VII. Conclusion
Cloning and assisted reproductive technology force us to think deeply
about the meaning of genes, identity, reproduction, parenting, children,
and our connection with family and nature. Such issues come to us
structured as problems of liberal decisionmaking. Is fundamental
reproductive liberty involved? Do the harms justify intruding on
those liberties? Is regulation to minimize ill-effects consistent
with the liberty rights at stake?
As we have seen with human cloning and will see again as other
techniques of genetic selection and manipulation become available, the
answers to these questions are only partially determined by our past practices
and understandings. Past practices will help form a bridge to the
twenty-first century's genetic practices, but we will have to construct
most of that bridge as we proceed. Cloning and genetic alteration
will force us to define and constitute ourselves as we confront the genetic
meanings of family and reproduction in these new technologic endeavors.
Notes and references:
* Vinson & Elkins Chair in
Law, University of Texas School of Law. A.B. 1964, Dartmouth College;
J.D. 1968, Harvard University.
1. See, e.g., Johnson v. Calvert, 851
P.2d 776, 787 (Cal. 1993) (holding that a gestational surrogate who carries
an implanted zygote containing none of her genetic material to term is
not the "natural mother" of the resulting child under California law);
Davis v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992) (awarding custody of frozen
embryos to the ex-husband after a divorce).
2. See Rick Weiss, Clinton Forbids Funding
of Human Cloning Studies: Privately Financed Scientists Urged to Halt Work,
WASH. POST, Mar. 5, 1997, at A10.
3. See, e.g., Human Cloning Prohibition
Act, H.R. 923, 105th Cong. =A7=
2 (1997) (providing that "[i]t shall be unlawful for any person
to use a human somatic cell for the process of producing a human clone");
Human Cloning Prohibition Act, S. 1601, 105th Cong. =A7 3 (1997) (stating
that "[i]t shall be unlawful for any person or entity, public or private,
in or affecting interstate commerce, to use human somatic cell nuclear
transfer technology"); see also NATIONAL BIOETHICS ADVISORY COMM'N, CLONING
HUMAN BEINGS: REPORT AND RECOMMENDATIONS OF THE NATIONAL BIOETHICS ADVISORY
COMMISSION 104 tbl.1 (1997) [hereinafter NBAC CLONING REPORT] (outlining
bills introduced in 12 states and 3 competing federal bills restricting
human cloning).
. See NBAC CLONING REPORT, supra note
3, at 109.
. President's Remarks Announcing the
Proposed "Cloning Prohibition Act of 1997," 33 WEEKLY COMP. PRES. DOC.
844, 844-45 (June 9, 1997) [hereinafter President's Remarks].
. See Opinion of the Group of Advisers
on the Ethical Implications of Biotechnology to the European Commission,
Ethical Aspects of Cloning Techniques, art. 2(6), (opinion requested by
the European Commission on Feb. 28, 1997), May 28, 1997, at 6 (unpublished
draft, on file with the Texas Law Review); see also Clinton Seeks to Ban
Human Cloning But Not All Experiments, N.Y. TIMES, June 10, 1997, at C4
(reporting that Britain, Denmark, Germany, Australia, and Spain have banned
human cloning). The joint communique of the eight-nation economic
summit meeting in Denver in June 1997 included an agreement by each country
to prohibit human cloning for the creation of children. See David
S. Cloud, Achievements at Summit of 8 Often Less Than Meets the Eye, CHI.
TRIB., June 23, 1997, at 4.
. See infra note 248 and accompanying
text (discussing the constitutional status of the right to have and rear
children).
. For example, a recent study of elderly
identical twins found that 62% of general cognitive ability was attributable
to genetic factors. See Gerald E. McClearn et al., Substantial Genetic
Influence on Cognitive Abilities in Twins 80 or More Years Old, 276 SCIENCE
1560, 1562 (1997).
. An interesting thought experiment
would be to ask what a clone of Jesus Christ would be like if born today,
say from DNA recovered from Veronica's sweaty veil or the bloody Shroud
of Turin. (I am indebted to Jim Magnuson for this example.)
See generally NORMAN MAILER, THE GOSPEL ACCORDING TO THE SON (1997) (speculating,
in a narrative of historical fiction, as to the thoughts and feelings that
Jesus may have had as he walked the earth).
. FUNK AND WAGNALLS NEW STANDARD DICTIONARY
OF THE ENGLISH LANGUAGE (1919). A more contemporary dictionary has
a similar definition: "An organism descended asexually from a single ancestor,
such as a plant produced by layering or a polyp produced by budding."
THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 359 (3d ed. 1992)
[hereinafter AMERICAN HERITAGE DICTIONARY]. Alternative definitions
include: "One that copies or closely resembles another, as in appearance
or function: `filled with business-school clones in gray and blue suits.'"
Id. (emphasis in original).
. AMERICAN HERITAGE DICTIONARY, supra
note 10, at 359.
. Id.
. The starvation of differentiated cells
in order to deprogram them was the conceptual innovation that made nuclear
transfer cloning possible. The Wilmut team had demonstrated this
technique a year earlier when it had produced two lambs-Megan and Morad-from
fetal fibroblastic cells that had their cell cycles reprogrammed in this
way. The nuclei had then been removed and inserted in sheep oocytes,
activated, and placed in surrogate sheep. Although the report of
this study received none of the attention that the birth of Dolly did,
it was the scientific breakthrough that made the birth of Dolly possible.
See GINA KOLATA, CLONE: THE ROAD TO DOLLY AND THE PATH AHEAD 204-08 (1998)
[hereinafter KOLATA, CLONE].
. I. Wilmut et al., Viable Offspring
Derived from Fetal and Adult Mammalian Cells, 385 NATURE 810, 813 (1997).
. See NBAC CLONING REPORT, supra note
3, at 22.
. See id. at 1, 22.
. Early experiments on frogs had only
generated tadpoles. See id. at 22.
. See Wilmut, supra note 14.
. See Gina Kolata, Some Scientists Ask:
How Do We Know Dolly Is a Clone?, N.Y. TIMES, July
29, 1997, at C3 (reporting on a few skeptics who are demanding proof
that only uncontaminated adult udder cells were used, but noting that the
vast majority of the scientific community accepts Wilmut's claim).
More recently, two noted scientists, in a letter to Science also have questioned
whether the claim that an adult sheep has been cloned has been proven,
pointing out that the cells cloned could have been stem or fetal cells,
since the ewe that provided the nuclear DNA was pregnant at the time the
mammary cells were taken. See Vittorio Sgaramella & Norton D.
Zinder, Letter, 279 SCIENCE 635, 635 (1998).
. Many other species (including humans)
have shorter gene activation periods than sheep, thus making it more difficult
to permit the proper reprogramming of genes after nuclear transfer to allow
for subsequent normal development. See NBAC CLONING REPORT, supra
note 3, at 23.
. Culturing DNA before or after transplant
may lead to instability of the imprint, thus limiting the efficiency of
nuclear transfer from somatic cells or causing abnormalities in resulting
children. See id. at 23-24.
. See id. at 24 (explaining that as
somatic eggs age and divide, they experience a progressive shortening of
the chromosome ends, a determination which may, or may not, be corrected
when the adult cell is returned to the egg environment).
. Gina Kolata, in her useful history
of the development of cloning, discounts these arguments as serious objections.
See KOLATA, CLONE, supra note 13, at 239-42.
. Elizabeth Pennisi, After Dolly, a
Pharming Frenzy, 279 SCIENCE 646, 646 (1998).
. See Robert Cooke, Monkeys, Too: Cloning
Creates Identical Primates Helpful in Research, NEWSDAY, Mar. 3, 1997,
at A5; Christine Gorman, Neti and Ditto: Two Cute New Clones Are Too Close
for Comfort, TIME, Mar. 17, 1997, at 60.
. See Gina Kolata, 10 Cloned Cows Soon
to Be Born, Company Reports, Duplicating a Lamb Experiment, N.Y. TIMES,
Aug. 8, 1997, at A10. In this case, somatic cells whose growth had
been stabilized were fused with enucleated eggs, producing embryos whose
cells were then cloned to produce cow pregnancies at a claimed rate of
50% efficiency. See id.
. See Gina Kolata, Lab Yields Lamb With
Human Gene, N.Y. TIMES, July 25, 1997, at A18.
. See id.
. See Carey Goldberg & Gina Kolata,
Scientists Announce Births of Cows Cloned in New Way, N.Y. TIMES, Jan.
21, 1998, at A14. The variation here involved waiting six hours between
inserting the nucleus of the cell to be cloned into the enucleated egg
and activating it as opposed to immediate activation. With this method,
5-10% of the efforts to create embryos from cloned cells were successful,
as compared to the less than 2% success rate in creating embryos in the
Dolly experiment when immediate activation occurred.
. See Kolata, supra note 27.
. See NBAC CLONING REPORT, supra note
3, at 26 (reporting that some injected eggs never develop and those that
do produce transgenic animals which fail to express the added gene).
. The Roslin group has now reported
the birth of a transgenic sheep through cloning fetal cells. New
genes, including a human gene, were added to laboratory cultures of fetal
sheep skin cells. The nuclei of fetal cells that had taken up the
human gene were transferred to sheep oocytes and eventually led to the
birth of a lamb, Polly. Each of Polly's cells contained the skin
cell's genes, including the human gene added in the laboratory. See
Kolata, supra note 27.
. See KOLATA, CLONE, supra note 13,
at 217-18; Pennisi, supra note 24, at 646.
. See NBAC CLONING REPORT, supra note
3, at 26 (explaining that the increased efficiency of nuclear transfer
technology was the reason for conducting the Dolly experiment).
. See id.
. See id. at 27-28 (discussing the potential
use of cloning to improve targeted gene alteration).
. See, e.g., Warren E. Leary, Gene-Altered
Mice are Called First True Sickle Cell Model, N.Y. TIMES, Oct. 31, 1997,
at A20 (announcing the development of transgenic mice carrying the human
gene for sickle hemoglobin).
. See NBAC CLONING REPORT, supra note
3, at 24-25 (describing the procedure through which cloning could produce
"homozygous inbred lines" of animals, but noting that the usefulness of
such a procedure for research would likely be "limited" due to its great
cost).
. Such a goal underlies the report from
Oregon on the successful nuclear transfer of early embryonic nuclei in
rhesus macaque monkeys. See supra note 25 and accompanying text.
. See NBAC CLONING REPORT, supra note
3, at 25 (contending that artificial insemination and embryo transfer can
increase the effective output of elite animals in the livestock industry).
. Such a goal is driving the research
efforts of ABS Global, Inc., whose cloning of cattle from somatic cells
was noted above. See supra note 26 and accompanying text.
. Cloning could also help save endangered
species. See Jon Cohen, Can Cloning Help Save Beleaguered Species?,
276 SCIENCE 1320, 1329-30 (1997) (observing that frozen cells banked at
the San Diego Zoo could be used to clone a Przewalski's horse, Sumatran
rhinoceros, or other rare animals). On the other hand, it could adversely
affect investments in racehorses. The Jockey Club, the official registrar
of thoroughbred racing, is opposed to cloning of racehorses. See
Thomas Heath, Clone `Em If You Got `Em: Cigar's Owner Seeing Double, WASH.
POST, Mar. 14, 1997, at C1 (reporting that the Jockey Club interprets its
rules of registration in such a way as to exclude cloning or other forms
of assisted breeding).
(continued, see below)
John Robertson
School of Law
University of Texas
512-471-3524
512-471-6988 (FAX)
jrobertson@mail.law.utexas.edu
Liberty, Identity,
and Human Clonin, part 1
Liberty, Identity,
and Human Cloning, part 2
Liberty, Identity,
and Human Cloning, part 3
Liberty, Identity,
and Human Cloning, part 4
Liberty, Identity,
and Human Cloning, part 5
Liberty, Identity,
and Human Cloning, part 6
Liberty, Identity,
and Human Cloning, part 7
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