Why courts are interested in new sciences

In my Jan. 6 piece concluding my four-part series on stem cell therapy, I said that in 2003, I wrote a book titled, “The Bio-age Dawns on the Judiciary.” Many readers asked: Why were the Supreme Court and I interested in the latest in science? Well, the giant strides in science and technology at that time like genetically modified organisms and deoxyribonucleic acid (DNA)—taken up for the first time in Tijing v. Court of Appeals (March 8, 2001) and People v. Vallejo (May 9, 2002)—changed human behavior and social interaction and required new modes of governance and new jurisprudential norms without precedence. As they still do now.

LET ME SUM UP A FICTIONAL EXAMPLE from my book to show the point. In 1998, Pedro (a Filipino) and Marie (an Italian) got married. Everything seemed perfect, until they were told by their obstetrician that Marie was incapable of conceiving a child. The revelation caused a lot of frustration, anxiety, and pressure on their relationship. As a result, they decided to separate for a while.

From the internet, Marie learned of a new development in reproductive technology known as somatic cell nuclear transfer, or reproductive cloning. The technology involved the extraction of a cell nucleus containing virtually the entire cell’s DNA from a donor’s tissue—for example, skin or mammary tissue. This extracted nucleus is then inserted into an egg cell whose original nucleus had been removed. After chemical and electronic stimulation successfully coaxed the reconstituted cell to divide, it was implanted into a human uterus.

Though Pedro was vehemently opposed, Marie, accompanied by her best friend, Katrina—a British lady married to Dr. Juan, a Filipino physician—went to a fertility clinic in Hong Kong to avail herself of the new reproductive procedure.

In Hong Kong, a cell nucleus was extracted from Marie’s skin and inserted into an egg cell that had already been denucleated; the resulting zygote or fertilized egg began to divide. Later, over the vehement objections of Dr. Juan, it was transferred to the womb of Katrina who served as a surrogate mother for the developing fetus.

Shortly after the baby was born, Marie and Katrina, together with the cloned child, Carmina, returned to the Philippines. They resided together with the cloned child but separately from their Filipino husbands.

WHAT ARE THE LEGAL CONSEQUENCES? Is the cloned child, a “person” in legal contemplation? Or is she merely an “extension” of a human cell and tissue that have evolved into human form?

Under Article 40 of the Civil Code, “birth determines personality.” But this determination refers to a “conceived child.” Is Article 40 then not applicable to one who was not “conceived”; that is, one who was not the result of the normal fertilization of a human egg by a human sperm? Since the human clone is first a fetus before being born, is it not entitled to be accorded “birth” and “personality”—qualities that are “favorable to it” under Article 41?

If Carmina is a “person,” when was she conceived? How was her “intrauterine” life determined? Who is her mother? Marie, from whose cell she originated or Katrina, from whose womb she was physically carried, nurtured and born? Who is her father—Pedro? Juan? Is she legitimate or illegitimate? How can her filiation be established? Will a DNA test sustain her identity and parentage?

If Carmina is merely an extension of an original person, are we prepared to say that a being that is capable of breathing, thinking, talking, and working like any other human can be considered merely an object? Or is she a sister of Marie and therefore, like her, the daughter of Marie’s parents, since she possesses the chromosomes of these forebears? Are we prepared to classify parents as legal, biological, surrogate, or adoptive?

THE FAMILY CODE PROVIDES THAT THE FILIATION OF CHILDREN may be by nature or by adoption. It also states that children conceived or born during the marriage of the parents are legitimate. If the child is conceived through artificial insemination with the sperm of the husband or a donor, the child shall likewise be considered a legitimate child of the husband and the wife, provided that both spouses authorized or ratified the insemination process in a written instrument executed before the birth of the child. It also mandates that children conceived, or born outside valid marriages are considered illegitimate.

In our fictional case, how Carmina was born—reproductive cloning—can hardly be described as natural. The procedure utilized for the conception of the cloned child was not artificial insemination, as it did not involve the sperm of Pedro or any sperm for that matter. Neither was there a written instrument, ratifying or authorizing such reproductive procedure. Consequently, was the conception or birth of Carmina within or outside the validly existing marriage of Pedro and Marie? How about Juan and Katrina?

There are many, many more questions, including the ethical and moral. But for lack of space, I will end now, confident that the basic issue of why courts are interested in new sciences had been answered. The curious may look further at my 2003 book.

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