong place in the genome, for example in a tumor suppressor gene, it could induce a tumor. This has occurred in clinical trials for X-linked severe combined immunodeficiency (X-SCID) patients, in which hematopoietic stem cells were transduced with a corrective transgene using a retrovirus, and this led to the development of T cell leukemia in 3 of 20 patients[525].

So, we can say that as gene therapy is uprising in the field of medicine. Scientists believe that after 20 years gene therapy will be the cure of every genetic disease no other treatment will be required. There are some people who do not understand what actually the technique is! Doctors are trying hard to treat every genetic disease with gene therapy. Gene therapy could be last cure for every genetic disease. In the near future, every genetic disease will have gene therapy as its treatment. This technique is chop-chop sharpening the field of medicine. Gene therapy will play Copernican part and will change our lives forever[526].

So, we can say that Gene therapy is a promising new modality of treatment with at least five products for cancer in phase III clinical trials[527], and three experimental biologics drugs approved by the Chinese State Food and Drug Administration[528]. Considering the number of ongoing clinical trials and the success of some of them, gene therapy preclinical and clinical studies in India have to be encouraged. Cell therapies, especially ASCs and hESCs, have received a great deal of attention with regulatory guidelines in place[529]. However, keeping in mind that a combination of gene and cell therapies will be most effective, India has to gear up to gene therapy product development and clinical trials. The Government of India has entrusted DBT with the responsibility of setting up the National Biotechnology Regulatory Authority, which would be an independent, autonomous and professional body to provide a mechanism for biosafety clearance of genetically modified products and processes. Hopefully, this body will offer guidelines for gene and cell therapy clinical trials and look into gene therapy as an important technology in India[530].

EXPERIMENTATION ON HUMAN BEING

Human experimentation and research ethics evolved over time. On occasion, the subjects of human experimentation have been prisoners, slaves, or even family members. In some notable cases, doctors have performed experiments on themselves when they have been unwilling to risk the lives of others. This is known as self-experimentation[531].

Human subject research includes experiments (formally known as interventional studies) and observational studies. Human subjects are commonly participants in research on basic biology, clinical medicine, nursing, psychology, and all other social sciences. Humans have been participants in research since the earliest studies. As research has become formalized the academic community has developed formal definitions of “human subject research”, largely in response to abuses of human subjects[532].

We can define the term human subject and In biostatistics or psychological statistics, a research subject is any object or phenomenon that is observed for purposes of research. In survey research and opinion polling, the subject is often called a respondent. In the United States Federal Guidelines a human subject is a living individual about whom an investigator conducting research obtains 1) Data through intervention or interaction with the individual, or 2) Identifiable private information[533].

The great weight of the evidence before us to effect that certain types of medical experiments on human beings, when kept within reasonably well-defined bounds, conform to the ethics of the medical profession generally. The protagonists of the practice of human experimentation justify their views on the basis that such experiments yield results for the good of society that are unprocurable by other methods or means of study[534].

All agree, however, that certain basic principles must be observed in order to satisfy moral, ethical and legal concepts[535]:

  1. The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.

 This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment.

The duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs, or engages in the experiment. It is a personal duty and responsibility which may not be delegated to another with impunity.

  1. The experiment should be such as to yield fruitful results for the good of society, unprocurable by other methods or means of study, and not random and unnecessary in nature.
  2. The experiment should be so designed and based on the results of animal experimentation and a knowledge of the natural history of the disease or other problem under study that the anticipated results justify the performance of the experiment.
  3. The experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury.
  4. No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur; except, perhaps, in those experiments where the experimental physicians also serve as subjects.
  5. The degree of risk to be taken should never exceed that determined by the humanitarian importance of the problem to be solved by the experiment.
  6. Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability or death.
  7. The experiment should be conducted only by scientifically qualified persons. The highest degree of skill and care should be required through all stages of the experiment of those who conduct or engage in the experiment.
  8. During the course of the experiment the human subject should be at liberty to bring the experiment to an end if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible.
  9. During the course of the experiment the scientist in charge must be prepared to terminate the experiment at any stage, if he has probable cause to believe, in the exercise of the good faith, superior skill and careful judgment required of him, that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject.

So, we can say that Medical experiments on human beings throughout the scientific age it has been increasingly realized that the path to knowledge is through carefully-controlled experimentation. Medicine must never, however, treat human beings as objects, or as the means to achieving increased knowledge. Ultimately the goal of human evolution will be served by the willing collaboration of members of society in the advancement of knowledge through carefully planned experimentation. As of now, however, many safeguards must be built into the system to ensure that no exploitation occurs. Experimenters are charged with the task of designing the most ingenious experiments, to give maximum information with a minimum of trauma and always to ensure the fully informed consent of the participants[536].

SURROGATE MOTHER

Surrogacy is when a woman agrees to become pregnant and delivers a child for other people such as a couple who is unable to. There are times when the woman is the real genetic mother of the child but there are also times when they implant the female with an embryo and the woman is merely a carrier of the child, as if a container for the development of the embryo until its birth. There are many different and opposing views regarding surrogacy. There are many arguments for and against surrogacy. There are many people who consider this practice as immoral and of course there are also those that consider it as something that is acceptable[537].

The legality of surrogacy is different for every country. There are countries that consider the birth mother as the legal mother while there are those that don’t. In countries such as India, surrogacy is legal and is actually considered as commercial where many women are earning profits from surrogacy. India is now considered as the world’s leading surrogacy-related tourism destination where many foreigners are looking to have a woman to be a carrier of their child[538].

A surrogate mother is a woman who carries a fetus for someone else, usually a couple struggling with fertility issues. After the child is born, the surrogate mother surrenders it to the people who have hired her. There are various forms of surrogacy, some of which have been used historically, while others are more modern[539].

One form of surrogacy, traditional surrogacy, involves using artificial insemination to impregnate the surrogate mother. This technique is often used when a woman is physically unable to bear children, but she still wants to have children with her partner. In this case, the partner donates sperm, or sperm is secured from a third party if he is infertile as well, and the surrogate mother contributes half of the required genetic material. This type of surrogacy has been around for centuries, although it was not widely discussed until the twentieth century, since some women felt ashamed because they could not bear children. Modern surrogate arrangements usually involve gestational surrogacy. In gestational surrogacy, the couple commissioning the surrogate mother donate both eggs and sperm. The egg is fertilized in a test tube, and then implanted into the surrogate mother. In this case, the surrogate mother acts almost like an incubator, carrying the child to term for a woman who is unable to do so.

There are different types of surrogacy like:

  • IVF / Gestational surrogacyIVF / Gestational surrogacy – This is a more common form of surrogacy. In this procedure, a woman carries a pregnancy created by the egg and sperm of the genetic couple. The egg of the wife is fertilized in vitro by the husband’s sperms by IVF/ICSI procedure, and the embryo is transferred into the surrogate’s uterus, and the surrogate carries the pregnancy for nine months. The child is not genetically linked to the surrogate[540].
  • Traditional / Natural surrogacyTraditional / Natural surrogacy – This is where the surrogate is inseminated or IVF/ICSI procedure is performed with sperms from the male partner of an infertile couple. The child that results is genetically related to the surrogate and to the male partner but not to the female partner.

The success rate (carry home baby) of surrogacy is around 45% in case of fresh embyos. In case of frozen embryo’s it is about 25%[541].

The legal aspects surrounding surrogacy are very complex and mostly unsettled. There is a default legal assumption in most countries that the woman giving birth to a child is that child’s legal mother. In some jurisdictions the possibility of surrogacy has been legally allowed and as a result, the intended parents may be recognized as the legal parents right from the birth of a baby. Many states now issue pre-birth orders through the courts placing the name(s) of the intended parent(s) on the birth certificate from the start. In other states that do not issue such orders, the possibility of surrogacy is either not recognized (all contracts specifying different legal parents are void), or is prohibited[542].

Commercial surrogacy is legal in India, as recognized by the Supreme Court of India in 2002.[15] India is emerging as a leader in international surrogacy and a destination in surrogacy-related fertility tourism. Indian surrogates have been increasingly popular with fertile couples in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. Clinics charge patients between $10,000 and $28,000 for the complete package, including fertilization, the surrogate’s fee, and delivery of the baby at a hospital. Including the costs of flight tickets, medical procedures and hotels, it comes to roughly a third of the price compared with going through the procedure in the UK. The Honorable Supreme Court of India has given the verdict that the citizenship of the child born through this process will have the citizenship of its surrogate mother[543].

The question arises that does surrogacy involve making families or selling babies? Then we can say that medical science continues to devise new procedures and treatments that test the boundaries of law and ethics. One such result is modern surrogate motherhood, which has been made possible by Artificial Insemination and in vitro fertilization.

Surrogate motherhood has both advocates and detractors, each with strong arguments in their favor. A number of important questions lie at the heart of the debate over the ethics and legality of surrogacy: Does surrogacy necessarily involve the exploitation of the woman serving as the surrogate mother, or turn her into a commodity? What rights does the surrogate mother have? Is surrogacy equivalent to baby selling? Should brokers or third parties be allowed to make a profit from surrogacy arrangements?[544]

The case against surrogacy is that nearly all opponents of surrogacy find it to be a morally repugnant practice, particularly when it involves a commercial transaction. Many base their opposition on religious grounds, whereas others judge it using philosophical, legal, or political criteria.

The Roman Catholic Church is just one of many religious institutions that oppose surrogacy. It is against all forms of surrogacy, even altruistic surrogacy, which does not involve the payment of a fee to the surrogate. It holds that surrogacy violates the sanctity of marriage and the spiritual connection between mother, father, and child. It finds commercial surrogacy to be especially offensive. Commercial surrogacy turns the miracle of human birth into a financial transaction, the church maintains, reducing the child and the woman bearing it to objects of negotiation and purchase. It turns women into reproductive machines and exploiters of children. The church argues that surrogacy also leads to a confused parent-child relationship that ultimately damages the institution of the family.

Some feminists oppose surrogacy because of its political and economic context. They disagree with the notion that women freely choose to become surrogates. They argue that coercion at the societal level, rather than the personal level, causes poor women to become surrogate mothers for rich women. If surrogacy contracts are legalized, they maintain, the reproductive abilities of a whole class of women will be turned into a brokered commodity. Some feminists have gone so far as to call surrogacy reproductive prostitution.

Other critics join with Catholics and feminists to decry surrogacy as baby selling and a vehicle for the exploitation of poor women[545].

There are certain case which is in favour of Surrogacy this means that advocates for surrogate motherhood propose it as a humane solution to the problem of infertility. They note that infertility is common, affecting almost one out of six couples, and that surrogacy may represent the only option for some couples who wish to have children to whom they are genetically related. Advocates also point out that infertility is likely to increase as more women enter the workforce and defer childbirth to a later age, when fertility problems are more common.

Advocates of surrogacy also argue that Adoption does not adequately meet the needs of infertile couples who wish to have a baby. They point out that there are many times more couples than available Infants. Moreover, couples must wait three to seven years on average to adopt an infant. Here, too, social trends have contributed to a greater call for alternative reproductive options. Most important, an increased use of contraceptives and Abortion and a greater acceptance of unwed mothers have led to a shortage of adoptable babies.

Those who favor commercial surrogacy object to characterizations of the practice as baby selling. A surrogacy contract, they assert, is a contract to bear a child, not to sell a child. Advocates of surrogacy see payment to a surrogate as a fee for gestational services, just like the fees paid to lawyers and doctors for their services. Some advocates even argue that the prohibition of commercial surrogacy infringes on a woman’s constitutional right to contract.

Surrogacy is also supported by those who believe that society is served best when the liberty of individuals is maximized. They claim that women and society as a whole benefit from the increased opportunity of choice offered by surrogacy.

Advocates also maintain that in a successful surrogacy arrangement, all parties benefit. The intended parents take home a cherished child, and the surrogate receives a monetary reward and the satisfaction of knowing that she has helped someone realize a special goal[546].

There is an Ethical issues arises in the case of sarrogate mother and according to professor Bryan Caplan, libertarians have since Voltaire emphasized the fact that it is not right to forbid people from doing things that others do not accept. However, according to Caplan also non-liberals should support paid surrogacy: creating a human life is almost always good and voluntary exchange is usually beneficial for all participants, also in surrogacy[547].

CLONING

Cloning in biology is the process of producing similar populations of genetically identical individuals that occurs in nature when organisms such as bacteria, insects or plants reproduce asexually. Cloning in biotechnology refers to processes used to create copies of DNA fragments (molecular cloning), cells (cell cloning), or organisms. The term also refers to the production of multiple copies of a product such as digital media or software[548].

The term clone is derived from the Greek word for “trunk, branch”, referring to the process whereby a new plant can be created from a twig. In horticulture, the spelling clon was used until the twentieth century; the final e came into use to indicate the vowel is a “long o” instead of a “short o”. Since the term entered the popular lexicon in a more general context, the spelling clone has been used exclusively[549].

There are different types of Cloning When the media report on cloning in the news, they are usually talking about only one type called reproductive cloning. There are different types of cloning however, and cloning technologies can be used for other purposes besides producing the genetic twin of another organism. A basic understanding of the different types of cloning is key to taking an informed stance on current public policy issues and making the best possible personal decisions. The following three types of cloning technologies will be discussed: (1) recombinant DNA technology or DNA cloning, (2) reproductive cloning, and (3) therapeutic cloning[550].

  1. Recombinant DNA Technology or DNA Cloning — The terms “recombinant DNA technology,” “DNA cloning,” “molecular cloning,” and “gene cloning” all refer to the same process: the transfer of a DNA fragment of interest from one organism to a self-replicating genetic element such as a bacterial plasmid. The DNA of interest can then be propagated in a foreign host cell. This technology has been around since the 1970s, and it has become a common practice in molecular biology labs today. Scientists studying a particular gene often use bacterial plasmids to generate multiple copies of the same gene. Plasmids are self-replicating extra-chromosomal circular DNA molecules, distinct from the normal bacterial genome. Plasmids and other types of cloning vectors were used by Human Genome Project researchers to copy genes and other pieces of chromosomes to generate enough identical material for further study.
  2. Reproductive Cloning — Reproductive cloning is a technology used to generate an animal that has the same nuclear DNA as another currently or previously existing animal. Dolly was created by reproductive cloning technology. In a process called “somatic cell nuclear transfer” (SCNT), scientists transfer genetic material from the nucleus of a donor adult cell to an egg whose nucleus, and thus its genetic material, has been removed. The reconstructed egg containing the DNA from a donor cell must be treated with chemicals or electric current in order to stimulate cell division. Once the cloned embryo reaches a suitable stage, it is transferred to the uterus of a female host where it continues to develop until birth.
  3. Therapeutic Cloning — Therapeutic cloning, also called “embryo cloning,” is the production of human embryos for use in research. The goal of this process is not to create cloned human beings, but rather to harvest stem cells that can be used to study human development and to treat disease. Stem cells are important to biomedical researchers because they can be used to generate virtually any type of specialized cell in the human body. Stem cells are extracted from the egg after it has divided for 5 days. The egg at this stage of development is called a blastocyst. The extraction process destroys the embryo, which raises a variety of ethical concerns. Many researchers hope that one day stem cells can be used to serve as replacement cells to treat heart disease, Alzheimer’s, cancer, and other diseases. See more on the potential use of cloning in organ transplants. In November 2001, scientists from Advanced Cell Technologies (ACT), a biotechnology company in Massachusetts, announced that they had cloned the first human embryos for the purpose of advancing therapeutic research. To do this, they collected eggs from women’s ovaries and then removed the genetic material from these eggs with a needle less than 2/10,000th of an inch wide. A skin cell was inserted inside the enucleated egg to serve as a new nucleus. The egg began to divide after it was stimulated with a chemical called ionomycin. The results were limited in success. Although this process was carried out with eight eggs, only three began dividing, and only one was able to divide into six cells before stopping.

There are certain disadvantages of Cloning as Cloning is defined as using the cells of one living subject, plant or animal, to create another duplicate subject. A cloned subject will be identical to its parent. Cloning has become the center of a huge debate over the advantages and disadvantages of producing clones, especially of animals and humans. While this technology could be useful for laboratory studies and for creating desirable livestock, there are several disadvantages of cloning that should be considered[551].

One of the biggest disadvantages of cloning is that the technology is still so uncertain. Dolly the sheep, the first mammalian clone, was born in 1996. While she was initially successful, she died young of a disease not normally seen in sheep of her age. Scientists are still unsure of any genetic mutations that might occur when an animal is cloned. Also, while Dolly was a successful clone, there were hundreds of failed clones before she was made, including several dead fetuses. Other cloned animals have turned out horribly deformed.

Losing gene diversity is another of the disadvantages of cloning. Gene diversity is what keeps an entire species from being wiped out by a singular virus if none of them have natural immunities. This is due to the lack of gene diversity. Gene mutations happen naturally, and help to explain why some people naturally are taller, shorter, or more athletic than others. Some people and animals naturally have a stronger immune system. If gene diversity is lost due to excessive cloning, there are no mutations to allow some of the cloned group to survive a newly introduced disease.

Another of the disadvantages of cloning is that there are a lot of ethical considerations that would cause most people to protest. One of these ethical concerns is that cloning is unnatural, and considered “playing God.” Another concern is the treatment of clones. Clones would have the same needs as non-clones of their species. Humane treatment guidelines would still apply.

There is always a risk of cloning technology being abused. One of the main disadvantages of cloning is that the technology would have to be kept closely monitored. For example, imagine what a corrupt dictator could do with cloning. There will always be someone looking to use cloning for their own personal use, and many feel that the best way to prevent this is to not pursue cloning at all. There are many advantages to cloning, such as the chance of curing certain diseases and being able to breed ideal stock for research and consumption. However, the disadvantages of cloning are seen by many to far outweigh any benefits that might be seen. Because of the risk taking involved in cloning, it is a technology that many experts say may be better left alone, at least until it is better understood[552].

 

CHAPTER 8

CONCLUSION AND SUGGESTIONS

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. The principle of universality of human rights is the cornerstone of international human rights law. Impact of Technology on Human Rights is one of great importance to the law and human rights, especially because we are moving into a technology-dominated age. We are at the closing phase of the twentieth century and, as we move into the twenty-first century, we will see technology playing an increasingly important role in every facet of the international and national lives of the people of that century.

The value of human life is in many ways the most fundamental of all questions facing humanity and we can all contribute to that ongoing debate, drawing from both religious and secular belief as we see fit. The religious input into the Parliamentary debates considered above focused on prioritization of the sanctity of human life principle with very little mention of any other ethical principles, even those that may also have some basis in religious ethics, such as relief of suffering or freedom to reproduce.

While the relevance of personal conscience (including religious beliefs) to issues such as those concerning birth and death is accepted, it is also unfitting in a pluralist society (particularly one with an increasing number of members who reject all religion) for legislators to feel doctrinally bound to follow unthinkingly the orders of a particular religion. Religious belief will, of course, always be based upon faith rather than reason, but legislators should strive to draw upon both reason and faith when making decisions that impinge on other people’s choices about how to die; and how, and whether to reproduce.[553]

The curtailment of liberty can be imperative but only when it shall be reasonable and shall be warranted on the basis of a cogent material. Human right has to be respected. Respect for such right can be ensured only when safeguards provided for respecting such right as envisaged by the preventive laws itself in tune with the constitutional mandate are strictly complied with by the concerned authorities.[554]

Success in promoting human rights requires hard-to-achieve success in other areas including building more capable, responsive, efficient, and non-corrupt governments, dealing with failed states, increasing economic productivity (to pay for the protections and services that human rights require), improving the power and status of women, improving education, and managing international tensions and conflicts. Realizing human rights worldwide is a project for centuries, not decades. This is not to say, however, that progress cannot proceed at a faster pace than it currently does.

Still, there are some grounds for optimism. Human rights are more widely accepted than they have ever been. They have become part of the currency of international relations, and most countries participate in the human rights system. Treaty arrangements help encourage and pressure countries to deal with their human rights problems. The human rights project continues and has not failed.[555]

Besides, there are serious questions about whether the legal framework is adequate to deal with the challenges of the new technology. Far from setting the legal parameters for the balancing of privacy and the many demands for personal information–the law has been scrambling to catch up with the pace of technology. Courts and tribunals do not have a clear understanding of the issues, much less the many contexts, in which they will emerge. The need to strike a proper balance between information technology and privacy is clearly on the human rights agenda for the 21st century.[556]

This project has been divided into various chapters and each can be concluded as follows:

Science, Society and Human Rights: A Prospective View

Each person has the right to “life, liberty and security”. These rights are inalienable and are expressed in many national constitutions and international charters. The right to life of all people is undisputed and indisputable. It is a ‘core’ right without which all other rights are meaningless.

If society accepts that unborn babies are human beings then it follows that they are entitled to the protection afforded by this right. The fact that the human foetus is weak, vulnerable and inconspicuous, is no reason to ignore or override her right to life. A failure to try to protect a person in these circumstances would demonstrate that rights for individuals are only acknowledged for those who exercise power or who are visible.

The right to life is for all not just for those who have some acknowledged tangible utility to society. Each of us may find ourselves excluded from the protection afforded by the right to life at some time if this right is regarded as optional or relative to the circumstances as they change from time to time.

Human rights organizations are quickly catching up with organizations in the humanitarian and environmental fields in utilizing geospatial technologies like satellite imagery, Global Positioning Systems (GPS), and Geographic Information Systems (GIS). These technologies are especially helpful for overcoming obstacles such as getting access to and information from crisis areas. In combination with Internet-based platforms, they mainly build on the power of visualization to document human rights abuses, prevent conflict, and – most importantly – provoke activism.

Over the last few years, Amnesty International (AI) has cooperated repeatedly with the Science and Human Rights Program of the American Association for the Advancement of Science (AAAS) to document human rights violations. This cooperation is part of a broader trend toward the innovative use of geospatial technologies for human rights monitoring and advocacy work. And although national security concerns of some governments limit the full utilization of technological progress, for example in the area of remote sensing, a continued increase in the use of geospatial technologies in the fight for human rights is expected.[557]

Any student of international human rights law cannot, but be impressed by the continuing endeavours by the jurists and thinkers to widen the conceptual boundaries of human rights. Equally impressive are the struggles to preserve, protect and promote human rights. It is, however, disheartening to find that flagrant violations of human rights also continue to take place almost everywhere in the world. No amount of rhetoric can ensure that State will observe an international human rights obligation.

The purpose of the law of human rights is to ensure that the human rights of individuals are protected. The realization or positivization of human rights is a very important step in achieving this purpose. This involves not merely identification and specification of human rights, but also their concretization through legal provisions in the form of treaties at the international level and constitutionally entrenched Bill of Rights and/or ordinary law at the State level. International human rights law is concerned with the enforcement mechanism that exists at the international level under the UN and the regional arrangements. However, individual remedies against violation of human rights can be provided only at the State level. A comprehensive and compulsory machinery for the protection of human rights in concrete cases is necessary in order to ensure that the legal provisions do not remain dead letter.

When human rights violations assume massive dimensions, the General Assembly and other organs of the UN can initiate discussion and action. The Security Council may even impose mandatory sanctions as it did in the case of South Africa in 1977 for resorting to massive violence and killing of people including children opposing racial discrimination.  The International Convention on Civil and Political Rights, being a legally binding treaty, creates obligation on state parties, a violation of which gives rise to international responsibility. The procedure for enforcement of the obligations is mainly through a human rights committee established under Part IV of the Covenant.  The possibility of individual complaints in respect of violation of human rights is provided in the Optional Protocol to the Covenant.[558]

The role scientists play in human rights can be powerful. For example, through actions like letter-writing campaigns, scientists can aid colleagues who have been imprisoned, tortured, exiled, silenced, or barred from travel because of their research. Scientists can also point out research-based solutions to problems such as water shortages.

Though science and technology are integral parts of every society, as components of knowledge and production system, they are often considered new features introduced after the fifteenth century, first in Europe. Of course, new techniques then introduced constitute a revolution in the pursuit of this knowledge and have led an to increased growth rate. The economic benefits that accrued from this pursuit further accelerated and have resulted in the so-called exponential growth. This again is a feature in human history that different social aspects have different growth rates in a given era, resulting in imbalances and incompatibilities which in turn grow into conflicts. The resolution of such conflicts is a part of social change. The societies which succeeded in such resolution made progress while those failed to do so retarded. It has been for such reasons that excellence in science, and socio-economic prosperity shifted from one country to another.[559]

Technology development effort, generally, in developing countries is confined to the imitative needs of the upper sections. This effort tends to enhance the productivity of only a small fraction of the total labour force and the investments are also confined to limited areas. The effectiveness of such a policy cannot obviously put these societies on the path of rapid general progress. Increase of productivity of 90 per cent of the working population by 5 per cent is far superior to that of 5 or 10 per cent working population even by 20 per cent. This anamolous practice comes as a consequence of the nature of commodities and pressures brought by commercial system. What are generally considered modern in science and technology and frontiers of knowledge are those identified in the advanced countries arising out of the specific stages of development, in the free market systems.

An important element in the explanation of the rise of Western technology relates to the subordination of nature in the Jewish and Christian religions. This point was formulated in an original way by Archbishop Temple when he said: “Christianity is the most materialistic of all higher religions, for while they attain to spirituality by turning away from matter, it expresses its spirituality by dominating matter.” The thesis concerning the subordination of nature as a necessary precondition to the modern dynamic pursuit of technical progress seems to be generally accepted by theology, according to van der Pot. It relates to the view that in the Judeao-Christian religions God is conceived as being on the side of humans in the struggle between human beings and nature. This view is, in its turn, tied to the idea that God created the world – so the world itself is not God and is not to be considered to be sacred. It is tied also to the idea that God created man in his own image and elevated him above all other creatures on earth, giving him the right, so to speak, to intervene in the course of events on earth. In contradistinction to most other religious systems, the Judeao-Christian beliefs do not contain inhibitions on the control of nature by man. According to Max Weber, Christianity inherited its hostility against magical thinking from Judaism. This opened the road to important economic achievements, for magical ideas place a heavy constraint on the rationalization of economic life. With the coming of ascetic Protestantism this demystification of the world attained its completion.[560]

Global Perspective on Human Rights & Scientific Development

Development is a kind of change, a change from small to big, from simple to complex and from a lower order to a higher order. The approach of scientific & technological development conforms to the changes in the objective law governing nature and economic and social development. Human rights are a kind of right, the dignity and basic rights of man. Right is the right exercised by citizens or corporate persons and the interests they enjoy.

Today most of the countries in the world are undergoing scientific & technological development without actually considering the fact that the acceleration of scientific & technological development may have negative effects on the lives of billions of people. No doubt these developments are considered to be the integral part of overall development and have to a great extent focused on the key issues of development but at the same time they have adverse effects on the basic human rights such as right to healthy environment, etc

While taking into view the positive impacts of the approach for scientific & technological development, it can be observed that it has a direct bearing on human rights and therefore is of special significance. It has not only enriched the spiritual contents of human rights but also exhibits alarming identity and profoundness. Fundamentally, scientific development is the key to all problems and so is it to human rights development, which should be rooted in economic and social development and progress. The approach is people centered, stressing that development is in the interests of man. This has revealed the essence of human rights. It shares the same development goal as human rights development. But specifically, the scientific development and human rights when viewed from different angles are not totally the same.

But development has its own laws. It is not that development is good on all counts. Scientific & technological developments have been undertaken at the expense of natural resources. The pursuit for speed, extensive growth and high economic growth has been characterized by high input, high consumption, low efficiency and heavy pollution which knocked the economic and social development and natural environment out of balance, the over-consumption of resources and energy and the sabotage of the natural environment made it difficult for future development and control. Secondly, the imbalance of economic and social development, regional and urban/rural disparities, the imbalance in interest distribution and the imperfection of social security have caused new contradictions between man and society and among people, thus affecting social stability and harmony.

The State is the leader of development, who formulate development strategy and policies, make unified planning and coordinate development. The subjects of human rights are people, social persons and natural persons, the people of the whole country and all individuals. They enjoy the fruits of development and create development and therefore they should be respected and protected by the State.

So far as the Western model of science and technology is seen as equal to human progress and as necessarily positive in its impact on living conditions and human rights, there will be little public concern over these issues. Because of scientific and technological development there is more freedom, less work, and an ever-rising standard of living. In these conditions there is little or no demand for public, democratic participation in relation to scientific and technological decisions.

Scientific and technological development and their link to human rights have become political issues in recent decades. On one hand the possible negative or perverse consequences of scientific and technological development with no control or limits is becoming increasingly clear. The destructive potential of nuclear arms (which threaten that most basic human right, the right to life for present and future generations), and the massive destruction of the natural environment because of industrial society’s aggressive exploitation of nature, act together to unsettle our blind faith in science and technology. Simultaneously, in different parts of the world, as a consequence of different processes, and at diverse rhythms, there is an ever-increasing demand for citizen participation in those issues that can have an impact in their individual or collective lives.

This new political significance of scientific and technological decisions has a double dimension. On the one hand is the acknowledgement of the possible positive or negative affects of science and technology on the rights of citizens (the right to life, the right to welfare, the right to privacy, the right to a non-contaminated natural environment, etc.). On the other hand, it refers to a new political demand, seen as a human right: the right to have access to information in relation to important technological matters and the right to participate in the decision-making process in relation to scientific and technological issues that might have a significant impact on people’s lives in the short or long term.

Moreover in many African countries, the impact of modern technology on the traditional straddles has to be borne in mind. It has to be seen whether or not these developments effect the social, economic, and political life of the citizens and the traditions that they have been observing since long.

The right to personal security is one of the rights especially emphasized by theoreticians in the East European countries. The right to personal security can be divided into several categories, namely the right to protection of human life, the right to protection against violence, the right to protection against inhuman treatment, the right to protection of human dignity and others. They are important in the light of rapid technological progress. One of the main issues here is what act marks the beginning of the legally protected human life, birth or conception. Equally important also are deviations from the principle of the right to life. In the case of the right to protection against violence, its scope involves not only direct physical violence but also psychological violence, which, although it does not cause direct physical damage, psychologically damages the individual and in extreme cases causes the destruction of human personality. It is also in this context that technological progress is of relevance. The implementation of the right to protection against inhuman treatment includes preventing administrative callousness and obliging social institutions to treat a human individual as a living being, possessed of specific needs and feelings, and not as a statistical number. This right acquires considerable importance in the context of the development of computer systems and other automated systems of public service. Finally, the observance of the right to protection of human dignity should mean a prohibition of all actions which could degrade a human individual. This can assume the form of discriminatory practices which may deprive an individual of his sense of self-esteem and his equality in relation to other people. A human being cannot become a physically and morally incapacitated object. This is also of particular significance in the conditions of development of modern technology, which is utilized by a narrow group of people who are owners or users of that technology. This refers primarily to contemporary data-processing systems, systems of economic management, and so on.

One of the greatest dangers in development policy lies in the tendency to give to the more material aspects of growth an overriding and disproportionate emphasis. The end may be forgotten in preoccupation with the means. Human rights may be submerged and human beings seen only as instruments of production rather than as free entities for whose welfare and cultural advance the increased production is intended.

When human rights related to scientific and technological development are thought of in terms of the right to “self-determined development,” the right to carry out traditional economic activities, the “right to uphold cultural traditions” (especially by indigenous, peasant, and fishing communities), “the rights of protection against possible harmful effects of scientific and technological developments,” “the right of access to scientific and technological information that is essential to development and welfare (both at the individual and collective levels),” and the “right of choice or the freedom to access and choose the preferred paths of scientific and technological development,”  there is a common and basic premise implied: there is a choice, and people have a right to decide among different possible alternatives. This would seem to imply a radically new perspective in relation to scientific and technological development. Science and technology are not seen as having one linear, predetermined universal path. Since different alternatives are possible, and the options between these alternatives have a cardinal bearing on the shaping of the future, these decisions cannot be left in the hands of experts and technocrats. Likewise, if there is no universally valid paradigm of a “good life,” people must have the right to choose and not have the set of values related to material production, to the manipulation and control of nature and society, imposed upon them as the supreme, unquestioned universal values of mankind, as values which can justify the denial of all other values or cultural alternatives. There cannot be such a thing as democratic society and people cannot be thought of as sovereign – if the future is predetermined and there is simply no option. Specifically, people are sovereign to the extent that they can alter the existing institutions, including the state and property, and if they can allocate available resources to all feasible uses.

Impact of Scientific Development on Human Rights and Society

With every step forward in science and technology, the power of these forces to affect human society for better or for worse has increased. The impact of technology has ranged from the peaceful penetration of useful technologies to the “violent entry” of destruction technologies.

Traditional technologies are characterized by their double impact on human rights. On the one hand, they can facilitate the fulfillment of certain rights, and on the other hand they can hamper the fulfillment of other rights.

They lead to the raising of the standard of living through more efficient production, improved labour conditions, and the creation of new and better-quality products.

Both mechanization and automation also influence human rights other than the right to work. From the point of view of the individual worker, a common complaint is nervous tension brought about by the faster pace of work and lack of control over it, exposure to noise, the need for constant concentration and alertness on the job, and increased responsibility. These developments bring about a number of new diseases as an outcome of industrialization, especially mechanization. They pose a serious threat, particularly for women and their children. A major problem is environmental damage. Mechanization and automation play a leading part in this field. The deterioration of the human environment due to scientific and technological development has been a by-product. A threat to health and even life is posed by the pollution of the air due to industrial activity, traffic, domestic heating, and other factors, as well as by excessive waste creation and inefficient waste disposal. Industrialization, including mechanization and automation, creates a threat to the world food supply by erosion and other forms of soil deterioration, water pollution by domestic sewage, industrial wastes, drained-off chemical fertilizers and pesticides, and thermal pollution. Industrialization, including mechanization and automation, creates a threat to the world food supply by erosion and other forms of soil deterioration, water pollution by domestic sewage, industrial wastes, drained-off chemical fertilizers and pesticides, and thermal pollution.

With the biomedical development, new opportunities and life perspectives have been created for those with previously intractable complications or health problems. Not only have the boundaries of life and handicaps been removed but, at the same time, new forms of procreation have been developed which have an enormous impact on our definitions of parenthood, family, descent, heredity, titles, and other concepts. Every medical treatment, examination, or experimentation constitutes an interference with the autonomy of the individual.

The recent technological developments sex determination which was although developed to see the infirmities in unborn child, in medical practice combined with a vigorous pursuit of growth of the private health sector have led to the mushrooming of a variety of sex-selective services. This has happened not only in urban areas but deep within rural countryside also. Female infanticide in most places has been replaced by female foeticide. Female foeticide or sex selective abortion is the elimination of the female foetus in the womb itself. The sex of the foetus is determined by methods like amniocentesis, chrion villus Biopsy and now by the most popular technique ultra sonograghy. Once the sex of the foetus is determined, if it is a female foetus, it is aborted. The increase in female foeticide has seen the proportionate decrease in female sex ratio which has hit an all time low especially in the 0-6 age group and if this decline is not checked the very delicate equilibrium of nature can be permanently destroyed. The enactment of the Central pre-natal diagnostic techniques (Regulation and prevention of misuse) Act 1994 was passed to check female foeticide

Euthanasia or mercy killing is committed on the basis of medical reasons, where the death of a terminally ill person is brought about by another person, who believes that such person’s existence is so bad that he/she would be better of dead; also when his actions are based on the conviction that unless he intervenes and ends the ill person’s life, it shall become so bad that he/she would be better of dead. Considering this observation, it may be stated that the motive of the person committing such acts of euthanasia is to benefit the one whose death is brought about. Research has shown that ninety percent of the pain can be alleviated by proper pain control methods. Appropriate care can make a huge difference. This goes to show that medicine and technological breakthroughs have a fitting reply to almost every problem and the extent of medical commitment is irrefutable.. the Supreme Court in Gian Kaur v. State of Punjab[561], said that it is well settled that the right to life guaranteed by Article 21 of the Constitution does not include the right to die. The Court held that Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of the imagination can extinction of life be read into it. To give meaning and content to the word ‘life’ in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself.

A surrogacy arrangement means an arrangement where a woman (the birth mother) agrees to carry a child for another person or a couple (the arranged parent(s)) with the intention that the child will be raised by those arranged parents. Surrogacy contracts which involve payment amount to baby selling and there is a need for a formal legal mechanism to protect such women from being exploited on economic necessity grounds. This also applies to surrogacy contracts which do not amount to baby selling but involve social factors compelling women to act as surrogate mothers. However altruistic arrangements deductive of social and economic compulsions can be justified on basis of social good and thus such arrangements need to be given certain amount of formality in order to regulate the relations between the parties and to ensure that surrogate women are not exploited which is the major concern of feminist ideology. Thus such a solution would not only respect the autonomy of women to procreate in a rights based society but also provide a degree of protection to them to the extent that compelling factors don’t force them to enter into arrangements not desired by them. A further concern regarding the custody of child when conflict arises can be addressed by courts through adoption of best interest approach and not the custody model based on case to case analysis. Such issues would be undertaken only when the conflict arises under non commercial surrogacy agreements which due to permeability into the formal sector can be regulated to the extent that the flexibility of informal arrangements is not negated completely. Such an approach of regulation is better than out rightly banning surrogacy arrangements which do not commodify the womb or the child.

The asexual production of a new human organism, i.e., at all stages of development, genetically, virtually identical to a currently existing or previously existing human being. The Indian Council of Medical Research and the Department of Biotechnology states, “since its [cloning’s] safety, success, utility and ethical acceptability is not yet established, research on cloning with the intent to produce an identical human being…is prohibited.”

Respect for the privacy of individual is now of the essential traits of a democratic right-based society. In as much as society events, interaction with fellow-beings and the right to take decisions by itself and with fear of reward or favor from the government as essential traits or rather concomitant traits of the right to privacy, it is also required to be ensured that the citizen lives without having had to consider that his/her actions are being observed and recorded. The report found a number of technologies were causing new concerns about the protection of privacy. Many of these technologies were being adopted and implemented outside legal protections. As traffic on the “information superhighway” continues to explode a number of substantive questions about the use and abuse of these information networks arises. One issue of primary concern is whether the current law provides adequate protection for the individual’s right to privacy in the workplace from threats posed by computer technology, electronic eavesdropping, video and sound recording equipment, and databases filled with personal information. What are the ramifications for an employees’ right to privacy in the workplace? Does an employer have the right to search an employee’s computer files or review the employee’s electronic mail?

The nuclear tests and threat of weaponization have exposed the serious weaknesses of Indian science. They have shown that Indian science is responding more to the militaristic and consumption ambitions of the elite than to the rights and problems of the poverty-stricken Indian masses. Rather than be a force that balances the demands of the state and civil society, the tests have revealed that Indian science has become a servant of the state whilst pressuring the state to advance the vested interests of Indian science and its scientists. The tests have revealed that the science-state nexus is strong. Indian science has betrayed the humanistic heritage left behind by Mahatma Gandhi and Lord Buddha. Sheltering behind the argument that science is amoral and neutral, Indian science may become an instrument of violence, oppression and evil. It has not encoded itself with life-affirming values. Immediately after the nuclear tests, the majority of Indian scientists echoed the official line in a regimented fashion. They did not show the independence of perspective and diversity of views characteristic of a community of interacting scientists with the well-established traditions of science. The submission here is that there is a way out of the moral dilemma.

 The relationship between the scientist (the subject) and the object of scientific study must be such that Initial separation (and distance) ends in subsequent unification (and embrace). Further, the suppression of emotion during analysis must give way to emotion after analysis. The functioning of scientists as individuals, groups and institutions must be constrained and limited by moral strictures and taboos. Otherwise, the synergism between the isolation of the subject from the object and the removal or absence of emotions and feelings leads inevitably to science becoming the instrument of violence, oppression and evil. Science, therefore, must not be neutral and amoral. It can be and must be encoded with life-affirming values, in particular, the rights of under-privileged human beings.

International Declarations and Resolutions

While the Charter gave birth to the Declaration, the Declaration in turn gave birth to these two covenants and a host of other international and regional instruments creating the means by which to ensure the legal implementation of human rights standards. The fact that the Declaration is not intertwined with any piece of this machinery of implementation gave it, from the start, an independent moral status in world affairs and law. More than fifty years after its adoption it now is the moral backbone and the source of inspiration of a whole new branch of international law. From a time when there were virtually no international instruments concerned with the realization of human rights, the post World War II era has seen the evolution of around two hundred assorted declarations, conventions, protocols, treaties, charters, and agreements, all dealing with the realization of human rights in the world. Of these postwar instruments no fewer of sixty-five mention in their prefaces or preambles the Universal Declaration of Human Rights as a source of authority and inspiration[562].

Moreover, the Universal Declaration has itself acquired over time legal character by absorption into that process by which the acts (“practice”) and opinions (“opinio juris”) of states are transmuted into binding customary international law. This was one of the legal bases upon which apartheid was condemned by states during the 1970’s. The suggestion then was that the Charter, the Universal Declaration, repeated resolutions of international bodies, and the nearly unanimous opinion and practice of states together had combined to make customary law prohibiting egregious violations, such as apartheid. Even nations fearful of law-making by uncertain procedures undercutting the requirement of unanimity were hard-pressed to resist such arguments when applied to racism. And African states eager to make such law against racism were compelled to consider that it might apply also to other egregious violations which no one dared justify–slavery, genocide, even torture, and perhaps other forms of repression[563].

A famous example that demonstrates how the status of the Universal Declaration as customary international law has influenced the protection of human rights in contemporary times is the Filártiga litigation.

Henkin notes that the human rights norms that grew out of the Universal Declaration into the two international covenants, especially which on civil and political rights, compare with those in enlightened libertarian national constitutions. The weakness is the law is in its enforcement, a weakness far greater here than in other international law. Since a violation by a state of the rights of its own inhabitants does not ordinarily infringe the national interests of other parties to the agreement, they have no compelling interest to scrutinize the violating behavior and call it to account. In other words, the law is not reciprocal between states and violations do not ordinarily affect friendly relations with other states or international credit or prestige[564].

The international law of human rights, then, cries for special machinery to enforce it, but governments have generally not been eager to create such machinery. Divisions emerged, requiring complex compromises when the law-makers struggled with the methods of implementing and enforcing the Covenant on Civil and Political Rights. Most governments resisted “activist” international bodies that could scrutinize, investigate, call violators to account. It was provided that parties would report voluntarily on their compliance to a Human Rights Committee created by the Covenant, but it was not clearly provided even that this Committee should scrutinize these reports and interrogate governments about them[565].

The Committee can hear complaints by one party that another has committed a violation only if the parties have agreed in advance to that effect. That the Committee might hear complaints from private individuals or organizations was relegated to a special optional Protocol to the Covenant. Even when the Committee was accorded this jurisdiction, it could only acts upon complaints discreetly, with public criticism possible only after extended private efforts failed to obtain rectification. Perhaps because enforcement was weak and not threatening, states adhered to these covenants, including some–like the USSR–whose human rights performance was found by outside observers to be less than satisfactory. But few accepted the optional provisions for either state-to-state or private complaint. While the number of states that today allows individual complaints under the Optional Protocol has increased, there has never been a state-to-state complaint under the terms of the ICCPR[566].

What then are the forces that influence governments toward compliance with the law of human rights?

Human rights have assumed a high place in the rhetoric of international relations and most governments, moved to adhere to international covenants, cannot lightly disregard them. While there is no other state that is directly “offended” by mistreatment of local inhabitants elsewhere, there are external knowledge and reaction to many human rights violations, and offending governments are sensitive to them. Some human rights, e.g., freedom from racial discrimination, have become major international political issues, and many governments will be quick to react and to seek international sanctions against violations. Other human rights, too, become major political issues and subject to sharp scrutiny and reaction. Apartheid in South Africa led to formal sanctions. Gross violations affect relations with some countries, and the subject of attack in the press and by NGOs. The obligation to report on compliance generates some inducement to comply, and international committees receive the reports and might be moved to scrutinize and act upon them. Even in the face of strong resistance, for example by the Communist-Arab bloc during the 1970’s, there have also developed special official international mechanisms for “enforcement” “against a consistent pattern of gross violations of human rights” (the so-called “1503 and 1235 procedures”) that help deter or persuade offending governments to discontinue them. In the European and Latin systems sophisticated institutions might bring embarrassing condemnation. In many countries domestic forces with a personal or ideological interest in individual rights serve to encourage compliance even by repressive regimes, e.g., vis-à-vis Jews desiring to emigrate or dissidents in the Soviet Union.

There are international conventions established with an aim to harmonise the rules and guidelines related to the relationship between scientific development and human rights, for example, In 2005, the 33rd session of the General Conference of UNESCO adopted the Universal Declaration on Bioethics and Human Rights (‘the Declaration’). Article 1.1 of the Declaration outlines principles that respond to ‘ethical issues related to medicine, life sciences and associated technologies as applied to human beings’. In doing so, it establishes international standards for bioethics that are grounded in a language of rights: at its core is a pledge to safeguard human dignity and human rights in the context of bioethics–thus, we may describe the Declaration as the manifestation of a human rights informed approach to bioethical policy and practice.[567]

International Society Response to Scientific Development

Human beings are born into the world, and ultimately die; but the time in between of an individual’s life–the time of their existence–is one of great potential and adaptability, and as such is perhaps humanity’s most precious and vulnerable quality. Human dignity can arguably awaken law’s sensitivity to time, a dimension of human rights that is often overlooked. Human time is understood here not only as the years or the days between one’s birth and one’s death, but as the whole process of becoming, with its constant journey between potentialities and the actual achievements and failures of human life. Law is, of course, not oblivious to time and a great deal of legal provisions are arguably about it, such as those dealing with past events (for example, restitution or punishment), or the anticipation of time and particular events, such as wills. Law is also about measuring and rationing human time, in relation for instance to sentencing or deciding on time limits for legal abortions.

A philosophical theory providing justification for rights or human rights should not be fetishized. It may need to be adapted to ensure that it can provide adequate support for specific rights that we pretheoretically take to be paradigms of rights, such as the right against torture, the right to life and the right to liberty. If any rights are human rights, these are. If a theory cannot provide support for or justify such paradigm examples, this counts against its plausibility.

On the other hand, if there are rights in international or domestic legal documents that cannot be justified by a reasonable philosophical theory of human rights, that may be a reason for concluding that those claims are not properly called human rights. We may have to go back and forth between our theory of human rights and our preferred list of rights, making adjustments to each in light of the other. In some instances, refinements to the theory will be needed to accommodate the status of particular rights; in others, we may decide that the list of rights should be trimmed in light of the paucity of theoretical support for certain rights. The foundations of the theory need to be clearly demonstrated, and the relationship of a theory of rights to the moral values which ground it (if any do so) should be explicit[568]

There are international conventions established with an aim to harmonise the rules and guidelines related to the relationship between scientific development and human rights, for example, In 2005, the 33rd session of the General Conference of UNESCO adopted the Universal Declaration on Bioethics and Human Rights (‘the Declaration’). Article 1.1 of the Declaration outlines principles that respond to ‘ethical issues related to medicine, life sciences and associated technologies as applied to human beings’. In doing so, it establishes international standards for bioethics that are grounded in a language of rights: at its core is a pledge to safeguard human dignity and human rights in the context of bioethics–thus, we may describe the Declaration as the manifestation of a human rights informed approach to bioethical policy and practice.[569]

Further, different types of risk from gene transfer and stem cell research and other such developments can be classified as: risks to persons and risks to social values. The three risks which should be considered by laws are risks of physical and psychological harm to participants; risks to the objectivity and integrity of science that are posed by conflicts of interest; and risks to other social values, for example, the sanctity of life and public trust in science. Although the risks are not exclusive to gene transfer and stem cell research, the combination of these risks in these forms of new biomedical research merit our attention. Gene transfer and stem cell research are used, for our purposes, as paradigm cases of new forms of research.

Risks to participants are often unrelated to conflicts of interest, and conflicts of interest will not necessarily create a situation in which participants are more likely to be exposed to risk of physical harm. But such conflicts seem to have contributed to tragic consequences for research participants, and they may also compromise professional conduct, regardless of participant harm. They also can affect the social value of public trust in the conduct of research. Strong correlations have been observed between trust and the public acceptance of estimated risks and benefits, especially those pertaining to new technologies about which the public lacks ‘scientific’ knowledge. Uninformed trust can make research participants vulnerable to biased risk assessments of gene transfer and stem cell research.[570]

Risk assessments proceed in the face of considerable uncertainty. It is suggested that there is much to be learned about the magnitude and probability of the physical harms that this research poses to humans.

Further, risk assessments are influenced by the value frameworks of the different parties to a risk debate. Assessments formulated by those who endorse the research may reflect a value framework that is weighted in favour of taking risks. Patients who seek novel therapy through science can share a strong enthusiasm for research with the industry sponsors and medical investigators who endorse it. But if risk estimation can influence perceptions of risk acceptability, then there is at least an apparent conflict of interest in allowing those who endorse the research to be the sole arbiters of its estimated risks. We want the law to ensure that the value frameworks of cautious participants who might assume the risks are given equal weight in the process of research review. In short, it is envisaged that a review process that responds to those who might be risk cautious in the face of significant potential benefits.

Concerns about the role of religion in law-making are not confined to medico-legal issues, and religious beliefs are likely to be influential also in issues of armed conflict, taxation, and public spending, but the Parliamentary debates on assisted dying and reproduction effectively illuminate the issues raised by religious influence upon the legislative task. In relation to both beginning and end of life issues, the concept of the sanctity of life has an important contribution to make. It is vital, however, to recognise this as more than just a religious theory. While there is no doubt that the sanctity of life is fundamental in any religious tradition (on which our legal system is built), it can also stem from secular reasoning. A stark dichotomy between a religious belief in the value of human life and a secular acceptance of scientific advances which expand the possibilities for autonomous choice is not only unhelpful, but misleading. The value of human life is in many ways the most fundamental of all questions facing humanity and we can all contribute to that ongoing debate, drawing from both religious and secular belief as we see fit. The religious input into the Parliamentary debates considered above focused on prioritisation of the sanctity of human life principle with very little mention of any other ethical principles, even those that may also have some basis in religious ethics, such as relief of suffering or freedom to reproduce.

While the relevance of personal conscience (including religious beliefs) to issues such as those concerning birth and death is accepted, it is also unfitting in a pluralist society (particularly one with an increasing number of members who reject all religion) for legislators to feel doctrinally bound to follow unthinkingly the orders of a particular religion. Religious belief will, of course, always be based upon faith rather than reason, but legislators should strive to draw upon both reason and faith when making decisions that impinge on other people’s choices about how to die; and how, and whether to reproduce.[571]

The curtailment of liberty can be imperative but only when it shall be reasonable and shall be warranted on the basis of a cogent material. Human right has to be respected. Respect for such right can be ensured only when safeguards provided for respecting such right as envisaged by the preventive laws itself in tune with the constitutional mandate are strictly complied with by the concerned authorities.[572]

Human Rights, Law and Specific Issues

In nutshell, we can say that development is a natural process. It gradually took place in human society from beginning. Human Rights are those minimum rights which every person should necessary get because he is member of human society meaning of this is that those Rights which human gets because he is a human being, to get these rights there is no need of any quality or specialty that means no person can ignore being a person. In the same way human rights cannot be ignored nor it can be made ignored. Basically human rights are an achievement of all that circumstances in which person can develop his internal qualities which nature has blessed him.  Human being gets human rights in natural law which in unwritten But According to morality related to moral rights gives religion right but written rights were first taken in Magna Carta (France) 1215. The Preamble to the Universal Declaration of Human Rights, 1948 has defined Human rights as “…..recognition of the inherent dignity and of the equal and inalienable rights all members of the human family is the foundation of freedom”. The word Human Right was first used by American president Roosevelt on 16 Jan 1941.  At present in relation to this the shinning question is raised that at last what is human right? Why it is important? Why it is disobeyed. By whom it is made?

In India, In Article 21 of Indian constitution, Human life’s conservative rules are given also in Supreme Court in it decision through West Bengal Field Labour Committee V/s West Bengal state in Article 21 has given order to state to grant help to human life, health security and treatment to the patient, In which human security has been given importance  Under Article (21) word life in Menaka Gandhi VS/ Bharat Sangh[573] is determined that the “Right of life” is not limited to materialistic life but has right to life maintaining all human dignity. Following this in Francis Karoli VS Bharat Sangh AIR 1981 Sc 746 life has been defined in form of human life only not as animal life.  At present transformation of science is at its peak stage where the development has made human being full of facilities and comforts and at the same time competition in business and because of the same the inter – rivalry development has become danger to human existence. Through all experiment and discoveries progress of scientific development has made its place in deep sea, which has made human body a single vein and because of which the human being are deprived of the rights of healthy life.

       At present human right is a latest and burning subject. But in relation to social and scientific development human right related to conservative law is a new subject on which according to my knowledge no investigation is made. At present increasing progress of science and day to day needs in human life events has interfered more because of scientific change. Many types of events are happening because of the use of scientific development in which legal difficulties are happening. So investigation is needed on this subject. This investigation will raise such shinning points which will effect the whole human society. Much work has been done on human rights, social and scientific development. But no investigation is made on conservated human right connected with law and social and scientific development.

Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible. Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups[574].

 

In short, we can say that that all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. The principle of universality of human rights is the cornerstone of international human rights law. This principle, as first emphasized in the Universal Declaration on Human Rights in 1948, has been reiterated in numerous international human rights conventions, declarations, and resolutions. The 1993 Vienna World Conference on Human Rights, for example, noted that it is the duty of States to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems. All States have ratified at least one, and 80% of States have ratified four or more, of the core human rights treaties, reflecting consent of States which creates legal obligations for them and giving concrete expression to universality. Some fundamental human rights norms enjoy universal protection by customary international law across all boundaries and civilizations. Human rights are inalienable. They should not be taken away, except in specific situations and according to due process. For example, the right to liberty may be restricted if a person is found guilty of a crime by a court of law. All human rights are indivisible, whether they are civil and political rights, such as the right to life, equality before the law and freedom of expression; economic, social and cultural rights, such as the rights to work, social security and education, or collective rights, such as the rights to development and self-determination, are indivisible, interrelated and interdependent. The improvement of one right facilitates advancement of the others. Likewise, the deprivation of one right adversely affects the others. Non-discrimination is a cross-cutting principle in international human rights law. The principle is present in all the major human rights treaties and provides the central theme of some of international human rights conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women.

The principle applies to everyone in relation to all human rights and freedoms and it prohibits discrimination on the basis of a list of non-exhaustive categories such as sex, race, colour and so on. The principle of non-discrimination is complemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.”Human rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights. At the individual level, while we are entitled our human rights, we should also respect the human rights of others.

 

 

 

 

SUGGESTIONS

Today science and its applications are indispensable for development. All levels of government and the private sector should provide enhanced support for building up an adequate and evenly distributed scientific and technological capacity through appropriate education and research programmes as an indispensable foundation for economic, social, cultural and environmentally sound development. This is particularly urgent for developing countries. Technological development requires a solid scientific basis and needs to be resolutely directed towards safe and clean production processes, greater efficiency in resource use and more environmentally friendly products. Science and technology should also be resolutely directed towards prospects for better employment, improving competitiveness and social justice. Investment in science and technology aimed both at these objectives and at a better understanding and safeguarding of the planet’s natural resource base, biodiversity and life-support systems must be increased. The objective should be a move towards sustainable development strategies through the integration of economic, social, cultural and environmental dimensions.

Science education, in the broad sense, without discrimination and encompassing all levels and modalities, is a fundamental prerequisite for democracy and for ensuring sustainable development. In recent years, worldwide measures have been undertaken to promote basic education for all. It is essential that the fundamental role played by women in the application of scientific development to food production and health care be fully recognized, and efforts made to strengthen their understanding of scientific advances in these areas. It is on this platform that science education, communication and popularization need to be built. Special attention still needs to be given to marginalized groups. It is more than ever necessary to develop and expand science literacy in all cultures and all sectors of society as well as reasoning ability and skills and an appreciation of ethical values, so as to improve public participation in decision-making related to the application of new knowledge. Progress in science makes the role of universities particularly important in the promotion and modernization of science teaching and its coordination at all levels of education. In all countries, and in particular the developing countries, there is a need to strengthen scientific research in higher education, including postgraduate programmes, taking into account national priorities.

The building of scientific capacity should be supported by regional and international cooperation, to ensure both equitable development and the spread and utilization of human creativity without discrimination of any kind against countries, groups or individuals. Cooperation between developed and developing countries should be carried out in conformity with the principles of full and open access to information, equity and mutual benefit. In all efforts of cooperation, diversity of traditions and cultures should be given due consideration. The developed world has a responsibility to enhance partnership activities in science with developing countries and countries in transition. Helping to create a critical mass of national research in the sciences through regional and international cooperation is especially important for small States and least developed countries. Scientific structures, such as universities, are essential for personnel to be trained in their own country with a view to a subsequent career in that country. Through these and other efforts conditions conducive to reducing or reversing the brain drain should be created. However, no measures adopted should restrict the free circulation of scientists.

Progress in science requires various types of cooperation at and between the intergovernmental, governmental and non-governmental levels, such as: multilateral projects; research networks, including South-South networking; partnerships involving scientific communities of developed and developing countries to meet the needs of all countries and facilitate their progress; fellowships and grants and promotion of joint research; programmes to facilitate the exchange of knowledge; the development of internationally recognized scientific research centres, particularly in developing countries; international agreements for the joint promotion, evaluation and funding of mega-projects and broad access to them; international panels for the scientific assessment of complex issues; and international arrangements for the promotion of postgraduate training. New initiatives are required for interdisciplinary collaboration. The international character of fundamental research should be strengthened by significantly increasing support for long-term research projects and for international collaborative projects, especially those of global interest. In this respect particular attention should be given to the need for continuity of support for research. Access to these facilities for scientists from developing countries should be actively supported and open to all on the basis of scientific merit. The use of information and communication technology, particularly through networking, should be expanded as a means of promoting the free flow of knowledge. At the same time, care must be taken to ensure that the use of these technologies does not lead to a denial or restriction of the richness of the various cultures and means of expression.

For all countries to respond to the objectives set out in this Declaration, in parallel with international approaches, in the first place national strategies and institutional arrangements and financing systems need to be set up or revised to enhance the role of sciences in sustainable development within the new context. In particular they should include: a long-term national policy on science to be developed together with the major public and private actors; support to science education and scientific research; the development of cooperation between R&D institutions, universities and industry as part of national innovation systems; the creation and maintenance of national institutions for risk assessment and management, vulnerability reduction, safety and health; and incentives for investment, research and innovation. Parliaments and governments should be invited to provide a legal, institutional and economic basis for enhancing scientific and technological capacity in the public and private sectors and facilitate their interaction. Science decision-making and priority-setting should be made an integral part of overall development planning and the formulation of sustainable development strategies. In this context, the recent initiative by the major G-8 creditor countries to embark on the process of reducing the debt of certain developing countries will be conducive to a joint effort by the developing and developed countries towards establishing appropriate mechanisms for the funding of science in order to strengthen national and regional scientific and technological research systems.

The practice of scientific & technological development should always aim at the welfare of humankind, including the reduction of poverty, be respectful of the dignity and rights of human beings, and of the global environment, and take fully into account our responsibility towards present and future generations.

A free flow of information on all possible uses and consequences of new discoveries and newly developed technologies should be secured, so that ethical issues can be debated in an appropriate way. Each country should establish suitable measures to address the ethics of the practice of science and of the use of scientific knowledge and its applications. These should include due process procedures for dealing with dissent and dissenters in a fair and responsive manner. The World Commission on the Ethics of Scientific Knowledge and Technology of UNESCO could provide a means of interaction in this respect.

All scientists should commit themselves to high ethical standards, and a code of ethics based on relevant norms enshrined in international human rights instruments should be established for scientific professions. The social responsibility of scientists requires that they maintain high standards of scientific integrity and quality control, share their knowledge, communicate with the public and educate the younger generation. Political authorities should respect such action by scientists. Science curricula should include science ethics, as well as training in the history and philosophy of science and its cultural impact.

Governments and scientists of the world should address the complex problems of poor health and increasing inequalities in health between different countries and between different communities within the same country with the objective of achieving an enhanced, equitable standard of health and improved provision of quality health care for all. This should be undertaken through education, by using scientific and technological advances, by developing robust long-term partnerships between all stakeholders and by harnessing programmes to the task.

Equal access to science is not only a social and ethical requirement for human development, but also essential for realizing the full potential of scientific communities worldwide and for orienting scientific progress towards meeting the needs of humankind. The difficulties encountered by women, constituting over half of the world’s population, in entering, pursuing and advancing in a career in the sciences and in participating in decision-making in science and technology should be addressed urgently. There is an equally urgent need to address the difficulties faced by disadvantaged groups which preclude their full and effective participation.

The efforts need to be done at international level:

The weakness is the law is in its enforcement, a weakness far greater here than in other international law. Since a violation by a state of the rights of its own inhabitants does not ordinarily infringe the national interests of other parties to the agreement, they have no compelling interest to scrutinize the violating behavior and call it to account. In other words, the law is not reciprocal between states and violations do not ordinarily affect friendly relations with other states or international credit or prestige. So, the enforcement mechanism should be strengthened.

Rights and Fundamental freedoms, ECHR; and the Preamble to the European Social Charter, ESC). National legislators and public health authorities should not restrict themselves to pursuing an active health-promotion and disease-prevention policy. As stated at the conference at Alma Ata (1978), health is more than the absence of disease or infirmity. Several other aspects are inherent in the right to share the benefits of health care. Health services should be geographically well distributed and accessible as well as affordable to all persons. The work of health-care providers and institutions must be of a high professional standard and based on practical, scientifically sound, and socially acceptable methods and technologies.

Considering the Charter of the Organization of African Unity, which stipulates that “freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples”; Reaffirming the pledge they solemnly made in Article 2 of the said Charter to eradicate all forms of colonialism from Africa, to coordinate and intensify their cooperation and efforts to achieve a better life for the peoples of Africa and to promote international cooperation having due regard to the Charter of the United Nations. and the Universal Declaration of Human Rights; Taking into consideration the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples’ rights.

Human rights are guaranteed in the political constitutions of almost all independent African states. The constitutions of Gabon, Nigeria, Rwanda, Burkina Faso, Guinea, Liberia, Malawi, Tanzania, Cote D’Ivoire, Cameroon, Morocco and Togo, to mention but a few, all contain lofty human rights provisions. But, unfortunately, there are gross violations in most of the states because human rights still are politically motivated.

There are several factors responsible for this. They are[575]:

  • Most of the new states in the 1950’s quickly dismantled. Multiparty systems were replaced by one party system or military dictatorships. Military coups are, thus, regular feature in several of the states.
  • Military coups are accompanied by serious human rights violations. For example, in 1975, all opponents of Siaka Stevens in Sierra Leone were executed. Also in 1984, more than 35 people were executed after military trials in Cameron.
  • For most of the states, freedom of press, free and regular elections, right to life are still luxuries. Mass executions, public and secret execution of opposing elements have been common feature in many states. Such practices can be seen in Guinea, Uganda, Liberia, Ghana Zaire, etc. In many African states newspapers are still owned by the Government.
  • Ethnic and religious differences have led to gross violation of human rights. Example: Burundi and Rwanda. In 1963 invasion of Rwanda from Burundi led to killing of 12000 Tutsis.
  • Poverty, lack of education, unawareness of fundamental human rights among the people of Africa is also a factor responsible for violations of the human rights

African states were frequently negligent, in submitting reports to the Commission about how they were applying the Charter. The commission had neither the authority nor the power to correct the situation. When the Commission raised questions about the reports that were submitted, states tended toward silence. Likewise, when private communications were submitted to the Commission claiming a violation of the Charter, states tended to disregard the entire process of enquiry and friendly settlement that the Commission was trying to conduct.

As such, today, the African Charter functions not in isolation but as part of a network of human rights instruments and protective mechanisms on the continent, including domestic and the UN regimes as well as the work of civil society. While this means that there is a much more conductive environment for the protection of human rights in Africa today than was the case 30 years ago, commentators have also warned about the proliferation of human rights mechanisms in the African Union drawing on the same resources. The way in which the relationship between the Commission and the African Human Rights Court is managed, as well as other mechanisms such as the APRM, will be crucial to the role of the Charter in the future.

As for corporate abuse of human rights, the OECD Guidelines provide for tough standards of corporate behavior to which forty- two countries will commit. The updated Guidelines include new recommendations on human rights abuse and company responsibility for their supply chains, making them the first inter-governmental agreement in this area. They establish that firms should respect human rights in every country in which they operate. Companies should also respect environmental and labour standards, for example, and have appropriate due diligence processes in place to ensure this happens. These include issues such as paying decent wages, combating bribe solicitation and extortion, and the promotion of sustainable consumption.

The Guidelines are a comprehensive, non-binding code of conduct that OECD member countries and others have agreed to promote among the business sector. A new, tougher process for complaints and mediation has also been put in place. “The business community shares responsibility for restoring growth and trust in markets,” said OECD Secretary-General Angel Gurría. “These guidelines will help the private sector grow their businesses responsibly by promoting human rights and boosting social development around the world.” Ministers from adhering countries will also agree to a Recommendation designed to combat the illicit trade in minerals that finance armed conflict. Illegal exploitation of natural resources in fragile African states has been fueling conflict across the region for decades. While data is scarce, it is estimated that up to 80% of minerals in some of the worst-affected zones may be smuggled out. The illegal trade stokes conflict, boosts crime and corruption, finances international terrorism and blocks economic and social development.

The Recommendation clarifies how companies can identify and better manage risks throughout the supply chain, from local exporters and mineral processors to the manufacturing and brand-name companies that use these minerals in their products. The OECD and emerging economies worked closely with business, trade unions and non-governmental organisations to produce both sets of guidelines.[576]

Various methods to advance and protect human rights are available:

During violent conflict, safe havens to protect refugees and war victims from any surrounding violence in their communities can sometimes help to safeguard human lives.

As violent conflict begins to subside, peacekeeping strategies to physically separate disputants and prevent further violence are crucial. These measures, together with violence prevention mechanisms, can help to safeguard human lives. Limiting the use of violence is crucial to ensuring groups’ survival and creating the necessary conditions for a return to peace.

Education about human rights must become part of general public education. Technical and financial assistance should be provided to increase knowledge about human rights. Members of the police and security forces have to be trained to ensure the observation of human rights standards for law enforcement. Research institutes and universities should be strengthened to train lawyers and judges. To uphold human rights standards in the long-term, their values must permeate all levels of society.

Dialogue groups that assemble people from various ethnicities should be organized to overcome mistrust, fear and grief in society. Getting to know the feelings of ordinary people of each side might help to change the demonic image of the enemy group. Dialogue also helps parties at the grassroots level to discover the truth about what has happened, and may provide opportunities for apology and forgiveness.

External specialists can offer legislative assistance and provide guidance in drafting press freedom laws, minority legislation and laws securing gender equality. They can also assist in drafting a constitution, which guarantees fundamental political and economic rights.

Those who perpetrate human rights violations find it much easier to do so in cases where their activities can remain secret. International witnesses, observers and reporters can exert modest pressure to bring violations of human rights to public notice and discourage further violence. Monitors should not only expose violations, but also make the public aware of any progress made in the realization of human rights. In order to ensure that proper action is taken after the results of investigations have been made public, effective mechanisms to address injustice must be in place.

Truth commissions are sometimes established after a political transition. To distinguish them from other institutions established to deal with a legacy of human rights abuses, truth commissions can be understood as “bodies set up to investigate a past history of violations of human rights in a particular country — which can include violations by the military or other government forces or armed opposition forces.” They are officially sanctioned temporary bodies that investigate a pattern of abuse in the past. Their goal is to uncover details of past abuses as a symbol of acknowledgment of past wrongs. They typically do not have the powers of courts, nor should they, since they do not have the same standards of evidence and protections for defendants. As such, they usually do not “name names” of those responsible for human rights abuses, but rather point to institutional failings that facilitated the crimes. Finally, they conclude with a report that contains recommendations to prevent a recurrence of the crimes and to provide reparations to victims.

International war crimes tribunals are established to hold individuals criminally responsible for violations of international human rights law in special courts. The international community rarely has the will to create them. As the experiences with the war tribunals for Rwanda and Yugoslavia indicate, even where they are created, they are imperfect. They cannot hold all perpetrators accountable and typically aim for the top leadership. However, it remains difficult to sentence the top-level decision-makers, who bear the ultimate responsibility for atrocities. They often enjoy political immunity as members of the post-conflict government. Incriminating a popular leader might lead to violent protests and sometimes even to relapse into conflict. Leaders may be necessary to negotiate and implement a peace agreement.

Various democratization measures can help to restore political and social rights. For sustainability and long-term viability of human rights standards, strong local enforcement mechanisms have to be established. An independent judiciary that provides impartial means and protects individuals against politically influenced persecution must be restored. Election monitors who help to guarantee fair voting procedures can help to ensure stable and peaceful elections. And various social structural changes, including reallocations of resources, increased political participation, and the strengthening of civil society can help to ensure that people’s basic needs are met.

Humanitarian aid and development assistance seeks to ease the impact that violent conflict has on civilians. During conflict, the primary aim is to prevent human casualties and ensure access to basic survival needs. These basics include water, sanitation, food, shelter and health care. Aid can also assist those who have been displaced and support rehabilitation work.  Once conflict has ended, development assistance helps to advance reconstruction program that rebuild infrastructure, institutions and the economy. This assistance helps countries to undergo peaceful development rather than sliding back into conflict.

The expansion of international human rights law has often not been matched by practice. Yet, there is growing consensus that the protection of human rights is important for the resolution of conflict and to the rebuilding process afterward. To achieve these goals, the international community has identified a number of mechanisms both to bring an end to human rights abuses and to establish an environment in which they will be respected in the future. They are not alternatives, but each provides important benefits in dealing with the past and envisioning a brighter future.

National Scenario:

Success in promoting human rights requires hard-to-achieve success in other areas including building more capable, responsive, efficient, and non-corrupt governments, dealing with failed states, increasing economic productivity (to pay for the protections and services that human rights require), improving the power and status of women, improving education, and managing international tensions and conflicts. Realizing human rights worldwide is a project for centuries, not decades. This is not to say, however, that progress cannot proceed at a faster pace than it currently does.

Still, there are some grounds for optimism. Human rights are more widely accepted than they have ever been. They have become part of the currency of international relations, and most countries participate in the human rights system. Treaty arrangements help encourage and pressure countries to deal with their human rights problems. The human rights project continues and has not failed.

Besides, there are serious questions about whether the legal framework is adequate to deal with the challenges of the new technology. Far from setting the legal parameters for the balancing of privacy and the many demands for personal information–the law has been scrambling to catch up with the pace of technology. Courts and tribunals do not have a clear understanding of the issues, much less the many contexts, in which they will emerge. The need to strike a proper balance between information technology and privacy is clearly on the human rights agenda for the 21st century.

All these controversial and right issue raises essential questions about the scope of personal bodily autonomy, admiration of perceived notions of societal morality, and the legitimacy and role of a court.  For example, the right to abortion is a matter of individual choice and bodily integrity which comes in conflict with the personhood of fetus. However, the present legal framework is not pro-woman, and it is suggested that the need is not unfettered right of abortion but a sensible right to take care of reasonable expectations and choice of women. In any democratic country, everybody enjoys the right to life and personal body autonomy and integrity. The conflict arises when state and society in general exerts their claim to restrict the individual’s claim to fundamental rights and basic human rights. In this background, how far a woman can enjoy the reproductive rights depends upon the maturity and tolerance of the society and law. It would be however sad state of affairs if state starts interfering in the private lives of an individual and ignore the genuine predicament, the person is in.

Undoubtedly, the benefits in science and technology has caused immense advancement and benefit to the lives of human beings. Development of different and varied medicines to fight back diseases, which has led to significant increase in the life expectancy, is one such evidence, which favours more research in science and technology. Today, there are medicines available for cancer, treatments for AIDS, and many more medicines and treatment available in the market. They not only assure people of some help during crisis but also have actually proved boon for millions and millions of people worldwide. Similarly, at present, we are at the stage of further advancement, which has got so many things in store to come forward in coming years. Be it stem cell research, which has the potential to cure so far incurable diseases or diseases related to hereditary problems; or human organ transplantation, which grants a second life to people suffering with kidney failure or liver problem and since it is generally done among family members and fairly developed process now, it has been well accepted, provided proper regulations are in place to avoid discriminations against poor or vulnerable people to lure them to sell their kidneys and body parts; or surrogacy, which may look unethical to archaic minded people but it is nothing when compared to happiness and rejoice to people who for certain reason cannot reproduce, and also give them a chance to continue their lineage; or gene therapy, which even though is at nascent stage has fairly high chances to provide us with more treatments and cures for incurable diseases. In fact, all these developments, if looked from the perspective of a human right activist or even a reasonable common man, then it would appear that they are noble and novel processes that are going to take human beings to next stage of development in the field of life and medicines and death.

Despite of all arguments in favour of more technological advancement and grant of right to privacy and right to do gene therapy research, human experimentation and other such developments, there is a growing concern for the risk posed by the commercialisation or capitalisation of these technologies, which are meant for advancing benefits to humans. There are cases and evidences apparent on the face that many big and private institutions are harnessing these technological tools for personal gain and profit. Such mistaken ideology will definitely will not go in favour of human rights development, instead it many even hamper it. Commercialisation implies curtailment of individual rights to privacy and people may fall prey to such traps, for example, in cases of human experimentation or gene therapy or stem cell research, in all such cases, researchers require human body to undergo certain process for the purpose of their research and they may pay them back. The money may attract vulnerable people to undergo even harsh and unreasonable pain or physical or psychological damages, which is against human rights.

So, in a nutshell, the matter is quite simple that state is the regulatory authority in any country and it determines the rules and regulations governing all these aspects. All these technological advancements discussed so far are noble and genuine in their cause. The only problem lies in the regulation that depends on the state to see and check always that the process and the advancement is not misused solely for personal gains or poor or other people are not discriminated against. Science has never been considered bad despite of its potential to cause mass destruction; it is only its use which determines that whether the application of science should be allowed or not. So, the solution lies in proper regulation, more awareness among people, Courts and legislators, more openness and refuting the archaic feelings and arguments. Some day in future the science and technology will definitely be in full swing and the present moral values will be left; it is just a matter of time. State can even allow all the researches under its regulation and governance, so that no private parties have much to get involved into. Besides, matters like abortion and euthanasia demands greater privacy rights to individuals and its significant to note that countries are gradually taking note of it and allowing it, however in a restricted manner. Few cases, like Niketa Mehta abortion case in Bombay High Court or Aruna Shanbaug Euthanasia case falls in a smaller domain within the larger domain of abortion and euthanasia but due to the peculiarity of facts and circumstances of the cases, they need special treatment. In these cases, the present or available law and regulations were not sufficient to deal with the problems in satisfactory manner and for that matter; India needs some amendments in its abortion laws and a new law on mercy killing. Again, it should be noted that Indian committees are working on it to find solutions. Lastly, the human right and technological advancement matters should be looked from a sensitive and reasonable person’s angle and not from an angle of a person with inflexible and definite attitude. Law and clime is changing and so is the science and human rights that demands us to keep a pace with it.

 

Suggestions at the National level:

Industrialisation:

The best to check the negative impact of mechanisation and automation is Sustainable development.

Mechanisation has no harm as it has made industrial work easier to be handled by women and less skilled person giving them job oppurtunities. Automation is a threat to employment oppurtunities as it promotes automatic machines which leads requirement of less works which results in large scale retrenchment. In countries like India as overpopulated country we need to adopt sustainable development so that there is industrial progress as well as employment for people. Thus India should go for mechnisation rather than automation.

“Sustainable development” has come to be accepted as viable concept to eradicate poverty and improve the quality of human life. Essential feature of “Sustainable development” are as follows –

  1. i) Precautionary principle — This principle in the context of municipal law means environmental measures by the State Government and the statutory authorities must anticipate, prevent and attack the causes of environmental degradation. The onus of proof is on the actor or the developer/industrialists to show that his action is environmentally benign. Precautionary principle has been accepted as part of the law of the land and Article 21, 47, 48-A and 51-A (g) of the Constitution of India gave clear mandate to the State to protect and improve the environment and to safeguard the forest and wildlife of the country.

  1. ii) The Polluter Pay Principle – This principle is a sound principle and interpreted by the Supreme Court that absolute liability to harm to the environment extends not only to compensate the victims but also cost of restoring the environmental degradation. As such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.

Female Foeticide

 A negative outcome of the PNDT act was that the practice of sex determination was driven nonetheless and the availability of services proliferated correspondingly. Ultra sound machines continued to be widely available and simple to use. It is very difficult to enforce a law which sought to control information that travels through informal channels and can operate secretly. Law cannot control the information that is conveyed through a mere smile or frown face. Unsurprisingly the enforcement if law becomes weak. there is still utmost controversy as to whom will serve as the watch dog to control the misuse of the practice of female foeticide and its implementation is difficult and considering it can only be the doctor who carries out the abortion or mother of the foetus who can be punished. This is very ambiguous as many women are indeed forced by family members to go ahead with an abortion of a female foetus. Thus, once again putting life of thousands of women in danger. Other reasons for limited effectiveness of the law include lack of political will to ensure enforcement. Experience has shown that in general the role of legislation is subverting a social practice is limited.[577]

Awareness amongst people from all walks of life and enlightening them with education are two foolproof tools of combating this ever pervading menace which has plagued our country and rendered the sex ratio to fall drastically

Surrogacy

In a case where permeability is allowed and surrogacy relations are regulated formally, the court has to realize that the child lacks legal capacity to take decisions on major matters and thus a more child self centered view of the family and social future is to be adopted. The court should have a good faith concern for the child’s welfare. Safeguards are required in cases where no thought has been given to the interests of the child in a surrogate contract. The Court has to decide keeping in view the best interest approach which can be summed up as:

  1. Disputes concerning custody which come before the courts are to be decided according to the welfare of the child in consideration of the functions of parenthood as to who is in best position to perform.
  2. The control over the upbringing of child should be given to someone interested in protecting them. The court has to decide over the issues of who would be the primary care taker and stability of home environment which is integral for the development of the child’s personality.
  3. In case, none of the adults accept the child, the solution is not to force custody on them, but to receive the minor into care.
  4. Blood ties don’t guarantee that this function will be well performed, strong bonds should be established.
  5. In the event the surrogate decides that she wishes to keep the baby, the courts will decide the issue of parental rights in accordance with the best interest test much like that which is employed in divorce cases

The Law Commission of India submitted the 228th report on Assisted Reproductive Technology procedures discussing the importance and need for surrogacy, and also the steps taken to control surrogacy arrangements. The following observations had been made by the Law Commission:

  1. Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
  2. A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
  3. A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
  4. One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
  5. Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
  6. The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
  7. Right to privacy of donor as well as surrogate mother should be protected.
  8. Sex-selective surrogacy should be prohibited.
  9. Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

We require an act regulating surrogacy as other countries of world.

Euthanasia

The Parliament should think for legalising passive euthanasia by coming up with proper measures that if a person, afflicted with terminal disease, should be given the right to refuse being put on life support system after medical experts declare that he or she has reached a point of no return. As the same happens in Netherlands which has detailed procedure before permission for euthanasia is granted.

Cloning

We cannot go on like this, lurching from one sensational headline to another. We urgently need a comprehensive Gene Charter with global agreement on how this technology should be used. Too many decisions about this technology are controlled by specialist committees dominated by scientists involved in or sympathetic to the work. There is a huge ethical vacuum. We do not need bombastic moralistic statements, but rather a common-sense view, based on principles which the whole community can support and understand. Two foundation stones should be respect for the uniqueness and mystery of human life, and care for future of the planet. So far decisions made have been pragmatic rather than based on higher values. The church has a vital role to play. Now we know what can be done; the question is: what should we do? Are these doors that should be opened? A Nobel prize winner who helped develop nuclear science has said he fears a new generation of smart viruses could wipe us all out. But this is just another aspect of the same thing. The lesson of history is that whatever is possible will be tried somewhere by someone at some time but this is no excuse for sitting back. Whilst it is true that laws cannot prevent catastrophe or crime, they do help define the boundaries of acceptable behaviour and make deviation less common. Politicians are populists. They tend to go with the flow of public opinion on things like human cloning which in turn is often swung by media debate. That is why it so vitally important that people from every walk of life take every opportunity to contribute to the human cloning media debate.

Organ Transplantation

The Centre is in the process of modifying the Transplantation of Human Organs Act, 1994, to bridge the huge gap in the requirement and availability of human organs for transplantation. Maintaining the present ethical guidelines, the Act would be modified to simplify the procedures involved in transplantation, Union Health Minister Anbumani Ramadoss. said at the 54th annual conference of Tamil Nadu Ophthalmic Association at JIPMER that “The Act would be self-regulatory” and special emphasis would be given in the Act to expand the scope of eye donation, which at present was not satisfactory. The country needs around 1 lakh eyes for transplantation but every year only 25,000 eyes were available. More eye banks, including facility to store cadaver eyes, would be opened in all parts of the country. One such bank had already been opened in Delhi.

The Transplantation of Human Organs requires proper amendments to suit the need of the hour. The objective of the legislation needs to be expanded to cover the public interest and ethical issues of organ transplantation. It is not only the check on commercialization of organs in issue, the availability and distribution to be covered along with it.

Threat to Privacy due to Privacy Invasion Technology

We require an enactment to deal with this issue related to information technology and cyber laws. The best way to check this problem to develop new technologies technology to combat it.

We may use e-tracker technology to collect visitor behavior data. Cookies may be used for this purpose. Cookies are small text files that are stored in the visitor’s local browser cache. Using such cookies it is possible to recognize the visitor’s browser. The data collected via e-tracker technology will not be used to determine the personal identity of the website visitor or compiled with personal data pertaining to the user of the pseudonym unless agreed to separately by the person concerned. The collection and storage of data may be revoked at any time with respect to subsequent services.

By changing the settings of your internet browser one may prohibit the acceptance of cookies; in this case you might not be able to use all features of the website.

There must be an option to claim for disclosure of the data stored with regard to yourself as well as claim for the correction, blocking or deletion of your data.

  • As an acknowledgment of the autonomy and freedom of the individual the information professional must act on the assumption that the client regards as confidential all personal and private information that is handled by the information professional. This implies that the information professional acknowledges the right of the client to control to a certain extent any personal and private information – based on the norm of freedom.
  • The client must, on a regular basis have access to all private and personal information that is held and used by the information professional. The reason for this is to provide the client the opportunity to verify the accuracy of the information. It is then the responsibility of the information professional to see to it that the necessary corrections are made and again verified by the client – based on the norms of freedom and human rights.
  • The merging of personal and other private information of an individual into a different database than the one for which it was originally collected must be done with the necessary caution. This is specifically applicable in situations where the client is not aware of such merging or the implications thereof. The appropriate action would not only be to inform the client about such a merging and the implications thereof, but also to give the client the right of access to the information on the central database, and the opportunity to change the information where it is incorrect, and the right to know who is using the information as well as the purpose of such use – based on the norms of human rights, freedom and truth.
  • The information professional must notify the client explicitly of the intended purposes of the use of all personal and private information. This implies the client’s permission. Different avenues exist for seeking such permission. The method of implicit informed consent can be preferred. According to this principle, companies (information professionals) that have collected information about a person must diligently inform that person about the various uses of the information. Clients must then be given an opportunity to consent to these uses or to withhold their consent. The burden is on the client to respond, and a lack of response implies consent. However, the client must be granted the opportunity to withdraw consent- based on the norms of freedom and human rights.
  • No unnecessary private information must be gathered. This is not only for logistic reasons but also to prevent the unnecessary violation or exposure of a person’s privacy – based on the norm of freedom.
  • Personal and other private information that is no longer necessary for the function for which it was collected must be destroyed – based on the norms of freedom and human rights.
  • When the rendering of a specific service or product to a person is refused on the grounds of personal information (e.g. creditworthiness), the reason for this denial must be made known to the person – based on the norms of truth and human rights.
  • A person’s information must be handled with the necessary confidentiality. This implies security and control of access to the information, of the right to use it, as well as the right to change or add any information – based on the norms of freedom, truth and human rights.
  • A private policy must be formulated consisting of the following elements: the categories of information that must be regarded as private and personal, the levels of confidentiality (e.g. who has access and use of which information), a clear explanation of the purposes of the use of the information, and the description of the procedures to ensure the accuracy of this information – based on the norms of freedom, truth and human rights.

Nuclear Technology

Free India started with the Nehruvian idea of science as an essential accoutrement of a modern society. Today, the nuclear tests have shown the determination of the rules to make Indian science a servant of the State and its internal and external political ambitions.

Underlying all this violation of the scientific tradition and its codes of behaviour is the fact “he who pays the piper calls the tune.” Government and quasi government sources are responsible for the overwhelming share of science funding so that scientific activity depends strongly on this funding, and almost all scientists are on the government pay roll or perk roll.

With regard to the directions of Indian science, discussions on must start with the country’s poverty – for, this is its defining characteristic and fundamental reality. In 1951, India’s poor numbered 164 millions; in 1993-94, the number had increased to 312 millions, that is, double the number people at independence who could not meet their daily subsistence requirements. Between 1950-51 and 1993-94, the population below the poverty line declined by less than 1% per year. One in three Indians go to bed hungry. Life expectancy is about 60. Half the Indian population cannot read or write. The Human Poverty index (HPI) is about 37% — this index is a composite of Longevity (19. 4% of the population expected to die before the age of 40), knowledge (48.8% are illiterate), and standard of living (19% are without access of safe drinking water, 15% without access to health services and 53% of the children are malnourished/underweight). India belongs well and truly to the club of poorest nations. The country can move out of this cursed club only through sustainable development, not through nuclear explosions.

This mis-orientation of Indian science is not a surprise. It follows from the fact that the country consists of small islands of urban splendour amidst vast oceans of rural misery. This situation is often referred to as a “dual society” – a small, politically powerful elite (constituting a mere 10-15% of the population and consisting of industrialists, landlords, bureaucrats, professionals and white-collar labour) living in conspicuous affluence amidst the abject poverty of the politically weak masses. The human rights if the poor have been ignored.

The nuclear tests and threat of weaponization have exposed the serious weaknesses of Indian science. They have shown that Indian science is responding more to the militaristic and consumption ambitions of the elite than to the rights and problems of the poverty-stricken Indian masses. Rather than be a force that balances the demands of the state and civil society, the tests have revealed that Indian science has become a servant of the state whilst pressuring the state to advance the vested interests of Indian science and its scientists. The tests have revealed that the science-state nexus is strong. Indian science has betrayed the humanistic heritage left behind by Mahatma Gandhi and Lord Buddha. Sheltering behind the argument that science is amoral and neutral, Indian science may become an instrument of violence, oppression and evil. It has not encoded itself with life-affirming values. Immediately after the nuclear tests, the majority of Indian scientists echoed the official line in a regimented fashion. They did not show the independence of perspective and diversity of views characteristic of a community of interacting scientists with the well-established traditions of science.

The well-known statement of sincere and dedicated Kalam that: “he is only an engineer” and that “his missile can also be used for delivering flowers”.

Thus, science and technology doesn’t have good or bad impact on human rights but it use can bring a positive or adverse impact. Tools are made to facilitate us it important how we handle it. If Indian science is to flourish, it must depend solely upon its internal momentum, which is the product of the “mass” of scientists and the “velocity” or pace of scientific research. The pace or tempo of research activity depends upon the existence and maintenance of an atmosphere of excitement, which in turn requires a conviction of being ” hot on the trail ” of important discoveries. Such an atmosphere is facilitated by rapid communication between scientists through personnel contracts, seminars, symposia and conferences and through well referred journals that ensure quick publication.

There is need for an ethical component in science, not just in terms of ethics of science, but really ethics in terms of why and for whom this science and what kind of impact it is going to make.

 

 

 

 

 

 

 

 

 

 

 

 

BIBLIOGRAPHY

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http://www.un.org/womenwatch/osagi/Appignani_conf_organ_trafficking.pdf

http://gilc.org/privacy/survey/intro.html

http://gilc.org/privacy/survey/intro.html

http://www.privacy.org/pi/countries/hungary/hungarian_id_decision_1991.htm

http://legalserviceindia.com/article/l292-Female-Foeticide.html

http://www.legalserviceindia.com/article/l118-Euthanasia-and-Human-Rights.html http://blog.indiansurrogacylaw.com/2010/02/jan-balaz-supreme-court-birthcertificate/ http://www.mightylaws.in/548/surrogacy-laws-india

http://www.legalserviceindia.com/article/l434-Surrogacy-Contracts.html http://www.legalserviceindia.com/article/l179-Human-Organs-Transplantation.html

http://www.unesco.org/science/wcs/eng/declaration_e.htm (11.10.2011)

http://www.legalserviceindia.com/articles/evn.htm`

http://www.legalserviceindia.com/article/l159-Environmental-Degradation-and-its-Protection.html

http://www.ohchr.org/en/issues/Pages/WhatareHumanRights.aspx

http://law.jrank.org/pages/1096/Euthanasia-Assisted-Suicide-Pros-Cons.html

http://ccnmtl.columbia.edu/projects/mmt/udhr/preamble_section_4/discussion_6.html

http://www.unesco.org/science/wcs/eng/declaration_e.htm

http://archive.unu.edu/unupress/unupbooks/uu08ie/uu08ie04.htm#1.

http://www.oecd.org/document/19/0,3746,en_21571361_44315115_48029523_1_1_1_1,00.html

[1] [http://history.nasa.gov/sp482.pdf] visited on (23.03.2014)

[2] Martin Bridgstock, Science, Technology, And Society: An Introduction, 1998 ed. p 3

[3] Martin Bridgstock, Science, Technology, And Society: An Introduction, 1998 ed. p 4.

[4] . V.R. Krishna Iyyer, “The Dialectics and Dynamics of Human Rights in India (Yesterday, Today and Tomorrow), Eastern Law House, 2000, p. 230.

[5] [http://www.pkrishna.org/Impact_science_society.html] visited on (09.03.2014)

[6] [http://www.insaindia.org/India%20Science%20report-Main.pdf] visited on (09.04.2014).

[7] V.R. Krishna Iyer, The Dialectics & Dynamics Of Human Rights in India, ed. 2000, p. 5.

[8] Bertrand Russell, The Impact of Science on Society, ed. 1998, p. 11.

[9] [http://history.nasa.gov/sp482.pdf] (21.03.2014)

[10][ http://www.the-origin.org/Science%20and%20Society.pdf%5D visited on (21.03.2014)

[11] [http://archive.unu.edu/unupress/unupbooks/uu08ie/uu08ie03.htm] visited on (18.03.2014)

[12] Ibid.

[13] [http://www.law.harvard.edu/students/orgs/hrj/iss17/booknotes-Science.shtml] visited on (09.03.2014)

[14] [http://archive.unu.edu/unupress/unupbooks/uu08ie/uu08ie04.htm#1. technological impacts on human rights: models of development, science and tec] visited on (09.03.2014)

[15] [http://archive.unu.edu/unupress/unupbooks/uu08ie/uu08ie04.htm ] visited on (17.03.2014)

[16] Jonathan Herring, Medical Law and Ethics, 2nd ed., p. 549.

[17] Marianne Woodside, Tricia McClam, An Introduction to Human Services, 6th ed., p. 66.

[18] Carol Corillon, Eliot Stellar, National Academy of Sciences (U.S.). Committee on Human Rights, Science and Human Rights, ed. 1988, p. 6.

[19] [http://www.cbcisite.com/cbcinews4495.htm] visited on (22.03.2014)

[20] [http://www.independent.co.uk/news/world/americas/surrogate-mother-sues-over-demand-for-abortion-665395.html] (28.03.2014)

[21] [http://adopting.adoption.com/child/surrogacy.html] visited on (28.03.2014)

[22] [http://adopting.adoption.com/child/surrogacy.html] visited on (28.03.2014)

[23] [http://www.nydailynews.com/news/national/2007/12/30/2007-12-30_indias_surrogate_mother_business_raises_-2.html] visited on (28.03.2014)

[24] [http://bioethics.georgetown.edu/publications/scopenotes/sn6.pdf] visited on (22.03.2014)

[25] Ibid.

[26] [http://www.ivf-infertility.com/surrogacy/surrogacy12.php] visited on (28.03.2014)

[27] [http://www.cwds.ac.in/OCPaper/AmniocentesisVM.pdf] visited on (29.03.2014)

[28] [http://www.leighday.co.uk/our-expertise/clinical-negligence/obstetrics-and-gynaecology-pregnancy-and-birth/amniocentesis] visited on (29.03.2014)

[29] [http://www.cwds.ac.in/OCPaper/AmniocentesisVM.pdf] visited on (29.03.2014)

[30] [http://bioethics.georgetown.edu/nbac/pubs/cloning2/cc5.pdf] visited on (26.03.2014).

[31][http://www.vatican.va/roman_curia/pontifical_academies/acdlife/documents/rc_pa_acdlife_doc_30091997_clon_en.html] visited on (26.03.2014).

[32] Ibid.

[33] [http://www.ornl.gov/sci/techresources/Human_Genome/elsi/cloning.shtml] visited on (25.03.2014).

[34]  [http://www.philforhumanity.com/Human_Cloning.html] visited on (18.03.2014)

[35]  [http://www.biomedcentral.com/1472-6939/4/3] visited on (18.03.2014)

[36] 1996 (1) BomCR 92, 1995 CriLJ 96, 1994 (2) MhLj 1850

[37] 1996 VIAD SC 533, AIR 1997 SC 411, 1996 (2) ALD Cri 897

[38] 1994 AIR 1844, 1994 SCC (3) 394

[39] 1996 AIR 946, 1996 SCC (2) 648

[40]  [http://www.legalserviceindia.com/article/l118-Euthanasia-and-Human-Rights.html] visited on (16.03.2014)

[41] Ibid.

[42] Wayne N. Shelton, John Balint, The Ethics of Organ Transplantation, vol. 7, p. 89.

[43] Jonathan Herring, Medical Law and Ethics, 2nd ed., p. 394

[44] Mental Capacity Act, 2005, s. 4.

[45] David P. T. Price, Legal and ethical aspects of organ transplantation, 2002 ed.  p. 9

[46] Ibid. at p. 10

[47] Ibid. at p. 16.

[48] [http://www.washingtonpost.com/wp-srv/national/science/genetherapy/unborn.htm] visited on (15.03.2014)

[49] [http://portal.unesco.org/shs/en/files/2306/10596479581therapyCIB2_en.pdf/therapyCIB2_en.pdf] visited on (15.03.2014)

[50] [http://www.psaindia.org/Science%20and%20Social%20Imperatives.pdf] visited on (09.03.2014)

[51] Ibid.

[52] Ibid.

[53] [http://bioethics.georgetown.edu/publications/scopenotes/sn24.htm] visited on (08.03.2014)

[54] [http://www.essayempire.com/customessay/health/humanexperimentation/388.html] visited on (09.03.2014)

[55] C. K. Grant, Philosophy, Vol. 48, No. 185 (Jul., 1973), pp. 284.

[56] [http://www.rbs2.com/humres.htm] visited on (09.03.2014)

[57] Jonathan Herring, Medical Law and Ethics, 2nd ed., pp. 549-551

[58] [http://gilc.org/privacy/survey/intro.html] visited on (09.03.2014)

[59] Ibid.

[60] [http://www.guardian.co.uk/media/2008/nov/11/dacre-eady-privacy-sienna-mosley] visited on (20.03.2014)

[61] The Right to Privacy, 4 Harvard L.R. 193 (1890)

[62] 533 U.S. 27

[63] [http://www.telegraph.co.uk/comment/telegraph-view/8531766/Injunctions-The-Human-Rights-Act-is-behind-this-privacy-farce.html] visited on (20.03.2014)

[64] [http://www.insaindia.org/India%20Science%20report-Main.pdf] visited on (28.03.2014).

[65] [http://unesdoc.unesco.org/images/0015/001586/158691e.pdf- H.M] visited on (21.03.2014)

[66] [http://archive.unu.edu/unupress/unupbooks/uu08ie/uu08ie04.htm#1] visited on (28.03.2014)

[67] V.R. Krishna Iyer, “The Dialectics and Dynamics of Human Rights in India (Yesterday, Today and Tomorrow), Eastern Law House, 2000, p.31-32.

[68] [http://unesdoc.unesco.org/images/0015/001586/158691e.pdf- H.M] visited on (06.03.2014)

[69] [http://archive.unu.edu/unupress/unupbooks/uu08ie/uu08ie07.htm#2] visited on (06.03.2014).

[70] [http://archive.unu.edu/unupress/unupbooks/uu08ie/uu08ie0c.htm#3] visited on (08.03.2014).

[71] [http://archive.unu.edu/unupress/unupbooks/uu08ie/uu08ie0h.htm#4] visited on (10.03.2014).

[72] [http://archive.unu.edu/unupress/unupbooks/uu08ie/uu08ie0m.htm#5] visited on (11.03.2014).

[73] [http://211.167.236.236/zt/magazine/200402007411164249.htm] visited on (09.03.2014).

[74][ http://insaindia.org/scisersemi2.htm%5D visited on (17/3/2014)

[75][ http://indiacurrentaffairs.org/science-shapes-the-society-special-article-prof-k-nageshwar%5D visited on (18/03/2014)

[76] [http://archive.unu.edu/unupress/unupbooks/uu08ie/uu08ie01.htm] visited on (18.03.2014)

[77] [http://archive.unu.edu/unupress/unupbooks/uu08ie/uu08ie01.htm] visited on (18.03.2014)

[78] http://insaindia.org/scisersemi2.htm visited on (27/3/2014)

[79] http://archive.unu.edu/unupress/unupbooks/uu06he/uu06he0c.htm visited on (27/3/2014)

[80] http://archive.unu.edu/unupress/unupbooks/uu08ie/uu08ie0k.htm visited on (08/3/2014)

[81] http://www.legalserviceindia.com/articles/evn.htm visited on (09/03/2014)

[82] http://www.legalserviceindia.com/article/l159-Environmental-Degradation-and-its-Protection.html visited on (11/03/2014)

[83] (1996) 5 SCC 647

[84] (1996) 3 SCC 212

[85]  (1996) 2 SCC 594

[86]  (1996) 11 SCC 35

[87]  (1996) 8 SCC 462

[88]  (1997) 2 SCC 411

[89]  (1997) 7 SCC 440

[90]  (1997) 2 SCC 353

[91] (1998)9 SCC 632

[92] (1998) 9 SCC 247

[93] (1999) 9 SCC 151

[94] (Decided by Supreme Court on 22/02/05)

[95]  (CR-4500/96)

[96] http://archive.unu.edu/unupress/unupbooks/uu08ie/uu08ie0q.htm#6 visited on (08/03/2014).

[97] Dr. Supinder Kaur, “The Truth about the Violation of Rights of Girl Child Unravelling the Truth”, Protection and Promotion of Human Rights in India, Central Law Publication, 2010, p.117

[98] http://legalserviceindia.com/article/l292-Female-Foeticide.html visited on (23/03/2014)

[99]The Pre-birth Elimination of Females in India, Ending the Practice: Changing the Mindset, A National Advocacy Strategy Draft, June 17,2002

[100] Gautam Chikermane,” To Save the Girl Child Invest” Indian Express, March 30,2006

[101] AIR 2001 SC 2007

[102] Pamela Philipose,”Women versus Girls”, Indian Express, April 5,2006

[103] 1988 CrLJ 549 (AP)

[104] Rattan Singh and Mehak Ahuja, “Need of Euthanasia: Some Pros and Cons”, Protection and Promotion of Human Rights in India, Central Law Publication, 2010, p.273.

[105] Ibid at p. 283.

[106] Ibid at p. 284.

[107] Ibid at p. 285.

[108] http://www.legalserviceindia.com/articles/rd_top.htm visited on (06/03/2014)

[109]  (1876) 94 US 113

[110] MANU/SC/0085/1962

[111] MANU/SC/0184/1982

[112] MANU/SC/0572/1988

[113] MANU/SC/0406/1988.

[114] MANU/SC/0125/1986

[115] 1987 Cri LJ 743 (Bom.)

[116] AIR 1994 SC 1844

[117] 1996 AIR 946, 1996 SCC (2) 648

[118] http://www.legalserviceindia.com/article/l118-Euthanasia-and-Human-Rights.html visited on (09/03/2014)

[119] Jonathan Herring, “Medical Law and Ethics”, 2nd Edition, Oxford University Press, 2008, p. 349.

[120] http://www.cbcisite.com/cbcinews4495.htm, visited on 09/03/2014, 01:51

[121] http://www.mightylaws.in/548/surrogacy-laws-india

[122] Baby Manji Yamada v. Union Of India & Anr. [2008] INSC 1656 (29 September 2008)

[123] http://blog.indiansurrogacylaw.com/2010/02/jan-balaz-supreme-court-birth-certificate/

[124] http://www.legalserviceindia.com/article/l434-Surrogacy-Contracts.html visited on (07/03/2014)

[125] Jonathan Herring, “Medical Law and Ethics”, 2nd Edition, Oxford University Press, 2008, p. 360.

[126] Jonathan Herring, “Medical Law and Ethics”, 2nd Edition, Oxford University Press, 2008, p. 362.

[127] Jonathan Herring, “Medical Law and Ethics”, 2nd Edition, Oxford University Press, 2008, p. 363.

[128] Minakshi Bhardwaj & Jayapaul Azariah, Cloning: Paradox, Paradigm and Ethics in Indian Society,- Eubios Journal of Asian and International Bioethics 9 (1999), 71-73

[129] Minakshi Bhardwaj & Jayapaul Azariah, Cloning: Paradox, Paradigm and Ethics in Indian Society,- Eubios Journal of Asian and International Bioethics 9 (1999), 71-73

[130] Anderson MW, Bottenfield S. Tissue banking – past, present, and future. In: Youngner SJ, Anderson MW, Shapiro R, eds. Transplanting human tissue ethics, policy, and practice. Oxford, New York: Oxford University Press; 2004. pp. 14-35.

[131] Thomas ED. Landmarks in the development of hematopoietic cell transplantation. World J Surg 2000;24:815-8.

[132] Minakshi Bhardwaj & Jayapaul Azariah, Cloning: Paradox, Paradigm and Ethics in Indian Society,- Eubios Journal of Asian and International Bioethics 9 (1999), 71-73

[133] Kurtzberg J, Lyerly AD, Sugarman J. Untying the Gordian knot: policies, practices, and ethical issues related to banking of umbilical cord blood. J Clin Invest 2005;115:2592-7.

[134] Order to cease manufacturing and to retain HCT/Ps, January 31, 2006 [about 8 screens]. Rockville, MD: Food and Drug Administration; 1 Feb 2006. Available at: http://www.fda.gov/cber/compl/bts013106.htm

[135] The Royal Liverpool Children’s Inquiry report, 30 January 2001. Available at: http://www.rlcinquiry.org.uk/download/index.htm

[136] Guidance for industry. Compliance with 21 CFR Part 1271.150(c)(1) – Manufacturing arrangements [about 3 screens]. Rockville, MD: Food and Drug Administration; 8 Sept 2006. Available at: http://www.fda.gov/cber/gdlns/cgtpmanuf.htm

[137] http://www.who.int/bulletin/volumes/85/12/06-038703.pdf, visited on (10/03/204)

[138] [http://www.un.org/womenwatch/osagi/Appignani_conf_organ_trafficking.pdf ] visited on (08/03/2014)

[139] http://www.legalserviceindia.com/article/l179-Human-Organs-Transplantation.html visited on (08/03/2014)

[140] [http://gilc.org/privacy/survey/intro.html] visited on (08/03/2014)

[141] Simon Davies “Re-engineering the right to privacy: how privacy have been transformed from a right to a commodity”, in Agre and Rotenberg (ed) “Technology and Privacy: the new landscape”, MIT Press, 1997 p.143.

[142] [http://gilc.org/privacy/survey/intro.html] visited on (10/03/2014)

[143] Constitutional Court Decision No. 15-AB of 13 April 1991. [http://www.privacy.org/pi/countries/hungary/hungarian_id_decision_1991.html] visited on (18/03/2014)

[144] U.S. Department of State Singapore Country Report on Human Rights Practices for 1997, January 30, 1998.

[145] Banisar and Davies, The Code War, Index on Censorship, January 1998.

[146] House of Lords, Science and Technology Committee, Fifth report, “Digital images as evidence”, 3 February 1998, London.

[147] Stepehen Graham, John Brooks, and Dan Heery ìTowns on the Television : Closed Circuit TV in British Towns and Citiesî; Centre for Urban Technology, University of Newcastle upon Tyne

[148] Halford v United Kingdom (Application No 20605/92), 24 EHRR 523, 25 June 1997.

[149] http://legalperspectives.blogspot.com/2010/05/phone-tapping-invasion-to-right-of.html visited on (16/03/2014)

[150] V.R. Krishna Iyyer, “The Dialectics and Dynamics of Human Rights in India (Yesterday, Today and Tomorrow), Eastern Law House, 2000, p. 293.

[151] V.R. Krishna Iyyer, “The Dialectics and Dynamics of Human Rights in India (Yesterday, Today and Tomorrow), Eastern Law House, 2000, p. 294.

[152] V.R. Krishna Iyyer, “The Dialectics and Dynamics of Human Rights in India (Yesterday, Today and Tomorrow), Eastern Law House, 2000, p. 295.

[153] V.R. Krishna Iyyer, “The Dialectics and Dynamics of Human Rights in India (Yesterday, Today and Tomorrow), Eastern Law House, 2000, p. 297.

[154] http://www.pucl.org/jp/jp-lecture00.htm, visited on 18/03/2014

[155] Ibid at p. 297.

[156] Paul Williams, Ed., “The International Bill of Human Rights”, Entwhistle, 1981. This is the first book edition (ISBN 0-034558-07-8) of the Universal Declaration of Human Rights, with a foreword by Jimmy Carter.

[157] Basis of Human Rights available at  http://www.udhr.org/history/default.htm Accessed on 17th march, 2014 at 01:08 A:M.

[158] Ibid

[159] United Nations Charter, preamble and article 56

[160] UDHR 50: Didn’t Nazi tyranny end all hope for protecting human rights in the modern world?

[161] A preamble is an important introductory section of a legal document, and explains the background to it rather than being part of its operative provisions.

[162] Peter Bailey, THE CREATION OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, available at http://www.universalrights.net/main/creation.htm Accessed on  16th March, 2014, 11:07pm

[163] Ibid

[164] http://www.unac.org/rights/question.html under “Who are the signatories of the Declaration?”

[165] Yearbook of the United Nations 1948-1949 p 535

[166] SADAKO OGATA, Introduction: United Nations Approaches To Human Rights And Scientific And Technological Developments, available at http://archive.unu.edu/unupress/unupbooks/uu06he/uu06he03.htm , Accessed on 20th March, 2014 at 7:52P:M.

[167] Peter Bailey, THE CREATION OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, available at <http://www.universalrights.net/main/creation.htm (Accessed on  16th March, 2014, 11:07pm)

[168] Article 1 of Universal Declaration of Human Rights.

[169] Peter Bailey, THE CREATION OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, available at <http://www.universalrights.net/main/creation.htm&gt; Accessed on  16th March, 2014, 11:07pm

[170] Article 7 of Universal Declaration of Human Rights.

[171] Sangeeta Chakravarty, International norms influencing national legal system, available at http://www.legalserviceindia.com/article/print.asp?id=117, Accessed on 23rd March, 2014 at 12:52 P: M.

[172] Section 2 (d),The Protection of Human Rights Act,1993 (Act No.10 of 1994)

[173] Article 3 of Universal Declaration of Human Rights.

[174]  Ibid Article 2

[175] Ibid Article 4

[176] Ibid Article 5

[177] Ibid Article 6

[178] Ibid Article 7

[179] Ibid Article 8

[180] Ibid Article 9

[181] Ibid Article 10

[182] Ibid Article 11

[183] Ibid Article 12

[184] Ibid Article 13

[185] Ibid Article 14

[186] Ibid Article 15

[187] Ibid Article 16

[188] Ibid Article 17

[189] Ibid Article 18

[190] Ibid Article 19

[191] Ibid Article 21

[192] Ibid Article 23

[193] Ibid Article 24

[194] Ibid Article 25

[195] Ibid Article 26

[196] Ibid Article 27

[197] Ibid Article 28

[198] Ibid Article 29

[199] Ibid Article 30

[200] AIR 2000 SC 988

[201] Sangeeta Chakravarty, “International norms influencing national legal system”, Available at <http://www.legalserviceindia.com/article/print.asp?id=117&gt;, Accessed on 23rd  March, 2014 at 12:52 P:M.

                ,

<

[202] Articles 51 (c) of The Constitution Of India, 1950.

[203] Article 253 provides that: “Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” Entry 14 of the Union List of the Seventh Schedule empowers Parliament to legislate in relation to “entering into treaties and agreement and implementing of treaties and agreement with foreign countries and implementing of treaties, agreements and conventions with foreign countries.”

[204] Article 372 of the Constitution: “Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India, immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislative or other competent authority.”

[205] People’s Union of Civil Liberties v Union of India & Anr , supra, affirming jurisprudence of Supreme Court in earlier cases concerning Article 9 (5) ICCPR that provides for a right to compensation for victims of unlawful arrest or detention. Remarkably, the Supreme Court has found Article 9 (5) ICCPR to be enforceable in India even though India has not adopted any legislation to this effect but had even entered a specific reservation to Article 9 (5) ICCPR when ratifying the Convention in 1979, stating that the Indian legal system did not recognise a right to compensation for victims of unlawful arrest or detention. See also the case of Prem Shaker Shukla v Delhi Administration AIR 1980 SC.

[206] A.D.M.Jabalpur v. Shiv Kant Shukla (1976) 2 SCC 521 had been a blow to civil liberties. But while the court as an institution that could speak on the side of civil liberties stood discredited, the decision did little to staunch the tide of resistance and protest.

[207] As witnessed in cases concerning bonded labour, undertrial prisoners including women in ‘protective’ custody, or instance, Bandhua Mukti Morcha v.Union of India (1984) 3 SCC 161; Hussainara Khatoon v. Home Secretary, State of Bihar (1980) 1 SCC 81 et seq.

[208] Called ‘epistolary’ jurisdiction.

[209] (1998) 8 SCC 485.

[210] Vishaka v. State of Rajasthan (1997) 6 SCC 241.

[211] Students of Andhra Pradesh Agricultural University v. Registrar, Andhra Pradesh Agricultural University 1997

AIHC 2671 (AP)

[212] Students of Andhra Pradesh Agricultural University v. Registrar, Andhra Pradesh Agricultural University 1997 AIHC 2671 (AP) 20 As happened when Priyadarshini Mattoo, a law student, was followed by another student. She was killed in her house, all leads pointed to the university pursuer, but he was acquitted, with the judge castigating the prosecution for not having done its work adequately though the judge professed to being otherwise convinced of his guilt.

[213] <http://www2.ohchr.org/english/law/genome.htm&gt; Accessed on 20 March 2014, 11:42 P:M.

[214] http://www.unesco.org/new/en/social-and-human-sciences/themes/bioethics/human-genome-and-human-rights/ Accessed on 20 March 2014 at 11:39 P:M.

[215] Ibid

[216] Article 1 of Universal Declaration on the Human Genome and Human Rights (11 November 1997)

[217]Ibid  Article 2.

[218] Ibid Article 3

[219] Ibid Article 5

[220] Ibid Article 8

[221]Ibid  Article 9

[222]Ibid Article 10

[223] Ibid Article 11

,

[224] Ibid Article 12

[225]Ibid  Article 13

[226] Ibid Article 22

[227] Ibid Article 23

[228] Ibid Article 24

[229]Ibid  Article 25

[230] http://www.vatican.va/roman_curia/pontifical_academies/acdlife/documents/rc_pa_acdlife_doc_08111998_genoma_en.html Accessed on 28th March 2014, 11:44 P:M.

[231] Ibid

[232] Article 7 of The European Convention on Human Rights

[233] Ibid Article 8.

[234] Ibid Article 9.

[235] Ibid Article 13.

[236] Ibid Article 14

[237]Ibid  Article 18

[238]Ibid  Article 19

[239] Ibid  Article 21

[240] Ibid Article 38

[241] Ibid Article 39

[242]Ibid  Article 63

[243] Ibid Article 64

[244] Ibid Article 66

[245] Raya Hazarika, The African Charter on Human and People’s Rights 1981, http://jurisonline.in/2010/10/africancharter/ as Accessed on 16th March 2014 at 11:18 PM.

[246] Ibid

[247]Ibid

[248] Ibid

[249] Preamble, The African Charter on Human and People’s Rights 1981

[250] Raya Hazarika, The African Charter on Human and People’s Rights 1981, http://jurisonline.in/2010/10/africancharter/ as Accessed on 16th March 2014 at 11:18 PM.

[251] Article 2 of The African Charter on Human and People’s Rights 1981

[252] Ibid Article 3

<

[253] Ibid Article 4

<

[254] Ibid Article 9

[255] Ibid Article 19

[256] Ibid Article 22

[257] Ibid Article 23

[258] Ibid Article 25

[259] Ibid Article 26

[260] Raya Hazarika, The African Charter on Human and People’s Rights 1981, http://jurisonline.in/2010/10/africancharter/ as Accessed on 26th March 2014 at 11:18 PM.

[261] Article 31 of The African Charter on Human and People’s Rights 1981

[262] Ibid Article 45

[263] Raya Hazarika, The African Charter on Human and People’s Rights 1981, http://jurisonline.in/2010/10/africancharter/ as Accessed on 16th March 2014 at 11:18 PM.

[264] http://publications.ossrea.net/index.php?option=com_content&view=article&id=79:american-convention-human-rights-1969&catid=16:other-instruments&Itemid=55 Accessed on 16th March 16, 2014, 11:27 P:M.

[265] Article 4 of American Convention on Human Rights, 1969.

,

[266] Ibid Article 5

[267] Ibid Article 9

[268] Ibid  Article 13.

[269] Ibid Article 16

[270] Ibid  Article 17.

[271] Ibid  Article 18.

[272] Ibid  Article 20.

[273] Ibid  Article 21.

[274] Ibid  Article 23

[275] Ibid  Article 24

[276] Ibid  Article 25

[277] Ibid Article 33

[278] Ibid Article 34

[279] Ibid Article 35

[280] Ibid Article 41

[281] Ibid Article 52

[282] Ibid Article 61

[283] Ibid Article 66

[284] Ibid Article 67

[285] http://nhrc.nic.in/hract.htm Accessed on  9th March, 2014 at 3:13 PM

[286] Section 3 of The Protection of Human Rights Act, 1993, [As amended by the Protection of Human Rights (Amendment) Act, 2006–No. 43 of 2006].

[287] Ibid Section 4

[288] Ibid Section 6

[289] Ibid Section 12

[290]  Ibid section 21

[291] Ibid Section 30

[292] Ibid Section 40

[293] Ibid Section 41

[294] Directive 95/ /EC of the European Parliament and of the Council of On the Protection of Individuals with regard to the processing of personal data and on the free movement of such data.

[295] PRIVACY AND HUMAN RIGHTS, An International Survey of Privacy Laws and Practice, http://gilc.org/privacy/survey/intro.html Accessed on 8th  March 2014 at 1:08 AM

[296] Entick v. Carrington, 1558-1774 All E.R. Rep. 45.

[297] The Rachel affaire. Judgment of June 16, 1858, Trib. pr. inst. de la Seine, 1858 D.P. III 62. See Jeanne M. Hauch, Protecting Private Facts in France: The Warren & Brandeis Tort is Alive and Well and Flourishing in Paris, 68 Tul. L. Rev. 1219 (May 1994 ).

[298] Warren and Brandeis, The Right to Privacy, 4 Harvard L.R. 193 (1890).

[299] PRIVACY AND HUMAN RIGHTS, An International Survey of Privacy Laws and Practice, http://gilc.org/privacy/survey/intro.html Accessed on 8th March 2014 at 1:08 AM

[300] A/RES/45/158 25 February 1991, Article 14.

[301] UNGA Doc A/RES/44/25 (12 December 1989) with Annex, Article 16.

[302] International Covenant on Civil and Political Rights, http://www.hrweb.org/legal/cpr.html, Accessed on 10th March 2014 at 1:10 AM

[303] Convention for the Protection of Human Rights and Fundamental Freedoms Rome, 4.XI.1950. http://www.coe.fr/eng/legaltxt/5e.htm Accessed on 8 August 2011 at 1:11 AM

[304] Signed Nov. 22, 1969, entered into force July 18, 1978, O.A.S. Treaty Series No. 36, at 1, O.A.S. Off. Rec. OEA/Ser. L/V/II.23 dec rev. 2.

[305] O.A.S. Res XXX, adopted by the Ninth Conference of American States, 1948 OEA/Ser/. L./V/I.4 Rev (1965).

[306] http://www.nhchc.org/humanright.html, Accessed on 8th  March 2014 at 1:18AM

[307] As of I June 1990, 179 of 185 countries and areas collaborate with the Global Programme on AIDS (GPA), a special unit within the WHO, based in Geneva. See Global AIDS Factfile -Case Review, June 1990. Collaboration may vary from the technical evaluation of the national HIV/AIDS situation to the formulation of national programmes, setting up of adequate health-care facilities, etc.

[308] http://archive.unu.edu/unupress/unupbooks/uu08ie/uu08ie0q.htm#6 Accessed on 6th March, 2014 at 2:10 AM

[309] Ibid

[310] In early 1990 the Directorate-General V (Employment, Industrial Relations, and Social Affairs) of the Commission commissioned several studies to be carried out to research problems of access to health-care services for particular persons/patients in the EC Member States and discrimination against people on the basis of their health status.

[311] http://archive.unu.edu/unupress/unupbooks/uu08ie/uu08ie0q.htm#6 Accessed on 8th March, 2014

[312] Dr. Audrey Chapman, Human Rights Perspective on Intellectual Property, Scientific Progress, and Access to the Benefits of Science, available at <http://www.wipo.int/tk/en/hr/paneldiscussion/papers/chapman-summary.html&gt; (Accessed on March 6, 2014)

[313]A.T. Williams, “Human rights and law: between sufferance and insufferability” L.Q.R. 2007, 123(Jan), 133-158

[314] See T. Campbell, Rights: a Critical Introduction (2006), at p.204. The latter I try to interpret in the course of this essay.

[315] German Basic Law art.1.1: “The dignity of man is inviolable. To respect and to protect it shall be the duty of all public authority.” Also: “dignity and genetic identity”, under art.26 of the Portuguese Constitution; “the inherent right to life and dignity”, under art.54 of the Hungarian Constitution; “dignity and … free development of personality”, under art.10 of the Spanish Constitution; “protection of dignity and promotion of justice in society”, under art.1 of the Finnish Constitution; “dignity guarantee in criminal and all other legal proceedings”, under art.21 of the Slovene Constitution; and “protection of dignity and personal honour, and the protection of his good name” under art.19 of the Slovak Charter of Basic Rights and Freedoms.

[316] See C. McCrudden, “Human Dignity and Judicial Interpretation of Human Rights” (2008) 19 E.J.I.L. 656.

[317] J. Morijn, “Balancing Fundamental Rights and Common Market Freedoms in Union Law: Schmidberger and Omega in the light of the European Constitution” (2006) 12 E.L.J. 15.

[318] Beyleveld and Brownsword, “Human Dignity, Human Rights and Human Genetics” (1998) 61 M.L.R. 661, 662.

[319] Catherine Dupre, “Unlocking human dignity: towards a theory for the 21st century”, E.H.R.L.R. 2009, 2, 190-205.

[320] See, e.g. Keenan v United Kingdom (2001) 3 E.H.R.R. 913 ECtHR.

[321] A.T. Williams, “Human rights and law: between sufferance and insufferability” L.Q.R. 2007, 123(Jan), 133-158

[322] This distinction is made by U. Baxi in, “Voices of Suffering and the Future of Human Rights” (1998) 8 Transnational Law and Contemporary Problems 125-169 and Baxi, above, fn.8.

[323] A.T. Williams, “Human rights and law: between sufferance and insufferability” L.Q.R. 2007, 123(Jan), 133-158

[324] See for example: two recent Bills introduced into Parliament – the Human Fertilisation and Embryology Bill (now the 2008 Act) and the Assisted Dying Bill.

[325] W.F. Felice, Taking Suffering Seriously: the Importance of Collective Human Rights (1996).

[326] T. Pogge, World Poverty and Human Rights (2002), at pp.27-51.

[327] Med. L. Rev. 2008, 16(1), 52-84

[328] The Indian Council of Medical Research, the medical body that regulates medical research, said, “In India, embryonic stem cell research is allowed but ethically it should be peer reviewed for scientific content for the safety and protection of research participants

[329]Indrajit Basu, “ India embraces stem cell research” (Dec 2, 2005), Available at <http://www.atimes.com/atimes/South_Asia/GL02Df02.html> (Accessed on March 7, 2014).

[330] Ibid

[331] One of the yesteryear examples is of Superman actor Christopher Reeve, an outspoken advocate of human embryonic stem cell research, he recorded the advert about a week before his death.”Stem cells have already cured paralysis in animals,” he said in the advert. “Stem cells are the future of medicine. Please support (the ballot) and stand up for those who can’t.” Available at <http://news.bbc.co.uk/2/hi/entertainment/3947029.stm> (Accessed on March 10, 2014)

[332]See for example, stem cell definition, Available at <http://stemcells.nih.gov/StaticResources/info/popups/glossary.html#stemcells> (Accessed on March 8, 2014).

[333] See for example, stem cell basics, available at <http://stemcells.nih.gov/info/basics/basics1.asp> (Accessed March 8, 2014)

[334] National Institutes of Health (NIH), ‘Stem Cell: Scientific Progress and Future Research Directions’ (2001) ES-2, available at NIH <http://stemcells.nih.gov/info/scireport/2001report.htm>(Accessed on March 10, 2014)

[335] Ibid.

[336] Ibid.

[337] Ibid.

[338] Ibid.

[339] Ibid. at ES-2.

[340] Ibid. at C-1.

[341] Ibid.

[342] Ibid. at 25.

[343] The cloning of Dolly, Available at <http://www.synapses.co.uk/science/clone.html> (Accessed on March 10, 2014)).

[344] Maneesha Deckha, “The gendered politics of embryonic stem cell research in the USA and Canada: an American overlap and Canadian disconnect”, Med. L. Rev. 2008, 16(1), 52-84.

[345] Available at <http://stemcells.nih.gov/staticresources/info/scireport/PDFs/fullrptstem.pdf> (Accessed on March 10, 2014).

[346] Maneesha Deckha, “The gendered politics of embryonic stem cell research in the USA and Canada: an American overlap and Canadian disconnect”,Med. L. Rev. 2008, 16(1), 52-84.

[347] Available at <http://www.atimes.com/atimes/South_Asia/GL02Df02.html> (Accessed on March 7, 2014).

[348] Maneesha Deckha, “The gendered politics of embryonic stem cell research in the USA and Canada: an American overlap and Canadian disconnect”, Med. L. Rev. 2008, 16(1), 52-84.

[349] Eric Cohen, ‘The Tragedy of Equality’ (2005) 7 The New Atlantis 101.

[350] Maneesha Deckha, “The gendered politics of embryonic stem cell research in the USA and Canada: an American overlap and Canadian disconnect”, Med. L. Rev. 2008, 16(1), 52-84.

[351]Janet Dolgin, ‘Embryonic Discourse: Abortion, Stem Cells and Cloning’ (2004) Issues in Law and Medicine 260.

[352] Ibid.

[353] Ibid. at 259.

[354] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Morgentaler claimed that s. 251 violated s. 2(a), 7, 12, 15, 27 and 28 of the Charter.

[355] R. v. Morgentaler , [1988] 1 S.C.R. 30, 1988 S.C.C. 2.

[356] Ibid. at paras. 25-29.

[357] Ibid. at paras. 240-241.

[358] Tremblay v. Daigle , [1989] 2 S.C.R. 530.

[359] Arts. 18, 338, 345, 608, 771, 838, 945, 2543 C.C.L.C.; Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss.1-2.

[360] Abortion is indirectly regulated as any other medical procedure is through the Canada Health Act. Joyce Arthur, ‘Abortion in Canada: History, Law, and Access’ (October 1999) online: The Pro-choice Action Network http://www.prochoiceactionnetworkcanada. org/articles/canada.shtml. The other two countries with no direct abortion regulation are China and North Korea.

[361] Maneesha Deckha, “The gendered politics of embryonic stem cell research in the USA and Canada: an American overlap and Canadian disconnect”, Med. L. Rev. 2008, 16(1), 52-84.

[362] Health Canada, ‘Health and Safety of Canadians’ (2004), online: Health Canada http://www.hc-sc.gc.ca/hl-vs/reprod/hc-sc/legislation/safety-securite_e.html

[363] Available at <http://www.experiment-resources.com/stem-cell-pros-and-cons.html> (Accessed on March 8, 2014).

[364] Ibid.

[365] H. Rosenau, ‘Legal Prerequisites for Clinical Trials under the Revised Declaration of Helsinki and the European Convention on Human Rights and Biomedicine’ (2000) 7 European Journal of Health Law 105 at 106.

[366]See for example, Janis Kelly, “CD28 monoclonal antibody trial goes tragically wrong,” Available at <http://www.medscape.com/viewarticle/538531> (Accessed on August 9, 2011). According to the Associated Press, Dr Ganesh Suntharalingam, clinical director of intensive care at Northwick Park Hospital, said that the drug “has caused an inflammatory response that affects some organs of the body.” Other press reports describe the problem as multiorgan failure accompanied by massive swelling; See also, S. Boseley, ‘Six Men in Intensive Care after Drug Trial Goes Wrong’ The Guardian 15 March 2006. The Government also established an expert group to learn from the incident and its findings were published in December 2006: Expert Group on Phase One Clinical Trials, Final Report (2006): http://www.dh.gov.uk.

[367] Rebecca English, “Elephant Man could not resist drug test money”, Daily Mail,  20 March 2006, Available at <http://www.dailymail.co.uk/news/article-380395/Elephant-Man-resist-drug-test-money.html> (Accessed on March 28, 2014).

[368]Department of Health (DH), Xenotransplantation Guidance (2006) at 1: http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_063074.pdf (Accessed on March 9, 2014).

[369] Sara Fovargue, “Oh pick me, pick me” – selecting participants for xenotransplant clinical trials, Med. L. Rev. 2007, 15(2), 176-219

[370] S. Welin, ‘Starting Clinical Trials of Xenotransplantation – Reflections on the Ethics of the Early Phase’ (2000) 26Journal of Medical Ethics 231.

[371] W.M. Kong, ‘Legitimate Requests and Indecent Proposals: Matters of Justice in the Ethical Assessment of Phase I Trials Involving Competent Patients’ (2005) 31 Journal of Medical Ethics 205.

[372] Sara Fovargue, “Oh pick me, pick me” – selecting participants for xenotransplant clinical trials, Med. L. Rev. 2007, 15(2), 176-219

[373] D.K.C. Cooper and R.P. Lanza, Xeno – The Promise of Transplanting Animal Organs into Humans (Oxford University Press 2000) at 178.

[374] Sara Fovargue, “Oh pick me, pick me” – selecting participants for xenotransplant clinical trials, Med. L. Rev. 2007, 15(2), 176-219

[375] Ibid.

[376] E. Jackson Medical Law: Text, Cases and Materials second edition (Oxford 2010), 642.

[377] In England and Wales the Congenital Disabilities (Civil Liability) Act 1976, s.4 (2) (a) states that “born” means “born alive (the moment of a child’s birth when it first has a life separate from its mother) …”

[378] N.K. Rhoden, “The New Neonatal Dilemma: Live Births from Late Abortions” (1983-4) 72 Geo.L.J 1451, 1465.

[379] S. Romeo-Malanda, “Non-treatment of Severely Disabled Newborns and Criminal Liability Under Spanish Law” in C. Erin and S. Ost, op. Cit.., note 25 above, pp. 207-224.

[380] [1998] 3 All E.R. 673.

[381] AG’s Reference (No. 3 of 1994) [1997] 3 All E.R. 936 (H.L.).

[382] Ibid.

[383] Ibid., at p. 942.

[384] Cases such as immunisation and male circumcision require dual parental consent: Re B (a child) (immunisation)[2003] EWHC 1376, [2003] EWCA Civ 1148. Re J (Child’s Religious Upbringing and Circumcision) [2000] 1 F.C.R. 307.

[385] Amel Alghrani, “What is it? Whose it? Re-positioning the fetus in the context of research?,” C.L.J. 2011, 70(1), 51-82.

[386] Ibid

[387] J. Raskin and N. Mazor, “The Artificial Womb and Human Subject Research” in S. Gelfand (ed.), Ectogenesis, note 7 above, p. 177.

[388] Amel Alghrani, “What is it? Whose it? Re-positioning the fetus in the context of research?,” C.L.J. 2011, 70(1), 51-82.

[389] Ibid

[390] WHO, ‘Cerebral Meningitis in Nigeria ‘Update in Disease Outbreaks Reported’ (7 March 1996). Available at: WHO <http://www.who.int/disease-outbreak-news/n1996/mar/n7mar1996b.html&gt; (Accessed on 16 April 2007); See also “Nigeria: Kano Trovan Case- Pfizer, Plaintiffs Announces Global Settlement, available at <http://allafrica.com/stories/201102230874.html> (Accessed on August 10, 2011).

[391]‘Nigerians Sue Pfizer Over Test Deaths’ BBC News (30 August 2001). Available at: <http://news.bbc.co.uk/1/hi/business/1517171.stm&gt; (Accessed on March 20, 2014).

[392]Kano trovafloxacin       trial         litigation,               Available               at <http://en.wikipedia.org/wiki/Kano_trovafloxacin_trial_litigation> (Accessed on March 29, 2014).

[393] See R. N. Nwabueze, ‘Ethical Review of Research Involving Human Subjects in Nigeria: Legal and Policy Issues’ 14 Ind. Int’l & Comp. L. Rev. (2003-2004) 87 at 98.

[394]Pfizer faulted over drug trials in Nigeria, Available at

<http://www.afrostyly.com/english/afro/news/pfizer.htm> (Accessed on March 10, 2014).

[395]“Nigeria: Kano Trovan Case- Pfizer, Plaintiffs Announces Global Settlement, available at <http://allafrica.com/stories/201102230874.html> (Accessed on March 10, 2014).

[396] Zango v. Pfizer Inc. No. FHC/KCS/2001.

[397] The Aliens Tort Claims Act 28 USC 1350 empowers the District Court in the United States to decide on any civilian action brought by non-citizens of the United States on allegations of violation of the law of nations or a treaty of the United States and has been famously applied in the case of Filartiga v Pen-Irala 630 F.2d 876 (2d Cir. 1980).

[398] Abdullahi v. Pfizer, Inc., 2002 WL 31082956 (S.D.N.Y. 17 Sep 2002).

[399] Abdullahi, et al v. Pfizer Inc., No. 01 Civ. 8118, SDNY; 2005.

[400] Cheluchi Onyemelukwe, “Research involving humans in African countries: a case for domestic legal frameworks”, A.J.I.C.L. 2008, 16(2), 152-177

[401] Ibid.

[402] Ibid.

[403] The Science of DNA, Available at <http://www.instructables.com/id/The-Science-of-DNA/&gt; (Accessed on March 10, 2014).

[404] DNA Introduction, Available at <http://www.eurekascience.com/ICanDoThat/dna_intro.htm> (Accessed on March 20, 2014).

[405] Amy Harmon, “’Informed Consent’ and the Ethics of DNA Research”, NY Times, April 23rd, 2010, Available at <http://www.geneticsandsociety.org/article.php?id=5163> (Accessed on March 8, 2014).

[406] Amy Harmon, “Havasupai Case Highlights Risks in DNA Research”, NY Times, April 21st, 2010, Available at <http://www.geneticsandsociety.org/article.php?id=5166> (Accessed on March 28, 2014).

[407] Peter Walker, “European court rules DNA database breaches human rights”, Available at <http://www.guardian.co.uk/uk/2008/dec/04/law-genetics>, (Accessed on March 28, 2014).

[408] Innocence Project credited with expanding awareness of DNA testing in law enforcement (December 22, 2000), Available at <http://articles.cnn.com/2000-12-22/justice/innocence.project.crim_1_dna-testing-innocence-project-innocence-protection-act?_s=PM:LAW> (Accessed on March 29, 2014).

[409] See also, Bill Mears, “Supreme Court says Texas inmate ahs right to DNA testing”, Available at <http://articles.cnn.com/2011-03-07/justice/us.scotus.death.penalty_1_dna-testing-dna-evidence-crime-scene?_s=PM:CRIME> (Accessed on August 9, 2011). The Supreme Court has given another legal reprieve to a Texas death row inmate who says DNA testing of crime scene evidence will prove his “actual innocence.” The justices by a 6-3 vote on Monday said Henry “Hank” Skinner has a basic civil right to press for analysis of biological evidence not tested at the time of his trial.

[410] Ibid.

[411]Euthanasia, Available at < http://en.wikipedia.org/wiki/Euthanasia&gt; (Accessed on March 25, 2014).

[412] Available at <http://www.euthanasia.com/definitions.html&gt; (Accessed on March 26, 2014).

[413] Francis Bacon: the major works By Francis Bacon, Brian Vickers pp 630

[414]Young, Robert, “Voluntary Euthanasia”, The Stanford Encyclopedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/fall2010/entries/euthanasia-voluntary/&gt;.

[415] See <http://en.wikipedia.org/wiki/Euthanasia&gt; (Accessed on March 25, 2014).

[416] Emmanuel, Ezekiel (1994). “The history of euthanasia debates in the United States and Britain”. Annals of internal medicine (121): 797–798, available at <http://en.wikipedia.org/wiki/Euthanasia#cite_ref-62&gt; (Accessed on March 29, 2014).

[417] C.J.S., Homicide § 154

[418] Okla.—Edinburgh v. State, 1995 OK CR 16, 896 P.2d 1176 (Okla. Crim. App. 1995).

[419] Ind.—Gentry v. State, 625 N.E.2d 1268 (Ind. Ct. App. 1993).

[420]The Independent, March 2002, available at

<http://www.bbc.co.uk/ethics/euthanasia/infavour/infavour_1.shtml&gt; (Accessed on March 29, 2014)

[421] Young, Robert, “Voluntary Euthanasia”, The Stanford Encyclopedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/fall2010/entries/euthanasia-voluntary/&gt;.

[422] See <http://www.bbc.co.uk/ethics/euthanasia/infavour/infavour_1.shtml#h4&gt; (Accessed on March 29, 2014)

[423] Ibid

[424] Ibid

[425] Concluding that the state’s interest in the preservation of life did not foreclose a court order enforcing the right of an individual to decline to be kept alive under some circumstances, the court in Re Severns (1980, Del Ch) 425 A2d 156, held that, where human life is doomed to continue indefinitely in a vegetative state, the state’s interest in preservation of life is diminished by that individual right and at some point is overcome by it. Although acknowledging that the right to privacy, including the right to decline medical treatment, must yield to a compelling state interest, the court explained that, under these circumstances, the state interest was weakened primarily because the value of life was diminished by a denial of the right to privacy of the comatose person.See also John F. Kennedy Memorial Hospital, Inc. v Bludworth (1984, Fla) 452 So 2d 921; Re L.H.R. (1984) 253 Ga 439, 321 SE2d 716; Re Storar (1981) 52 NY2d 363, 438 NYS2d 266, 420 NE2d 64

[426] Ibid.

[427] Young, Robert, “Voluntary Euthanasia”, The Stanford Encyclopedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/fall2010/entries/euthanasia-voluntary/&gt;. March 29, 2014

[428] The courts have held that determinations whether to discontinue life-sustaining treatment should be made without regard for whether the treatment was extraordinary; See Barber v Superior Court (1983, 2d Dist) 147 Cal App 3d 1006, 195 Cal Rptr 484, in which the court stated that, in discussions of which life-sustaining procedures must be used and for how long their use must be maintained, use of the terms “ordinary” and “extraordinary” means of treatment begs the question. The court declared that a more rational approach would involve determination of whether the proposed treatment is proportionate or disproportionate to the benefits to be gained and the burdens caused.

[429] For example, the court in Re Lydia E. Hall Hospital (1982) 116 Misc 2d 477, 455 NYS2d 706, held that adults of sound mind have a common-law right to determine what shall be done with their own bodies and that they cannot be subjected to medical treatment without their consent and it therefore ruled that life-sustaining treatment for the patient in the instant case should be discontinued because the patient had wanted it that way; Competent person has common law and statutory right to refuse all types of medical treatment of any kind, including life-saving or life-sustaining procedures; right is rooted in sacred right to personal inviolability. S.H.A. 755 ILCS 40/5Prairie v. University of Chicago Hospitals, 298 Ill. App. 3d 316, 232 Ill. Dec. 520, 698 N.E.2d 611 (1st Dist. 1998).

[430] The Netherlands has debated the subject of physician assisted suicide as well as voluntary euthanasia for many years and had a “half-way house” experience for about 20 years. This half-way house meant that, although in Dutch law euthanasia remained illegal and was a criminal offence, doctors who carried it out would not be prosecuted provided they complied with certain requirements. This exemption from criminal liability is now codified in the Termination of Life on Request and Assisted Suicide (Review Procedures) Act which took effect on 1 April 2002. It legalises both physician assisted suicide as well as voluntary euthanasia under certain well defined situations. Available at < http://english.minvws.nl/en/themes/euthanasia/default.asp&gt; (Accessed March 29, 2014).

[431] In the United States, the State of Oregon has legalised physician assisted suicide by the Death with Dignity Act 1997.

[432] See for example, <http://www.thehindu.com/news/national/article1516973.ece&gt;, (Accessed on March 28, 2014).

[433] Authorizing the termination of life support systems, the court in John F. Kennedy Memorial Hospital, Inc. v Bludworth (1984, Fla) 452 So 2d 921, held that the right of a patient in an irreversibly comatose and essentially vegetative state to refuse extraordinary life-sustaining measures could be exercised either by his or her close family members or by a guardian appointed by the court. The court explained that terminally ill incompetent persons being sustained only through use of extraordinary artificial means have the same right to refuse to be held on the threshold of death as terminally ill competent persons.

The right to refuse medical treatment in the absence of conflicting state interest rises to the level of a constitutional right which is not lost because of the incompetence or youth of the patient, the court held in Re L.H.R. (1984) 253 Ga 439, 321 SE2d 716. Stating that the parents or legal guardian of a terminally ill infant in a chronic vegetative state with no reasonable possibility of attaining cognitive function could exercise that right on the infant’s behalf, the court therefore authorized the discontinuance of treatment.

[434] McMahan, J., 2002, The Ethics of Killing: Problems at the Margins of Life, New York: Oxford University Press.

[435] Winkler, E., 1995, “Reflections on the State of Current Debate Over Physician-Assisted Suicide and Euthanasia”, Bioethics, 9: 313–326.

[436] Rachels, J., 1986, The End of Life: Euthanasia and Morality, Oxford: Oxford University Press.

[437] Kuhse, H., 1987, The Sanctity-of-Life Doctrine in Medicine: A Critique, Oxford: Clarendon Press.

[438] Re Conservatorship of Torres (1984, Minn) 357 NW2d 332; Saunders v State (1985) 129 Misc 2d 45, 492 NYS2d 510 (implied); Leach v Akron General Medical Center (1980) 68 Ohio Misc 1, 22 Ohio Ops 3d 49, 426 NE2d 809, later proceeding (Summit Co) 13 Ohio App 3d 393, 13 Ohio BR 477, 469 NE2d 1047

[439] (1984) 40 Conn Supp 127, 482 A2d 713.

[440] Take the case of Aruna Shanbaug, a nurse at a leading Mumbai hospital, who has not been able talk, move or eat on her own for the past 37 years, a condition she developed after a sweeper raped her and throttled her with a dog chain. In 1990, journalist Pinki Virani wrote a moving article about Aruna’s tragedy, and later published it as a book. She petitioned the Supreme Court of India to let Arun die a dignified a death.

[441]“India joins select nations in legalising “passive euthanasia,” NEW DELHI, March 7, 2011, available at <http://www.thehindu.com/news/national/article1516973.ece&gt; (Accessed on March 29, 2014).

[442] Gautaman Bhaskaran, “India’s Supreme Court allows euthanasia”, Friday, March 25, 2011, available at < http://search.japantimes.co.jp/cgi-bin/eo20110325gb.html&gt;, (Accessed on March 29, 2014).

[443] Robert Winston, The IVF Revolution: The Definitive Guide to Assisted Reproductive Techniques (London: Vermillion, 1999), p.137.

[444] Deirdre Madden, “Assisted reproduction in Ireland – time to legislate”, M.L.J.I. 2011, 17(1), 3-5

[445] Department of Health. (1998) Brazier Report on Surrogacy Published. Department of Health Press Office, London

[446] Walton S. (June 2000). Surrogacy: A report for the Priority Setting Working Group. Directorate of Public Health.

[447] The American Surrogacy Center Inc., <http://www.surrogacy.com/Articles/news_view.asp?ID=13&gt; (Accessed on March 26, 2014).

[448]Surrogacy, New World Encyclopaedia, Available at

<http://www.newworldencyclopedia.org/entry/Surrogacy&gt; (Accessed on March 25, 2014)

[449] Re Baby M (1987) 525 A. 2d 1128 (N.J. Super. Ct., Ch. Div.)

[450] M. Brazier, ‘Regulating the Reproduction Business’ (1999) 7 Med. L. Rev. 183.

[451] Several state courts have upheld laws that prohibit commercial surrogacy (Doe v. Kelley (1981) 307 N.W. 2d 438 (Mich. C.A.)).

[452] Edited by Rachel Cook, Shelley Day Sclater and Felicity Kaganas, Reviewed by Bernard M. Dickens, “Surrogate Motherhood: International Perspectives,” Med. L. Rev. 2005, 13(1), 116-124.

[453] The legislation allows neither partial surrogacy, and is thus dependent on IVF, nor relatives of intended parents to serve as birth mothers. Payments are allowed not only to reimburse birth mothers’ costs, but also for their time, inconvenience and suffering. This opens the way to commercial agreements in theory and the law’s prohibitions make them inevitable in practice.

[454] Dr Rebecca Gibbs, “Surrogacy: Medical, ethical and legal issues to be considered”, North East Essex PCT Surrogacy, January 2008

[455] Carmel Shaley, Birth Power: The Case for Surrogacy (Yale University Press, 1991). ISBN 978-0300051186, Extracted from <http://www.newworldencyclopedia.org/entry/Surrogacy&gt; (Accessed on March 26, 2014).

[456] O O’Neill, Autonomy and Trust in Bioethics (Cambridge University Press, Cambridge 2002) 50.

[457] S McLean, ‘The Right to Reproduce’ in T Campbell and others (eds), Human Rights: From Rhetoric to Reality (Basil Blackwell, Oxford 1986) 103.

[458] R Dworkin, Life’s Dominion. An Argument about Abortion and Euthanasia (HarperCollins, London 1993) 166-7.

[459] Marleen Eijkholt, “The right to found a family as a stillborn right to procreate?”, Med. L. Rev. 2010, 18(2), 127-151

[460] Ibid.

[461] Ibid

[462] LE Kalkman-Bogerd. ‘Artikel 8 en 12 in verband met kunstmatige voortplanting en draagmoederschap’, in JKM Gevers (ed), Het EVRM en de gezondheidszorg (Ars Aequi Libri, Nijmegen 1994) 122.

[463] [2009] 1 F.L.R. 733.

[464] N. Gamble and L. Ghevaert, “Re X and Y (Foreign Surrogacy): A trek through a Thorn Forest” (2009) Fam. Law 239.

[465] Deirdre Madden, “Assisted reproduction in Ireland – time to legislate”, M.L.J.I. 2011, 17(1), 3-5

[466] Freeman, T., Jadva, V., Kramer, W. and Golombok, S. (2009) ‘Gamete donation: parents’ experiences of searching for their child’s donor siblings and donor’, Human Reproduction 24 (3), 505-16.

[467] Wallbank, J. (2002) ‘Too many mothers? Surrogacy, kinship and the welfare of the child’, Medical Law Review 10 , 271-94.

[468] Carol Smart, “Law and the regulation of family secrets”, Int. J.L.P.F. 412 (2010).

[469] The Human Fertilisation and Embryology Act 2008 received Royal Assent on 13 November 2008, available at <http://www.dh.gov.uk/en/Publicationsandstatistics/Legislation/Actsandbills/DH_080211&gt; (Accessed on March 29, 2014)

[470]The Human Fertilisation and Embryology Act 2008, Section 54: Parental orders

(1)On an application made by two people (“the applicants”), the court may make an order providing for a child to be treated in law as the child of the applicants if—

(a)the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,

(b)the gametes of at least one of the applicants were used to bring about the creation of the embryo, and

(c)the conditions in subsections (2) to (8) are satisfied.

(2)The applicants must be—

(a)husband and wife,

(b)civil partners of each other, or

(c)two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.

[471] Andrew Bainham, “Arguments about parentage”, C.L.J. 2008, 67(2), 322-351

[472] Edited by Rachel Cook, Shelley Day Sclater and Felicity Kaganas, Reviewed by Bernard M. Dickens, “Surrogate Motherhood: International Perspectives,” Med. L. Rev. 2005, 13(1), 116-124.

[473] Rachel Cook, Shelley Day Sclater, Felicity Kagana Surrogate motherhood: international perspectives, Hart Publishing, 2003, p. 137.

[474] Ethics of Organ Transplantation, http://www.ahc.umn.edu/img/assets/26104/Organ_Transplantation.pdf, visited at 27th March, 2014, 11:23 AM.

[475] ibid.

[476]Organ transplantation, en.wikipedia.org/wiki/Organ_transplantation , visited at 29th March, 2014, 10:27 PM.

[477] Human organ and tissue transplantation – World Health Organization, http://apps.who.int/gb/ebwha/pdf_files/A62/A62_15-en.pdf, visited at 27th March, 2014, 11:43 AM.

[478] ‘Organ Transplantation Law In India’, www.legalserviceindia.com/…/l224-Organ-Transplantation-Law-In-, visited at July 16th March, 2014, 11:04 PM.

[479] ibid.

[480] ‘Statistics | donatelife.net’, donatelife.net/understanding-donation/statistics/, visited at 26th March, 2014, 11:20 PM.

[481] Whetstine L, Streat S, Darwin M, Crippen D. (2005). “Pro/con ethics debate: when is dead really dead?”. Critical Care (London, England) 9 (6): 538–42.,  http://www.biomedcentral.com/content/pdf/cc3894.pdf, visited at 27 March, 2014, 01:19 PM.

[482] ‘Organ Donation Facts and Statistics’, http://www.buzzle.com/articles/organ-donation-facts-and-statistics.html -, visited at 26th March, 2014, 11:27 PM.

[483] Ethics of Organ Transplantation, http://www.ahc.umn.edu/img/assets/26104/Organ_Transplantation.pdf, visited at 27th March, 2014, 11:23 AM.

[484]‘Organ Transplantation Law In India’, www.legalserviceindia.com/…/l224-Organ-Transplantation-Law-In-, visited at July 16th March, 2014, 11:04 PM.

[485] ibid.

[486]‘Organ Transplantation Law In India’, www.legalserviceindia.com/…/l224-Organ-Transplantation-Law-In-, visited at July 16th March, 2014, 11:04 PM.

[487] Mr. Vipul Trivedi, ‘Human Rights And Euthanasia’, visited at 17th March, 2014, 04:05 PM.

[488] ibid.

[489]‘Euthanasia and Human Rights’, http://www.legalserviceindia.com/article/l118-Euthanasia-and-Human

-Rights.html, visited at 7th March, 2014, 05:45 PM.

[490] ibid.

[491] Mr. Vipul Trivedi, ‘Human Rights And Euthanasia’, visited at 17th March, 2014, 04:05 PM.

[492] Euthanasia, http://www.legalserviceindia.com/article/l120-Euthanasia.html, visited at 7th March, 2014, 05:47 PM.

[493] 1996 (1) BomCR 92, 1995 CriLJ 96

[494] 1996 VIAD SC 533, AIR 1997 SC 411, 1996 (2) ALD Cri 897

[495] AIR 1844, 1994 SCC (3) 394

[496] 1996 AIR 946, 1996 SCC (2) 648

[497] (2002) 1 All ER 1 (25) (HL)

[498] 521 US 793 (1997)

[499] Times of India, December 11, 2004, p. 1

[500] 1987 Cri LJ 743 (Bom.)

[501] AIR 1994 SC 1844

[502] (1996) 2 SCC 648: 1996 Cr LJ 1660

[503] ‘Euthanasia and Human Rights’, http://www.legalserviceindia.com/article/l118-Euthanasia-and-Human

-Rights.html, visited at 7th March, 2014, 05:45 PM.

[504] ibid.

[505] http://law.jrank.org/pages/1096/Euthanasia-Assisted-Suicide-Pros-Cons.html, visited on 13th March , 2014.

[506] ibid.

[507]‘What is gene therapy?’, ghr.nlm.nih.gov › Handbook › Gene Therapy , visited at 17th March, 2014, 12:50 AM.

[508]‘Gene therapy’, en.wikipedia.org/wiki/Gene_therapy, visited at 16th March, 2014, 10:39 PM.

[509]Gene Therapy: Advantages and Disadvantages’, www.biotecharticles.com/Genetics…/Gene-Therapy-Advantages-and…, visited at 17th March, 2014, 12:56 AM.

[510] ibid.

[511] ‘Types of Gene Therapy « walesgenepark.co.uk’, http://www.walesgenepark.co.uk/types-of-gene-therapy-2 -, visited at 17th March, 2014, 12:53 AM.

[512]Gene Therapy: Advantages and Disadvantages’, www.biotecharticles.com/Genetics…/Gene-Therapy-Advantages-and…, visited at 17th March, 2014, 12:56 AM.

[513] ibid.

[514] ‘Types of Gene Therapy « walesgenepark.co.uk’, http://www.walesgenepark.co.uk/types-of-gene-therapy-2 -, visited at 18th March, 2014, 12:53 AM.

[515] [http://www.biomedcentral.com/1472-6939/4/3] (08.03.2014).

[516] [http://www.legalserviceindia.com/article/l118-Euthanasia-and-Human-Rights.html] (09.03.2014).

[517] ibid.

[518] 1996 (1) BomCR 92, 1995 CriLJ 96, 1994 (2) MhLj 1850.

[519]What are the advantages of Gene Therapy?’,answers.yahoo.com, visited at17th March, 2014 12:54 AM.

[520] ibid.

[521] 1996 (1) BomCR 92, 1995 CriLJ 96, 1994 (2) MhLj 1850.

[522] ibid.

[523]Korthof G. “The implications of Steele’s soma-to-germline feedback for human gene therapy”,

http://home.planet.nl/~gkorthof/kortho39a.htm.

[524] [http://www.biomedcentral.com/1472-6939/4/3] (28.03.2014).

[525] Woods NB, Bottero V, Schmidt M, von Kalle C, Verma IM (Apr 2006). “Gene therapy: therapeutic gene causing lymphoma”. Nature 440 (7088): 1123.

Thrasher AJ, Gaspar HB, Baum C, et al. (Sep 2006). “Gene therapy: X-SCID transgene leukaemogenicity”. Nature 443 (7109): E5–6; discussion E6–7.

[526]‘Gene Therapy: Advantages and Disadvantages’, http://www.biotecharticles.com/Genetics…/Gene-Therapy-Advantages-and.., visited at 17th July, 2011, 12:56 AM.

[527] Guinn, B. A. and Mulherkar, R., International progress in cancer gene therapy. Cancer Gene Ther., 2008, 15(12), 765–775.

[528]Jia, H. and Kling, J., China offers alternative gateway for experimental drugs. Nature Biotechnol., 2006, 24(2), 117–118.

[529] Agarwal, S. S., Regulating stem cell research and therapy. Indian J. Med. Res., 2006, 124(3), 225–228.

[530] ‘Gene and cell therapy in India’, http://www.ias.ac.in/currsci/10dec2010/1542.pdf, visited at 17th March, 2014,, 12:48 AM.

[531]  ‘Top 10 Evil Human Experiments’, listverse.com/2008/03/14/top-10-evil-human-experiments/ -, visited at 17th March, 2014, 01:01 Am.

[532] ‘Human subject research – Wikipedia, the free encyclopedia’, en.wikipedia.org/wiki/Human_subject_research -, visited at 17th March, 2014, 01:03 AM.

[533] ibid.

[534] ‘Experiments on Human Beings’, http://www.jstor.org/stable/3749412, visited at 27th March, 2014, 01:14AM.

[535] ibid.

[536] ‘Medical experiments on human beings’, http://www.ncbi.nlm.nih.gov › Journal List › J Med Ethics › v.7(1); Mar 1981, visited at 17th 27th March, 2014, 01:04 AM.

[537] ‘Arguments for and against Surrogacy’, hubpages.com › … › Adoption › Seeking Birth Parents -, visited at   27th March, 2014, 01:24 AM.

[538] ibid.

[539] ‘What is a Surrogate Mother?’, www.wisegeek.com/what-is-a-surrogate-mother.htm, visited at  27th March, 2014, 01:11 AM.

[540] ‘Surrogacy in India – Low Cost Indian Surrogacy’, www.medicaltourismco.com/assisted…/low-cost-surrogacy-india.ph…, visited at 17th  March, 2014, 01:26 AM.

[541] ibid.

[542] ‘Surrogacy – Wikipedia, the free encyclopedia’, en.wikipedia.org/wiki/Surrogacy -, visited at 17th March, 2014, 01:09 AM.

[543] ibid.

[544] ‘Surrogate Motherhood legal definition of Surrogate Motherhood…’, legal-

dictionary.thefreedictionary.com/Surrogate+Motherhood -, visited at 27th March, 2014, 01:13 AM.

[545] ibid.

[546] ibid.

[547] An Alibertarian Case for Reproductive Laissez-Faire, Bryan Caplan, December 30, 2009

[548] ‘Cloning – Wikipedia, the free encyclopedia’, en.wikipedia.org/wiki/Cloning – , visited at 27th March, 2014, 01:32 AM.

[549] ibid.

[550] ‘Cloning Fact Sheet’, http://www.ornl.gov/hgmis/elsi/cloning.shtml -, visited at 25th March, 2014, 01:34 AM.

[551] ‘What are Some Disadvantages of Cloning?’, http://www.wisegeek.com/what-are-some-disadvantages-of-cloning.htm -, visited at 25th March, 2014. 01:40AM.

[552] ibid.

[553] Elizabeth Wicks, “Religion, law and medicine: legislating on birth and death in a Christian state” Med. L. Rev. 2009, 17(3), 410-437

[554] Gh. Nabi Sumji Vs. State and Ors, 2010(2)JKJ456.

[555] Nickel, James, “Human Rights”, The Stanford Encyclopedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/fall2010/entries/rights-human/&gt;. (Accessed 25th March, 2014).

[556] A. Wayne MacKay , “The Waves of Information Technology, the Ebbing of Privacy, and the Threat to Human Rights”, 10 Nat’l J. Const. L. 411.

[557] [http://www.ostina.org/content/view/3526/1069/] (25th March, 2014)

[558] N K Jayakumar, International Law and Humab Rights,

[559] [http://www.psaindia.org/Science%20and%20Social%20Imperatives.pdf] (29th March, 2014)

[560] [http://archive.unu.edu/unupress/unupbooks/uu08ie/uu08ie04.htm#1. technological impacts on human rights: models of development, science and tec] (29th March, 2014)

[561] 1996 AIR 946, 1996 SCC (2) 648

[562] <http://ccnmtl.columbia.edu/projects/mmt/udhr/preamble_section_4/discussion_4.html Accessed on  29th March, 2014 at 10:30 P:M.

[563][563] Ibid

[564] <http://ccnmtl.columbia.edu/projects/mmt/udhr/preamble_section_4/discussion_6.html&gt;, Accessed on 29th March, 2014 at 10:32 P:M.

[565] Ibid

[566] Ibid

[567] Henk A.M.J. Ten Have and Michele S. Jean, The UNESCO Universal Declaration on Bioethics and Human Rights: Background, Principles and Application, H.R.L. Rev. 2010, 10(4), 789-792.

[568] Nick Ferreira, “The expanding realm of human rights,” Res Publica 2008, 14(1), 57-64.

[569] Henk A.M.J. Ten Have and Michele S. Jean, The UNESCO Universal Declaration on Bioethics and Human Rights: Background, Principles and Application, H.R.L. Rev. 2010, 10(4), 789-792.

[570] Duff R. Waring , Integrating Values in Risk Analysis of Biomedical Research: the Case for Regulatory and Law Reform, 54 U. Toronto L.J. 249

[571] Elizabeth Wicks, “Religion, law and medicine: legislating on birth and death in a Christian state” Med. L. Rev. 2009, 17(3), 410-437

[572] Gh. Nabi Sumji Vs. State and Ors, 2010(2)JKJ456.

[573] AIR 1978 Sc 597.

[574] http://www.ohchr.org/en/issues/Pages/WhatareHumanRights.aspx, visited on 29th March, 2014.

[575] Raya Hazarika, The African Charter on Human and People’s Rights 1981, http://jurisonline.in/2010/10/africancharter/ as Accessed on 29th March, 2014at 11:18 PM.

[576][http://www.oecd.org/document/19/0,3746,en_21571361_44315115_48029523_1_1_1_1,00.html(29th March, 2014)

[577] Gautam Chikermane,”To Save the Girl Child Invest” Indian Express, March 30,2006

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