More notes and references:
. See HEYD, supra note 127, at 160-62, 168-77 (characterizing
the formation of identity as a dynamic process crucially tied to both biological
and social factors).
. JONAS, supra note 77, at 161 (emphasis
added).
. Id.
. Id. at 162 (emphasis in original).
Note that Joel Feinberg uses the term "open future" in a different way.
See Joel Feinberg, The Child's Right To an Open Future, in WHOSE CHILD?
CHILDREN'S RIGHTS, PARENTAL AUTHORITY, AND STATE POWER (William Aiken &
Hugh LaFollette eds., 1980), reprinted in FREEDOM AND FULFILLMENT: PHILOSOPHICAL
ESSAYS 76 (1992) (examining a subclass of rights generally characteristic
of children, termed "rights-in-trust"). To Feinberg, the denial of
an open future refers to the withholding of the capacity or tools necessary
to make autonomous choices, and not to the imposition of expectations or
models that act to dictate or restrain future choice. See id. at
76-77. Using the Amish children in Wisconsin v. Yoder, 406 U.S. 205
(1972) as an example, he calls the failure to give a child the rudiments
of knowledge needed to function in contemporary society a denial of the
child's right to an open future. See id. at 85. Another example
would be genital mutilation or clitorectomy of girls at puberty, which
denies them the ability to make later decisions about sexual pleasure.
See generally Catherine L. Annas, Irreversible Error: The Power and Prejudice
of Female Genital Mutilation, 12 J. CONTEMP. HEALTH L. & POL'Y 325
(1996) (evaluating the legal theories and policy recommendations regarding
the act of female genital mutilation); Colloquy, Bridging Society, Culture,
and Law: The Issue of Female Circumcision, 47 CASE W. RES. L. REV. 263
(1997) (examining the tension between universal rights and the cultural
practice of female genital mutilation).
. Except that they have died or were
never born, which could, in some cases, be significant.
. The phrase "chip off the old block"
refers to both physical and nonbiologic similarities between parent and
child. Our traditions of parental and family autonomy give parents
wide discretion in rearing children that allows them to mold their children
to their own ideas. Abuses can occur, as exemplified by the image
of the Little League father, who expects his son to be a baseball star,
or the stage mother, who forces her child into an acting or theatrical
career, when the children in both cases would simply like to do something
else.
. Of course, not every use of cloning
will reflect the model of responsibility suggested in the text. But
the possibility of abuse in a few cases is not a compelling reason to ban
cloning in all cases, for fundamental procreative liberties are involved.
More limited regulation can guard against the abuses. See infra subpart
V(B) (addressing the policy issues implicated if cloning is determined
to be safe and effective for humans).
. See NBAC CLONING REPORT, supra note
3, at 72-74 (discussing the concern that cloning may amount to objectifying
cloned children, rather than treating them as full persons).
. See HUXLEY, supra note 71.
. Although it would not follow that
such individuals would be harmed, given that they have no alternative way
to be born, the choice to do so would not easily be viewed as a legitimate
exercise of procreative liberty or good parenting. See supra notes
134-135.
. Even if the clones in these situations
would not themselves be harmed because they would have no other way to
exist, it is clear that producing them would not be an exercise of anyone's
procreative freedom, and thus cloning for such purposes might rationally
be banned to symbolize respect for persons or other ideals.
. For further discussion of this case,
see ROBERTSON, supra note 86, at 214-17.
. Id. at 214.
. Id.
. Id.
. Id.
. For accounts of other cases, see Warren
Kearney & Arthur L. Caplan, Parity for the Donation of Bone Marrow:
Ethical and Policy Considerations, in 1 EMERGING ISSUES IN BIOMEDICAL POLICY
262, 263 (Robert H. Blank & Andrea L. Bonnicksen eds., 1992) (reporting
that at least forty known cases of couples conceiving a child in the hope
of creating a marrow donor preceded the much publicized Ayala conception).
. See Strunk v. Strunk, 445 S.W.2d 145,
148-49 (Ky. 1969) (holding that a retarded person could serve as a kidney
donor for his brother when the donation would benefit the incompetent donor).
The required benefit need not be a physical one. Allowing the transplant
may be appropriate when proof establishes that the psychological benefits
that will flow to the incompetent donor as a result of the operation would
outweigh the possible physical harm. For example, the court in Strunk
authorized the transplant largely because of the overwhelming psychiatric
evidence that the death of the donee in the absence of the transplant would
have an extremely traumatic effect on the incompetent donor. See
id. at 146-47; see also Charles H. Baron et al., Live Organ and Tissue
Transplants from Minor Donors in Massachusetts, 55 B.U. L. REV. 159, 170-71,
178-81 (1975) (discussing Massachusetts's use of the "best interests test,"
which attempts to balance the psychological benefit to the incompetent
donor against the physical harm he suffers in donating an organ or tissue
to determine whether the operation is in his best interest). Thus,
in our scenario, the resulting child cannot automatically be used as a
tissue donor for some other person when it will not be benefitted, as it
may be by tissue donation to an ill sibling or family member.
. See supra notes 53-54 (contending
that for transplantation purposes the use of embryonic stem cells ultimately
will become more acceptable than the use of fetal tissue or organs).
. A variation on this issue would be
the creation of headless or brainless embryos, fetuses, or bodies to serve
as tissue or organ sources. Without a brain or head, no rights-bearing
entity or person
would exist, making clear that the harm done by harvesting organs from
such creatures would be a symbolic one. Another variation would be
the use of cow eggs to create the cloned embryos or fetuses from which
tissue or organs are ultimately derived. See Goldberg & Kolata,
supra note 29, at .
. See ROBERTSON, supra note 86, at 198-202,
207-14 (discussing the controversies surrounding embryo research and the
use of fetal tissue that comes from abortions for transplants).
. Enabling an existing child to live
through tissue transplanted from a later born twin promotes the ability
to continue to rear that child. Note also that the concerns about
objectification would not suffice to ban the production of embryos or fetuses
from whom tissue is harvested before they are born. Although the
right to reproduce may not be directly applicable because no child is ever
born, "farming the uterus" does involve use of the couple's reproductive
capacity and should be protected in its own right. See Robertson,
supra note 86, at 197, 207-14, 217-19 (discussing the ethical issues involved
in using aborted fetal tissue for a transplant); see also ROBERTSON, infra
note 235 (positing that a restriction on designated donation of fetal tissue
would violate fundamental procreative rights).
. See NBAC CLONING REPORT, supra note
3, at 70 (describing several examples in which cloning potentially could
threaten family stability).
. The argument against cloning based
on confusion of kinship has taken this extreme form, even though regulations
that do not require prohibition of all forms or instances of cloning are
also possible. See infra subpart V(B).
. In coital reproduction, the genetic
and gestational mother is necessarily the same. In egg donation,
the genetic and gestational mothers are different, but one woman provides
all the DNA. In nuclear transfer cloning, there is the possibility
of two different women providing DNA, with the source of the nuclear DNA
providing more, and either of the DNA sources or another gestating.
If we add rearing, a fourth maternal role is created.
. The person providing nuclear DNA could
be male or female. In either case, the genetic mother of the nuclear
DNA donor would be the genetic mother of the resulting clone.
. The genetic mother's role is nevertheless
novel in that her contribution of chromosomes that are then expressed in
her child occurs prior to her contribution of cytoplasm and mitochondria.
It is unclear whether this distinction is important, although it does require
that the egg source have eggs retrieved from her.
. In this situation it is highly unlikely
that the wife would provide the egg into which the transferred nucleus
is placed, for a female ovarian or genetic factor is likely to have led
to the need for an embryo donation in the first place.
. I am ignoring for the moment the egg
source who provides cytoplasm and mitochondria. That role is discussed
infra in text accompanying note 186.
. There will be, however, a question
of lineage or kinship between the child and the clone source and the clone
source's parents. But that question is no more charged, and in some
cases may be less charged, than the relation of the child of donor gametes
or embryos to its genetic parent(s).
. The ability to mature oocytes in vitro
would obviate the need for another woman to undergo an IVF cycle to provide
the eggs needed to receive the transferred nucleus.
. There might be situations in which
a woman's egg cannot be used, not because of a lack of viability, but because
she is a carrier of genetic disease. She might be able to provide
a viable egg for insertion of the DNA of an unrelated third party, thus
eliminating the need for donor eggs to accomplish the cloning.
. The question of the clone source's
parents' right to object to cloning of their child is discussed infra notes
275-277.
. Many variations are possible here,
with varying degrees of kin involvement. Most involvement would occur
if the gamete or clone source were an openly acknowledged family member.
. This will depend upon whether the
consent of the clone source is sufficient to authorize cloning. See
infra subsection V(B)(2)(b).
. One could foresee a conflict between
the clone source and her parents on this issue. The question would
be whether the clone source's interest in replicating herself through donating
her DNA should take priority over her parents' wishes not to have another
genetic child.
. A person's willingness to use their
own cells as a clone source will depend on many factors, including their
assessment of their own health status. For example, a person who
suffers from depression, breast cancer, or some other ailment might be
hesitant to clone themselves, even if they have no other way to have a
biologic tie with the children whom they rear. (I am indebted to
Margot Wellner for this point).
. This result should follow even if
they have consented to the cloning of their offspring. Grandparents
are not, however, without rights in situations where rearing relations
have already existed. See, e.g., Moore v. City of East Cleveland,
431 U.S. 494, 504-06 (1977) (recognizing that constitutional protection
of the sanctity of the family can extend to the rearing grandmother).
. The situation of the wife providing
the source DNA presents additional variations, including whether she also
provides the egg and gestation or only one or the other.
. The child's nuclear genetic mother
is his rearing father's mother. In this case, she might function
socially as the child's grandmother.
. See supra note 180 (identifying the
four female aspects of motherhood as the major genetic
mother, the minor genetic mother, the gestating mother, and the rearing
mother).
. Other complexities would arise if
the couple divorces, and the non-cloned partner (i.e., wife) cannot view
the child as truly distinct from the cloning-and divorcing-partner (husband).
. In one respect it would be less problematic:
the couple will not have had experience with their parent as a child, and
thus would not have as direct a point of comparison as they would if they
had cloned an existing or dead child.
. To avoid overcomplicating the analysis,
I will not address it.
. A common cause of family pathology
arises when young children are asked to "parent" their parents, as might
arise with illness, alcoholism, or disability. The social and psychological
reality of parenting a baby or young child who has one's parents' genes,
but who in every other respect is an infant and not one's parent, seems
quite different, if only in the much greater capacity of the child (social
parent) to nurture and rear his parent (child).
. Similar issues occasionally confront
physicians providing assisted reproduction. Patients needing donor
sperm or eggs have on rare occasions requested that their father or mother
be the gamete donor. In the case of the father being the donor, the
man's wife would be inseminated with her husband's father's sperm.
The resulting child would be the half-sibling of the husband, and the genetic
child of the social grandfather. Most clinics would probably reject
the request, although they might accept a mother's willingness to gestate
the embryo of an infertile couple needing a gestational surrogate.
Cf. Lorna A. Marshall, Intergenerational Gamete Donation: Ethical and Societal
Implications, 178 AMER. J. OBSTET. & GYN. (forthcoming June 1998) (manuscript
at 14-15, on file with the Texas Law Review) (analyzing the ethical issues
surrounding intrafamilial gamete donation); Frank Bruni, The Gods of Fertility:
For Reproduction Doctors, the Science Is the Easy Part, N.Y. TIMES, July
8, 1997, at B1 (reporting that clinics establish their own ethical parameters
for the patients they accept and that at least one clinic will not impregnate
a woman with the sperm of her father-in-law).
. As noted earlier, one does not have
a right to use any means of acquiring children for rearing. See supra
note 116 and accompanying text (stating that "we have not yet recognized
a right
to obtain a child for rearing when there is no gestation or other biological
connection involved").
. See Robertson, supra note 93, at 1028-30
(surveying the unsettled areas of procreative rights jurisprudence).
. See NBAC CLONING REPORT, supra note
3, at 74-75 (pointing out that determining which human traits and characteristics
are to be favored requires an assumption that is based on selective superiority,
which has long been linked to racist thinking).
. Between 1907 and 1963, more than 60,000
persons were sterilized under state involuntary sterilization laws.
See PHILIP R. REILLY, THE SURGICAL SOLUTION: A HISTORY OF INVOLUNTARY STERILIZATION
IN THE UNITED STATES 94 (1991). Consciously modeled on the United
States's program, the Nazi sterilization program soon eclipsed similar
American activities. From 1933 to 1945, the Nazis sterilized an estimated
3,500,000 people. See id. at 105-10.
. See HUXLEY, supra note 71.
. See MARGARET ATWOOD, THE HANDMAID'S
TALE (1986) (depicting a future dystopia in which society enslaves women
as institutionalized surrogates).
. Indeed, if practiced on a wide scale,
it would reduce the overall genetic fitness of the population that is the
purported goal of such a policy.
. It could not require, however, that
persons then act on that information, for that would violate reproductive
rights or rights of bodily integrity. See Robertson, supra note 91,
at 468-74 (arguing that procreative liberty should protect against government
efforts that force individuals to take into account genetic information
when making reproductive decisions).
. For a discussion of issues that such
policies would raise, see ROBERTSON, supra note 86, at 173-94 (concluding
that ultimately the state's role in encouraging proper prenatal care should
be in providing education, counseling, and treatment services rather than
imposing coercive sanctions, except in the most egregious cases).
. At the time of the eugenic sterilization
movement, reproductive rights and bodily integrity were not considered
to be constitutionally protected. See Buck v. Bell, 274 U.S. 200,
207 (1927) (upholding a state compulsory sterilization statute rationalized
by a eugenic policy: "Three generations of imbeciles are enough.").
Today, courts recognize these interests as within the constitutionally
protected realm of privacy. See, e.g., In re Moe, 432 N.E.2d 712,
719-20 (Mass. 1982); In re Grady, 426 A.2d 467, 473-75 (N.J. 1981); In
re Guardianship of Hayes, 608 P.2d 635, 639-41 (Wash. 1980); In re Guardianship
of Eberhardy, 307 N.W.2d 881, 891-94 (Wis. 1981) (all recognizing that
an incompetent individual could only be sterilized for therapeutic contraceptive
purposes, not eugenic ones, and then only if it were clearly shown to be
in the incompetent's best interest-that is, she would choose the procedure
herself if she were competent to do so).
. A related set of issues would arise
if the government required that only DNA certified as meeting a standard
of genetic acceptability could be cloned.
. See Rochelle Cooper Dreyfuss &
Dorothy Nelkin, The Jurisprudence of Genetics, 45 VAND. L. REV. 313, 313-14
(1992) (summarizing several developments in diagnostic technology that
have heightened public interest in genetics).
. See discussion supra notes 58-60 and
accompanying text (discussing the potential benefits associated with cloning
research on animals).
. See, e.g., Ethics and Theology: A
Continuation of the National Discussion on Human
Cloning: Hearing Before the Subcomm. on Public Health and Safety of
the Senate Comm. on Labor and Human Resources, 105th Cong. 43-44 (1997)
[hereinafter Ethics and Theology] (statement of Edmund D. Pellegrino, M.D.)
(premising his moral objections to human cloning research on the deliberate
manufacture, manipulation, and destruction of human embryos that would
occur).
. The NBAC, for example, cited a high
rate of expected damage to oocytes, embryos, and fetuses, in addition to
children, as a reason for finding the use of somatic cell nuclear transfer
cloning to be morally unacceptable at this time. See NBAC CLONING
REPORT, supra note 3, at 65.
. See NBAC CLONING REPORT, supra note
3, at 64.
. See id. (discussing the Report of
the Human Embryo Research Panel, published by the National Institutes of
Health in 1994).
. See id.
. See Eliot Marshall, Varmus Grilled
over Breach of Embryo Research Ban, 276 SCIENCE 1963, 1963 (1997) (summarizing
the NIH findings, executive order, and legislative ban on research endangering
human embryos). That Congress was serious about this ban became clear
when it was discovered that Mark Hughes, a leading researcher in the field
of preimplantation genetic diagnosis who had moved to NIH and member of
the NIH Embryo Research Panel, was using government equipment and time
to conduct genetic studies on cells removed from embryos. See id.
A congressional committee held hearings on this violation of the ban on
any embryo research, and Mr. Hughes was forced to resign. See id.
. See NBAC CLONING REPORT, supra note
3, at 64.
. See Ethics and Theology, supra note
215, at 17-20 (statement of John M. Haas, Ph.D., S.T.L.), 43-44 (statement
of Edmund D. Pellegrino, M.D.) (both objecting to human cloning on moral
grounds and urging a federal ban on research to develop technology that
will necessarily involve the destruction of embryonic life).
. The bills are those of Congressman
Vernon Ehlers (R-Mich.) and Senator Christopher Bond (R-Mo.). See
Stolberg, supra note 75; see also Nicholas Wade, Senate Plans to Weigh
Ban on Cloning, N.Y. TIMES, Feb. 10, 1998, at A16 (noting the Senate's
intention to consider legislation that would ban human cloning).
. A strong argument against the constitutionality
of such a ban would exist if its purpose is to prevent the development
of knowledge about human cloning because of fears about the uses to which
that knowledge would lead. See John A. Robertson, The Scientist's
Right to Research: A Constitutional Analysis, 51 S. CAL. L. REV. 1203,
1281 (1978) (asserting First Amendment protection on DNA research and advocating
against onerous legislative restrictions on such research).
. A physician or couple would want to
know if embryos formed by nuclear transfer cleave and grow properly before
making a decision to place them in the uterus.
. An additional reason to avoid a ban
on private-sector cloning research is the difficulty in drafting a precise
statute that would not also deter other beneficial biomedical research.
See The Prohibition of Federal Government Funding of Human Cloning Research:
Hearings Before the Subcomm. on Technology of the House Comm. on Science,
105th Cong. (July 22, 1997) available in=
<http://commdocs.house.gov/committees/science/hsy203170.000/hsy203170_0f.htm>
(1998) [hereinafter Legislative Proposals] (statement of Alison Taunton-Rigby,
Ph.D., Biotechnology Industry Organization) (recounting ambiguities and
inconsistencies in Clinton, Ehlers, and Bond bills banning human cloning).
. An egg will be enucleated, and DNA
inserted into it and then activated. This will produce a preimplantation
human embryo, which will be placed in the uterus at the four-to-eight cell
stage. Strictly speaking, no manipulation or alteration of embryos
has occurred because only eggs and somatic cells have been altered.
Because embryos created by somatic cell nuclear transfer cloning result
from manipulation of genes and cells but not of embryos themselves, this
form of cloning does not violate the Human Fertilisation and Embryology
Act in Great Britain, which prohibits "cloning of an embryo."=20
Even though a zygote or embryo results, the procedure has produced
a clone of a somatic cell, not a clone of an embryo. Nuclear transfer
cloning of embryos, however, would be a different matter. Although
not prohibited, such cloning would still fall within the jurisdiction of
the Human Fertilisation and Embryology Authority (HFEA) because it involves
the creation of embryos outside the body, and thus requires a license from
the HFEA to be lawfully performed. See Human Fertilisation and Embryology
Act of 1990, ch. 37, =A7 11(1) (United Kingdom) (1990); see also Pat Walsh
& Andrew Grubb, I Want to Be Alone, DISPATCHES, Spring 1997, at 1-6.
In any event, creation of embryos or fetuses to serve as a source of organs
or tissue for transplant does raises issues of respect for prenatal life.
See discussion supra at Part II(A)(2)(b) (discussing issues related to
medical use of embryonic cells).
. See NBAC CLONING REPORT, supra note
3, at 104 tbl.1.
. See id. at 109. The NBAC's argument
for a ban on human cloning was based on the "virtually universal concern
regarding the current safety of attempting to use this technique in human
beings." Id. at 65. It concluded that "[a]t this time, the
significant risks to the fetus and physical well being of a child created
by somatic cell nuclear transplantation cloning outweigh arguably beneficial
uses of the technique." Id.
. The President's message calling for
a five-year legislative ban noted, in addition to safety concerns, that
human cloning could "threaten the sacred family bonds at the very core
of our ideals and our society. . . . [a]nd it could lead to misguided
and malevolent attempts to select certain traits . . . to make our children
objects rather than cherished individuals." President's Remarks,
supra note 5, at 845.
. See Stolberg, supra note 75.
One bill now pending in Congress calls for a ten-year criminal ban.
Other bills call for a permanent ban. See supra note 65.
. See NBAC CLONING REPORT, supra note
3, at 95-102 (surveying the various policy options before settling on their
recommendation for a federal criminal law against human cloning).
. New drugs or devices, however, are
regulated by the Food and Drug Administration. See id. at 99.
. See National Organ Transplant Act
of 1984 =A7 301, 42 U.S.C. =A7 274e (1994).
. See National Institutes of Health
Revitalization Act of 1993 =A7 112, 42 U.S.C. =A7 289g-2 (1994).
This provision was added as part of a legislative compromise to enable
federal funding of fetal tissue transplantation research to occur, and
it is arguably unconstitutional. See John A. Robertson, Abortion
to Obtain Fetal Tissue for Transplant, 27 SUFFOLK U. L. REV. 1359, 1379-85
(1993) (arguing that the state does not have a compellng interest in preventing
designated donations of fetal tissue sufficient to justify the ban's infringement
upon a woman's fundamental right to terminate a pregnancy for any motive
whatsoever).
. For example, federal regulation of
human-subjects research has historically occurred through the conditional
spending power. See John A. Robertson, The Law of Institutional Review
Boards, 26 U.C.L.A. L. REV. 484, 498-502 (1979) (describing how Congress
uses the conditional spending power to review nonfederally funded research
activities involving human subjects by conditioning the receipt of federal
grant money for any activity on across-the-board compliance with federal
institutional review board standards). More recent innovations include
conditioning the receipt of Medicare funds upon hospitals' compliance with
notification regulations that require them to actively inform patients
of their state-law rights to make advance directives concerning health
care decisions (e.g., living wills). See 42 U.S.C. =A7=A7 1395cc(f),
1396a(w) (1994).
. On April 30, 1997, however, President
Clinton signed the Assisted Suicide Funding Restriction Act of 1997, which
prohibits the use of federal funds in support of physician-assisted suicide.
See Assisted Suicide Funding Restriction Act of 1997, Pub. L. 105-12, 111
Stat. 23 (codified in relevant part at 42 U.S.C. =A7=A7 14401-14408 (West
Supp. 1997)).
. Rather than find existence preferable
to nonexistence as those who reject the wrongful life argument do, the
NBAC report makes the opposite judgment: nonexistence is preferable to
existence. See NBAC CLONING REPORT, supra note 3, at 65-66 (refusing
to accept the "metaphysical argument" that it is "beneficial" for the child
to be brought into this world from nonexistence and finding that the physical
risks to the fetus and child outweigh the "arguably beneficial uses" of
human cloning). Indeed, in concluding that it is in children's interest
not to be born, the NBAC accepted, without realizing, the very possibility
of comparing life with nonlife that it went to great pains to reject.
See id.
. Richard Seed's proposal to offer human
cloning notwithstanding, the overwhelming reaction of scientists and doctors
was to call for a moratorium on human cloning until safety and efficacy
is established. See Wade, supra note 223; supra notes 74-75.
. As NBAC member and biotechnology executive
Dr. Steven H. Holtzman put it, "[T]here's a very human tendency to know
what you want to do but not be clear necessarily about why." Gina
Kolata, Commission on Cloning: Ready-Made Controversy, N.Y. TIMES, June
9, 1997, at A12.
. For example, Congressman Ehler's bill
to ban cloning has no time limit. See Stolberg, supra note 65 (noting
that Ehler's two proposed bills would permanently bar federal and private
sector funding for cloning studies).
. There is also the danger that the
enacted language will apply to non-cloning practices that involve nuclear
or cytoplasmic transplant. For example, the California ban on cloning
bans all "nuclear transfer," thus making it a crime to transfer the nucleus
of an older woman's egg into an enucleated younger donor egg, which would
then be fertilized, as a treatment for cytoplasmic inadequacy or mitochondrial
disease. Although not "cloning," nuclear transfer treatments for
female infertility are thus prohibited by the California law. See
Act of Oct. 4, 1997, ch. 688, 1997 Legis. Serv. 3790 (codified as amended
in scattered sections of the CAL. BUS. & PROF. CODE and the CAL. HEALTH
& SAFETY CODE).
. This point was strongly made in hearings
before the Subcommittee on Health and Environment of the House Commerce
Committee. See Legislative Proposals, supra note 226 (testimony of
Michael D. West).
. There is also a question of federalism.
Even if criminal sanctions for cloning were warranted, it does not follow
that the federal government should enact them. Matters of family,
procreation, and children are generally left to the states unless the states
are incapable of handling a problem or national uniformity of law is needed.
Even then, out of respect for state discretion, federal action usually
occurs as an exercise of the conditional spending power and not through
federal criminal law directly preempting state action. See, e.g.,
Child Abuse Amendments of 1984 =A7 307, 42 U.S.C. =A7 10406 (1994) (requiring
states, as a condition of receiving federal child abuse prevention funds,
to comply with federal standards for ensuring that handicapped newborns
are not denied life-sustaining medical treatment); Jacob Wetterling Crimes
Against Children and Sexually Violent Offender Registration Program, 42
U.S.C. =A7 14071 (1994) (requiring states to give communities notice of
the release of sex offenders in order to receive certain kinds of federal
funding). But see Civil Rights Remedies for Gender-Motivated Violence
Act of 1994, 42 U.S.C. =A7 13981 (1994) (providing federal civil rights
remedies for crimes of violence against women that involve interstate commerce).
A federal ban on cloning would also have to comply with recent Supreme
Court decisions striking down federal legislation because of an insufficient
commerce clause connection. See United States v. Lopez, 514 U.S.
549, 567-68 (1995) (invalidating the Gun-Free School Zones Act).
. See NBAC CLONING REPORT, supra note
3, at 81, 79-81 ("It may be that a policy which prohibited the creation
of children [through] somatic cell nuclear transfer cloning would ban a
handful of scenarios for which some people feel sympathy. Nonetheless,
it may be necessary to forbid the practice overall to protect other crucial
societal values.").
. An egg donor, however, might still
be needed to provide the enucleated egg into which the cloned DNA would
be placed. See supra text accompanying note 186 (noting the need
to induce a donor egg cycle in another woman if the gestating woman does
not provide the egg).
. One is reminded of the statement in
Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992): "At the heart of
liberty is the right to define one's own concept of existence, of meaning,
of the universe, and of the mystery of human life. Beliefs about
these matters could not define the attributes of personhood were they formed
under the compulsion of the State."
. See, e.g., Skinner v. Oklahoma, 316
U.S. 535, 541 (1942) (characterizing procreation as "one of the basic civil
rights of man"). As Justice Brennan noted in Eisenstadt v. Baird,
405 U.S. 438, 453 (1972): "If the right of privacy means anything, it is
the right of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person
as the decision whether to bear or beget a child." (emphasis in original).
. See, e.g., Washington v. Glucksberg,
117 S. Ct. 2258, 2267 (1997) (citing Skinner, 316 U.S. at 535, for the
proposition that the "liberty" interest protected by the Due Process Clause
includes the right "to have children").
. ROBERTSON, supra note 86, at 35-40
(discussing the history and breadth of the legal right to reproduce and
arguing that such a right includes unconventional means).
. See Robertson, supra note 91, at 424-29
(arguing that prebirth selection represents part of the basic liberty to
make decisions about reproduction).
. See, e.g., Glucksberg, 117 S. Ct.
at 2271 (refusing to find a fundamental liberty interest to assisted suicide);
Bowers v. Hardwick, 478 U.S. 186, 194-95 (1986) (refusing to recognize
consensual homosexual sodomy as a fundamental right).
. See THE BOYS FROM BRAZIL, supra note
83.
. See HUXLEY, supra note 71.
. See James Q. Wilson, The Paradox of
Cloning, WKLY. STANDARD, May 26, 1997, at 23-27.
. First, if the initiator is arranging
for the clone of a third party, as in The Boys From Brazil, and is not
cloning himself, he is not reproducing. Second, the interest in helping
others rear or choose the genome of whom they rear is not a fundamental
interest or right. The situation is different if the initiator is
acting as the agent of a couple who will rear; but then it is the couple's
liberty interest which is at stake and not that of the initiator as such.
See supra subsection III(B)(1)(c)(1)(b).
. See supra subsection III(B)(1)(d)
(arguing for the right to clone oneself absent harm to the child or others
so long as rearing is intended and rationalizing this as a variation on
existing practices such as gamete donation and existing beliefs such as
general reproductive freedom).
. For example, persons are presently
not obliged to submit to preconception genetic screening, nor are pregnant
women required to have fetuses screened for genetic disease, even though
both of these actions could prevent the birth of a disabled or diseased
child.
. See supra subsection IV(B)(6)(d) (suggesting
that the psychological confusion that might result could be surmountable
with proper counseling, but noting the extreme novelty of the situation
and advising that if not genuinely an exercise of procreative liberty,
cloning might rationally be banned).
. See Marshall, supra note 201 (manuscript
at 14).
. See Wilson, supra note 255, at 24.
. Cloning would enable one partner to
provide egg and mitochondrial DNA, and the other, nuclear DNA, with either
partner gestating. The resulting biologic relations will make each
partner a "parent" for purposes of determining child-rearing rights and
duties in the event of separation. See ROBERTSON, supra note 86,
at 134-35.
. It could be an issue when the cloned
embryo is transferred to the uterus, because that could create a later
born identical twin for the existing child.
. This situation may be contrasted with
the testing of children for late-onset genetic diseases, such as Huntington's
disease or the BRCA1 gene for breast cancer. Ethical standards now
require that no testing of minors occur without their consent, because
of the heavy impact that such knowledge could have on them later in life.
See Dorothy Wertz et al., Genetic Testing for Children and Adolescents,
272 JAMA 875, 879 (1994) (stating that a physcian must reject a request
for genetic testing if he or she believes it would serve no useful purpose
and may cause injury); see also Benjamin S. Wilford et al., American Soc'y
of Human Genetics and Am. College of Med. Genetics, Points to Consider:
Ethical, Legal, and Psychological Implications of Genetic Testing in Children
and Adolescents, 57 AM. J. HUMAN GENETICS 1233, 1233 (1995) (arguing that
genetic testing should be deferred in cases involving adult-onset disease).
Having a later born identical twin does not pose the same risks of harm
to the existing child.
. Even a slight brush might be sufficient
to dislodge cells from skin or hair from which somatic cell nuclei could
be recovered.
. Cf. Malcolm Ritter, People Trail DNA
Behind Them, Researchers Say, AUSTIN AM. STATESMAN, June 19, 1997, at A17
(describing how DNA can be transferred to the surfaces of objects touched
during the course of ordinary activities).
. Fourth Amendment law, however, allows
the government to search garbage and trash cans on the street prior to
pick-up on the theory that there is no reasonable expectation of privacy
in one's trash. See California v. Greenwood, 486 U.S. 35, 39-40 (1988).
This precedent would allow the state to recover DNA from garbage or other
sources for law enforcement purposes.
. The leading case on rights in one's
cells, Moore v. Regents of the University of California, 793 P.2d
479 (Cal. 1990), denies a property right in spleen cells but recognizes
a right of informed consent to the taking of the cells when the doctor
has a fiduciary interest in their use. See id. at 485, 491-92.
That case could accommodate damages for unconsented cloning tout court
on either a property, privacy, or informed consent theory.
. Note that the argument concerning
the right of consent of the DNA source is not a constitutional one.
At most reproduction tout court is occurring, and the interests implicated
may not warrant independent constitutional protection. See supra
notes 119-121 and accompanying text (arguing that because such reproduction
involved genetic transmission without rearing duties or rights, the source
of the DNA may not have a right to permit the cloning to occur except as
it derives from the initiator's right to make the clone).
. I am indebted to an unpublished paper
by Neil Netanel on the right of publicity for elucidation of this issue.
. However, the purchaser of the celebrity's
DNA for cloning should remember that the source's investment in developing
his talents may be more responsible for his success than his DNA.
. See, e.g., National Organ Transplant
Act of 1984 =A7 301, 42 U.S.C. =A7 274e (1994) (making it a federal felony
to buy and sell human organs).
. Unless the person is only recently
deceased, their DNA may no longer be living and will thus not be able to
serve as the source of DNA for nuclear transfer cloning.
. See Kenneth E. Spahn, The Right of
Publicity: A Matter of Privacy, Property, or Public Domain?, 19 NOVA L.
REV. 1013, 1036-38 (1995) (observing that whether a person's rights in
his likeness or identity are descendible depends upon whether the court
interprets such interests as privacy rights, which terminate at death,
or property rights, which pass to the estate).
. A similar issue arises in disputes
between divorcing couples over the disposition of frozen embryos.
See Davis v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992) (holding that when
a dispute arises over custody of pre-embryos, competing interests will
be weighed and the party who wishes to avoid procreation, while not having
an automatic veto power, should prevail unless the other party has no other
reasonable means of achieving parenthood).
. The nonconsenting twin will have a
genetic heir of the same degree as if he had chosen to reproduce himself.
(I am indebted to Einer Kluge for this example.)
. A right of confidentiality should
also apply. The information is personal, part of medical records,
and should be kept private.
. If comprehensive cloning legislation
is being considered, then clarifying this point might be worthwhile.
In addition, if the egg source is a donor, legislation that bars her from
any rearing rights or duties would also be desirable.
. See TEX. FAM. CODE ANN. =A7 151.103
(West 1997) (stating that the resulting child from embryo implantation
is the child of the birth couple and not the child of the donor or donors
of the preimplantation embryo); see also Robertson, supra note 111, at
891 (stating that Texas and Florida, currently the only states to explicitly
recognize embryo donation, both designate the recipient woman and her spouse
as the parents, but they do not address the enforceability of arrangements
whereby donors and recipients share in raising the offspring).
. In sperm donation, the consenting
husband is the legal father for all purposes and the sperm donor none.
See ROBERTSON, supra note 86, at 127-28 (noting that this rule is established
by statutes and court holdings in more than thirty states).
. Cf. id. at 123-25 (surveying the policy
issues confronted when regarding the question of secrecy versus disclosure
of gamete sources in the related practice of sperm or egg donation).
. It would also reduce the risk that
cloning could affect diversity or cause other problems that could arise
with too many individuals with the same genome, for example a town or community
consisting of multiple clones of the same nuclear DNA. See JONATHAN
GLOVER,WHAT SORT OF PEOPLE SHOULD THERE BE? 36-37 (1984).
. One assumes that the fact of somatic
cell nuclear transfer as the source of a child's DNA will be kept confidential.
Even if the child is eventually told, there is no reason why later uses
of the same DNA will be revealed to children or their parents. Of
course, they may meet other children born with the same DNA in the normal
course of life, and thus might learn in that way.
. See supra subsection III(B)(1)(c)(2)
(arguing that a right to be cloned tout court will not be legally or morally
protected but seen only as derivative of the right of the initiator to
choose a DNA source).
. American Fertility Soc'y, Guidelines
for Gamete Donation, 59 FERTILITY AND STERILITY 1S, 4S-9S (1993).
It is unknown how this guideline is enforced. Presumably it would
be admissible as proof of the standard of care in a malpractice action
against a clinic that so overused a particular donor that offspring inadvertently
married their half-siblings.
. Human Fertilisation and Embryology
Act of 1990, ch. 37, =A7 3(1)(a) (United Kingdom) (1990) (prohibiting the
creation of an embryo through cloning). Under the authorizing legislation,
cloning of an "embryo" is not permitted. See id.; Walsh & Grubb,
supra note 227, at 2.=20
. See NBAC CLONING REPORT, supra note
3, at 96-100 (suggesting that a private moratorium on human cloning would
most likely result in high levels of compliance and would provide more
adequate guidance to the courts).
. Duties of confidentiality to children
and families might prevent such research from occurring.
. Estimates indicate that over 60% of
all pregnancies in the United States are now screened for some kind of
genetic malformation. See ROBERTSON, supra note 86, at 149.
. Other potential techniques, such as
chimerization, fetal mating, testicular transplant, and transgenic humans,
are discussed in Silver, supra note 141, at 165, 171, 195.
. See W. French Anderson, Prospects
for Human Gene Therapy, 226 SCIENCE 401, 407 (1984) (discussing vectors
for gene therapy and problems of genes rearranging their own structure
or exchanging sequences with other retroviruses).
. The report by the Wilmut team of the
successful creation of a sheep with a human gene from insertion of the
human gene into fetal skin cells followed by somatic nuclear transfer cloning
indicates that similar genetic alteration prior to transfer of nuclear
DNA may eventually be feasible in humans. Cf. Kolata, supra note
27 (announcing the birth of the transgenic sheep).
. A variation on this intentional dimishment
of offspring characteristics would be the selection of a genome with defective
genes or genes that are not associated with prior traits. Although
strictly speaking not a case of diminishing what would otherwise have been
a normal birth, this would be an example of not choosing a reasonable or
good or best-possible genome for someone. Such an action would implicate
a possible duty to make the child as reasonably well-off as possible.
Cf. ROBERTSON, supra note 86, at 171, 170-71 (discussing the genetic fabrication
of "lesser engineered" persons and
distinguishing such actions from legitimate genetic selection falling
within the scope of procreative liberty).
. Although even customized children
may not be harmed in being born if there were no other way for them to
have come into being, the willingness of a couple to do so will be relevant
to an assessment of whether they are validly exercising procreative liberty.
See the discussion of wrongful life supra subpart IV(A).
. That is unless they are seeking to
alter the DNA of another in the process of nuclear transfer cloning.
. However, autonomy and expectation
issues would still arise, because altering genes assumes that they are
influential, if not also determinative of a person's characteristics.
. Cloning to produce tissue for transplant
is an exception.
. Sought after traits might include
height, memory, intelligence, skin color, or certain behavioral traits.
See LEROY WALTERS & JULIE GAGE PALMER, THE ETHICS OF HUMAN GENE THERAPY
108-24 (1997) (discussing the desirability and ethical problems of physical,
intellectual, and moral enhancements).
102 Texas Law Review [Vol. 73:000, 1995]
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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