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's Article 21 May Protect Genome From Non-Consensual CRISPR Editing
In , Chinese biophysicist He Jiankui announced the birth of the world's first CRISPR-edited babies—twins Lulu and Nana—sparking global condemnation. The germline modifications they carry are heritable and irreversible. Now, as gene-editing technology becomes cheaper and more accessible, India faces a pressing constitutional question: Can shield an individual's genome from non-consensual editing? The answer, rooted in the Supreme Court's expansive interpretation of , suggests that the Constitution does provide doctrinal material for such a right—but the legislative machinery to operationalise it remains conspicuously absent.
The CRISPR Precedent and India's Regulatory Vacuum
He Jiankui's experiment used CRISPR-Cas9 to edit the CCR5 gene in early-stage embryos, aiming to confer HIV resistance. The scientific community condemned the work as premature and unethical, and He was jailed. But the technology has not stood still. CRISPR-based somatic therapies, such as Casgevy for sickle cell disease, are now approved by regulators in the US and UK. The pressure to push into germline applications—editing sperm, eggs, or embryos—grows each year.
India is not a bystander. The country has one of the highest rates of hereditary blood disorders globally, and its gene therapy market is expanding at over 15 percent annually. Private fertility clinics proliferate, regulated unevenly across states. Yet India's regulatory response to germline editing remains a patchwork of non-binding guidelines. The issued National Ethical Guidelines in that prohibit human germline editing, and the ICMR's Gene Therapy Guidelines of recommend creating a . In , the brought cell and gene therapy products under a central licensing framework.
But as the source article notes,
"None of this is statute. The ICMR guidelines, however carefully worded, are advisory instruments. They impose no criminal penalty. They create no civil
."
A private clinic that edits an embryo in violation of these guidelines faces administrative consequences at most—loss of accreditation—but no victim can walk into a court and invoke them as the basis of a constitutional or tortious claim. The regulatory gap is real, and it is dangerous.
Article 21 and : The Doctrinal Foundation
Article 21 guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law. In Justice K.S. Puttaswamy v. Union of India (), a nine-judge bench unanimously held that the is an intrinsic under Article 21. Crucially, the Court identified distinct zones of privacy, one of which was . Justice D.Y. Chandrachud, writing for four judges, grounded privacy in "," dignity, and .
This is not an abstract principle. The Supreme Court has applied in cases like
Suchita Srivastava v. Chandigarh Administration
(), which protected reproductive choices, and
Selvi v. State of Karnataka
(
), which struck down compelled narco-analysis. As the source article puts it:
"The constitutional architecture, then, already supports the proposition that the body—its physical composition, its biological identity—is a
."
The question is whether that protection extends to the genome—the most intimate expression of biological selfhood. The source argues that it must, because an edit to the germline is not an informational intrusion; it is a physical alteration of the body's foundational structure, heritable and permanent. If Article 21 protects , it must at minimum protect against alterations that are irreversible and made without the consent of the person who will bear them.
The Genome as a Constitutional Interest
The argument that the genome is a constitutional interest under Article 21 rests on three propositions, all drawn from the source's analysis. First, the genome is the body. DNA is the biological substrate of who a person is. A germline edit alters that substrate before the person exists, but the person who is born will carry that alteration in every cell. Second, the person most affected—the child—cannot consent at the time of the edit. Constitutional rights are not contingent on the capacity to assert them at the moment of violation. The state has a positive duty to protect life, as affirmed in Parmanand Katara v. Union of India (). An embryo is not a rights-holder under current Indian law, but the person that embryo becomes is—and that person will live with an irreversible constitutional injury they never agreed to.
Third, the proportionality standard from Puttaswamy —that any interference with privacy must be —is directly applicable. A germline edit performed without statutory authorisation, without a framework for , and without any mechanism for post-birth remedy fails all three limbs simultaneously.
The Horizontal Effect Hurdle
A significant difficulty remains: most germline editing will not be done by the state. It will be done by private fertility clinics, research laboratories, or commercial actors. Fundamental rights under traditionally bind the state, not private parties. However, the Supreme Court in Kaushal Kishor v. State of Uttar Pradesh () opened the door—tentatively but meaningfully—to between private parties.
More directly, the state's failure to legislate a statutory prohibition on non-consensual germline editing is itself a state omission amenable to Article 21 scrutiny. As the source article states:
"The gap is not just regulatory. It is constitutional. When the state permits a zone of human vulnerability to remain entirely unprotected—where an irreversible bodily alteration can be performed without consent, without remedy, and without criminal liability—that omission is itself amenable to Article 21 scrutiny."
A constitutional court could issue a
and a
to Parliament.
What a Statutory Framework Must Include
The answer to non-consensual germline editing is not another ICMR guideline. It is a statute—one that does at least four things. First, it must define germline editing as a regulated act and classify non-consensual germline editing as a with meaningful penalties, not merely a licensing violation. Second, it must create a statutory independent body—the GTAEC that ICMR has recommended since remains non-operational—with powers to authorise, monitor, and penalise germline research. Third, it must provide a . A person born with non-consensually altered genetic material must have a statutory independent of criminal proceedings. Fourth, it must address the consent architecture for embryo research. regulates IVF clinics and requires for embryo use, but it is silent on genetic modification. A targeted amendment, or a standalone , is needed.
Conclusion
CRISPR is no longer a laboratory curiosity. The technology to edit a human embryo's germline exists, is accessible, and is becoming cheaper. India's private fertility clinics operate under uneven regulation, and the commercial pressure to offer germline editing services will only grow. Article 21, as interpreted through Puttaswamy , already contains the doctrinal material for a right against non-consensual germline editing: , , , and the . What it does not yet have is a statute that operationalises these protections before the harm occurs—because is, by its nature, .
Lulu and Nana, the CRISPR twins, are now children in China, living with edits they did not consent to, whose long-term consequences remain unknown. India should not wait for its own version of that story before it decides what the Constitution requires.
