Below is a draft of my paper on cloning. It utilizes some of the material from an earlier paper, which I hope to post soon, but from a different angle: The first deals with parentage, the second, this one, with the legal question of cloning itself. I believe this may be a draft, as some of the outline formatting doesn’t seem to mesh, but it’s somewhat complete, although there are missing parts, which I hope to correct as soon as I find the disk.
Unfortunately, I have not yet figured out how to copy the whole document with footnotes/endnotes in place, or paragraphs. So I tried to reformat the paragraphs, and included the endnotes, even though you can’t relate them to specific places in the document. If anyone wants the complete text, I can e-mail it to them. Hope you enjoy.
To Clone or Not to Clone
That is the Question of the of the President’s Council on Bioethics
It is not for Man to set boundaries, or to define the limits of the soul. Once human beings were as children, needing simple tales and naïve visions of pure truth. But in recent generations the Great Creator has been letting us pick up His tools and unroll blueprints, like apprentices preparing to work on our own. For some reason, He’s permitted us to learn the fundamental rules of nature and start tinkering with His craft.
Immortality, or Coronado’s endless quest for the fountain of youth – man has been obsessed with the idea of continuity for centuries. Countless writers, philosophers, theologians, scientists, and futurists have debated and discussed it. And in the twentieth century, that idea took a new form – human cloning, the ultimate immortality. As the idea spread, science-fiction writers took it up, and it became an accepted possibility. Headlines such as “Welcome to Clonetown U.S.A,” and “They’ve Cloned Hitler’s Nose – & the Damned Thing’s Sprouted a Moustache” continue to fuel speculation on human cloning. Over the past twenty years, a number of books have been written, delving into the question of human cloning, questioning its basic tenets, whether or not to ban it, and who or what is a clone. But there are no true legal guidelines on cloning. Nothing in our legal pantheon allows for this or contemplates it. Therefore, new rules must be drawn as the era of cloning humans draws near.
Human cloning is a Pandora’s Box. A box of mystery, but also of possible evil, a chthonic process and nightmare to some, a “Brave New World” to others. But like Pandora discovered, once opened, it can prove to have consequences beyond imagining. Human cloning raises a host of issues, from property rights to estates, parental responsibility, human rights, and privacy rights. And like Pandora’s Box, once opened, these issues can not just be stuffed back inside and locked away. They are out in the open, resulting from humanity’s insatiable thirst for knowledge, and it is up to the human race to deal with the consequences.
Although I believe that ultimately a ban on human cloning will not be successful, for in all human history, nothing with commercial viability has ever been successfully banned (prohibition, prostitution, drugs, child pornography), this paper will address the creation and work of the President’s Council on Bioethics and its precursor, the National Commission on Bioethical Standards. Cloning will have commercial viability. The amount of money spent on in-vitro fertilization, and the undeniable medical value of stem cell research shows that cloning and stem cells are a lucrative technology. However, in an attempt to simplify this paper, I will not directly address stem cell issues, as that is an entirely different, although related field, and extremely complex, with its own set of moral issues.
Since cloning itself is in its infancy, the first step in the analysis must be a brief introduction to the basic techniques used, and the limits on cloning. Human cloning has not yet occurred, and there is no case or common law to draw on. Cloning is a difficult and inexact science, and the results are not always what are desired. Nevertheless, science marches on.
A. Cloning around: a basic overview of techniques used in creating a clone.
The type of cloning research that this paper focuses on is reproductive human cloning, not therapeutic human cloning, in which cells are cloned to treat various diseases such as Parkinson’s and diabetes. Clone is derived from the Greek word klon meaning “twig.” For many types of plants and trees you can simply break off a piece, plant it and it will grow. And so it is with cloning, in a simplistic way. There are many definitions of cloning, including various methods of creating twins, but for simplicity, the definition used hereafter will be “fusion or insertion of a diploid nucleus into an egg (oocyte)”. A basic tenet to remember is that any clone will NOT be an exact duplicate of its donor; not an identical twin, but instead a separate entity, but shaped by environment, cytoplasmic differences, and epigenetic (chance outcomes of random motion of molecules) differences or mutations.
In cloning, the unfertilized ovum (oocyte), the largest cell in the human body, is modified. The oocyte nucleus is removed, and a donor nucleus is inserted into the ovum. Then an electrical pulse fuses the two, activating, or fertilizing, the oocyte. There are many variations on this technique, and until 1997, when Dolly the sheep was cloned, the question of using differentiated cells was insurmountable. Before Dolly, cloning was limited to cloning the early, undifferentiated cell, which can assume any cell characteristic. Differentiated cells are those that are past the initial embryonic stage and have already developed characteristics of the cell they are to become, a hair cell, a skin cell, etc, making them useless for cloning of a human.
That problem has been solved, and differentiated cells can now be used, allowing cloning from an adult, not just an embryonic cell. Of course the process is still in its infancy, and the success rate is about 200 to 1. Cloning raises the question of shortened life span. So far, no cloned animals have been alive long enough to see if they will live out their full life-spans. Dolly was cloned from an adult sheep cell, and her telemeres (the pieces at the end of chromosomes that keep the genetic material from fraying like the ends of a rope) show the same age as the donor sheep’s. As a cell replicates, the telemeres shorten a bit each time. The older the animal, the more cells have replicated, and the shorter the telemeres. Despite these characteristics `of aging, Dolly developed into a full-grown adult sheep and was able to have a lamb the natural way, so thus far it has not been a problem in living a normal sheep’s life.
Questions arise as to the success rate of clone attempts and the amount of genetic malfunctioning in the clone’s DNA. In the case of Dolly, 277 fusions of donor nucleuses and ovums were done, of which 29 developed into embryos, and those 29 embryos were introduced into 13 sheep, only one of which gave birth. Therefore, while the rate of successful fusion births is low, so far, with only one living example, the rate of genetic malformation in the case of Dolly was 0%, unless you take into account the shortened telemeres, which has yet to be proven a problem. By now, various other animals have been cloned besides Dolly, including mice, cows, goats, kittens, monkeys, and frogs.
B. To clone or not to clone, that is the question: the future and possible uses of human cloning.
The future of human cloning is still in doubt. Recent attempts to clone a kitten have been successful, but attempts to clone a millionaire’s beloved dog “Missy” have not been. But scientists believe it will happen, at least with dogs, and dozens of people have already deposited their pet’s genetic material with Texas millionaire John Sperling’s “Genetic Savings and Clone Bank” near Texas A&M University, where he funds research into animal cloning. The cloned kitten at Texas A&M differs from its genetic mother in coloring patterns, as coloring is not determined strictly by the lineup of genes, but of influences from the womb, again showing that the clone is not an identical twin, but has been influenced by the factors mentioned earlier
Texas A&M researcher Duane Kraemer summed up cloning by stating: “This is a reproduction, not a resurrection.”Human cloning is just around the corner, but has not happened yet. Various proposals are before the governments of many nations proposing to ban human cloning, and many nations have already banned it, including Germany, France, Japan, and the United Kingdom. The United Nations is considering an international convention on the subject. In July of 2001, the Republican controlled House passed a bill banning human cloning for all purposes.
The National Academy of Sciences, however, recommends a ban on reproductive cloning, but would allow therapeutic cloning. Currently there are two bills before the Senate, one to ban all human cloning, and another to allow therapeutic cloning. However, the bills have stalled in committee. USA Today has warned of two possible consequences of the current debate and failure to compromise: “Congress could pass an ‘overly broad ban that would choke off valuable medical research,’ or lawmakers could fail to pass any cloning legislation ‘at a time when the United States has dubious legal authority over rogue cloning labs.’” The legal future of human cloning is still in debate. But given the commercial potential, (Genetic Savings and Clone, et al), the incredible pull of the emotional need to recreate a beloved person, or the egomaniacal hope for immortality of a kind, combined with the simple fact that scientists are forever pushing the envelope, there is little doubt that human cloning will happen.
As a society, we need to be prepared to accept a human clone into our midst, and have laws in place that will establish the clone’s rights and legal status, and will also establish who will bear responsibility for the clone.Whether a clone is a human being with a soul has been a matter of debate. However, a cloned cell is not synthetic, it is alive, and at least as far as current research suggests, would develop into a fetus the way all humans do. In Lee Silver’s remarkable book on cloning and the American family, he posits that cloned children will be “full-fledged human beings, indistinguishable in biological terms from all other members of the species. Thus, the notion of a soulless clone has no basis in reality.” The clone “will simply be a later-born identical twin – nothing more, nothing less…she will be a unique human being, with a completely unique consciousness and a unique set of memories that she will build from scratch.”
Other issues surrounding the clone will be whether a clone is property or progeny, and if progeny, who will be its parents? The genetic donor (who’s own parents are the genetic parents of the clone), or the genetic parents themselves? And those issues change depending on the age of the donor, or if the donor is dead. And the legal status of the clone differs from whether it is a fetus (and thus either tissue, fetus, or some in between status), with the rights or lack thereof, or has matured into a child or adult, with rights. Discussion of these issues is beyond the scope of this paper, but makes for a fascinating discussion.III. AnalysisA. The National Bioethics Advisory Commission was established on October 20, 1999, by Executive Order No. 12975. It consisted of no more than 18 members, with appointments being made by the President. The members were to be knowledgeable nongovernmental experts and community representatives with the expertise to deal with bioethical issues. At least one member was to be selected from the areas of philosophy/theology, social/behavioral science, law, medicine/allied health professions, and biological research, and at least three members from the general public.
It is interesting to note that the commission was comprised of nongovernmental people. Meetings of the Commission were to be held up to 12 times a year, and meetings of the subcommittee(s) were to be convened as necessary. A Federal Government official was to be present at all meetings, and the meetings were open to the public, with some exceptions. Its purpose was to “provide advice and make recommendations to the National Science and Technology Council, chaired by the President; other appropriate entities and the public, on bioethical issues arising from research on human biology and behavior, and the applications, including the clinical applications, of that research.”
The basic function of the Commission was to oversee the appropriateness of governmental agencies and policies as they related to bioethical issues from research on human biology and the possible applications of that research. Its first priority was to protection of the rights and welfare of human research subjects and to oversee use of genetics information. The Commission used four criteria to establish priority for its activities:
A. The public health or public policy urgency of the bioethical issue.
B. The relation of the bioethical issue to the goals for Federal investment in science and technology.
C. The absence of another body able to deliberate fruitfully on the bioethical issue.
D. The extent of interest in the issue across the government.
The Commission issued its final report on “Cloning Human Beings” on June, 1997. In its report, the Commission concluded that “at this time it is morally unacceptable for anyone in the public or private sector, whether in a research or clinical setting, to attempt to create a child using somatic cell nuclear transfer cloning.” They found that current scientific information indicates that the techniques used were not safe to use in humans at that point in time, and cited safety concerns for the fetus/child. They also found serious ethical concerns, which they felt required a widespread and careful public deliberation. The Commission supported a continuation of the moratorium put in place by President Clinton immediately following the news of the successful birth of Dolly on February 23, 1997 “on the use of federal funding in support of any attempt to create a child by somatic cell nuclear transfer.” They also requested voluntary compliance of behalf of researchers in non-federally funded programs with the intent of the moratorium, and called it an “irresponsible, unethical, and unprofessional act.”
The Commission also recommended federal legislation to prohibit anyone from attempting to create a child through somatic cell nuclear transfer cloning, but recommended a sunset clause to ensure that Congress reviewed the issue after three to five years to decide whether the prohibition continued to be needed. It also recommended carefully written regulations to ensure that they not interfere with other areas of scientific research that were similar in nature, such as the cloning of human DNA sequences and cell lines for clinical purposes, and that the United States should cooperate with other nations to” enforce any common aspects of their respective policies on the cloning of human beings.” Because of the strong division between different ethical and religious perspectives on the moral issues that surrounded attempts to create a child using somatic cell nuclear transfer techniques, the Commission recommended that widespread and public debates be encouraged and that federal agencies should help educate the public on developments in the biomedical sciences. The Commission terminated on October 3, 2001, after several renewals of its sunset provision.
B: The President’s Council on Bioethics
Under the Bush Administration, the President’s Council on Bioethics was formed on November 28, 2001 by Executive Order 13237, with a similar structure and mission to that of the Commission. Its purpose was to “advise the President on bioethical issues related to advances in biomedical science and technology,” and make inquiries into the “human and moral significance of developments in biomedical and behavioral science and technology,” and explore the ethical questions, as well as provide a national public forum for discussion.The Council issued its report in July of 2002. It suggested that with the history of advances in cloning to date, the cloning of humans must be considered a “serious possibility.”
According to its report, in November 2001, American researchers claimed to have produced the first cloned human embryos, though they reportedly reached only a six-cell stage before they stopped dividing and died. The executive summary put the debate succinctly: “the legislative debates over human cloning raise large questions about the relationship between science and society, especially about whether society can or should exercise ethical and prudential control over biomedical technology and the conduct of biomedical research. Rarely has such a seemingly small innovation raised such big questions.”
I would take issue with the statement that human cloning is a “small innovation.” Human cloning has such incredible promise and potential problems, that I doubt anyone could realistically perceive it as “small.”
The Council attempted to “consider human cloning (both for producing children and for biomedical research) within its larger human, technological, and ethical contexts, rather than to view it as an isolated technical development.” It concurred with the two previously published reports recommending bans on cloning, the NBAC report from 1997 and the NAS report from 2002. The Council found that cloning to produce children might allow infertile couples to have genetically-related children, permit couples at risk of conceiving a child with a genetic disease to avoid the disease, create a transplant donor for a particular patient, enable someone to keep a living connection with a dead or dying loved one, or even allow society to try and replicate individuals of great talent or beauty.
But the Council found that such examples overemphasized freedom and desires, and paid insufficient attention to the well-being of the cloned child-to-be, and found that the arguments for cloning a child invalid The Council found that “cloning-to-produce-children would violate the principles of the ethics of human research, citing the Nuremberg Code of 1947, the Helsinki Declaration of 1964 and the Belmont Report, published in 1978 by the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. All three set out various codes: The Nuremberg Code focusing particularly on the voluntary consent of the research subject, the idea that experiments should be “conducted only with the aim of providing a concrete good for society that is unprocurable by other methods,” and the avoidance of physical or mental harm. The Helsinki Declaration stated much the same, adding informed consent and allowing research only when the research-subject population is itself likely to benefit from the results of the experiment, with the benefits outweighing the risks. The Belmont Report proposed three ethical principles to guide the treatment of human subjects involved in scientific research. First was respect for persons, which required acknowledgment of the autonomy and individual rights of the subjects; second was beneficence, in which scientific research “must not only refrain from harming those involved but must also be aimed at helping them, or others, in concrete and important ways;” and third, is justice, which looks at “just distribution of potential benefits and harms.” Safety, consent, and the rights of research subjects are given the highest priority.
Given the high rates of mortality seen to date in the cloning of other mammals, the Council believed that “cloning-to-produce-children would be extremely unsafe, and that attempts to produce a cloned child would be highly unethical.” They go on to consider the larger questions of ethics and morality, such as freedom, equality, and human dignity. In looking at cloning for to produce children, the Council found that society should reflect on the meaning of having children, the nature of reproduction, the “importance of origins and genetic endowment for identity and sense of self;” and the relative importance of exercising greater control over the process of human reproduction.
The Council identified five categories of concern regarding cloning-to-produce-children. The first were problems of identity and individuality. They felt that cloned children might experience serious problems of identity in that they will be genetically virtually identical to a human being who is living or has already lived and because expectations for them lives “may be shadowed by constant comparisons to the life of the ‘original.’” The second area of concern was regarding the manufacturing process which might create an attitude that these children are products rather than a “gift.” The third area of concern was the prospect of a new eugenics, which might serve the ends of eugenic enhancement, either through avoidance of certain genetic defects or by preserving some genetic traits with the possibility of genetically engineered enhancements. The fourth area was the possibility of troubled family relations due to the change in the traditional structure of the family, i.e. grandfather, father, son. In cloning, fathers can become “twin brothers” to their “sons”; mothers could give birth to their genetic twins; and grandparents would also be the “genetic parents” of their grandchildren. The last concern was for the effects on society, cloning children affects not only the participants themselves, but also the entire society and could “set a precedent for future nontherapeutic interventions into the human genetic endowment or novel forms of control by one generation over the next.
In the absence of wisdom regarding these matters, prudence dictates caution and restraint.” The Council recognized the risks of using making moral assessments in public policy. They recognized the “special difficulty in formulating sound public policy in this area, given that the two ethically distinct matters – cloning-to-produce-children and cloning-for-biomedical-research-will be mutually affected or implicated in any attempts to legislate about either.
Nevertheless, our ethical and policy analysis leads us to the conclusion that some deliberate public policy at the federal level is needed in the area of human cloning.”Seven possible policy options were considered, including professional self-regulation with no federal legislative action, a ban on cloning-to-produce-children, with silence on cloning-for-biomedical-research, a ban on cloning-to-produce-children, with regulation of the use of cloned embryos for biomedical research, governmental regulation, with no legislative prohibitions, a ban on all human cloning, whether to produce children or for biomedical research, a ban on cloning-to-produce-children, with a moratorium or temporary ban on cloning-for-biomedical-research, or a moratorium or temporary ban on all human cloning, whether to produce children or for biomedical research.
The Council, having considered each option, recommended two possible policy alternatives, each supported by a portion of the Members. The majority recommendation, supported by ten of the seventeen members of the Council was for a ban on cloning-to-produce-children combined with a four-year moratorium on cloning-for-biomedical-research., with a call for federal review of current and projected practices of “human embryo research, pre-implantation genetic diagnosis, genetic modification of human embryos and gametes, and related matters, with a view to recommending and shaping ethically sound policies for the entire field.” By permanently banning cloning-to-produce-children, the Council felt that it would give force to the strong ethical verdict against cloning-to-produce-children, unanimous in the Council (and in Congress) and which the Council found was widely supported by the American people.
By calling for a moratorium, the Council wanted to provides time for further democratic deliberation because “a national discourse on this subject has not yet taken place in full.” It would also allow time for scientific evidence to be gathered that might give a better sense of “whether cloning-for-biomedical-research would work as promised, and whether other morally non-problematic approaches might be available. It would promote a fuller and better-informed public debate. And it would show respect for the deep moral concerns of the large number of Americans who have serious ethical objections to this research.”
For some of the Council, they held that cloning-for-biomedical-research can never be ethically pursued, and they endorsed a moratorium “to enable us to continue to make our case in a democratic way.” Others supported the moratorium because it would “provide the time and incentive required to develop a system of national regulation that might come into use if, at the end of the four-year period, the moratorium were not reinstated or made permanent.” To the majority, in the absence of a moratorium, “few proponents of the research would have much incentive to institute an effective regulatory system.”The minority recommendation by seven members of the Council was a ban on cloning to produce children, with regulation of the use of cloned embryos for biomedical research. By permanently banning cloning to produce children, they agreed with the majority. They would approve cloning-for-biomedical-research and permit it to proceed without substantial delay. According to the council, the research shows great promise, and its “actual value can only be determined by allowing it to go forward now.”
The minority, which supported cloning for biomedical purposes strongly endorsed the worthiness and importance of the research and believed it had enormous potential for medical therapies – a few of the members approved it unconditionally and with enthusiasm, but the rest approved it with moral concern. Among those who had moral concerns, they cited the “current lack of sufficient scientific evidence to sustain claims of the unique value of cloned embryos for the desired researches; the absence of proper regulatory institutions and mechanisms to enforce regulations,” which the members believed to be a prerequisite to allow the research to go forward; and they expressed an unwillingness to alienate large numbers of fellow citizens who oppose this research on moral grounds.
Even the Council was not immune to political and social pressure.The minority would establish, “as a condition of proceeding, the necessary regulatory protections to avoid abuses and misuses of cloned embryos. These regulations might touch on the secure handling of embryos, licensing and prior review of research projects, the protection of egg donors, and the provision of equal access to benefits” They also believed that “mechanisms to regulate cloning-for-biomedical-research should be part of a larger regulatory program governing all research involving human embryos, and that the federal government should initiate a review of present and projected practices of human embryo research, with the aim of establishing reasonable policies on the matter.”
C. The Clone Wars
All truth passes through three stages. First it is ridiculed. Second it is violently opposed. Third it is accepted as being self-evident.
There are many arguments on both sides of the cloning debate: who, how, when and where should cloning be allowed? The questions abound not just in the regulatory arena, but in larger circles as well. James Q. Wilson, Professor Emeritus at UCLA proposes that cloning be allowed only in married couples. He views it as a problem, not of creating an identical twin, but of creating a child without parents. He argues “that the structure of the family a child is born into is more important than the sexual process by which the child was produced.”Cloning can be viewed as simply another form of assisted reproduction like artificial insemination and in vitro fertilization. The important point to consider in protecting the child’s welfare is not how the child was created, but the family in which he or she was raised. Therefore, cloning should be limited to intact heterosexual families and restrictions should be placed on the sources of human eggs. With such restrictions in place, cloning is unlikely to become very common.
This would fit into some of the concerns raised by both the Commission and the Council, but doesn’t address the other areas of importance in cloning, such as allowing cloning to reduce the risks associated with genetic defects, to clone a child to become a donor to an existing seriously ill child or adult. To me, these arguments are spurious and violate some of the basic concepts of the fundamental right to reproduce.Still others insist that cloning would potentially violate familial context.
The United Church of Christ has entered the debate with its position. “Many observers believe that it is beneficial for children to have the genetic resources of two adults that are combined to form a genotype that is unique and yet tied genetically to both adults.” They go on to state that “the cloning of humans should not be attempted because it disrupts the ordering of a family’s natural and social affinity, distorts the family as a place of unconditional belonging, and violates the character of an unfolding and enfolding familial love.”
This argument is ludicrous. A cloned child can still be as much a part of a family as a normally reproduced one. Look at the success of children who are from an in-vitro process, or the children of gay parents, or those who come from sperm donors, or surrogacy. What about adopted children? The question of who might be the parent might arise, but is the subject of a longer paper, which must address the issues of tissue rights, egg donors, in-vitro process, surrogacy, and gay parenting.
A recent decision in the Family Court of New Castle County, Delaware, focused on a lesbian couple. One of the partners, Carol Chambers, (they had held a commitment ceremony to formalize their union), funded a portion of an IVF process that eventually ended in the pregnancy and birth of a son to Karen Chambers. The couple broke up in 1998, and Carol successfully petitioned the court for visitation rights. The biological mother Karen then sued Carol for child support. The Delaware court found that as she had contributed to the IVF process, her actions “constituted a symbolic act of procreation. Judge Darrow concluded that “[h]ad Karen and Carol not acted in tandem, David would never have been conceived”.
Perhaps Judge Darrow has it right in determining parentage by who is responsible for bringing the child into the world. If an adult clones himself, then he or she is responsible. If parents clone their own child, then they should be held responsible. And if a lab clones a child, then the lab is responsible at least for the financial care of the child. Timothy Madigan, the editor of Free Inquiry, a humanist journal, stated “[h]uman clones would be unique and special persons with the same human rights and qualities that all other people possess. It is opponents of cloning who threaten to stigmatize clones as copies or monsters. Society will have to protect the equality of clones.”
I believe that Madigan has it right: clones will eventually exist, and must be according the dignity and respect that all human should be given, as a clone will be human.John Robertson proposes a possible ban on cloning unless the parties requesting the cloning will also agree to rear the clone. He argues that it would prevent someone from creating clones for their use as subjects or workers, and the child’s welfare would predominate. He discusses the possibilities of bans on cloning yourself, or even cloning your parent, and rearing the child yourself. The primary concern for Robertson is the welfare of the cloned child and how well the family unit will adapt.
This connects with Judge Darrow’s opinion, discussed earlier, in which parentage is decided on who agreed to bring the child/clone into the world.Robertson also discusses the need for consent of the adult clone (otherwise a battery), and consent of the cloned source’s genetic parents. Since there are reproductive implications for the genetic parents, he argues that their consent is necessary. And he raises the specter of clone veto power, whereby in giving the genetic parents the right to veto the cloning of their adult child; they deprive their child of the fundamental right to reproduce. In such cases, no custodial burdens should be placed on the genetic parents/ societal grandparents of the proposed clone.
Robertson states that an important regulatory issue is “the need to clarify parental rights and duties in resulting offspring,” which will assist in minimizing potentially detrimental legal battles over child custody and visitation and help reduce any confusion over kinship. “Clarification and certainty can be achieved by legislative specification of those relations or by legislative or judicial recognition of the precloning agreements of the affected parties.” I agree with this position, in that there is a need to regulate not cloning, but the issues surrounding an existing clone.
Robertson discusses the need for legislative intervention in cases where children or embryos are cloned, at least so that kinship and rearing relationships are clearly established. He believes however that clarification of familial roles is most needed when a third party donor is involved, and the laws should be similar to current sperm/egg donor arrangements. So, it is up to the legislative bodies and the courts to provide us with the necessary guidelines and rules that will protect the clone’s rights and determine its parentage. To not provide such rules would is like running around with a bag on your head muttering “if I can’t see the cliff, I won’t fall off it.”
Just because you can’t see the occurrence of something (believing you have regulated it out of existence), does not obviate the possibility that the banned activity will happen anyway. Cloning will appear, and to not project that occurrence is the same as walking deliberately off that cliff. Theologians and sociologists can debate all they want about the merits and ethics of cloning, just as they did during the temperance movements of the 19th century up to and during prohibition. But surely society as a whole has learned by now that ignoring or banning a problem doesn’t just stop it in its tracks: that life goes on willy-nilly, and when life is given a way to emerge, it will. And cloning can provide so much more than just mere life. It has the potential to save lives, resurrect deceased loved ones, and provide new ways for childless couples to reproduce. That cloning might interfere with the natural selection process and the general evolution of the species is debatable, but moot: cloning will occur, the only question left is when, and how will we deal with it.
Lives are like snowflakes – forming patterns we have seen before, as like one another as peas in a pod (and have you ever looked at peas in a pod? I mean really looked at them? There’s not a chance you’d mistake one for another, after a minute’s close inspection), but still unique.
As stated before, human cloning will be a difficult area in which to enforce a ban, and an especially difficult area to formulate concrete policy. Any regulatory agency, such as Health and Human Services (no regulatory agency has been set up specifically for this area), given the oversight and enforcement of a ban on human cloning will be faced with a perhaps insurmountable task.
Regulatory actions may be put in place, but can they be adequately enforced? How do you regulate and enforce something that could conceivably be done in any college, high school or even basement lab, such as methamphetamine production? The governmental agencies in charge of such regulation can try to enforce, but will never be 100% successful. Francis Fukuyama, in his book “Our Posthuman Future: Consequences of the Biotechnology Revolution,” argues that the lack of 100% enforcement is not a valid reason not to regulate.
But the examples used, such as Internet pornography, or nuclear proliferation, do not have the same consequences. Pornography will exist, nuclear weapons will exist, m\but the consequences of not being able to enforce regulations on the production of human beings has vastly greater consequences. What will the penalties be? And how will the government consider any actual resulting human clone?Although frozen embryos, IVF, and human clones seem far apart in the spectrum of reproductive technology, in reality they have similar arguments used for and against them, such as interference in the natural birth process, the questions of true “parentage” and familial ties, against the need and desire for humans to reproduce in any means possible, and the ability of human to create a family, whatever its origins. Once a human clone is brought to birth, another set of rules comes into play. It is up to both the legal community and the legislature to establish a set of precedential rules and regulations that will take all forms of a human clone into account – from a pre-embryo to a full adult clone.
The recommendations by the Council lay the foundation for legislation and laws regarding parental determination of human clones. Although most nations aim to ban cloning, there is no one single approach to cloning from all nations and gaps will occur. And of course the potential for the black market economy exists. Someday, somewhere, a human clone will arrive and need the protection of our laws. What status will we accord it? Who will be responsible (the donor, the genetic parents, the person who “made” the clone)? The simple question of who is the parent of a clone has tremendous interpretation. Looking at legal precedent, following it through the various incantation of technological reproduction, the answer seems to lie in who is responsible for bringing the clone to being? Who made the decision to clone?The questions must be answered, most likely on a case-by-case determination in the beginning, depending on the genetic parentage of the clone, and who, if any, claims responsibility or shirks it.
We need to start that forward thinking process now, for as Herbert Marshall McLuhan, a Canadian writer and education said, “We drive into the future using only our rear view mirror.” We cannot move forward by examining the past too closely. Laws must be drafted to protect the rights of those citizens yet to come, and must come from justice, fairness and equality.
Cloning will be around as long as humans are, or at least until they come up with a newer and more advanced reproductive technique. The world changes and we must change with it. We cannot go through life with blinders on, repulsing all scientific advances. Think of the stir some of the earlier advances caused, like vaccines (which are still questioned today by certain groups), and how each new step along the way has been fraught with debate and controversy. The same is true with cloning.
Right now, society is frightened by the very idea and its implications. As Machiavelli said, “there is nothing more difficult to carry out, nor more doubtful of success, nor more dangerous to handle, than to initiate a new order of things…partly from the incredulity of mankind, who do not truly believe in anything new until they have had actual experience of it.” But most of those questionable ideas and concepts eventually proved to have value and were accepted. So it will be with cloning.
If we have laws in place to deal with clones, then the advent might not be as frightening as many assume. People opposing cloning fear the rise of eugenics, and the interference it what many feel is a god-given ability, that to reproduce. But as the quote at the beginning of the paper suggests, perhaps God, by giving us the brains and thirst for ever expanding knowledge, may be allowing us to change the reproductive parameters in place, and add new methods to the “mix.” Much of the debate arises over the ethical implications and problems for the clones themselves. Laws in place could negate some of that concern, but it will take a generation or more to make the social and institutional changes necessary. Social order and institutions change slowly to accommodate what is actually happening in the world.
Consider the recent calling of the cardinals to Rome to address the issue of child molestation, and the resignation of Cardinal Law in Boston just a few days ago, the first ever in America, and the opening of the possibility of the archdiocese of Boston filing for bankruptcy due to the costs associated with the sexual abuse scandals that have rocked the church (again a first). Such a thing could never have been conceived of a century ago. But it is happening, and the church is instituting policies to help prevent such things happened again. How successful they will be is still uncertain. “One thing we can say about man’s future with a great deal of confidence is that it will be more or less surprising.”
But ends must meet needs, and we as a society must arise to accept the new order. Although laws to protect the clones will be a long time in coming, and no doubt will not happen until we are forced through the reality of a clone’s presence to promulgate the laws, eventually I foresee that as a society we will “adopt” the clones and their concerns and enfold them into our social structure. What choice will we have? A clone will be a living, sentient being, and should be entitled to the penumbra of rights guaranteed by our constitution, and entitled to a loving parent, as any child is.
Perhaps Judge Learned Hand said it best:That community is already in the process of dissolution … where nonconformity with the accepted creed…is a mark of disaffection… Such fears as these are the solvent which can eat out the cement that binds the stones together…The mutual confidence upon which all else depends can be maintained only by an open mind and a brave reliance on free discussion. I do not say these will suffice…[but] we must not yield a foot upon demanding a fair field and an honest race.”
The Commission and Council’s recommendations and desire for nationwide discourse on the subject is a noble and wise course of action. But it may take generations for the majority of society to find a tolerance for human cloning, but that does not negate the need for laws and regulations now, in the event that a human clone is born, even against regulations that might be put into effect. Such laws would encompass the whole gamut of human rights, but especially that of parenting. Once a clone is born it is human, but will society accept it as such? Should the clone become part of a new protected class under Title VII? These are the questions that must be answered now.
Endnotes (numbering above lost in copying/pasting)
1 Brin, David – Kiln People, Tor, 2002, pg. 89. This science fiction novel details the use of “clay” molds to imprint the psychic signature of the owner. Each clay clone is then sent out on its day’s work, depending on the quality of the mold. Green clays clean, while black clays do the technical work, and grays are everyday workers. After 24 hours, each clay comes back to download his day’s memories into the original. The novel is a “day in the life” of an original and three clays as they all stumble upon a mystery and is told through the eyes of each clay and its original as they race to solve the crime and reunite before the day is up.
2 Figueroa, Michael, Weekly World News, December 18, 2001. The weekly tabloid “exposes” the sleepy town of Pecos, Texas, where the government has supposedly been secretly cloning humans since 1973. The author claims there are at least seven originals with up to 80 clones each.
3 York, Vicki, Weekly World News, November 20, 2001. This time the tabloid alerts the world to the fact that tissue was taken from Hitler’s nose by his SS followers shortly after his suicide. The tissue has been handed down through generations of nazi-sympathizers, and in 1996, after the news of the cloning of Dolly the sheep, the scientists decided to resurrect Hitler through cloning. Unfortunately, according to the scientists, the only thing that has grown is his nose and moustache.
4 Aldous Huxley’s utopian (or perhaps dystopian?) “Brave New World” envisioned a place where “Community, Identity, and Stability” ruled, and babies are born in laboratories. But like any utopian vision, it may not be as perfect as it seems. Is ignorance truly bliss? Brave New World was an existentialist commentary on the ultimate horrors of becoming too much alike, without independent thought. The hero, John Savage, struggles to come to terms with the idea of breaking the strict complacency and becoming a single sentient entity. Huxley was perhaps influenced by Frederich Nietzsche’s “Ubermensch” or overman: one who is neither master nor slave, but has released all bonds of conformity.
5 Hamilton, Edith – Mythology. Pandora was the first woman on earth, created by Zeus from water and earth. Her name translated is “all gifted”. Pandora was sent to Prometheus as a punishment for his having stolen fire from the gods. She was sent with a box, and was told not to open it. Being “human”, her curiosity was piqued, and she opened the lid. Immediately, all the evils and illnesses contained therein escaped and spread across the earth. She tried to replace the lid quickly, but was unable to stem the tide. When all the evils had escaped, the only thing left in the bottom of the box was hope, which remains man’s saving grace. So it is with cloning – mankind’s interest and curiosity are aroused, and we cannot stop it.
6 See Prohibition, the War on Drugs, the prostitution laws on the books in every state and county, and the rise in child pornography, particularly over the Internet, despite attempts by law-enforcement to eradicate it. Each of these prohibited activities was and is commercially viable and feeds on man’s various proclivities towards gratification and self-aggrandizement.
7 In “The Big Gene Profit Machine”, author Tebo chronicles the rush to patent biotech discoveries, and the enormous value of those patents: “The real dollar value of those licensing rights amounts to billions over time,” Tebo, Margaret Graham, “The Big Gene Profit Machine,” ABA Journal April 2001, p.46. The religious groups have also weighed in on the argument: “But it’s not the case that the motives and the impetus behind this research is perfectly pristine and altruistic. This is biotechnology, it is a commercial enterprise as well with power and prestige and significant money to be made from it”, Sondra Wheeler, Professor of Christian Ethics at Wesley Theological Seminary, from an episode of the PBS program “Religion and Ethics Newsweekly”, April 12, 2002 entitled “Religious Views on Stem Cell Research.” See: http://www.pbs.org/wnet/religionandethics/week448/perspectives.html. Michael Branigan, Executive Director of the Center for the Study of Ethics at La Roche College, in his Guest Article “An Opportunity for Preventative Ethics” asks why we are doing this. “This is the matter of motives. Researchers in this emerging field are no doubt motivated by the desire to alleviate the numerous disabilities and deaths incurred through tissue and organ degeneration. And their efforts are uniquely interdisciplinary, requiring the collaboration of experts in fields including biology, engineering, medicine, microscopic imaging, physics, chemistry, computer science, mathematics, and robotics. At the same time, the tissue engineering enterprise entails the partnership of science and business, and promises to be a multi-billion dollar industry. The potential for profit is enormous.” Pittsburgh Tissue Engineering Initiative Report, “Pittsburgh’s Powerhouses of Regenerative Medicine,” http://www.ptei.org/news/article_02.html.
8 This may no longer be true. A recent news report on April 6, 2002 announced that fertility specialist Dr. Severino Antinori, who made headlines eight years ago by helping a 62 year old woman become pregnant and give birth, is reported to have claimed that a patient is pregnant with the world’s first cloned baby. Dr. Antinori has been developing a cloning program at his clinic in Rome, Italy, and reportedly made the announcement at a conference on genetic engineering in Abu Dhabi. Sources have been unable to confirm this report. CNN.com Health: “First Cloned Baby – Report,” http://www.cnn.com/2002/TECH/science/04/06/human.clone/index.html.In addition, the British scientists at the Roslin Institute, which cloned Dolly the sheep, have applied for a license to the Human Fertilisation and Embryology Authority, the British government body that regulates embryo research to experiment on human embryos for medical purposes. Britain has the world’s most liberal policy on stem cell research and allows the creation of embryos as a source of stem cells — the primitive master cells that turn into other cell types, which could be used to find cures to a wide range of diseases, such as Parkinson’s and Alzheimer’s. CNN.com Health: “Dolly Team Turn to Human Embryos,” http://www.cnn.com/2002/HEALTH/04/11/britain.cloning.reut/index.html. Earlier, on November 26, 2001, scientists in the U.S., at a private research company called Advanced Cell Technology announced that they had cloned embryos by removing the DNA from human egg cells, took DNA from an adult human, which was then implanted into the egg cell and stimulated to grow into a six-cell embryo. Although this is a preliminary step only, British geneticist Dr. Patrick Dixon, “an authority on the ethics of human cloning, warned the breakthrough could open the door to producing full-scale human clones. ‘It is now only a matter of time before a clone human is born,’” Cnn.com Sci-Tech: U.S. Cloning Advance Shocks the World,” http://www.cnn.com/2001/TECH/science/11/26/human.cloning.reax1200/index.html
9 Extensive research has failed to reveal any case law or common law that deals with a human clone. There are a number of good law review articles that deal with the ethical issues, but statutory law is still under debate. See Frey, Kelly L. “New Reproductive Technologies: The Legal Problem and a Solution” a comment in the Winter 1982 edition of the Tennessee Law Review, 49 Tenn L. Rev. 303 (1982) and Smith, Kevin H., “Déjà Vu All Over Again: What To Do When The Octogenarian Really Is Fertile And Other Legal Conundrums Which Will Result From The Cloning Of Human Beings,”77 Denv.U.L.Rev. 35 (1999).
10 Barbara MacKinnon, ed., – Human Cloning: Science, Ethics and Public Policy, University of Illinois press, 2000, pg. 12.
11 The word clone has come to mean an exact duplicate of something, such as a clone hard drive. Aldous Huxley, in “Brave New World” gives clone as different label. He describes bokanovskification chambers, where fertilized human eggs are exposed to a process that causes them to “bud,” creating several copies of the original; in essence, creating hundreds or thousands of identical “twins”
12 In Senate Bill 790, “The Human Cloning Prohibition Act of 2001,” the term `human cloning’ is defined as “human asexual reproduction, accomplished by introducing the nuclear material of a human somatic cell into a fertilized or unfertilized oocyte whose nucleus has been removed or inactivated to produce a living organism (at any stage of development) with a human or predominantly human genetic constitution.”
13 Seidel, George E. Jr. – Cloning Mammals: Methods, Applications, and Characteristics of Cloned Animals, pg. 17. Contained in Barbara MacKinnon, ed, – Human Cloning: Science, Ethics and Public Policy, University of Illinois press, 2000;
14 Id. at 17-18. “Even biologically, a clone [produced using certain cloning techniques] would not be identical to the ‘master copy.’ The clone’s cells, for example, would have energy-processing machinery (mitochondria) that come from the egg donor [who may] not [be the same person as the person who donated] the nucleus [of the cell, which contains the overwhelming majority of genetic material]. But most of the physical differences between originals and copies wouldn’t be detectable without a molecular biology lab. Smith, Kevin H., “Déjà Vu All Over Again: What To Do When The Octogenarian Really Is Fertile And Other Legal Conundrums Which Will Result From The Cloning Of Human Beings,” 77 Denv. U.L. Rev. 35 (1999), fn.13. citing Wray, Herbert et al., “The World After Cloning,” U.S. News & World Report, March 10, 1997 p.59. Id. at 53.
15 Seidel, George E. Jr. – Cloning Mammals: Methods, Applications, and Characteristics of Cloned Animals, pg. 18. Contained in Barbara MacKinnon, ed, – Human Cloning: Science, Ethics and Public Policy, University of Illinois press, 2000
16 Wilmut, I., Schnieke, A.E., McWhir, J., Kind, A.J. and Campbell, K.H.S., Viable Offspring Derived From Fetal and Adult Mammalian Cells, Nature 385 (1997), 810-13
19 Seidel, supra, Note 13 at 24-30. See also, Catherine Verfaillie’s study from the University of Minnesota’s Stem Cell Institute, published in Nature, June 20, 2002, where they have proved that differentiated, or “multipotent adult progenitor” cells can grow into other types of cells, much the same as embryonic cells can now. This may make the ethical debates surrounding stem cell research and its fetal properties moot.
21 Shiels, Paul G., et al., “Analysis of telemere lengths in cloned sheep,” Nature 399, 316 – 317 (1999)
23 Telemeres play a role in the protection and stabilization of the chromosomes, and it is theorized, though not certain, that cell death might occur when the telemeres are critically shortened. Dolly is the flagship case of this theory, as she was the first animal cloned from an adult cell. She has shown signs of shortened telemeres, but it hasn’t evidenced itself in any health problems or premature aging yet. Shiels, Paul G., et al., “Analysis of telemere lengths in cloned sheep,” Nature 399, 316 – 317 (1999)
25 Silver, Lee, M., Remaking Eden: How Genetic Engineering and Cloning Will Transform the American Family, Avon Book, 1998, p. 120.
26 Washington Post Live Online Health Talk segment titled: “Cloning Your Pet
27 American Health Line February 15, 2002
28 ABC’s 20/20, March 1, 2002
29 ABC’s 20/20, March 1, 2002
30 In a Washington Post Live Online Health Talk segment titled: “Cloning Your Pet,” host Abigail Trafford interviews Lou Hawthorne, CEO of Genetic Savings and Clone, Inc. Hawthorne explains that the mother cat was a calico, but the daughter CC is a tiger tabby domestic shorthair. “Calicos are a unique genetic oddity whose appearance cannot be cloned precisely.” In the Genetic Savings and Clone website, http://www.savingsandclone.com, an explanation is given for this difficulty. “Calicos are almost always female, which means they have two X-chromosomes (versus the male’s XY). One of these X chromosomes contains a gene for orange coat color and the other contains a gene for black coat color (white patches are specified by a different set of genes which are not relevant here). For reasons that are not fully understood, as the embryo develops, a phenomenon called “X-linked inactivation” occurs, in which one or the other X-chromosome in every cell in the Calico embryo becomes randomly inactivated. If the specific X-chromosome containing the gene for orange coat color becomes inactivated, that cell will go on to produce black coat color (assuming it becomes a coat follicle cell). The inverse is true if the X-chromosome containing the gene for black coat color becomes inactivated.Mosaicism” is the term for distribution of different cell types within a single organism. Mosaicism is three-dimensional, meaning that the inactivation of orange or black-producing genes occurs within cells throughout the calico’s body regardless of whether the cells have anything to do with production of the animal’s coat. Thus even the specific cumulus cell used to clone CC would have been inactivated for either orange or black coat color.If the nuclear transfer process were to reset the inactivated X-chromosome the way it resets the nuclear differentiation, then one might expect to see a calico clone with a calico coat. On the other hand, if nuclear transfer does not reset X-activation then one would expect to see a clone with a black coat if the donor cell used had an orange coat gene on the inactivated X-chromosome, and conversely one would expect a clone with an orange coat if the donor cell used had an black coat gene on the inactivated X-chromosome. The fact that CC has no orange in her coat is consistent both with the theory that nuclear transfer does not reset X-activation, and also that the cumulus cell used had an orange coat gene on the inactivated X-chromosome.”
32 See note 8 supra
33 On January 12, 1998, 19 European nations signed a ban on human cloning, http://www.ess.ucla.edu/huge/clonban.html. http://www.laurushealth.com/HealthNews/reuters/NewsStory0226200224.htm. See also, Fukuyama, Francis, Our Post Human Future: Consequences of the Biotechnology Revolution, Farrar, Straus and Giroux, N.Y., 2002.
34 On February 26, 2002, the United Nations began drafting an international treaty that would ban human cloning
35 107th Congress, 1st Session, HR 2505, Human Cloning Prohibition Act of 2001, 7/31/01
36 The National Academies of Science Report released on January 18, 2002 states that reproductive cloning is “dangerous for the woman, fetus, and newborn and is likely to fail.” The panel supported the conclusion of a previous National Academies’ report “Stem Cells and the Future of Regenerative Medicine,” that recommends biomedical research using nuclear transplantation to produce stem cells be permitted. According to the report, “very few cloning attempts are successful. Many clones die in utero even at late stages or soon after birth — and those that survive frequently exhibit severe birth defects…Human reproductive cloning is likely to have similar negative outcomes. Because many eggs are needed for human reproductive cloning attempts, human experimentation could subject more women to adverse health effects — either from high levels of hormones used to stimulate egg production or because more women overall would be sought to donate eggs, which involves surgery with its own inherent risks, the panel noted… Moreover, the cloned offspring — who would face the greatest risks of abnormality and death — would not be in a position to offer consent. These circumstances provide additional reasons to exercise caution.” http://www4.nationalacademies.org/news.nsf/isbn/0309076374?OpenDocument.
37 S.790, 4/26/01 107th Congress, 1st session, To Amend Title 18, United States Code, to prohibit human cloning
38 107th Congress, 2d Session, S. 1893, To Ban Human Cloning While Protecting Stem Cell Research, 1/24/02
39 American Health Line January 24, 2002; quoting USA Today, Arlington, Va., Jan 23, 2002
41 See notes 26-30 supra
42 The Very Rev. Kevin Michael Quirk, JCD, Judicial Vicar of the Roman Catholic Diocese of Wheeling-Charleston states in answer to a student’s question on whether a human clone had a soul: “I would say that the animal cloning experiments, if they are proved to be actual cloning do seem to indicate that clone’s do have at least an animal soul. The soul is the principle of life and that which gives form to the material or physical body. Without a soul, decay and decomposition occur. This is precisely what happens at death when the soul leaves the body, decomposition begins to occur. So, if a thing is alive, it does have a soul.However, there is a vast difference between animal souls which are sentient and human souls which are rational/spiritual. Would a human clone possess a human soul? This is the profoundest and most troubling question in the area of cloning, leaving aside the question of why we should even think about cloning people. The possession of a human soul is necessary for human identity and each soul is created uniquely and specifically by God at the moment of conception. Thus, would cloning force God to create a unique human soul or would a merely animal soul be given to a clone, making it a non-human automaton? The answer, hopefully, will never be known.” http://www.dwc.org/questions/Morality/clonesoul2.htm
43 Silver, Lee M., Remaking Eden: How Genetic Engineering and Cloning Will Transform the American Family, Avon Book, 1998
44 Id. at 125
45 Id. at 125
46 President Bush and Secretary Tommy Thompson of Health and Human Services are spearheading a move to allow fetuses to be redefined as children for purposes of allowing federally funded childcare services prior to birth. Ryan, Joan, President attempts a pre-emptive strike on Roe v. Wade, Moscow-Pullman Daily News, October 27, 2002
47 Executive Order 12975, October 3, 1995, Creation of The National Bioethics Advisory Commission Federal Register: October 5, 1995 (Volume 60, Number 193), Page 52063-52065
49 Executive Order 12975, October 3, 1995, Creation of The National Bioethics Advisory Commission. Report issued on Cloning Human Beings, June 1997. An additional report on Ethical Issues in Human Stem Cell Research was issued in September 1999. The Commission recommending continuing federal funding for stem cell research using fetal cells from dead tissue, or from those not used in IVF, but would ban the use of federal funds for stem cell research using somatic cell transfer or those made solely through IVF for research purposes. It might prove to be difficult to prove in the case of IVF what the initial intentions were, and obviously ways to get around it are easily obtained.Charter of the Commission, October 20, 1999PurposeThe National Bioethics Advisory Commission will provide advice and make recommendations to the National Science and Technology Council, chaired by the President; other appropriate entities and the public, on bioethical issues arising from research on human biology and behavior, and the applications, including the clinical applications, of that research.AuthorityExecutive Order 12975, as amended. This Commission is governed by the provisions of theFederal Advisory Committee Act (FACA), Public Law 92-463, as amended (5 U. S.C. Appendix2), which sets forth standards for the formation of advisory committees, and implementing regulations (41C.F.R. 101.6.10).FunctionsThe National Bioethics Advisory Commission shall advise, consult with, and make recommendations to the National Science and Technology Council, chaired by the President; Federal agencies; and other appropriate entities, and also make available to the public the Commission’s advice and recommendations. The Commission’s purview includes the appropriateness of departmental, agency, or other governmental programs, policies, assignments, missions, guidelines, and regulations as they relate to bioethical issues arising from research on human biology and behavior, and applications, including the clinical applications, of that research. The Commission shall identify broad, overarching principles to govern the ethical conduct of research, citing individual projects only as illustrations for such principles. The Commission shall not be responsible for the review and approval of individual projects. As a first priority, the Commission will direct its attention to consideration of A. Protection of the rights and welfare of human research subjects; andB. Issues in the management and use of genetics information including but not limited to human gene patenting.In addition to responding to requests for advice and recommendations from the National science and Technology Council, the Commission also may accept suggestions for issues for consideration from both the Congress and the public. The Commission also may identify other bioethical issues for the purpose of providing advice and recommendations, subject to the approval of the National Science and Technology Council. The Commission shall consider four criteria –in establishing priority for its activities:A. The public health or public policy urgency of the bioethical issue.B. The relation of the bioethical issue to the goals for Federal investment in science and technology.C. The absence of another body able to deliberate fruitfully on the bioethical issue.D. The extent of interest in the issue across the government. (The Commission ordinarily will not deliberate on a bioethical issue of interest to just one department or agency.)StructureThe National Bioethics Advisory Commission shall consist of not more than 18 members including the Chairperson. Appointments shall be made by the President, who shall select from knowledgeable non-Government experts and community representatives with special qualifications and competence to deal effectively with bioethical issues. At least one member shall be selected from each of the following categories of primary expertise: (1) philosophy/theology; (ii) social/behavioral science; (iii) law; (iv) medicine/allied health professions; and (v) biological research. At least three members shall be selected from the general public, bringing to the Commission expertise other than that listed. The membership shall be approximately evenly balanced between scientists and non-scientists. Close attention will be given to equitable geographic distribution and to ethnic and gender representation. Members of the Commission will serve for terms of 2 years and may continue to serve after the expiration of their term until a successor is appointed. A member appointed to fill an unexpired term will be appointed to the remainder of such terms. The Chairperson shall be appointed by the President. The term of office for the Chairperson shall be two years, renewable by appropriate action of the President. If a vacancy occurs on the Commission, the President shall make an appointment to fulfill the term. Any member appointed to fill a vacancy occurring prior to expiration of the term for which his or her predecessor was appointed shall serve for the remainder of such term. Members may serve after the expiration of their terms until their successors have taken office.The heads of executive departments and agencies shall, to the extent permitted by law, provide the commission with such information as it may require for purposes of carrying out its functions.The Commission may conduct inquiries, hold hearings and establish subcommittees, as necessary. The Commission is authorized to solicit information form relevant human research subject groups. The Commission is authorized to conduct analyses and develop reports or other materials. In order to augment the expertise present on the Commission, the Secretary of Health and Human Services is also authorized to contract for the services of non-governmental consultants who may conduct analyses, prepare reports and background papers or prepare other materials for consideration by the Commission, as appropriate.In order to avoid duplication of effort, the Commission is encouraged to review the deliberations of other entities. The Commission may incorporate or otherwise use the results of the deliberations of other entities, as it deems appropriate. The Assistant to the President for Science and Technology and the Secretary of Health and Human Services shall be notified upon establishment of each subcommittee, and shall be provided information on the name, membership (including chair), function, estimated duration of the subcommittee, and estimated frequency of meetings. To the extent permitted by law, the subject to the availability of appropriations, the Department of Health and Human Services (DHHS) shall provide NBAC with such funds as may be necessary for the performance of its functions. Management and support services shall be provided by the DHHS.MeetingsMeetings of the Commission shall be held up to 12 times a year at the call of the Chairperson.Meetings of the subcommittee(s) shall be convened as necessary. A Federal Government official shall be present at all meetings.Meetings shall be open to the public except as determined otherwise by the Assistant to the President for Science and Technology and the Secretary of Health and Human Services. Advance notice of all meetings shall be given to the public.Meetings shall be conducted, and records of proceedings kept, as required by applicable laws and Federal regulations.CompensationMembers may be compensated at a rate not to exceed the maximum pay authorized by 5 U. S.C. 3109, plus per them and travel expenses as in accordance with standard government travel regulations.Annual Cost EstimateThe estimated annual cost for operating the National Bioethics Advisory Commission is $3,000,000.ReportsReports by the National Bioethics Advisory Commission on specific issues shall be submitted to the National Science and Technology Council, chaired by the President, and then to the appropriate committees of Congress, and other appropriate entities. The Commission may specifically identify the Federal department, agency or other entity to which particular recommendations are directed and request a response from the Federal department, agency or other entity within 180 days of publication of such recommendation. Executive summaries of each report of the Commission shall be published in the Federal Register or on the World Wide Web. Such summaries shall specifically list the department, agency, or other entity to which any recommendations are directed and the date by which such responses are expected.An annual report shall be submitted to the National Science and Technology Council and the appropriate committees of Congress. It shall contain, at a minimum, (1) the Commission’s function; (ii) a list of members and their business addresses; (iii) the dates and places of meetings; (iv) a summary of the Commission’s activities during the year; (v) a summary of the Commission’s recommendations made during the year; and (vi) a summary of responses made by departments, agencies, or other entities to the Commission’s recommendations during the year.General ProvisionsNotwithstanding the provisions of any other Executive Order, the functions of the President under the Federal Advisory Committee Act that are applicable to the Commission, except that of reporting annually to the Congress, shall be performed by the Secretary of Health and Human Services, in accordance with the guidelines and procedures established by the Administrator of General Services.Termination DateUnless renewed by Executive Order prior to its expiration, this National Bioethics AdvisoryCommission will terminate on October 3, 2001.Approved:OCT 20, 1999 /s/ Donna E. Shalala
53 National Bioethics Advisory Commission website, http://www.georgetown.edu/research/nrcbl/nbac/pubs.html
54 Id. At http://www.georgetown.edu/research/nrcbl/nbac/pubs/cloning1/executive.htm
60 Executive Order 13237, November 28, 2001 Creation of The President’s Council on Bioethics
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Establishment. There is established the President’s Council on Bioethics (the “Council”).
Section 2. Mission.
a. The Council shall advise the President on bioethical issues that may emerge as a consequence of advances in biomedical science and technology. In connection with its advisory role, the mission of the Council includes the following functions:
1. to undertake fundamental inquiry into the human and moral significance of developments in biomedical and behavioral science and technology; 2. to explore specific ethical and policy questions related to these developments; 3. to provide a forum for a national discussion of bioethical issues; 4. to facilitate a greater understanding of bioethical issues; and 5. to explore possibilities for useful international collaboration on bioethical issues.
b. In support of its mission, the Council may study ethical issues connected with specific technological activities, such as embryo and stem cell research, assisted reproduction, cloning, uses of knowledge and techniques derived from human genetics or the neurosciences, and end of life issues. The Council may also study broader ethical and social issues not tied to a specific technology, such as questions regarding the protection of human subjects in research, the appropriate uses of biomedical technologies, the moral implications of biomedical technologies, and the consequences of limiting scientific research.
c. The Council shall strive to develop a deep and comprehensive understanding of the issues that it considers. In pursuit of this goal, the Council shall be guided by the need to articulate fully the complex and often competing moral positions on any given issue, rather than by an overriding concern to find consensus. The Council may therefore choose to proceed by offering a variety of views on a particular issue, rather than attempt to reach a single consensus position.
d. The Council shall not be responsible for the review and approval of specific projects or for devising and overseeing regulations for specific government agencies.
e. In support of its mission, the Council may accept suggestions of issues for consideration from the heads of other Government agencies and other sources, as it deems appropriate.
f. In establishing priorities for its activities, the Council shall consider the urgency and gravity of the particular issue; the need for policy guidance and public education on the particular issue; the connection of the bioethical issue to the goal of Federal advancement of science and technology; and the existence of another entity available to deliberate appropriately on the bioethical issue.
Section 3. Membership.
a. The Council shall be composed of not more than 18 members appointed by the President from among individuals who are not officers or employees of the Federal Government. The Council shall include members drawn from the fields of science and medicine, law and government, philosophy and theology, and other areas of the humanities and social sciences.
b. The President shall designate a member of the Council to serve as Chairperson.
c. The term of office of a member shall be 2 years, and members shall be eligible for reappointment. Members may continue to serve after the expiration of their terms until the President appoints a successor. A member appointed to fill a vacancy shall serve only for the unexpired term of such vacancy.
Section 4. Administration.
a. Upon the request of the Chairperson, the heads of executive departments and agencies shall, to the extent permitted by law, provide the Council with information it needs for purposes of carrying out its functions. b. The Council may conduct inquiries, hold hearings, and establish subcommittees, as necessary.
c. The Council is authorized to conduct analyses and develop reports or other materials.
d. Members of the Council may be compensated to the extent permitted by Federal law for their work on the Council. Members may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in Government service (5 U.S.C. 5701-5707), to the extent funds are available.
e. To the extent permitted by law, and subject to the availability of appropriations, the Department of Health and Human Services shall provide the Council with administrative support and with such funds as may be necessary for the performance of the Council’s functions.
f. The Council shall have a staff headed by an Executive Director, who shall be appointed by the Secretary of Health and Human Services in consultation with the Chairperson. To the extent permitted by law, office space, analytical support, and additional staff support for the Council shall be provided by the Department of Health and Human Services or other executive branch departments and agencies as directed by the President.
Section 5. General Provisions.
a. Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.), may apply to the Council, any functions of the President under that Act, except that of reporting to the Congress, shall be performed by the Secretary of Health and Human Services in accordance with the guidelines that have been issued by the Administrator of General Services.
b. The Council shall terminate 2 years from the date of this order unless extended by the President prior to that date.
c. This order is intended only to improve the internal management of the executive branch and it is not intended to create any right, benefit, trust, or responsibility, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers, or any person.
George W. BushThe White House, November 28, 2001. Federal Register date: November 30, 2001.Federal Register page: 66 FR 59851.
62 Human Cloning and Human Dignity: An Ethical Inquiry; The President’s Council on Bioethics, Washington, D.C., July 2002, www.bioethics.gov
65 Id. Chapter Five, The Ethics of Cloning-to-Produce-Children
78 Id. Chapter Seven, Public Policy Options
79 Id. Chapter Eight, Policy Recommendations
90 Madigan, Timothy J., A Clone Can Exists With Full Human Dignity, essay contained in The Ethics of Human Cloning, William Dudley, Ed., Greenhaven Press, 2001, p.39
91 Wilson, James Q., Only Married Couples Should Be Allowed to Clone, essay contained in The Ethics of Human Cloning, William Dudley, Ed., Greenhaven Press, 2001, p.42
94 United Church of Christ, Statement of the Committee on Genetics, Cleveland, reprinted in Cloe-Turner, Human Cloning p. 147-151
96 In Vitro Veritas, Cahill, Stephanie Francis, ABA Journal Report, 2/22/02 regarding the case of Chambers v. Chambers CN00-09493
97 Chambers v. Chambers, Delaware Family Court No. CN00-09493
98 Madigan, supra, Note 110 at 39
99 Robertson, John A., When Cloning is Safe and Effective, essay contained in Human Cloning: Science, Ethics and Public Policy, ed. by Barbara MacKinnon, University of Illinois Press, 2000
100 Id. at 138
101 Id. at 141
102 Id. at 142
104 The Universal Declaration on the Human Genome and Human Rights, signed in 1997 by the 187 members of UNESCO, proscribed practices contrary to human dignity, such as cloning. The Council of Europe drafted a protocol, The Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings. Bonnickson, Andrea L., Crafting Human Cloning Policies, contained in MacKinnon, Barbara, ed. Human Cloning: Science, Ethics and Public Policy, University of Illinois Press, 200, p. 120-121. These declarations and protocols are only some of the legal hurdles to cloning.
105 See U.S. Const., Amendments XVIII (1919) and the repeal in Amendment XXI (1933). It took 14 years, the rise of organized crime, and scores of revenue men and “G” men to realize that the sale and consumption of liquor could not be stopped.
106 Gaiman, Neil, American Gods, William Morrow, 2001, pg. 252, a novel exploring an epic battle between the new American Gods of technology, prosperity, and consumption versus the older pantheon of gods from time immortal. Basically a contemporary essay on human frailty, told through the guise of a road journey of gods.
107 Fukuyama, Francis, Our Post Human Future: Consequences of the Biotechnology Revolution, Farrar, Straus and Giroux, N.Y., 2002, pg. 187-191.
108 Davis, supra, Note 52 at 593. Dr. King, testifying for Junior Davis, defined a preembryo as an embryo up to 14 days after fertilization. After that time, the cell begins the process of differentiating into the various parts that make up an individual.
109 Machiavelli, Niccolo, The Prince, p. 21
110 Boulding, Kenneth E., Beyond Economics: Essays on Society, Religion, and Ethics, University of Michigan Press, Ann Arbor, Michigan, 1970
111 Judge Learned Hand, Ladies Home Journal, May 1954