[Senate Hearing 107-1050]
[From the U.S. Government Publishing Office]
S. Hrg. 107-1050
HUMAN CLONING
=======================================================================
HEARING
before the
SUBCOMMITTEE ON SCIENCE, TECHNOLOGY,
AND SPACE,
of the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
MAY 2, 2001
__________
Printed for the use of the Committee on Commerce, Science, and
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska ERNEST F. HOLLINGS, South Carolina
CONRAD BURNS, Montana DANIEL K. INOUYE, Hawaii
TRENT LOTT, Mississippi JOHN D. ROCKEFELLER IV, West
KAY BAILEY HUTCHISON, Texas Virginia
OLYMPIA J. SNOWE, Maine JOHN F. KERRY, Massachusetts
SAM BROWNBACK, Kansas JOHN B. BREAUX, Louisiana
GORDON SMITH, Oregon BYRON L. DORGAN, North Dakota
PETER G. FITZGERALD, Illinois RON WYDEN, Oregon
JOHN ENSIGN, Nevada MAX CLELAND, Georgia
GEORGE ALLEN, Virginia BARBARA BOXER, California
JOHN EDWARDS, North Carolina
JEAN CARNAHAN, Missouri
Mark Buse, Republican Staff Director
Ann Choiniere, Republican General Counsel
Kevin D. Kayes, Democratic Staff Director
Moses Boyd, Democratic Chief Counsel
SUBCOMMITTEE ON SCIENCE, TECHNOLOGY, AND SPACE
GEORGE ALLEN, Virginia, Chairman
TED STEVENS, Alaska JOHN B. BREAUX, Louisiana
CONRAD BURNS, Montana JOHN D. ROCKEFELLER IV, West
TRENT LOTT, Mississippi Virginia
KAY BAILEY HUTCHISON, Texas JOHN F. KERRY, Massachusetts
SAM BROWNBACK, Kansas BYRON L. DORGAN, North Dakota
PETER G. FITZGERALD, Illinois MAX CLELAND, Georgia
JOHN EDWARDS, North Carolina
JEAN CARNAHAN, Missouri
C O N T E N T S
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Page
Hearing held on May 2, 2001...................................... 1
Statement of Senator Brownback................................... 1
Witnesses
Best, Robert A., President, The Culture of Life Foundation, Inc.. 68
Prepared statement........................................... 70
Colin, Margaret, Actress......................................... 7
Prepared Statement........................................... 8
Doerflinger, Richard M., Associate Director for Policy
Development, Secretariat for Pro-Life Activities, National
Conference of Catholic Bishops................................. 82
Prepared statement........................................... 85
Feldbaum, Carl B., President, Biotechnology Industry Organization 74
Prepared statement........................................... 76
Forsythe, Clarke D., President, Americans United For Life........ 9
Prepared statement........................................... 11
Hanson, Jaydee, Assistant General Secretary for Public Witness
and Advocacy, General Board of Church and Society, The United
Methodist Church............................................... 79
Prepared statement........................................... 81
Jaenisch, Rudolf, Professor of Biology, MIT, Whitehead Institute
(Representing the American Society for Cell Biology)........... 33
Prepared statement........................................... 38
``Don't Clone Humans,'' article by Rudolf Jaenisch and Ian
Wilmut..................................................... 34
Kass, Leon R. M.D. Ph.D., Addie Clark Harding Professor,
Committee on Social Thought, University of Chicago............. 40
Prepared statement........................................... 43
Kristol, William, Chairman, The Bioethics Project of the New
Citizenship Project............................................ 55
Prepared statement........................................... 57
Weldon, Hon. David, U.S. Representative from Florida............. 2
Prepared statement........................................... 4
Appendix
Samuelson, Joan, President, Parkinson's Action Network........... 99
HUMAN CLONING
----------
WEDNESDAY, MAY 2, 2001
U.S. Senate,
Subcommittee on Science, Technology, and Space,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:30 p.m. in
room SR-253, Russell Senate Office Building, Hon. Sam
Brownback,
presiding.
OPENING STATEMENT OF HON. SAM BROWNBACK,
U.S. SENATOR FROM KANSAS
Senator Brownback. The Committee will come to order. Today,
we will be holding a hearing on the vital issue of human
cloning.
As our country debates the issue of human cloning, as well
as those issues which surround it, I think it is helpful to
engage in a similar dialog in the Senate. The issue of human
cloning forces us to debate first principles--most
particularly, the meaning of human life, and whether that life
is a person or a piece of property.
The importance of the issue of human cloning simply cannot
be underestimated. It is an issue that touches on our humanity
in a way few issues have, and it does so at a time when we have
the unique ability to resolve the issue properly, not only for
our own country, but also to lead the way for the world.
I recently introduced legislation to ban human cloning,
Senate bill S. 790, which has been referred to the Senate
Judiciary Committee. I believe there is a deep concern in
America, and the world in general, with the use of this
technology for the purposes of creating humans. In fact,
according to a recent Time/CNN poll, 90 percent of Americans
thought that it was a bad idea to clone human beings.
I believe, along with Congressman Weldon, and many
Americans share this belief, that efforts to create human
beings by cloning mark a new and decisive step toward turning
human reproduction into a manufacturing process in which
children are made in laboratories to preordained
specifications.
Creating cloned live-born children begins by creating
cloned human embryos, a process which some also propose as a
way to create embryos for research or as sources of cells and
tissues for possible treatment of other humans. The prospect of
creating new human life solely to be exploited and destroyed in
this way has been condemned on moral grounds by many as
displaying a profound disrespect for life.
Furthermore, recent scientific advances indicate that there
are fruitful and morally unproblematic alternatives to this
approach. There is no need for this technology to ever be used
with humans, whether for reproductive purposes or for
destructive research purposes.
I look forward to a good full debate on this issue not only
in this Committee but in the full Senate as well. I think we
are faced with a wonderful opportunity to fully address this
issue and to pass meaningful legislation.
Our panels present a wide variety of viewpoints on this
issue. During the hearing today we will hear philosophical,
religious, ethical, and scientific views expressed. We will
also hear from those who advocate for patient research, as well
as those who represent the biotech industry, an industry that
stands to profit substantially if they are allowed to undertake
human cloning research.
Our first panel is Representative David Weldon, who has
introduced companion legislation to mine in the House of
Representatives.
STATEMENT OF HON. DAVID WELDON,
U.S. REPRESENTATIVE FROM FLORIDA
Mr. Weldon. Human cloning is the asexual reproduction of an
organism which is genetically virtually identical to an
existing or previously existing human being, performed by
somatic cell nuclear transfer technology.
It took 277 attempts to produce Dolly, and some estimate
that producing a human child could take 1,000 attempts. Of
cloned cows, sheep, goats, pigs, and mice, 95 to 97 percent of
these efforts still end in failure. The attempt to clone humans
does not account for the scientific problems which occur with
animal cloning and, therefore, any such attempts will result in
high failure rates.
Most scientists agree that human cloning poses a serious
risk of producing children who are stillborn, unhealthy,
severely malformed or disabled, and almost universal opinion is
that such attempts are thoroughly unethical. Additional
problems with human cloning include the potential for mutation,
transmission of mitochondrial diseases, and the negative
effects from the aging genetic material.
Abnormal clone development likely results from faulty DNA
reprogramming, leading to abnormal gene expression of any of
the 30,000 genes needed. Prenatal screening methods to detect
chromosomal or genetic abnormalities in a fetus cannot detect
these reprogramming errors, and no future methods exist for
detecting reprogramming errors. If there would be undetectable
genetic abnormalities in a developing human clone, then there
may also be genetic defects in any tissues or cells derived
from human clones.
Cloning human beings is utilitarian in nature. Efforts to
create human beings by cloning mark a new and decisive step
toward turning human reproduction into a manufacturing process
in which children are made in laboratories to preordained
specifications and, potentially, in multiple copies.
While people have indicated a desire to be cloned, almost
no one has claimed that they would want to be a clone. Cloning
could easily be used to reproduce persons without their
consent.
Because it is an asexual form of reproduction, cloning
confounds the meaning of father and mother. Human cloning
confuses the identity and kinship relations of any cloned
child.
The prospect of creating a new human life solely to be
exploited or destroyed in this way has been condemned on moral
grounds by many, including many supporters of the right to
abortion, often referred to as displaying a profound disrespect
for human life. Some groups in this category include the
General Board of Church and Society of the United Methodist
Church.
Moreover, human cloning is not therapeutic. Therapy implies
a therapeutic application, and today there are no known
published accounts of how cloning can be used in therapeutic
applications. Embryonic stem cells are not being used today in
any clinical trials. The Journal of Science recently reported
the successful use of embryonic stem cells from mice to produce
pancreatic islet cells. However, those islet cells produced
only 2 percent the normal amount of insulin in culture, and
when placed into mice with diabetes, the mice did not survive.
They died.
Researchers at the University of Florida have taken adult
mice pancreatic stem cells and been able to produce islet cells
and culture that produce insulin, and when these were injected
in diabetic mice, they began secreting insulin and within 7 to
10 days the mice successfully regulated their glucose level.
Researchers in France have found human pancreatic stem
cells from healthy donors that expressed the critical
production of insulin. Recent scientific advance indicates that
there are fruitful and morally unproblematical alternatives.
Adult stem cells have already been used successfully in
clinical trials to treat cartilage defects in children, restore
vision in patients who are legally blind, relieve systemic
lupus, multiple sclerosis, and rheumatoid arthritis, and to
cure severe combined immunodeficiency disease.
Now, some want to still nonetheless allow human cloning for
research purposes, but only want to outlaw or ban the
implantation of cloned embryos. The legislation we are working
on, the Human Cloning Prohibition Act of 2001, bans human
cloning for reproductive and experimental purposes. It bans the
participation in human cloning. It bans the importation of
products derived from this technique.
This bill does not ban animal cloning, or cloning of DNA
cells or other human embryos. It does not ban twinning. It does
not ban stem cell research. The bill prohibits cloning
techniques to create new human life at all stages of the
process of life. This means both experimental and reproductive
cloning would be illegal in the United States.
Other bills allow for human cloning for experimental
purposes, and merely ban implantation of cloned embryos into
the mother's womb. However, Mr. Chairman, it would be virtually
impossible to prevent reproductive cloning once a cloned embryo
for experimental reasons becomes available in the lab.
Additionally, reproductive-only bans are fraught with
enforcement complexities should a cloned embryo ever be
implanted. An effective ban must therefore stop the process at
the beginning, which H.R. 1644 in the House does. Reproductive-
only bans--might I add, this approach would allow for human
cloning of human embryos typically just to be used for
research. However, the reproductive-only ban would require by
Federal law that cloned human embryos be destroyed prior to
implantation. This would be the first time Federal law would
allow for the creation of human life solely for the purposes of
experimentation, while simultaneously making it a Federal
offense to let that life continue.
I think clearly this is ethically and morally fraught with
extreme hazard for our Nation, and that is why I have
introduced this legislation.
[The prepared statement of Mr. Weldon follows:]
Prepared Statement of Hon. David Weldon,
U.S. Representative from Florida
What would it be like to have five Michael Jordans to suit up an
entire team? Or what if there were two of you to accomplish more in a
24 hour day? The prospect of human cloning has been the stuff of
science fiction novels and movies. However, on February 27, 1997 Ian
Wilmut from the Roslin Institute in Scotland cloned Dolly the sheep, a
feat which has triggered international debate on the issue of cloning
human beings. Chicago physicist Richard Seed announced that he would
begin cloning children for infertile couples. President Clinton called
for a five year moratorium on human cloning and advised the National
Bioethics Advisory Commission to review human cloning. They recommended
that cloning humans for reproductive purposes is unsafe and unethical
at this time. However, they largely ignored the use of cloning
technology to create human embryos solely for research purposes. This
year, Panos Zavos of the University of Kentucky and his Italian
colleague, Sevenno Antinori, have begun work with a global consortium
to develop human cloning techniques in their efforts to perform human
cloning and produce a human child within the next two years. Dr.
Brigitte Boisselier, the Director of Clonaid which is part of the
Raelian movement, has stated that they already have been offered
substantial sums of money to clone children, and they are secretly
working on developing technologies in this country to clone children.
Many biotechnology companies look forward to multi-millions of dollars
in the hope of developing cures for various diseases from cloning human
embryos.
There are scientifically and medically useful cloning practices,
such as cloning of DNA fragments, known as molecular cloning, the
duplication of somatic cells (or stem cells) in tissue culture, known
as cell cloning, and whole-organism or embryo cloning of non-human
animals. Human cloning is not about these techniques, nor is it about
issues related to fetal tissue research or embryo research. Instead,
human cloning as discussed here is about the creation of cloned human
embryos for reproductive or experimental purposes. Instead of the
fertilization of an egg with sperm to conceive an embryo with DNA from
male and female, human cloning is asexual reproduction. It is currently
accomplished by somatic cell nuclear transfer technology. This is
accomplished by introducing the nucleus of a human somatic cell into an
egg whose nucleus has been removed or inactivated to produce a living
organism with a human genetic constitution. A ``somatic cell'' is a
diploid cell, that is a non-germ cell which has a complete set of
chromosomes, which is obtained or derived from a living or deceased
human body.
There are significant problems with cloning. It took 277 attempts
to clone Dolly. Despite success at cloning cows, sheep, goats, pigs and
mice, 95 percent to 97 percent of these efforts still end in failure.
Most scientific experts claim that the attempt to clone human
organisms does not account for scientific problems which occur with
animal cloning, and therefore, any such attempts will result in high
failure rates. Rudolf Jaenisch of the Whitehead Institute states that
serious problems have happened in all five species cloned thus far, so
that there is no question that it will happen with humans. Most
scientists agree that human cloning poses a serious risk of producing
children who are stillborn, unhealthy, severely malformed or disabled.
As such, most scientists are ethically opposed to producing cloned
human children.
Those such as Ian Wilmut and Rudolf Jaenisch conclude that the most
likely cause of abnormal clone development is faulty reprogramming of
the genome. This may lead to abnormal gene expression of any of the
30,000 genes residing in the animal. Methods used in routine prenatal
screening to detect chromosomal or genetic abnormalities in a fetus
cannot detect these reprogramming errors. Further, they claim that
there are no methods available now or in the foreseeable future to
assess whether the genome of a cloned embryo has been correctly
reprogrammed.
Creating cloned live-born human children necessarily begins by
creating cloned human embryos, a process which some also propose as a
way to create embryos for research or as sources of cells and tissues
for possible treatment of other humans. It is absolutely crucial to
realize the fact that if there would be undetectable genetic
abnormalities in a developing human clone, then there may also be
significant genetic defects in any tissues or cells derived from cloned
human embryos. The problem of genetic defects is a major reason why
most scientists are opposed to implanting cloned embryos and allowing
any development toward childhood. However, the same argument applies
then as a major reason why human cloning for medical purposes should be
opposed. Will we create human clones, and from these derive tissues or
cells with hidden genetic defects to be used on other human beings?
Additional scientific problems exist with human cloning such as the
potential for mutation, transmission of mitochondrial diseases, and the
negative effects from the aging genetic material.
Some call cloning for experimental purposes ``therapeutic
cloning.'' On the contrary, human cloning is not therapeutic in itself.
Therapy implies an existing individual and a standard of health to be
pursued. But because human clones will be created and then destroyed,
human cloning diminishes the distinction between health promotion of an
individual and genetic enhancement, between so-called negative and
positive eugenics. A fundamental tenant of medical ethics is ``DO NO
HARM''. But that is precisely what is involved with experimental
cloning, the creation and harm of cloned embryos for research purposes.
What seems outrageous and macabre can become accepted given time.
The principle behind human cloning, for reproductive or experimental
purposes, is utilitarian. Our society was not built upon utilitarian
principles, which ultimately accept discriminating against or even
destroying those in the minority or the weak for the greater good of
the greater number. These things begin very small, with apparently
unobjectionable measures taken out of sympathy to deal with difficult
cases. But soon the definition of difficult cases expands, and the
exception becomes the rule. Ethically, this parallels the justification
of eugenics and human experimentation in the early 20th Century. A
diminished view of human value coupled with the veneration of science,
especially in Germany, provided the ethical context within which
sterilization and euthanasia programs became socially acceptable. It
was the medical profession that first embarked on these programs which,
in part, led to the eventual havoc wrought in Germany.
There are additional ethical problems. Because cloning requires no
personal involvement by the person whose genetic material is used,
cloning could easily be used to reproduce living or deceased persons
without their consent. Imagine that. Someone takes some skin cells from
your comb or toothbrush, or from your body without your permission and
creates a replica of yourself, to which you would be both parent and
twin. Additionally, because human cloning is an asexual form of
reproduction, cloning confounds the meaning of ``father'' and
``mother'' and confuses the identity and kinship relations of any
cloned child. This threatens to weaken existing notions regarding who
bears which parental duties and responsibilities for children.
Efforts to create human beings by cloning mark a new and decisive
step toward turning human reproduction into a manufacturing process in
which children are made in laboratories to preordained specifications
and, potentially, in multiple copies. Some have stated that they want
to clone themselves, but none have stated that they would want to be a
human clone. Effects on the genetic characteristics of a population,
have the potential to be used in a eugenic or discriminatory fashion.
These practices are completely inconsistent with the ethical norms of
medical practice.
Moreover, the prospect of creating new human life solely to be
exploited and destroyed for research purposes has been condemned on
moral grounds by many, including supporters of a right to abortion, as
displaying a profound disrespect for life. The General Board of Church
and Society of the United Methodist is opposed to any form of human
cloning.
There are two approaches of regulating human cloning. One is to
allow human cloning, but ban any implantation into a woman's womb. The
problem with this approach is that it allows the creation of human
organism solely for experimental purposes. Because cloning would take
plac within the privacy of a doctor-patient relationship; because the
transfer of embryos to begin a pregnancy is a simple procedure; and
because any government effort to prevent transfer of an existing
embryo, or to prevent birth once transfer has occurred, would raise
substantial moral, legal, and practical issues, it will be nearly
impossible to prevent attempts at ``reproductive cloning'' once cloned
human embryos are available in the laboratory. If a cloned embryo is
implanted into a woman's womb, will the Federal Government force her to
have an abortion? An effective ban on human cloning must therefore stop
the process at the beginning.
Senator Brownback and I have submitted legislation that bans human
cloning for reproductive or medical purposes. It bans participating in
human cloning, and it bans the importation of products derived from
human cloning. This bill does not ban the scientifically and medically
useful practices of cloning of DNA fragments, known as molecular
cloning, the duplication of somatic cells (or stem cells) in tissue
culture, known as cell cloning, and whole-organism or embryo cloning of
non-human animals. My bill also calls on the Federal Government to
commission a study to review the impact of any decision to allow human
cloning, and review new developments in cloning technology directed
toward the asexual reproduction of human beings.
There are numerous problems with human cloning, such as the danger
of failure, the genetic defects of tissues derived from cloned embryos,
the possibility of creating monsters, or in some cases of creating
human-animal hybrids. But unless the fundamental problem is faced,
whether we have the right to mock nature, the incidental problems will
not prevent us from beginning a very dangerous attempt to change human
nature.
Senator Brownback. Thank you very much, Dr. Weldon. I look
forward to working with you on this topic.
I think it is particularly important what you put forward.
As people look at this issue and divide it into so-called,
``reproductive'' or ``experimental'' cloning, it seems to me it
would be difficult to just limit cloning to ``experimental''
cloning. If we did that, at some point down the road it may
well be that somebody would decide to implant a clone. What
would we do then? Would we push for a Federal law that would
force this person to abort the child? I guess that is the
question we have before us.
Mr. Weldon. Well, it would certainly be in conflict with
the tenets or principles established by the Supreme Court
through the Roe v. Wade decision and some of the preceding
decisions on privacy and subsequent decisions relating to this
issue. It would run directly in conflict to that.
Clearly, a reproductive-only ban would encourage or allow
all the scientific technology to develop that is necessary for
human reproductive cloning, but then put the Federal Government
in the precarious position of having to somehow police the
process, and some people might add that it would still be
illegal.
I think the purpose or intent here is not necessarily to
make sure that somebody who did this faced the consequences,
but the purpose and intent is to make sure it does not happen,
and the best way to effectively do that is to ban embryonic
cloning.
Senator Brownback. Dr. Weldon, what drew your interest to
this topic at this time? There has been the potential for this
to occur for some period of time, but what drew your attention
now?
Mr. Weldon. Well, I think the thing that really brought it
to my attention was that we had scientists in the United States
who said they wanted to proceed down this path. There are also
some people in the research community and the biotechnology
industries who want to exploit the issue of embryonic cloning.
Therefore, I felt that it was very, very timely that the
Federal Government take a position on this issue, and that that
position be to make it illegal in the United States.
Senator Brownback. Before we got started down this path?
Mr. Weldon. Absolutely.
Senator Brownback. Thank you very much for being here
today. We look forward to working with you on this topic.
Mr. Weldon. Thank you.
Senator Brownback. Now we will call the second panel, if
they would come forward. They are Ms. Margaret Colin, an
actress; Mr. Clarke Forsythe, President of Americans United for
Life; Dr. Rudolf Jaenisch, Professor of Biology at MIT; Dr.
Leon Kass, the Committee of Social Thought, University of
Chicago; Mr. William Kristol, Chairman of The Bioethics
Project.
Thank you all very much for being here.
Ms. Colin, we will be pleased to start with your testimony
and look forward to hearing what you have to say.
STATEMENT OF MS. MARGARET COLIN, ACTRESS
Ms. Colin. Thank you, Mr. Chairman, for this opportunity to
discuss an issue that is near and dear to my heart. I am here
on behalf of Feminists for Life of America, an organization
that opposes the creation and destruction of human clones for
stem cell research.
In the tradition of Susan B. Anthony and other early
American feminists, we oppose all violence. Feminists for Life
is proud to serve in the National Violence Against Women Task
Force, and is a member of the National Coalition Against the
Death Penalty. Suffragist organizer Elizabeth Cady Stanton,
whose statue sits down the street in the Capitol Building,
strongly criticized the destruction of newly formed humans ``as
property to be disposed of as we see fit.''
The proper role of medical research is to eradicate
illness, not create and then destroy human beings. Disease and
disability affect every family in America. My husband, actor
Justin Deas, is committed to raising funds in order to bring
about a cure for ALS after a friend and a colleague of his died
from it. I have helped raise funds for Juvenile Diabetes
Association because a college friend's daughter was diagnosed
with it. I have also supported National Association of Breast
Cancer organizations, and the Pediatric AIDS Foundation. Like
you, we are committed to finding a cure to debilitating
diseases and relieve human suffering.
I am not a scientist, but it was widely reported that it
took hundreds of attempts to clone sheep before Dolly was
created without gross fetal anomalies. Cloning, therefore,
would seem to be an unreliable source for stem cells in
addition to violating the basic tenets of feminism--
nonviolence, nondiscrimination and justice for all.
My intent here is not to downplay the importance of medical
research, but to plead for standards that ensure we do not
abuse our power by choosing who is important enough to live
while disposing of another. We are wasting time arguing over
destroying life while we all want to protect and improve it.
Fortunately, we can move forward with medical research from
stem cells derived from a multitude of sources.
We do not need to go to extreme measures by making and
destroying carbon copies of people. Alternative sources to
cloning which present no ethical problems are proving very
promising for those who would benefit from medical research. We
urge you to direct Federal funds to support these promising new
alternatives, including stem cells acquired from consenting
adults, women donating placenta, umbilical cord donations, even
stem cell from fat, which I am sure many of us would be more
than happy to dedicate in the name of science.
Feminist pioneer Mary Wollstonecraft, who in 1792 wrote the
landmark book, The Vindication of the Rights of Women,
prophetically warned nature in everything deserves respect, and
those who violate her laws seldom violate them with impunity.
This woman, who championed the rights of women and condemned
the destruction of embryos, died giving birth to her second
daughter, named Mary after her mother. She, too, became a great
writer. Mary Wollstonecraft Shelley fictionalized her mother's
warning through her classic novel, Frankenstein.
I am here today to keep a promise to my 7-year-old son,
Joe. Together with his brother, Sam, we watch his shows, and
invariably they are animated science fiction programs which
preach the benefits of cloning humans to harvest body parts for
the use of others. On one occasion, we watched one of mom's
shows, a human interest show interviewing a mother and a father
who decided to have a second child in order to harvest cells to
save the life of their first-born child.
My Joe asked me, are they going to kill the baby? I asked
him why he thought the parents would kill their child. He told
me that he knows all about human clones created to supply human
hearts for others, so I promised my son that no, our Government
does not create human clones for research and then destroy
them.
You have in your hands the power to decide whether the
creation and destruction of innocent human beings is ever
justified, whether the manipulation of the laws of nature is
without risk.
Thank you, Mr. Chairman and members of the Committee, for
serving those who practice and who would benefit from research
within ethical boundaries. Feminists for Life and I support
nondestructive forms of stem cell research. By redirecting
much-needed funds to promising new alternatives your compassion
translates into life-saving action.
Thank you.
[The prepared statement of Ms. Colin follows:]
Prepared Statement of Margaret Colin, Actress
Thank you, Mr. Chairman, for this opportunity to discuss an issue
that is dear to my heart. I am here today on behalf of Feminists for
Life of America, an organization that opposes the creation and
destruction of human clones for stem cell research.
In the tradition of Susan B. Anthony and other early American
feminists, we oppose all violence. Feminists for Life is proud to serve
on the National Violence Against Women Task Force, and is a member of
the National Coalition Against the Death Penalty.
Suffragist organizer Elizabeth Cady Stanton, whose statue sits down
the street in the Capital building, strongly criticized the destruction
of newly formed humans as ``property to be disposed of as we see fit.''
The proper role of medical research is to eradicate illness, not create
and then destroy human beings.
Disease and disability affect every family in America. My husband,
actor Justin Deas, is committed to raising funds in order to bring
about a cure for ALS after a friend and colleague died from it. I have
helped to raise funds for Juvenile Diabetes Association because a
college friend's daughter was diagnosed with it. I have also supported
the National Association of Breast Cancer Organizations and the
Pediatric Aids Foundation. Like you, we are committed to finding a cure
to debilitating diseases and relieve human suffering.
I am not a scientist, but it was widely reported that it took
hundreds of attempts to clone a sheep before Dolly was created without
gross fetal anomalies. Cloning, therefore, would seem to be an
unreliable source for stem cells--in addition to violating the basic
tenants of feminism--non-violence, non-discrimination, and justice for
all.
My intent here is not to downplay the importance of medical
research, but to plead for standards that ensure we do not abuse our
power by choosing who is important enough to live while disposing of
another. We are wasting time arguing over destroying life while we all
want to protect and improve it.
Fortunately, we can move forward with medical research from stem
cells derived from a multitude of sources. We do not need to go to
extreme measures by making and destroying carbon copies of people.
Alternative sources to cloning, which present no ethical problems, are
proving to be very promising for those who would benefit from medical
research.
We urge you to direct federal funds to support these promising new
alternatives, including stem cells acquired from consenting adults,
women donating placenta and umbilical cord blood donations--even stem
cells from fat, which I have a feeling many of us would be more than
happy to donate, in the name of science, of course.
Feminist pioneer Mary Wollstonecraft, who in 1792 wrote the
landmark book, ``The Vindication of the Rights of Women,''
prophetically warned, ``Nature in everything deserves respect, and
those who violate her laws seldom violate them with impunity.'' This
woman, who championed the rights of women and condemned the destruction
of embryos, died giving birth to her second daughter. Named Mary after
her mother, she too, became a great writer. Mary Wollstonecraft Shelley
fictionalized her mother's warning through her classic novel,
``Frankenstein.''
I am here today to keep a promise to my 7-year-old son, Joe.
Together, with his brother Sam, we watch their favorite shows,
invariably animated science fiction, which preach the benefits of
cloning humans to harvest body parts for the use of others. On one
occasion we watched one of mom's shows--a human interest piece
interviewing a mother and father who decided to have a second child in
order to harvest cells to save the life of their first born child.
My Joe asked me, ``Are they going to kill the baby?'' I asked him
why he thought the parents would kill their child. He told me that he
knows all about human clones created to supply human parts for others.
So, I promised my son. No, our government does not create human
clones for research and then destroy them.
You have in your hands the power to decide whether the creation and
destruction of innocent human beings is ever justifiable, whether the
manipulation of the laws of nature is without risk.
Thank you, Mr. Chairman and members of the Committee, for serving
those who practice and those who would benefit from research within
ethical boundaries. Feminists for Life and I support non-destructive
forms of stem cell research. By redirecting much-needed funds to
promising new alternatives, your compassion translates into life-saving
action.
Senator Brownback. Thank you, Ms. Colin. I agree with you.
We need to put more funding toward those solutions that we know
can work, and that do not have the ethical problems. One of the
things we are doing now is doubling the funding for the
National Institutes of Health over a period of 5 years, much of
that in an effort to find solutions that work, that do not
penalize one group or another.
Mr. Forsythe, we look forward to your testimony.
STATEMENT OF MR. CLARKE D. FORSYTHE, PRESIDENT, AMERICANS
UNITED FOR LIFE
Mr. Forsythe. Thank you, Mr. Chairman, for this opportunity
to testify today. Congress can and should pass a Federal ban on
human cloning. Neither Roe v. Wade nor substantive due process
more generally restricts governmental prohibitions on human
cloning. This is due to five factors:
First, the medical fact that no pregnancy is involved in
the manufacture of extracorporeal human embryos through
somantic cell nuclear transfer.
Second, the demonstrated authority of State and Federal
Governments to protect human life at every stage of
development.
Third, the lack of any constitutionally protected right to
noncoital asexual reproduction such as cloning.
Fourth, the limits of substantive due process, outlined in
the Supreme Court's landmark decision in Washington v.
Glucksberg.
And finally, the profound social and ethical interests in
prohibiting human cloning.
Let me just touch on the last. There are profound social
and ethical reasons for Congress to prohibit human cloning, and
I will only briefly summarize the testimony that others will
present today, but in addition to the pervasive destruction of
human lives inevitably caused by cloning research, human
cloning will create confusion of personal identity and
individuality, represent a significant step toward transforming
human procreation into manufacture, represent a form of
despotism of the cloners over the cloned, and violate the
meaning of the parent-child relationship, and fourth,
constitute an unethical experiment upon the resulting child
without his or her consent. Protecting against each of these
harms is a compelling State interest.
Roe v. Wade does not prevent governmental prohibitions
against human cloning. Roe created a limited right to terminate
pregnancy. Human cloning is conducted outside the human body,
in vitro. No pregnancy is involved with the manufacture of
extracorporeal human embryos, and no right to terminate
pregnancy can be impacted by a ban on cloning human embryos.
In the discrete area of abortion, the Supreme Court has
broadly prohibited governmental regulation as exemplified by
Planned Parenthood v. Casey and Stenberg v. Carhart, but this
has never been expanded beyond abortion into an unlimited right
of procreative liberty.
I would like to emphasize, however, that a bill that banned
implantation of cloned embryos would raise unique legal
problems not implicated by a ban on making cloned embryos in a
laboratory, because implanting and gestating a cloned embryo
obviously involves a woman's body and reproductive interests in
a more direct way. Thus, the better approach from a legal
standpoint is the one taken by Senator Brownback's legislation,
S. 790, which bans the cloning of human embryos at the outset.
A Federal ban on human cloning would rest on a substantial
body of law protecting human life at all stages of development.
Governmental authority to protect human life at every stage of
development, at least outside the context of Roe v. Wade and
abortion, is broadly and increasingly exercised today. In
particular, at least 38 States have affirmed at one time or
another, as a matter of public policy, that human life begins
at fertilization (conception).
Since extracorporeal human embryos are outside the womb,
they are born for legal purposes, and are entitled to the full
protection of the law as developing humans. At least nine
States specifically prohibit destructive research on the
extracorporeal human embryo, and Louisiana's laws are perhaps
the most comprehensive in their protection.
Substantive due process, more generally, does not prevent
legal prohibitions on human cloning. Human cloning simply
cannot meet the strict requirements for substantive due process
outlined in Washington v. Glucksberg, as you know, the Supreme
Court's landmark 1997 decision which rejected a constitutional
right to assisted suicide. Nothing in Supreme Court case law
establishes noncoital reproduction, much less asexual
reproduction, as a fundamental right.
I would like to touch very briefly on two final points.
First, no right to scientific inquiry and research would be
violated by a ban on human cloning. The Supreme Court has never
explicitly recognized a fundamental right to scientific
research and inquiry. In any case, it is clear that human
cloning would not be pure speech, but action, and any supposed
interest in cloning research would be outweighed by the
profound social interest in prohibiting human cloning,
including the protection of human life.
Second, Congress' power to prohibit human cloning is
solidly founded on Congress' commerce power. The language
included in S. 790, for example, ``in or affecting interstate
commerce,'' directly addresses Commerce Clause concerns, as
outlined in the Supreme Court's most recent cases in the United
States v. Lopez and United States v. Morrison.
In nearly 2 months, Mr Chairman, our Nation will celebrate
the 225th anniversary of the founding political document of
America, the Declaration of Independence, which proclaims it to
be a self-evident truth that all are created equal, and endowed
by their Creator with certain inalienable rights. To secure
those natural rights for the next generation of Americans, a
Federal ban on human cloning should be enacted to prevent the
dehumanization of human beings.
Thank you again, Mr. Chairman, for the opportunity to
testify today.
[The prepared statement of Mr. Forsythe follows:]
Prepared Statement of Clarke D. Forsythe,* President,
Americans United for Life
Neither Roe v. Wade, 410 U.S. 113 (1973), nor substantive due
process more generally, restricts governmental prohibitions on human
cloning. This is due to five factors: (1) the medical fact that no
pregnancy is involved in the manufacture of extracorporeal human
embryos through somatic cell nuclear transfer, (2) the demonstrated
authority of the state and federal governments to protect human life at
every stage of development, including the human embryo, (3) the lack of
any constitutionally-protected right to non-coital, asexual
reproduction, (4) the limits of substantive due process outlined in the
Supreme Court's decision in Washington v. Glucksberg, and (5) the
compelling social and ethical interests in prohibiting human cloning.
---------------------------------------------------------------------------
* B.A. Allegheny College (1980); J.D., Valparaiso University
(1983); President, Americans United for Life (AUL). Copies of two of my
professional articles have been submitted to the Subcommittee: Clarke
D. Forsythe, Human Cloning and the Constitution, 32 Val. U.L. Rev. 469
(1998); Clarke D. Forsythe, Homicide of the Unborn Child: The Born
Alive Rule and Other Legal Anachronisms, 21 Val. U.L. Rev. 563 (1987).
---------------------------------------------------------------------------
There are compelling social and ethical reasons for Congress to
prohibit human cloning. In addition to the pervasive destruction of
human lives inevitably caused by cloning research, human cloning will:
(1) create confusion of personal identity and individuality, (2)
represent a significant step toward ``transforming human procreation
into manufacture,'' (3) represent a form of despotism of the cloners
over the cloned and violate the meaning of the parent-child
relationship, and (4) constitute an unethical experiment upon the
resulting child without his or her consent.
The history of legal protection of developing human life is
important to the question of cloning because that history shapes
substantive due process, informs the limits of Roe v. Wade, 410 U.S.
113 (1973), and supports protection for the developing human being in
non-abortion circumstances today. Governmental authority to protect
human life at every stage of development is deeply rooted in English
and American history, and--at least outside the context of abortion--is
broadly and increasingly exercised today. State protection of human
life at every stage of development has grown in criminal law and civil
(tort) law throughout the 20th century. In particular, at least 38
states have affirmed, as a matter of public policy, that human life
begins at fertilization (conception).
Throughout American history, legal protection of developing human
life has grown as medical knowledge has grown. Legal protection
required medical knowledge of the existence of a living human. The
common law relied on two types of medical evidence: quickening (the
first sign of fetal movement in utero) and birth (the location of the
developing child inside or outside the womb). Human cloning is
conducted extracorporeally, outside the human body, in vitro. As with
in vitro fertilization (IVF), only after the cloned human embryo is
allowed to divide would the embryo be implanted in a woman's uterus.
There is no ``pregnancy'' to be terminated, and no right to ``terminate
pregnancy'' is affected by state protection of the extracorporeal human
embryo. Since extracorporeal human embryos are outside the womb, they
are born, for legal purposes, and, as developing human beings, are
entitled to the full protection of the law. Approximately ten states
specifically protect the extracorporeal human embryo; Louisiana's laws
are perhaps the most comprehensive in their protection.
The constitutional right of privacy--or substantive due process
more generally--does not prevent legal prohibitions or regulations on
human cloning. There is no fundamental right to non-coital, asexual
reproduction (cloning). Supreme Court privacy cases preceding Roe v.
Wade protect family interests related to coital, sexual reproduction.
In 1973, in Roe v. Wade, the Supreme Court created a right to
``terminate pregnancy.'' In the discrete area of abortion, the Supreme
Court has broadly prohibited governmental regulation, as exemplified by
Planned Parenthood v. Casey, 505 U.S. 873 (1992), and Stenberg v.
Carhart, 120 S.Ct. 2597 (2000). But this has never been expanded beyond
abortion into a broad right of ``procreative liberty.'' Nothing in
Supreme Court case law establishes non-coital reproduction, much less
asexual reproduction, as a constitutionally protected right. None of
the values deeply rooted in the nation's history and tradition or
implicit in the concept of ordered liberty--such as marital intimacy,
marital sexual relations, bodily integrity--is implicated by non-
coital, asexual reproduction in the laboratory like cloning. As George
Annas has pointed out ``Cloning is replication, not reproduction, and
represents a difference in kind, not in degree, in the way humans
continue the species.'' \1\
I. The Compelling State Interests In Banning Human Cloning
a. the interests in human cloning
There are obvious utilitarian benefits for American society to be
gained from animal and plant cloning. The utilitarian considerations
that are appropriate for plants and animals, however, cannot be
extended to humans. To do so violates a basic principle of human
rights--to treat human beings as ends and not as means.\2\
Perhaps the three most compelling reasons offered for human cloning
research are the production of children for infertile couples, possible
enhancement of the ability to do prenatal diagnosis and detect genetic
defects in the embryo leading to eugenic abortion, and the knowledge
derived from cloning embryos that may result in new therapies (such as
transplantation) to treat disease.\3\ The National Bioethics Advisory
Committee (NBAC) referred to ``important social values, such as
protecting the widest possible sphere of personal choice, particularly
in matters pertaining to procreation and child rearing, maintaining
privacy and the freedom of scientific inquiry, and encouraging the
possible development of new biomedical breakthroughs.'' \4\
Perhaps the most commonly voiced reason for human cloning is
infertility. Cloning will be a handmaiden to IVF. As Professor John
Robertson has stated, ``scientific zeal and profit motive combine with
the desire of infertile couples for biologic offspring to create an
enormous power to manipulate the earliest stages of human life in
infertility centers across the country.'' \5\ Some couples undergoing
IVF who ``cannot produce enough viable embryos to initiate pregnancy''
might arguably seek cloning by blastomere separation or somatic cell
nuclear transfer.\6\ Human cloning, it has been argued, is justified as
just an ``incremental step beyond what we are already doing with
artificial insemination, in vitro fertilization, fertility enhancement
drugs and genetic manipulation.'' \7\ While the anquish of infertile
women and couples may be great, it does not logically follow that they
may seek any means to counteract that infertility or seek any means to
have a particular child to their liking. There is no ``right'' to a
``perfect child,'' as demonstrated by the long legal tradition against
infanticide, or a right to perpetuate one's lineage. It follows that
there is no right to a genetically perfect or genetically identical
child. At some point, there are simply ethical limits to available
solutions to infertility. There are ethical alternatives, and they must
be pursued as much as possible.
There are times when scientific knowledge is greatly desired but
not morally obtainable. As the Declaration of Helsinki points out, at
those times, it is necessary to pursue other avenues.\8\ Alternative
avenues that are morally permissible must be pursued. A ban on human
cloning would create appropriate incentives to invest in alternative
areas of research, which--though perhaps more difficult or expensive--
do exist.
b. the interests protected by prohibiting human cloning
There are clear, compelling state interests that justify a ban on
human cloning and outweigh any proposed ``right'' to human cloning.
These interests can be grouped into three categories: preventing the
extensive destructive of human life that human cloning would clearly
involve, preventing injury to the child-to-be, and preventing the
degradation of the parent-child relationship.
Many social and ethical objections to human cloning have been
articulated by scientists, ethicists, scholars, and philosophers
including Marc Lappe, George Annas, Leon Kass, and Gilbert Meilaender.
These include the following: (1) cloning creates confusion of personal
identity and individuality, (2) cloning represents a giant step toward
transforming procreation into manufacture, that is, toward the
increasing depersonalization of the process of generation, the
production of human children as artifacts, products of human will and
design, (3) cloning represents a form of despotism of the cloners over
the cloned and thus is a violation of the inner meaning of parent-child
relations, of what it means to have a child, and (4) any attempt to
clone a human being would constitute an unethical experiment upon the
resulting child because of the lack of any consent by the child
produced.\9\ The common law born alive rule and current legislation in
many states provide a solid legal basis for these social and ethical
objections: any human being injured before birth can claim injury after
birth.\10\ There is congruence between the human entity before and
after birth.
1. Preventing Experimentation On and Death of Unborn Human Beings
Human cloning, and the process of developing it, will inevitably
involve creating, manipulating, injuring, and killing individual
members of the human species, i.e., human beings. (Killing is not a
rhetorical word, simply the straight-forward use of the dictionary
definition.\11\ We may ``discard'' things, because things do not die,
but we ``kill'' living beings by causing their death. The very use of
the term ``discard''--as is typical in most ethical discussions of
embryo experimentation--reduces the living human embryo to a thing.)
Public reports indicate that it is precisely the ambition of scientists
to do research on such developing human entities, with the ``disposal''
of many or most.\12\
Cloning will inevitable involve non-therapeutic experimentation on
human embryos in violation of medical ethics.\13\ For example, the
Nuremburg Code (1947) limited experimentation on the ``human subject''
by requiring that ``voluntary consent'' is ``absolutely essential.''
Experimentation is not permitted on ``human subjects'' without ``legal
capacity to give consent'' and cannot be continued if ``a continuation
of the experiment is likely to result in injury, disability, or death
to the experimental subject.'' \14\ Likewise, the Declaration of Geneva
[1948] declares: ``I will maintain the utmost respect for human life
from conception.'' Similarly, the United Nations Declaration on the
Child (November 20, 1959) states: ``The child by reason of his physical
and mental immaturity needs special safeguards and care, including
appropriate legal protection before as well as after birth.'' By these
contemporary, authoritative ethical standards, human cloning cannot be
justified.\15\ This is most clearly true with intentionally cloning
human beings for research without intending to implant them.
It is precisely the prerogative of society to give respect to the
dignity of these developing human beings and to require that equal
dignity and respect be given by other individuals. Anglo-American law
has always treated human beings, and the human species as special, and
uniquely protected it through the criminal law.
2. Preserving Human Freedom and Dignity
It is obvious that human cloning by any means (by somatic cell
nuclear transfer or blastomere separation) is intended to use
extracorporeal human embryos. They would be treated as means, not ends.
They would be evaluated and valued precisely because of their
attributes. The NBAC referred to ``a possibly diminished sense of
individuality and personal autonomy.'' \16\
It would greatly extend the degree of human control over
permanently shaping human lives and in ways that are highly subjective.
Clearly, human cloning is elective and not therapeutic, either to the
mother or the human being cloned. Cloning is only the most recent and
highly publicized example of the admonition that technology always
involves the power of some people over other people.\17\ As the Oxford
scholar, C.S. Lewis has written, ``For the power of Man to make himself
what he pleases means . . . the power of some men to make other men
what they please.'' \18\ Of course, education--to a greatly limited
extent--has always involved a similar power. But, as C.S. Lewis points
out, ``in the older systems both the kind of man the teachers wished to
produce and their motives for producing him were prescribed by the
Tao--a norm to which the teachers themselves were subject and from
which they claimed no liberty to depart. They did not cut men to some
pattern they had chosen.'' \19\
Perhaps the most sympathetic case for cloning a human being--the
genetic replacement of a lost child--shows the depersonalization of
children. The notion that genetically cloning a child will replace the
lost child suggests that children are their genes. We know that
children are at least their genes, but they are more than their genes.
Children are not fungible and cannot simply be ``replaced.''
3. The Diminution of Parental Responsibility
A third result of human cloning is a coarsening of the relationship
between parents and cloned children. The NBAC referred to a ``concern
about a degradation in the quality of parenting and family life.''
\20\With cloning, children will be manufactured in ways that are highly
subjective and particular. Because of highly subjective criteria,
cloned children will be conditionally accepted; and, if the conditions
are not satisfied, they will most likely not be born at all--the
embryos will be ``discarded.'' Such conditional acceptance treats
children as commodities, possessions, property. Consequently, ``family
relations are necessarily diminished, turned into merely contractual
relationships between autonomous individuals.'' \21\
As Leon Kass has testified:
[C]loning represents a giant step (though not the first one)
toward transforming procreation into manufacture . . . toward
the ``production'' of human children as artifacts, products of
human will and design . . . [C]loning--like other forms of
eugenic engineering of the next generation--represents a form
of despotism of the cloners over the cloned, and thus . . .
represents a blatant violation of the inner meaning of parent-
child relations, of what it means to have a child, of what it
means to say ``yes'' to our own demise and ``replacement.''
\22\
The resulting detachment between parent and child is not
speculative. We see the shadow of it in sperm and egg donation, as
exemplified by the California Court of Appeals' decision in Jaycee
Buzzanca.\23\ Buzzanca was conceived from anonymous sperm and egg
donors and born in 1995 to a surrogate mother (with her husband's
consent), contracted by John and Luanne Buzzanca. The Buzzancas
separated shortly after Jaycee was conceived and subsequently divorced.
Luanne Buzzanca, who had custody of Jaycee since birth but had not
adopted her, sued John Buzzanca for child support, and was ``the only
one of the six people who helped create her to claim parental rights.''
\24\ A California Superior Court judged ruled that Jaycee had no legal
parents, but the court of appeals reversed. Advocates for Jaycee argued
that the court should focus on what is best for the child and not on
the biological status of the Buzzancas, and the ACLU contended that the
child has a ``right to have parents'' that overrules the lack of legal
precedent in California. The way to give meaning to a ``the child's
right to have parents,'' however, is by preserving biological links and
preventing detached, asexual reproduction through cloning, not by
imposing parental responsibilities, after the fact, on people who do
not have a biological link with the child. The California court of
appeals explicitly urged the state legislature to address the situation
through legislation because ``[t]hese cases will not go away.'' \25\
Cloning would undermine the traditional principle of Anglo-American
jurisprudence that limits parental authority over the life and health
of the child. The protection of vulnerable human life is reflected in
the common law's clear repudiation of the absolute power of the Roman
father over the life of the child and the common law's elevation of
legal protection for human life. Blackstone pointed out this
contrast.\26\ Justice James Wilson, one of the first associate justices
of the Supreme Court, emphasized the common law protection for the
unborn and newborn child:
I shall certainly be excused from adducing any formal
arguments to evince, that life, and whatever is necessary for
the safety of life, are the natural rights of man. Some things
are so difficult; others are so plain, that they cannot be
proved. It will be more to our purpose to show the anxiety,
with which some legal systems spare and preserve human life;
the levity and cruelty which others discover in destroying or
sporting with it; and the inconsistency, with which, in others,
it is, at some times, wantonly sacrificed, and, at other times,
religiously guarded. . . .
[I]n Sparta, if any infant, newly born, appeared, to those
who were appointed to examine him, ill formed or unhealthy, he
was, without any further ceremony, thrown into a gulph near
mount Taygetus . . . At Athens, the parent was empowered, when
a child was born, to pronounce on its life or its death . . .
[A]t Rome, the son held his life by the tenure of her father's
pleasure. . . .
With consistency, beautiful and undeviating, human life, from
its commencement to its close, is protected by the common law.
In the contemplation of law, life begins when the infant is
first able to stir in the womb. By the law, life is protected
not only from immediate destruction, but from every degree of
actual violence, and, in some cases from every degree of
danger. . . .\27\
Wilson concluded that ``[t]he formidable power of a Roman father is
unknown to the common law. But it vests in the parent such authority as
is conducive to the advantage of the child.'' \28\ To paraphrase
Justice Harlan, this is a tradition from which we have broken.
Based on the common law principle that parental authority must be
consistent with the life and health of the child, states have limited
parental control that threatens the life or health of the child. For
example, parental beliefs against medical treatment can be overriden to
preserve the life and health of the child. Parents may be held
responsibility for the death of the child if medical treatment is not
provided. Based on this principle, the states have a related interest
in limiting parental control over the genetic destiny of a child.
Each of these social and ethical concerns independently justifies a
ban on human cloning. Each supports governmental action to protect
human life. These interests against human cloning cannot be protected
short of a prohibition on the practice. Once cloned, the embryo's
genetic identity is formed and controlled and, while subject to further
possible experimentation, it cannot be unaltered. Once cloned, it is
not possible to effectively protect the life of the extracorporeal
embryo. Requiring implantation is inconceivable, and placing them for
``adoption'' would entail freezing techniques carrying a high risk of
death or injury. And preventing implantation (as a remedy for cloning
embryos) would raise fundamental ethical concerns and instigate a
conflict with ``reproductive rights'' under current Supreme Court case
law. The only effective way to protect the human embryo and the
compelling interests against human cloning is to prevent the cloning of
embryos altogether.
II. The Limits of Roe v. Wade and its Progeny
a. the limits of the supreme court privacy cases before roe
Whether human cloning is a constitutional right involves an
application of, as Professor Michael McConnell has phrased it, ``the
most fundamental question of modern constitutional theory: when, and
under what conditions, may courts invalidate duly enacted state or
federal laws on the basis of unenumerated constitutional rights?'' \29\
The Supreme Court's 1973 decision in Roe v. Wade has spawned 28 years
of litigation, legislation, scholarship, cultural change, and public
discussion concerning sexual reproduction and the scope of a
constitutional right to sexual reproduction. Proponents of an expansive
right to sexual reproduction have given it various names and
descriptions, among them ``procreative liberty,'' ``a right of the
couple to reproduce,'' ``a right to form a family.'' Professor John A.
Robertson, one of the foremost advocates of a broad ``procreative
liberty,'' claims that ``reproductive freedom'' has traditionally been
a right taken for granted. Of course, this begs a definition of
``reproductive freedom.''
``Procreative freedom'' is too broad a description of what the
Supreme Court has actually held to be constitutionally protected from
popular, democratically-approved limits and constraints. The Supreme
Court's substantive due process decisions of the twentieth century do
not support a broad right to ``procreative liberty'' that encompasses
using technology for non-coital, asexual reproduction like cloning.
Prince v. Massachusetts\30\ involved traditional family relationships.
Two other cases relating to parental rights are deeply based in the
common law: Meyer v. Nebraska\31\ dealt with the education of children,
and Pierce v. Society of Sisters\32\ concerned the decision of parents
to send their child to a private school.
Skinner v. Oklahoma\33\ dealt with liberty against coerced
sterilization of ``habitual criminals,'' a negative liberty that could
be based in deeply-rooted, common law principles involving battery and
informed consent. Skinner (a case sometimes referred to as involving
``procreation'' broadly\34\) is to cloning as Cruzan v. Director,
Missouri Dept. of Health\35\ is to assisted suicide. Both Skinner and
Cruzan involved negative liberties of refusing treatment that are based
in concepts of battery and informed consent; they did not involve
positive liberties to an activity or power. In this regard, the fact
that cloning does not treat infertility and cannot be considered to be
therapeutic diminishes the strength of a ``right'' to cloning.
These substantive due process cases that preceded Roe in the area
of family law and reproduction are distinguishable in a number of
ways.\36\ First and foremost, with the exception perhaps of Eisenstadt
v. Baird\37\--involving the use of contraceptives by individuals--the
rights recognized in those cases have historical antecedents deeply
rooted in American law and were explicitly recognized as such.\38\ It
is also important to point out that Justice Harlan's opinion in Poe v.
Ullman, 367 U.S. 497 (1961), was limited to marital use of
contraception.\39\ Nothing in the substantive due process cases
preceding Roe provides any basis for a right to non-coital, asexual
reproduction.\40\
A broad notion of ``procreative liberty'' is an abstraction imposed
on the case law, not a principle derived from it. Professor Robertson's
vision of parenthood is the ``wish to replicate themselves, transmit
genes, gestate, and rear children biologically related to them.'' \41\
Robertson posits a right to ``produce a child for rearing that is
genetically or gestationally related to one or both partners.'' \42\
Entailed in such a right would be ``discretion to create, freeze,
donate, transfer and discard embryos, because these maneuvers are
necessary to overcome coital infertility.'' He argues for ``the right
of persons to use technology in pursuing their reproductive goals''
\43\ and for ``presumptive moral and legal protection for reproductive
technologies that expand procreative options.'' \44\ But Robertson's
argument is declaratory and conclusory, not reasoned: ``If the moral
right to reproduce presumptively protects coital reproduction, then it
should protect noncoital reproduction as well.'' \45\
Quite clearly, a constitutional right to cloning cannot be
logically derived from the two sets of substantive due process cases
that Professor Robertson posits as a basis for a right to non-coital,
asexual reproduction.\46\ The first line of cases involves
contraception and abortion, both of which involve a person's physical
integrity against a physical imposition by a third party. These involve
a right not to procreate, as Robertson points out. From these,
Robertson merely states that a positive right to procreate by non-
coital techniques exists, but without any reasoning: ``This well-
established right [not to procreate] implies the freedom not to
exercise it and, hence, the freedom to procreate.'' The right to use
contraception, as developed by American courts, may well assume a right
not to use contraception, but this implies no more than a right to
coital, sexual reproduction. With asexual cloning, both the intimacy of
sexual intercourse and the biological union of male and female is
absent.
The second line of cases involves rearing children, or the
``assignment of rearing rights,'' in Robertson's words, from which he
infers ``a right to bring children into the world.'' Parental rights,
however, are deeply rooted in American law and tradition and the common
law, involving biological relationships between living parents and
living children. There are several limitations on these rights that do
not imply any right to non-coital, asexual reproduction. First, the
parental relationship is founded in duty, not ownership. Second, these
rights presume the existence of children from coital reproduction and
nothing more. Third, parental rights are limited by the interests of
the children, and while Roe establishes a right to end the life of a
child conceived but not yet born, it says nothing about ending the life
of children living out of the womb.
It may be said that American law establishes a privacy interest in
coital reproduction. But even this has been limited to marriage. The
precedents leading to Roe fairly establish this. Harlan's specific
emphasis in Poe v. Ullman was that the state statute in question
criminalized marital use of contraception.\47\ While there may be a
right to the use of contraceptives, even by minors, there is still no
established liberty in premarital or extramarital sexual relations.\48\
Hence, nothing in Supreme Court case law jumps the gap between
coital and non-coital reproduction--to say nothing of the gap from
sexual to asexual reproduction--and the reliance of the cases involving
coital reproduction on physical integrity cannot be extended to the
extracorporeal use of germ cells to achieve in vitro fertilization.
Finally, it is apparent in Robertson's construction of his procreative
liberty that the essence of this parental right is the exertion of
parental will and desire, a notion of ownership, the imposition of
personal will, a conditional love or care. It is exactly this notion
that characterized the complete autonomy of the Roman father and was
repudiated by the common law.
b. the limits of roe's right to ``terminate pregnancy''
Roe v. Wade, 410 U.S. 113 (1973), properly understood on its own
terms, dealt with a right to ``terminate pregnancy'' and nothing
more.\49\ It was entirely based on the physical impact of pregnancy on
a woman and her desire to rid herself of the pregnancy.\50\ As
Professor John Robertson acknowledges, Roe involved ``the physical
burdens of bearing and giving birth.'' \51\ As the Court noted in
Harris v. McRae, ``the Court in Wade emphasized the fact that the
woman's decision carries with it significant personal health
implications--both physical and psychological.'' \52\ Roe created a
negative right to terminate a pregnancy without social (governmental)
limits; it did not establish a positive liberty to procreation or a
positive liberty in non-coital reproduction. Roe created a right to
avoid procreation, not a right to procreate. This characterization was
reaffirmed in Carey v. Populations Services International,\53\ and
Planned Parenthood v. Casey.\54\ The central discussion of
``terminating pregnancy'' in Casey is concluded by a reference to
``these considerations of the nature of the abortion right. . . .''
\55\ Likewise, when the Court in Eisenstadt v. Baird refers to ``the
decision whether to bear or beget a child,'' \56\ it was understood to
refer to the literal physical burden of pregnancy.\57\ ``Terminating
pregnancy'' is the concept of the Roe liberty held by Justice Blackmun
himself.\58\
The limits of Roe are seen as well in the abortion-funding cases.
In Maher v. Roe,\59\ the Court held that ``the right protects the woman
from unduly burdensome interference with her freedom to decide whether
to terminate her pregnancy\60\ '' In Harris v. McRae,\61\ the Supreme
Court referred, more than once, to the Roe liberty as ``the freedom of
a woman to decide whether to terminate a pregnancy.\62\ '' The funding
cases demonstrate that the states may ``make a value judgment favoring
childbirth over abortion'' and ``implement that judgment'' by the use
of public funding.
The Roe abortion liberty as the basis for an unlimited right to
``procreative liberty'' is also severely limited by the fact that it
expressly and forcefully excludes men, even married men, from any right
whatsoever in the abortion decision. The father of ``the developing
child'' (as Casey used the phrase\63\), even the woman's husband, has
no right to consent to the abortion (Danforth) or even to notice of the
abortion (Casey). Many efforts by men to have a say in abortion
decision-making have been summarily rejected by the courts.\64\ Men
have no legal right to be involved in abortion decision-making.
Formally, the decision is the woman's, even if the reality is
otherwise. Roe saw the decisionmaking as between the woman and her
doctor only,\65\ and, as the plurality stated in Casey, ``what is at
stake is the woman's right to make the ultimate decision.\66\ '' The
plurality in Casey went on, at great length, describing the total
exclusion of the father or spouse from decisionmaking.\67\ Legal
commentators who advocate a broad right to ``procreative liberty'' are
inclined to wax eloquent over the involvement of ``couples'' in
``decisions about whether and when to bear children'' but they
conveniently ignore the reality that fathers (and spouses) are strictly
and absolutely excluded by the Roe framework from ``procreative''
decision making.\68\
The limits of Roe are fairly admitted even by proponents of a broad
right of non-coital procreation. Thus, such a familiar advocate as John
Robertson states:
In the United States, the right to avoid reproduction by
contraception and abortion is now firmly established. Whether
single or married, adult or minor, a woman has a right to
terminate pregnancy up to viability\69\ and both men and women
have the right to obtain and use contraceptives. The right to
procreate--to bear, beget and rear children--has received less
explicit legal recognition. . . . [N]o cases (with the possible
exception of Skinner v. Oklahoma) turn on the recognition of
such a right. However, dicta in cases ranging from Meyer v.
Nebraska to Eisenstadt v. Baird clearly show a strong
presumption in favor of marital decisions to found a family. .
. . What then about married couples who cannot reproduce
coitally? . . . The values and interests that undergird the
right to coital reproduction clearly exist with the coitally
infertile. Their interest in bearing, begetting or parenting
offspring is as worthy of respect as that of the coitally
fertile. It follows that restrictions on noncoital reproduction
by an infertile married couple should be subject to the same
rigorous scrutiny to which restrictions on coital reproduction
would be subject.\70\
Again, Robertson has noted the limits to Roe elsewhere:
Even though the Court has eliminated most of the legal
limitations on the right to avoid pregnancy, the freedom not to
procreate is still circumscribed by a number of restrictions.
One such restriction derives from the negative nature of
constitutional protections, which shield individuals from state
interference with their liberty but do not guarantee them the
means to exercise those rights.\71\
These concessions are telling. As one scholar has summarized the case
law and the limited nature of the abortion liberty: ``to characterize
some or all of the cases on which the Court relies in reaffirming Roe
[in Casey] as standing for an abstract right to `personal autonomy'
simply creates an artificial common denominator among a very disparate
and largely unrelated group of cases while at the same time denying
what makes abortion unique.\72\ ''
For purposes of governmental prohibitions on human cloning, the
critical point of distinction in the case law is not only coital versus
non-coital reproduction but also corporeal versus extracorporeal
reproduction (occurring outside the living body). The negative liberty
that has been recognized by the Supreme Court is grounded in personal
physical integrity, and the Court has on several occasions explicitly
disavowed a right to use one's body in whatever way desired.\73\ The
``values and interests'' of the ``coitally infertile'' may be conceded,
but it does not follow that these may be pursued by whatever means or
``techniques'' possible. Some techniques may be legitimate, while
others are wholly illegitimate. And it does not follow that any of the
techniques are necessarily of a constitutional dimension that overrides
other social and ethical judgments made by society through the
democratic process. Still less is it clear that the judiciary is
empowered to override the authority and decisions of society through
the democratic process.
Robertson's analysis begs all of these questions by focusing on one
consideration to the exclusion of all others. Richard McCormick has
mounted an insightful critique of Robertson's utilitarian approach to
the status of the human embryo and ethical defense of human
cloning.\74\ In McCormick's words, Robertson's defense is
``breathtaking in the speed with which it subordinates every
consideration to its [cloning by blastomere separation] usefulness in
overcoming infertility. [Robertson's] thesis can be summarized as
follows: if it aids otherwise infertile couples to have children, it is
ethically acceptable . . . anything that is useful for overcoming
infertility is ethically acceptable.\75\ '' McCormick points out that
Robertson is trying to create a consensus, not protect an existing one.
The limits of Roe are apparent, as well, from the Joint Opinion in
Casey, where the plurality of Justices O'Connor, Kennedy and Souter
shifted the basic rationale of the abortion liberty from privacy to the
sociological grounds of abortion as a backup for failed contraception
and the ``reliance interests'' of Americans.\76\ The Joint Opinion
again put the emphasis on terminating pregnancy (a backup to
contraception) not a positive liberty to ``procreate'' by any means,
much less a liberty in extracorporeal reproduction.
Roe itself identified abortion as unique and ``inherently different
from marital intimacy, or bedroom possession of obscene material, or
marriage, or procreation, or education, with which Eisenstadt and
Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were
respectively concerned.\77\ '' The courts have not gone beyond Roe's
formulation since 1973. No federal court has held forthrightly that
there is a constitutional right to in vitro fertilization. Lower
federal courts have struck down fetal experimentation statutes, but
primarily on vagueness grounds.\78\
Under the regime of Roe v. Wade, government may protect human
beings--the traditional function of the criminal law and homicide law--
outside the context of abortion. It is not necessary that the human
beings be ``persons'' within the meaning of the 14th Amendment.
Legislation does not need any other justification, if the exercise of
legislative authority does not interfere with woman's right to
abortion. The states can protect any extracorporeal human being under
the homicide code. Protecting that extracorporeal embryo or human being
does not interfere with the Court's limited abortion right. The right
to ``procreative liberty'' is a negative right and does not extend to
power over extracorporeal embryos or human beings.
c. the limits of substantive due process
The broader formulation of a positive liberty in ``procreation'' by
various scholars is based on contemporary moral philosophy, rather than
caselaw, or legal or constitutional history. Some would ground the
procreative liberty and its scope on the subjectivity of the ``choice''
rather than physical integrity. For example, John Robertson has written
that ``[t]he personal importance of a decision or activity, rather than
its secrecy from the gaze of others, determines its status as part of
protected privacy (or liberty, to be more precise.).\79\ '' Proponents
of an unlimited ``procreative liberty'' have relied on the expansive
language of autonomy in Planned Parenthood v. Casey,\80\ sometimes
called the ``mystery'' passage. There, the plurality opinion stated:
``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 compulsion of the State.\81\ '' But
it was aptly pointed out by scholars that this passage must be
considered within the context of the plurality's entire opinion and its
emphasis on stare decisis.\82\ Within that context, the passage should
be understood as rhetorical and not as prescriptive of any specific
rights.
That's exactly what the Supreme Court said five years later in its
landmark decision in Washington v. Glucksberg,\83\ where the Court held
that the Due Process Clause does not protect any right to assisted
suicide. First, the Court in Glucksberg specified the two strict
requirements of substantive due process. The Due Process Clause
protects ``those fundamental rights and liberties which are,
objectively, `deeply rooted in this Nation's history and tradition'
[cit. omit.] and `implicit in the concept of ordered liberty,' such
that `neither liberty nor justice would exist if they were sacrificed.'
`' And a ``careful description'' of ``the asserted fundamental liberty
interest'' is required.\84\ It must first be established that an
asserted interest is fundamental so as to ``avoid[] the need for
complex balancing of interests in every case.\85\ ''
Second, the Court specifically emphasized the limited nature of the
passage from Casey. Referring to this passage, the Court stated:
By choosing this language, the Court's opinion in Casey
described, in a general way and in light of our prior cases,
those personal activities and decisions that this Court has
identified as so deeply rooted in our history and traditions,
or so fundamental to our concept of constitutionally ordered
liberty, that they are protected by the Fourteenth Amendment.
The opinion moved from the recognition that liberty necessarily
includes freedom of conscience and belief about ultimate
considerations to the observation that `though the abortion
decision may originate within the zone of conscience and
belief, it is more than a philosophic exercise.' [cit. omit.]
That many of the rights and liberties protected by the Due
Process Clause sound in personal autonomy does not warrant the
sweeping conclusion that any and all important, intimate, and
personal decisions are so protected [cit. omit.], and Casey did
not suggest otherwise.\86\
Two of the three Justices who joined the Casey plurality opinion joined
this opinion in Glucksberg (O'Connor and Kennedy).
The Court in Glucksberg also reaffirmed the limits of Cruzan v.
Director, Missouri Dept of Health.\87\ The right recognized by the
Supreme Court in Cruzan was a right to ``refuse unwanted medical
treatment,'' not a ``right to treatment'' and not a ``right to die.''
\88\ The right is properly seen as a right to refuse medical treatment,
based in bodily integrity and the common law doctrine of informed
consent, and not a right to ``bodily expression.'' As the Court stated
in Glucksberg, ``[t]he right assumed in Cruzan . . . was not simply
deduced from abstract concepts of personal autonomy. Given the common-
law rule that forced medication was a battery, and the long legal
tradition protecting the decision to refuse unwanted medical treatment,
our assumption was entirely consistent with this Nation's history and
constitutional traditions.'' \89\
In addition, the Court stated in Cruzan, and reaffirmed in
Glucksberg, that the states have an ``unqualified interest in the
preservation of human life.'' \90\ As the Court stated in response to
the suicide advocates' argument in Glucksberg that the state's interest
in life only applies to ``those who can still contribute to society and
enjoy life'':
Washington, however, has rejected this sliding-scale approach
and, through its assisted-suicide ban, insists that all
persons' lives, from beginning to end, regardless of physical
or mental condition, are under the full protection of the law.
[citing United States v. Rutherford, 442 U.S. 544, 558 (1979)
(``. . . Congress could reasonably have determined to protect
the terminally ill, no less than other patients, from the vast
range of self-styled panaceas that inventive minds can
devise''] As we have previously affirmed, the States `may
properly decline to make judgments about the `quality' of life
that a particular individual may enjoy. [citing Cruzan, 497
U.S. at 282] This remains true, as Cruzan makes clear, even for
those who are near death.\91\
Although this ``unqualified interest in the preservation of human
life'' applies to the end of life in Glucksberg, there is no reason--
outside the constraints of Roe--that this unqualified interest does not
apply equally to both ends, or all stages, of human life. Thus, just as
the states can decline to ``make judgments about the ``quality'' of
life that a particular individual may enjoy,'' and enjoin assisted
suicide despite an individual ``interest'' in assisted suicide, so too
the states may prohibit non-coital, asexual reproduction despite
varying notions about ``personhood'' or the interests of infertile
individuals.
Finally, since Roe, defenders of the abortion liberty have
sometimes shifted from the Due Process Clause to the Equal Protection
Clause to sustain Roe, emphasizing the unequal impact on women as
compared to men.\92\ To the extent that this is persuasive, it cuts
against any right to human cloning. And it is instructive that Justice
O'Connor, at oral argument in Vacco and Glucksberg, emphasized that
suicide (and death and dying) did not affect women uniquely but
affected men and women equally. A ban on human cloning--and the
protection of extracorporeal human embryos--would fall equally on women
and men. A prohibition on somatic cell nuclear transfer applies equally
to the cells of men and women. For these reasons, as well, Roe and its
progeny could not encompass a right to human cloning or somatic cell
nuclear transfer.
III. Legal Protection of Human Life
Congressional prohibitions on human cloning would rest on a firm
foundation of state and federal legal protection for developing human
life. Human cloning will inevitably involve embryo experimentation and
destruction. Hence, the legal status of the human embryo is directly
relevant to constitutional issues affecting human cloning.\93\ Because
this legal history--and its significance today--is so widely
misunderstood, I set it forth at some length.
For much of the public and for many scholars, the legal and moral
status of the developing human being begins and ends with Roe v. Wade,
410 U.S. 113 (1973), the Supreme Court's decision which legalized
abortion in every state, for any reason, at any time of pregnancy, a
quarter of a century ago. Legal commentators who write on the legal
status of the embryo commonly demonstrate only the most superficial
understanding of the history of legal protection of the developing
human being.\94\ For example, to justify human cloning and ``the
manipulation and destruction of embryos that cloning research, if not
the procedure itself, will inevitably cause,'' Professor John A.
Robertson, a leading advocate of reproductive technologies including
cloning, contends that there is a ``prevailing moral and legal
consensus that views early embryos as too rudimentary in neurological
development to have interests or rights.'' \95\ Whether such a
``consensus'' exists in fact and history requires a detailed review of
American legal history and contemporary legislation and caselaw. Hence,
the history of the legal protection of developing human life is
important because it shapes substantive due process, informs the limits
of Roe v. Wade, and undergirds protection for the developing human
being in non-abortion circumstances today.
a. common law protection of human life
Anglo-American law has always considered human beings and the human
species special. There has always been an important distinction in
American law between the human species and all other species. The basic
law protecting the inviolability of human life--the law of homicide--is
reserved for human beings. The principle of the natural rights of human
beings, the equal creation of human beings, and the inalienability of
the right to life is deeply imbedded in the American political and
legal tradition. The founding political document of the United States,
the Declaration of Independence, proclaims that all are created equal,
endowed by their Creator with certain inalienable rights, including a
right to life, and that government is instituted to secure (not create)
that right. These were considered--by Jefferson, Madison, Adams,
Franklin and the entire founding generation--to be ``self-evident''
truths.
At common law, the basic law protecting human life was the law of
homicide. The protection of the law of homicide was very broad--
extending its protection to ``the killing of any human creature,''
according to Blackstone, the leading authority on the common law.\96\
Contemporary debate over the moral status of the human embryo, however,
forgets that the homicide law, by definition, protects human beings,
not ``persons.'' This confuses the 14th Amendment (and the Court's
discussion of ``person'' in Roe v. Wade) with the criminal code.\97\
Even if a human being is not considered by the courts to be a person
under the 14th Amendment, that human being still may be protected under
homicide law. Homicide law does not protect only mature or developed
persons, but all human beings as human beings, including all offspring
of human parents. It is species-directed. Roe v. Wade merely created a
constitutional exception to the general rule when it stipulated that
that protection may not interfere with a woman's right to ``terminate
pregnancy.''
The common law protected unborn human life to the greatest extent
possible given contemporary medical knowledge. The law was informed by
medicine, and legal protection was extended as medical knowledge
progressed. As Blackstone wrote, the right to life was ``a right
inherent by nature in every individual; and it begins in contemplation
of law as soon as an infant is able to stir in the mother's womb.\98\
'' What was most important was not ``personhood'' but the child's
status as a ``human creature.'' In the face of the limitations of
primitive medical knowledge, every consideration was given to protect
the life and rights of the unborn human. Thus, as Blackstone wrote,
``An infant in ventre sa mere, or in the mother's womb, is supposed in
law to be born for many purposes.\99\ '' The common law protection of
the unborn child had direct antecedents in the Roman civil law's
protection of the unborn child from the time the mother was known to
conceive.\100\
That English medical-legal authorities considered abortion at any
stage of gestation to be the taking of human life, and thus a crime,
influenced the development of English legislation.\101\ As Glanville
Williams observed, with Lord Ellenborough's Act of 1803, Parliament
``made not merely a legal pronouncement but an ethical and metaphysical
one, namely that human life has a value from the moment of
impregnation.\102\ '' Why these laws arose in the nineteenth century
and not before is clear: Parliament only then learned of the medical
evidence concerning human development.\103\
Anglo-American society's consideration of the unborn human being is
also seen in legal references to the unborn human being as a ``child''
or ``unborn child'' stretching back over centuries. At common law, the
unborn human being was commonly called a ``child.\ 1 Blackstone 450
(``his child, either born or unborn'')/04\ '' The term has been used by
legal authorities for centuries--by Fleta, Staunford, Lambarde, Dalton,
Coke, Blackstone, Hawkins, and Hale.\105\ This is also seen in the
common phrase, being ``with child.\106\ '' Early texts on midwifery,
medicine, and jurisprudence used the term ``child'' at any time of
pregnancy.\107\
Though limited by contemporary medicine, American law incorporated
a general rule of protection. Thus, the Massachusetts Supreme Judicial
Court stated, ``[t]o many purposes, in reference to civil rights, an
infant in ventre sa mere is regarded as a person in being.\108\ '' Or,
as the New Jersey Supreme Court stated as long ago as 1849 in State v.
Cooper, ``[i]t is true, for certain civil purposes, the law regards an
infant as in being from the time of conception. . . . \109\ ''
The centuries during which legal protection was burdened by the
limitations of medical knowledge dwarf the relatively few, recent years
when heightened medical knowledge has allowed treatment and surgery in
utero. The novelty of medical technology that allows treatment and
visualization of the unborn human being was highlighted by the famous
Swedish photographer, Lennart Nilsson. ``New technology has made it
possible to see the actual events surrounding fertilization and to
visualize the growing fetus more clearly.\110\ ''
b. quickening as an evidentiary line
With the limitations of medical knowledge, quickening was
established centuries ago as the most reliable medical line showing
evidence of life. From the fourteenth through the nineteenth centuries,
quickening was the only reliable evidence that a woman was pregnant or
that the unborn human being was alive. As late as 1800, a standard text
on midwifery (the forerunner to obstetrics) concluded that ``there
appears to be no unequivocal sign, whereby that state [pregnancy] can
with certainty be determined, till between the fourth and fifth
months,when the child quickens, that is, when its motions are
distinctly felt.\111\ '' Texts of midwifery typically contained
chapters on the ``signs of pregnancy,'' in which quickening was
emphasized.\112\ Thomas Denman, a widely cited authority on the
subject, expressed the developing understanding of quickening in his
1829 text:
The changes which follow quickening have been attributed to
various causes. By some it has been conjectured, that the child
then acquired a new mode of existence; or that it was arrived
to such a size as to be able to dispense with the menstrous
blood, before retained in the constitution of the parent, which
it disturbed by its quantity or malignity. But it is not now
suspected, that there is any difference between the aboriginal
life of the child, and that which it possesses at any period of
pregnancy, though there may be an alteration in the proofs of
its existence, by the enlargement of its size, and the
acquisition of greater strength.\113\
Beck, in his Elements of Medical Jurisprudence--one of the primary
authorities in the 19th century--emphasized the same understanding:
It is important to understand the sense attached to this word
[quickening] formerly, and at the present day. The ancient
opinion, on which indeed the laws of some countries have been
founded, was, that the foetus became animated at this period--
that it acquired a new mode of existence. This is altogether
abandoned. The foetus is certainly, if we speak
physiologically, as much a living being immediately after
conception, as at any other time before delivery; and its
future progress is but the development and increase of those
constituent principles which it then received.\114\
Wharton and Stille emphasized the same point:
This symptom [quickening] was formerly given much weight,
because at that time the child was supposed to receive its
spiritual nature--to become animate. Such ideas have now become
entirely obsolete in the scientific world. The time perfecting
the child is at its conception. After then, in all ways, it is
merely a question of growth and development.\115\
Based on the primitive medical knowledge of the day, the common law
adopted the presumption that the fetus first became alive at
quickening.\116\
At the earliest time of the common law, in the thirteenth century,
Bracton and Fleta held that the killing of a ``quickened child'' in the
womb was homicide without any explicit requirement of live birth.\117\
However, there is substantial common law authority that abortion was a
crime at common law without regard to quickening and without regard to
the time of gestation. As the highest court in Maryland stated in 1887,
``[A]s the life of an infant was not supposed to begin until it stirred
in the mother's womb [quickening], it was not regarded as a criminal
offense to commit an abortion in the early stages of pregnancy. A
considerable change in the law has taken place in many jurisdictions by
the silent and steady progress of judicial opinion; and it has been
frequently held by Courts of high character that abortion is a crime at
common law without regard to the stage of gestation.\118\ ''
Prior to this Maryland decision, two of the most prestigious
criminal law scholars of the 19th century, Bishop and Wharton, also
criticized the quickening rule, concluding that abortion was a crime at
common law regardless of the stage of gestation.\119\ Wharton's
discussion revealed the dynamic between medical evidence and increasing
protection for unborn human life:
There is no doubt that at common law the destruction of an
infant unborn is a high misdemeanor, and at an early period it
seems to have been deemed murder. If the child dies
subsequently to birth from wounds received in the womb, it is
clearly homicide, even though the child is still attached to
the mother by the umbilical cord. It has been said that it is
not an indictable offense to administer a drug to a woman, and
thereby to procure an abortion, unless the mother is quick with
child, though such a distinction, it is submitted, is neither
in accordance with the result of medical experience, nor with
the principles of the common law. The civil rights of an infant
in ventre sa mere are equally respected at every stage of
gestation; and it is clear that no matter at how early a stage
he may be appointed executor, is capable of taking as a
legatee, or under a marriage settlement, may take specifically
under a general devise, as a ``child''; and may obtain an
injunction to stay waste . . . It appears, then, that
quickening is a mere circumstance in the physiological history
of the foetus, which indicates neither the commencement of a
new stage of existence, nor an advance from one stage to
another--that it is uncertain in its periods, sometimes coming
at three months, sometimes at five, sometimes not at all--and
that it is dependent so entirely upon foreign influences as to
make it a very incorrect index, and one on which no
practitioner can depend, of the progress of pregnancy. There is
as much vitality, in a physical point of view, on one side of
quickening as on the other, and in a social and moral point of
view, the infant is as much entitled to protection, and society
is as likely to be injured by its destruction, a week before it
quickens as a week afterwards.\120\
Today, for obvious reasons, quickening ``provides only corroborative
evidence of pregnancy and itself is of little diagnostic value.\121\ ''
c. the evidentiary significance of the born alive rule
Like quickening, the born alive rule was a rule of medical
jurisprudence, first expressly introduced into the common law by the
Sim's Case\122\ in 1601. It was a bright-line rule of evidence used to
eliminate cases of uncertain evidence in the killing of a child.\123\
As a leading 19th century legal authority described the purpose of the
born alive rule:
It is well known that in the course of nature, many children
come into the world dead, and that others die from various
causes soon after birth. In the latter, the signs of their
having lived are frequently indistinct. Hence, to provide
against the danger of erroneous accusations, the law humanely
presumes that every newborn child has been born dead, until the
contrary appears from medical or other evidence. The onus of
proof is thereby thrown on the prosecution; and no evidence
imputing murder can be received, unless it be made certain by
medical or other facts, that the child survived its birth and
was actually living when the violence was offered to it.\124\
It was generally recognized at common law that pre-viable children
could be born alive.\125\ The medical purpose of the born alive rule
400 years ago has been completely eliminated by modern medical science
and technology. It is outmoded, and its existence no longer makes sense
in the law.\126\
The evidentiary nature of the born alive rule is confirmed by the
congruence the law drew between injury in the womb and death after
birth. As a renowned 19th century commentator stated the rule: ``If a
person . . . does an act which causes a child to be born so much
earlier than the natural time that it is born in a state much less
capable of living, and afterwards dies in consequence of its exposure
to the external world, the person who . . . so brings the child into
the world, and puts it thereby into a situation in which it cannot
live, is guilty of murder.\127\ '' If the born alive rule were a
gestational rule and a moral rule, both the injury and death would have
had to occur after birth. Russell's explication shows both the
evidentiary nature of the born alive rule and the irrelevance of
viability. Modern courts have increasingly recognized this legal
congruence.\128\ This demonstrates that the born alive rule recognized
biological and existential continuity between the unborn child (at any
stage of gestation) and the born child.
What the common law demonstrates is that law and medicine had a
dynamic relationship with regard to the unborn child. As medical
knowledge of fetal development increased, legal protection increased.
The law considered the offspring of human parents to be a human being,
and the law considered the unborn child to be a human being whenever it
could be determined to be alive. Evidence of life--a living human
being--was what was important for legal protection, not ``personhood.''
The modern debate about ``personhood'' began with the Supreme Court's
consideration of the 14th Amendment liberty clause (protecting
``persons'') in Roe v. Wade in 1973 and subsequent philosophical
discussions about Roe. The common law in contrast protected unborn
human life to the greatest extent possible given contemporary medical
knowledge.\129\ The common law protection encompassed living members of
the human species.
The Supreme Court in Roe v. Wade misconstrued the born alive rule
and converted it from an evidentiary rule, dependent on location (in or
out of the womb), into a gestational rule (fullterm). The Court
confused gestation with location. This is indicated by the Court's
misstatement that the rights of persons do not begin until term birth,
after the third trimester.\130\ Outside abortion law, the born alive
rule has been increasingly abandoned by state courts and legislatures.
d. the irrelevance of viability
The common law placed significance on quickening and live birth.
Viability was not a concern of the common law.\131\ It played no role
in the development of the common law and its protection of the unborn
child.\132\ A leading 19th century legal authority confirmed this:
The English law does not act on the principle that a child,
in order to become the subject of a charge of murder, should be
born viable, i.e., with the capacity to live . . . The capacity
of a child continuing to live has never been put as a medical
question in a case of alleged child murder; and it is pretty
certain, that if a want of capacity to live were actually
proved, this would not render the party destroying it
irresponsible for the offense.\133\
In American law, viability first began as a judicially-imposed
gloss on the law, with Oliver Wendell Holmes' 1884 opinion in Dietrich
v. Inhabitants of Northampton\134\ for the Massachusetts Supreme
Judicial Court. Dietrich denied recovery for the death of a child born
alive but premature from a miscarriage and created a novel viability
requirement for civil recovery that had no basis in statute or common
law.\135\
As the ``dean of torts,'' William Prosser made clear, some American
courts followed Dietrich for about 50 years, but with developing
medical knowledge in the 20th century, and the 1946 decision in
Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C. 1946), Americans courts
increasingly rejected the viability rule until the Supreme Court's
decision in 1973 in Roe v. Wade placed such great emphasis on
viability. Relying on Roe, some state courts limited legal protection
for the unborn to viability. More recently, other courts have
recognized that Roe--and its emphasis on viability--does not apply
outside abortion law.
e. modern criminal and tort law developments
1. Tort Law
Until modern scientific advances allowed greater knowledge of human
life in utero, abortion law was the primary--but not exclusive--legal
field for the protection of unborn human life. Until nearly the 20th
century, homicide and abortion law proceeded on two different,
evidentiary tracks based on location of the child--homicide law applied
to human beings outside the womb, abortion law applied to human beings
inside the womb.
Dean Prosser explained both the evidentiary reasons for the born
alive rule in tort law and the advancements in medical science that
eliminated its rationale:
When a pregnant woman is injured, and as a result the child
subsequently born suffers deformity or some other injury,
nearly all of the decisions prior to 1946 denied recovery to
the child. Two reasons usually were given: First, that the
defendant could owe no duty of conduct to a person who was not
in existence at the time of his action; and second, that the
difficulty of proving any causal connection between negligence
and damage was too great, and there was too much danger of
ficticious claims.
So far as duty is concerned, if existence at the time is
necessary, medical authority has recognized long since that the
child is in existence from the moment of conception, and for
many purposes its existence is recognized by the law . . . So
far as causation is concerned, there will certainly be cases in
which there are difficulties of proof, but they are no more
frequent, and the difficulties are no greater, than as to many
other medical problems. All writers who have discussed the
problem have joined in condemning the old rule, in maintaining
that the unborn child in the path of an automobile is as much a
person in the street as the mother, and in urging that recovery
should be allowed upon proper proof.\136\
The Court in Roe cited Prosser to support its erroneous description
that courts had granted recovery for prenatal injuries only where the
fetus was viable or at least ``quick.\137\ '' But Prosser stated just
the opposite, pointing out that, in fact, most states permitted
recovery for prenatal injuries regardless of the stage of gestation in
which the injuries are inflicted:
Most of the cases allowing recovery have involved a fetus
which was then viable . . . Many of them have said, by way of
dictum, that recovery must be limited to such cases, and two or
three have said that the child, if not viable, must at least be
``quick.'' But when actually faced with the issue for decision,
almost all of the jurisdictions have allowed recovery even
though the injury occurred during the early weeks of pregnancy,
when the child was neither viable nor quick.\138\
As Professor David Louisell summarized the law two years before
Roe:
[T]he progress of the law in recognition of the fetus as a
human person has been strong and steady and roughly
proportional to the growth of knowledge of biology and
embryology. For centuries the law of property has recognized
the unborn as living persons and the criminal law, although
unevenly, has accorded them substantial protection. The law of
torts, because of biological misconceptions among judges and
practical difficulties of medical proof, was something of a
laggard, but since World War II there has been an explosive
recognition ``that the unborn child in the path of an
automobile is as much a person in the street as the mother.''
Judicial adknowledgment ``that the unborn child is entitled to
the law's protection'' has resulted in ordering blood
transfusion necessary to save his life, over the cogent
countervailing claims to the free exercise of religion. In a
word, the unborn child is a person to be protected in his
property rights and against negligence, and to be afforded the
reach of equity's affirmative arm for support and
sustenance.\139\
Although abortion law was virtually abolished by the Supreme Court
in 1973, Roe did not touch assaults on the unborn child outside the
context of abortion. Roe may have stifled an ongoing process of
increasing state protection for unborn human life in the field of
criminal and tort law,\140\ but, despite Roe, that process has
progressively continued outside the immediate context of abortion.\141\
The upshot of this progressive protection has been a gradual abolition
of the artificial born alive rule and a growth in protection of the
unborn child, even if stillborn, and without regard to the stage of
gestation.
In tort law today, virtually all states allow suits for prenatal
injuries for children later born alive. (Obviously, if the child is not
born alive, the suit would be for wrongful death.) Today, at least
thirty-six jurisdictions allow wrongful death actions for a stillborn
child, while a dwindling minority of eight to ten states reject the
cause of action.\142\ A majority of state courts have expressly or
implicitly rejected viability as a limitation for liability for
nonfatal prenatal injuries.\143\ As recently as 1993, the Pennsylvania
Supreme Court pointed out that ``no jurisdiction accepts the . . .
assertion that a child must be viable at the time of birth in order to
maintain an action in wrongful death'' (i.e., where the child is born
alive and dies thereafter).\144\
2. Criminal Law
Progressive development has continued in the criminal law as well.
At the time of Roe, several states treated the killing of an unborn
child as a homicide at some stage of gestation without regard to live
birth. The born alive rule, created as a bright line evidentiary rule
in a time of primitive medicine, became illogical when medical science
advanced to the point that the elements of homicide could be reliably
demonstrated even if the child died before birth (stillborn). The born
alive rule has been discarded by an increasing number of states at some
stage of gestation. Today, more than half of the states treat the
killing of an unborn human being as a form of homicide, even though not
born alive (stillborn), at some stage of gestation. Eleven states,
including Illinois and Minnesota, define (by statute) the killing of an
unborn child as a form of homicide, regardless of the stage of
pregnancy.\145\ One state defines (by statute) the killing of an unborn
human being after eight to ten weeks gestation as a form of
homicide.\146\ Eight states define (by statute) the killing of an
unborn child after quickening as a form of homicide.\147\ Five states
define (by statute or caselaw) the killing of an unborn human being
after viability as a form of homicide.\148\ Constitutional challenges
to statutes of this type, include statutes applying throughout
gestation, have been rejected in several decisions.\149\
It is important to remember that even under the original
application of the born alive rule, the killing of an early,
developing, human being was still counted as a homicide if the assault
on the mother resulted in a miscarriage that produced expulsion from
the womb and death after that expulsion, at any stage of development.
In the course of things, the unborn human being might not survive the
initial assault or the miscarriage, but if it did, it did not matter to
the law of homicide how premature the human being was, as long as it
survived expulsion from the womb and was observed outside. However, as
medical science has developed, and the cause of the death of the unborn
human being is more easily determined, the born alive rule has come
under increasing criticism and has been increasingly rendered
meaningless.
By eliminating the born alive rule in the 20th century, state
homicide laws have abandoned the arbitrary matter of location (outside
or inside) because location no longer matters to medical determination.
This has allowed the law to focus on the cause of death at any stage of
development, without regard to location. As a result, cases like State
v. Merrill have followed.\150\ Merrill involved a double homicide, when
a man killed his estranged girlfriend when she was pregnant with a 28-
day-old embryonic human being, who died in the womb. The assailant was
charged with a double homicide and that indictment was upheld on
appeal. Many similar cases involving previable unborn human beings have
arisen in Illinois, another state with a similar law that has abandoned
the born alive rule without establishing arbitrary gestational
limitations.\151\
In California, because of the supreme court's decision in People v.
Davis\152\ a charge of homicide can be brought for the killing of an
unborn human being at any time after 8-10 weeks gestation. The court
arrived at this result from a strict, biological reading of the
statutory term, ``fetus.\153\ '' These developments in homicide law
continue. In 1998, Indiana became the 26th state to treat the killing
of an unborn human being as a homicide at some stage of gestation when
it enacted a law, over the Governor's veto, to treat the killing of a
unborn child as a homicide, whether born alive or not.\154\ Because the
publicized incidents that gave rise to the legislation involved the
shooting of a pregnant woman carrying a presumably viable child, the
legislation contained a viability limitation. In addition, Michigan
enacted legislation to protect the unborn child (``embryo'' and
``fetus'') at all stages of gestation. Legal protection of the unborn
human being throughout gestation is a dynamic process that continues.
Outside the context of abortion, there is a remarkable legal consensus
across at least thirty-eight states that the life of a human being is
considered to begin at fertilization (conception).\155\ This history
demonstrates that congressional prohibitions on human cloning would
represent a consistent and logical growth in state and federal legal
protection for human life.
conclusion
As Professor Gilbert Meilaender testified to the National Bioethics
Advisory Commission (NBAC) on human cloning, ``sometimes we may only
come to understand the nature of the road we are on when we have
already traveled fairly far along it.\156\ '' Human cloning is the
logical outcome and most recent extension of 20 years of embryo
experimentation and manipulation and may be the most subtle extension
of that technique and philosophy in its denigration of the dignity of
the human being. It proceeds on a cramped, artificial, and impersonal
view of human beings and reflects the dehumanizing spirit of Aldous
Huxley's Brave New World. The impersonal instinct that leads to
controlling the genetic destiny of one's progeny comes from the same
instinct that treats the human embryo as just a clump of cells.
Hopefully, the publicity and analysis given to human cloning will
illuminate and education Americans on the entire misguided effort of
human embryo experimentation and manipulation.
At important junctures in this century, scientists have recognized,
as a basic tenet of medical ethics, that protection of the human being
is more important than the interests of science or society. That is the
essence of the Nuremburg Code, which reaffirmed limits on research on
human subjects. As the 1975 Helsinki Declaration of the World Medical
Association stated, ``Concern for the interests of the subject must
always prevail over the interest of science and society.\157\ ''
Twenty-seven years ago, Nobel Prize-winning biologist James Watson
noted that ethical decisions about human cloning could not be left to
science:
This is a matter far too important to be left solely in the
hands of the scientific and medical communities. The belief
that surrogate mothers and clonal babies are inevitable because
science always moves forward, an attitude expressed to me
recently by a scientific colleague, represents a form of
laissez-faire nonsense dismally reminiscent of the creed that
American business, if left to itself, will solve everybody's
problems. Just as the success of a corporate body in making
money need not set the human condition ahead, neither does
every scientific advance automatically make our lives more
``meaningful.'' No doubt the person whose experimental skill
will eventually bring forth a clonal baby will be given wide
notoriety. But the child who grows up knowing that the world
wants another Picasso may view his creator in a different
light.\158\
It is necessary for society through civil government to establish
limits. As Paul Ramsey pointed out, some scientific knowledge, however,
interesting or valuable, cannot be obtained by moral means. When that
happens, we must seek it by other means or wait until it can be
obtained by appropriate means.
Roe v. Wade and its progeny created a woman's ``liberty interest''
in ``terminating a pregnancy.'' The Supreme Court limited state
protection of unborn human life only when balanced against the woman's
personal abortion liberty. In that context, a physician is only an
agent of the mother and has no personal constitutional liberty interest
at stake. Outside that limited context, when the woman's interest in
terminating pregnancy is not at stake, the states are free to protect
the unborn human being from homicide at every stage of gestation,
including fertilization, as some states have done. When extracorporeal
human embryos are at stake, no woman is pregnant, and the
considerations of Roe are absent. This state interest has a long
tradition that is actively exercised by states today. Scientists and
doctors, as third parties, have no personal constitutional liberty to
deprive an unborn human being of life or dignity. No broader
constitutional liberty in ``procreation'' encompasses a right to use
technology to clone in vitro human embryos. Accordingly, the
Constitution leaves broad authority to the representative branches to
ban or regulate the practice of human cloning.
Endnotes
1. George Annas, Human Cloning: Should the United States Legislate
Against It?, A.B.A. Journal at 80 (May 1997).
2. See e.g., Tom L. Beauchamp & James F. Childress, Principles of
Biomedical Ethics 7 (1979).
3. See e.g., Robert Edwards, Ethics and embryos: the case for
experimentation, in Anthony Dyson & John Harris, Experiments on Embryos
42, 50 (1990); John Harris, Embryos and hedgehogs: on the moral status
of the embryo, in Anthony Dyson & John Harris, Experiments on Embryos
75-76 (1990).
4. National Bioethics Advisory Commission, Cloning Human Beings:
Report and Recommendations of the National Bioethics Advisory
Commission ii (1997) (hereinafter NBAC Report).
5. John A. Robertson, The Question of Human Cloning, Hastings
Center Rep. (Mar.-Apr. 1994), at 7.
6. Jerome P. Kassirer & Nadia A. Rosenthal, Should Human Cloning
Research Be Off Limits?, 338 New Eng. J. Med. 905, 905 (1998).
7. Laurence Tribe, Second Thoughts on Cloning, New York Times, Dec.
5, 1997, p. A23.
8. Declaration of Helsinki, World Medical Association (1989),
reprinted in 5 Warren T. Reich, Encyclopedia of Bioethics 2766, 2767
(Rev. ed. 1995).
9. See Leon R. Kass, The Wisdom of Repugnance: Why we should can
the cloning of humans, The New Republic, June 2, 1997, at 17. See also
Leon R. Kass, The Wisdom of Repugnance, 32 Val. U.L. Rev. 679; Gilbert
Meilaender, Cloning in Protestant Perspective, 32 Val. U.L. Rev. 707
(1998); Lori B. Andrews, Is There a Right to Clone? Constitutional
Challenges to Bans on Human Cloning, 11 Harv. J.L. & Tech. 643 (1998);
George Annas, Human Cloning: A Choice or an Echo?, 23 U. Dayton L. Rev.
247 (1998); Marc Lappe, Four reasons to step back from cloning, Chicago
Tribune, March 8, 2001, sec. 1, p. 21 (``According to the original
Nuremberg Code developed at the end of WWII to prevent future abuses of
medical research subjects, every experimental subject should have the
right to terminate his experiment. How would we ever get an acceptable
consent from future generations?'').
10. See generally, Christine L. Feiler, Human Embryo
Experimentation: Regulation and Relative Rights, 66 Fordham L. Rev.
2435 (1998).
11. See e.g., Webster's Ninth New Collegiate Dictionary 661 (1987)
(``Kill merely states the fact of death caused by an agency in any
manner.''); American Heritage Student Dictionary 546 (1994) (kill: ``To
cause the death of; deprive of life'').
12. John Robertson vividly describes the casual treatment of ex
utero embryos. John A. Robertson, The Question of Human Cloning,
Hastings Ctr. Rep. Mar.-Apr. 1994 at 7. See also Margaret Talbot, A
Desire to Duplicate, New York Times Magazine, February 4, 2001, at 140
(``Cloning mammals is a wildly inefficient process that can require
hundreds of attempts both to create an embryo and to implant it
successfully.'').
13. NBAC Report, supra note 4, at 63-64. See e.g., Marc Lappe, Four
reasons to step back from cloning, Chicago Tribune, March 8, 2001, sec.
1, p. 21 (``Much of the more subtle damage in animal clones has shown
up only one or more generations after the first one was cloned.'').
14. Warren Thomas Reich, ed., Encyclopedia of Bioethics 2763 (Rev.
ed.) (vol. 5, Appendix).
15. See e.g., Marc Lappe, Four reasons to step back from cloning,
Chicago Tribune, March 8, 2001, sec. 1, p. 21 (``According to the
original Nuremberg Code developed at the end of WWII to prevent future
abuses of medical research subjects, every experimental subject should
have the right to terminate his experiment. How would we ever get an
acceptable consent from future generations?'').
16. NBAC Report, supra note 4, at ii. See Kass, 32 Val. U.L. Rev.
at 694-95.
17. See generally, Paul Ramsey, Fabricated Man: The Ethics of
Genetic Control (1970); C.S. Lewis, The Abolition of Man (1950).
18. C.S. Lewis, The Abolition of Man 72 (1950).
19. Id. at 73-74.
20. NBAC Report, supra note 4, at ii. See Kass, 32 Val. U. L. Rev
at 697-98.
21. Allen Verhey, Theology after Dolly, Christian Century, March
19-26, 1997, at 285.
22. Leon R. Kass, The Wisdom of Repugnance: Why We Should Ban the
Cloning of Humans, 32 Val. U.L. Rev. 679, 691 (1998).
23. Buzzanca v. Buzzanca, 72 Cal. Rptr. 2d 280 (Cal. App. 1998).
24. Ann Davis, Artificial-Reproduction Arrangers Are Ruled Child's
Legal Parents, Wall Street Journal, March 11, 1998, at B2.
25. Buzzanca, 72 Cal. Rptr. 2d at 293.
26. 1 Blackstone 440.
27. 2 The Works of James Wilson 596-97 (R.G. McCloskey ed. (1967).
See also Adam Smith, Lectures on Jurisprudence 172-75 (R. Meek, D.
Raphael, P. Stein, eds. 1978) (Liberty Classics Reprint 1982).
28. 2 Works of James Wilson at 604. This sentiment was apparently
familiar to lawyers during the Founding era, because it is reflected as
well in the legal training of John Quincy Adams, who observed that the
common law ``has restrained within proper bounds, even the sacred
rights of parental authority, and shewn the cruelty, and the absurdity
of abandoning an infant to destruction for any deformity in its bodily
frame.'' 2 JQA, Diary of John Quincy Adams 193 (March 1786-December
1788) (entry of April 2, 1787).
29. Amicus Brief for Senator Orrin Hatch et al. at 1, Vacco v.
Quill, 117 S.Ct. 2293 (1997) (No. 95-1858), 1996 WL 657755. See also
Michael W. McConnell, The Right to Die and the Jurisprudence of
Tradition, 1997 Utah L. Rev. 665 (1997).
30. 321 U.S. 158 (1944).
31. 262 U.S. 390 (1923).
32. 268 U.S. 510 (1925).
33. 316 U.S. 535 (1942).
34. See e.g., Justice Stewart's reference to Skinner as involving
``procreation'' in a footnote in Harris v. McRae, 448 U.S. at 312 n.18.
35. 497 U.S. 261 (1990).
36. Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v.
Nebraska, 262 U.S. 390 (1923); Skinner v. Oklahoma, 316 U.S. 535
(1942); Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v.
Baird, 405 U.S. 438 (1972).
37. 405 U.S. 438 (1972).
38. Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (``to enjoy those
privileges long recognized at common law as essential to the orderly
pursuit of happiness by free men''); Pierce v. Society of Sisters, 268
U.S. 510, 534-35 (1925) (``the liberty of parents and guardians to
direct the upbringing and education of children under their control'',
``engaged in a kind of undertaking . . . long regarded as useful and
meritorious''); Moore v. City of East Cleveland, 431 U.S. 494, 503-04
(1977) (``the Constitution protects the sanctity of the family
precisely because the institution of the family is deeply rooted in
this Nation's history and tradition'').
39. Justice Souter's concurring opinion in Washington v.
Glucksberg, 521 U.S. 702, 752, 117 S.Ct. 2258, 2275 (1997), ignores the
limitations of Poe, enormously expands its implications, and thereby
distorts Harlan's opinion. See Michael W. McConnell, The Right to Die
and the Jurisprudence of Tradition, 1997 Utah L. Rev. 665 (1997).
40. See also Marc Lappe, Four reasons to step back from cloning,
Chicago Tribune, March 8, 2001, sec. 1, p. 21 (``No one has an
inalienable right to reproduce, much less perpetuate her own genetic
makeup, no matter how unique.''); Lori B. Andrews, Is There a Right to
Clone? Constitutional Challenges to Bans on Human Cloning, 11 Harv.
J.L. & Tech. 643, 666 (1998); George Annas, Human Cloning: A Choice of
an Echo?, 23 U. Dayton L. Rev. 247, 254 (1998) (``Asexual cloning by
nuclear substitution represents such a discontinuity in the way humans
reproduce . . . This discontinuity means that although the
constitutional right not to reproduce would seem to apply with equal
force to a right not to replicate, to the extent that there is a
constitutional right to reproduce if one is able, no existing liberty
doctrine would extend this right to replication by cloning.''); George
Annas, Human Cloning: Should the United States Legislate Against It?,
A.B.A.J. at 80 (May 1997) (``Cloning is replication, not reproduction,
and represents a difference in kind, not in degree, in the way humans
continue the species.'').
41. John A. Robertson, Children of Choice: Freedom and the New
Reproductive Technologies 32 (1994).
42. John A. Robertson, Decisional Authority over Embryos and
Control of IVF Technology, 28 Jurimetrics Journal 285, 292 (1988).
43. John A. Robertson, Children of Choice at 42.
44. John A. Robertson, Children of Choice at 220.
45. Id. at 32.
46. John A. Robertson, Procreative Liberty and the Control of
Conception, Pregnancy, and Childbirth, 69 VA L. Rev. 405, 415 (1983).
47. 367 U.S. 497, 554-55 (1961) (Harlan, J., dissenting from
dismissal on jurisdictional grounds). See also Griswold v. Connecticut,
381 U.S. 479, 499 (1965) (Harlan, J., concurring in the judgment).
48. Indeed, in Eisenstadt v. Baird, the Court implicitly
acknowledged the state's authority to prohibit ``extramarital and
premarital sexual relations.'' 405 U.S. at 448. And Eisenstadt was
based on the Equal Protection Clause, not the Due Process Clause.
Likewise, Carey v. Population Services Inter'l, 431 U.S. 678 (1977),
decided after Roe, did not create a right to premarital or extramarital
sexual activity. 431 U.S. at 688 n.5, 694 & n.17. See also Id. at 702
(White, J., concurring in part and concurring in the judgment), Id. at
713 (Stevens, J., concurring in part and concurring in the judgment).
49. See 410 U.S. at 170 (Stewart, concurring) (``the right of a
woman to decide whether or not to terminate her pregnancy'').
50. Roe, 410 U.S. at 150 (discussing the risk to the woman, state
has interest in protecting the woman's own health and safety; 153
(detailing ``detriment'' to pregnant woman by ``denying this choice''),
162 (``the rights of the pregnant woman at stake''). See also Casey,
112 S.Ct. at 2807 (``The mother who carries a child to full term is
subject to anxieties, to physical constraints, to pain that only she
must bear''), 2816 (``the urgent claims of the woman to retain the
ultimate control over her destiny and her body'').
51. Robertson, 69 VA L. Rev. at 416.
52. 448 U.S. at 316.
53. 431 U.S. 678, 688 (1977) (``an individual's right to decide to
prevent conception or terminate pregnancy. . . . '').
54. 112 S.Ct. at 2804 (``the legitimate authority of the State
respecting the termination of pregnancies by abortion procedures''),
Id. (referring to ``essential holding'' of Roe as including ``right of
the woman to choose to have an abortion''), 2806 (``the profound moral
and spiritual implications of terminating a pregnancy''), 2807 (``the
woman's interest in terminating her pregnancy''), 2810 (describing Roe
as ``a rule . . . of personal autonomy and bodily integrity''), 2816
(``freedom to terminate her pregnancy''), 2816 (``the right of the
woman to terminate her pregnancy''), 2816 (``the woman's liberty to
determine whether to carry her pregnancy to full term''), 2816 (``a
right to choose to terminate her pregnancy''), 2817 (``[t]he woman's
right to terminate her pregnancy''), 2818 (``a right to choose to
terminate or continue her pregnancy''), 2820 (``the right to decide
whether to terminate a pregnancy'').
55. 112 S.Ct. at 2819.
56. 405 U.S. 438, 453 (1972).
57. See Casey, 112 S.Ct. at 2819 (quoting passage from Eisenstadt).
58. See e.g., Casey, 112 S.Ct. at 2486-87 (``a woman's right to
terminate her pregnancy'') (``continue pregnancies they might otherwise
terminate'') (``the right to terminate pregnnacies'').
59. 432 U.S. 464, 473-74 (1977) (``the right protects the woman
from unduly burdensome interference with her freedom to decide whether
to terminate her pregnancy'').
60. 432 U.S. at 473-74.
61. 448 U.S. 297 (1980).
62. 448 U.S. at 312. See also Id. at 316 (``the freedom of a woman
to decide whether to terminate her pregnancy'') (three times on the
same page).
63. 112 S.Ct. at 2817.
64. See e.g., Conn v. Conn, 525 N.E.2d 612 (Ind. Ct. App), aff'd,
526 N.E.2d 958 (Ind.), cert. denied, 488 U.S. 955 (1988); Smith v. Doe,
530 N.E.2d 331 (Ind. Ct. App. 1988), cert. denied, 492 U.S. 919 (1989).
65. 410 U.S. at 156.
66. 112 S.Ct. at 2821.
67. 112 S.Ct. at 2826-31.
68. See e.g., Lori Andrews, The Legal Status of the Embryo, 32
Loyola L. Rev. 357, 359 (1986).
69. It is important to point out that this misrepresents the scope
of the Roe-Casey liberty. Roe did not limit the abortion liberty to
viability. Instead, with the companion decision of Doe v. Bolton, 410
U.S. 179 (1973), Roe established a right to a ``health'' abortion
throughout pregnancy (defined as ``all factors--physical, emotional,
psychological, familial, and the woman's age--relevant to the well-
being of the patient. All these factors may relate to health''). Id. at
192. This is clear from Stenberg v. Carhart, 120 S.Ct. 2597 (2000), and
emphasized by Justice Thomas' dissenting opinion. Id. at 2652 & n.21.
In addition, several federal courts have given such a broad reading to
the ``health'' exception after viability. See e.g., Women's Med. Prof.
Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997), cert. denied, 523
U.S. 1036, 1039 (1998) (Thomas, J., dissenting from the denial of
certiorari); American College of Obstetricians and Gynecologists v.
Thornburgh, 737 F.2d 283, 298-99 (3d Cir. 1984), aff'd, 476 U.S. 747
(1986); Margaret S. v. Edwards, 488 F.Supp. 181 (E.D. La. 1980);
Schulte v. Douglas, 567 F.Supp. 522 (D.Neb. 1981), aff'd per curiam,
sub nom. Women's Servs., P.C. v. Douglas, 710 F.2d 465 (8th Cir. 1983).
The breadth of this ``health'' exception after viability was not
altered in the Casey decision. Planned Parenthood v. Casey, 505 U.S.
833, 846 (1992) (reaffirming ``State's power to restrict abortion after
fetal viability, if the law contains exceptions for pregnancies which
endanger a woman's life or health''), Id. at 878 (reaffirming Roe's
holding ``that subsequent to viability, the State . . . may . . .
regulate, and even proscribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life or
health of the mother.''), Id. at 871 (``when the fetus is viable,
prohibitions are permitted provided the life or health of the mother is
not at stake'').
70. John A. Robertson, Decisional Authority over Embryos and
Control of IVF Technology, 28 Jurimetrics J. 285, 290 (1988).
71. Robertson, Procreative Liberty and the Control of Conception,
Pregnancy, and Childbirth, 69 VA L. Rev. 405, 405 n.3 (1983).
72. Paul B. Linton, Planned Parenthood v. Casey: The Flight from
Reason in the Supreme Court, 13 St. Louis U. Pub. L. Rev. 15, 31
(1993).
73. Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258 (1997)
(no right to assisted suicide); Roe, 410 U.S. at 154 (``it is not clear
to us that the claim asserted by some amici that one has an unlimited
right to do with one's body as one pleases bears a close relationship
to the right of privacy previously articulated in the Court's
decisions''); Jacobson v. Massachusetts, 197 U.S. 11 (1905)
(vaccination).
74. Cf. Robertson, The Question of Human Cloning, 24 Hastings
Center Report No. 2 at 6 (1994), with McCormick's response, Richard A.
McCormick, Blastomere Separation: Some Concerns, 24 Hastings Center
Report No. 2 at 14 (1994).
75. McCormick, supra note 82, at 14.
76. 112 S.Ct. at 2809 (``for two decades of economic and social
developments, people have organized intimate relationships and made
choices that define themselves and their places in society, in reliance
on the availability of abortion in the event that contraception should
fail'').
77. 410 U.S. at 159.
78. Lifchez v. Hartigan, 735 F.Supp. 1361 (N.D.Ill.), aff'd without
opinion, 914 F.2d 260 (7th Cir. 1990), cert. denied sub. nom. Scholberg
v. Lifchez, 498 U.S. 1069 (1991); Margaret S. v. Edwards, 794 F.2d 994
(5th Cir. 1986); Jane L. v. Bangerter, 61 F.3d 1493, 1502 (10th Cir.
1995), rev'd on other grounds, Leavitt v. Jane L., 116 S.Ct. 2068
(1996). See 102 F.3d 1112, 1114 n.1 (10th Cir. 1996).
79. Robertson, 28 Jurimetrics J. at n.16.
80. 505 U.S. 833 (1992).
81. 505 U.S. at 851.
82. See e.g., Yale Kamisar, Against Assisted Suicide--Even a Very
Limited Form, 72 U. Det. Mercy L. Rev. 735, 765-68 (1995); Richard S.
Myers, An Analysis of the Constitutionality of Laws Banning Assisted
Suicide from the Perspective of Catholic Moral Teaching, 72 U. Det.
Mercy L. Rev. 771, 777-78 (1995).
83. 521 U.S. 702, 117 S.Ct. 2258 (1997).
84. 117 S.Ct. at 2268.
85. Id. at 2268.
86. 117 S.Ct. at 2271.
87. 497 U.S. 261 (1990).
88. 117 S.Ct. at 2270.
89. Id. at 2270.
90. 117 S.Ct. at 2272 (quoting Cruzan, 497 U.S. at 282 and the
Model Penal Code ``The interests in the sanctity of life that are
represented by the criminal homicide laws are threatened by one who
expresses a willingness to participate in taking the life of an
other'').
91. 117 S.Ct. at 2272.
92. See e.g., Richard Posner, Sex and Reason 339-40 (1992) (noting
such a shift).
93. For purposes of this testimony, I adopt Congress' definition of
``human embryo'' in Pub. L. No. 106-554, sec. 510(b) (``any organism .
. . that is derived by fertilization, parthenogenesis, cloning, or any
other means from one or more human gametes or human diploid cells'')
and the definition of ``human cloning'' in the bill, S. 790, introduced
by Senator Brownback on April 26, 2001: ``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.''
94. See e.g., John A. Robertson, Embryos, Families, and Procreative
Liberty: The Legal Structure of the New Reproduction, 59 S. Cal. L.
Rev. 942, 973 (1986) (``With the exception of former laws that
prohibited abortion, the law has never regarded fetuses as rights-
bearing entities''); John A. Robertson, In the Beginning: The Legal
Status of Early Embryos, 76 Va. L. Rev. 437, 450 n.38 (1990) (citing
four articles for legal background, all of which contain only a
sketchy, incomplete, and superficial review of the history of the legal
protection for the unborn: Lori B. Andrews, The Legal Status of the
Embryo, 32 Loyola L. Rev. 357, 361 (1986) (citing Roe v. Wade for the
legal status of the human embryo in history); Patricia A. King, The
Juridical Status of the Fetus: A Proposal for Legal Protection of the
Unborn, 77 Mich. L. Rev. 1647 (1979); Robertson, Embryos, 59 S. Cal. L.
Rev. 942; Marcia Joy Wurmbrand, Note, Frozen Embryos: Moral, Social,
and Legal Implications, 59 S. Cal. L. Rev. 1079 (1986) (citing
Robertson, Embryos, supra, and John A. Robertson, Procreative Liberty
and the Control of Conception, Pregnancy, and Childbirth, 69 Va. L.
Rev. 405 (1983)).
95. Robertson, The Question of Human Cloning, Hastings Ctr. Rep.
Mar.-Apr. 1994, at 6.
96. 4 William Blackstone, Commentaries on the Laws of England 177
(U. Chicago Reprint 1979) (hereafter Blackstone). See also 4 Blackstone
188 (``Felonious homicide'' defined as ``the killing of a human
creature''); 6 The New Encyclopaedia Britannica 26 (15th ed. 1995)
(``homicide, the killing of one human being by another'').
97. See e.g., Robertson, 76 VA. L. Rev. at 444 n.24 (``The abortion
debate has often been confused by loose use of terms such as person,
human life, human being, etc. Clearly the fertilized egg, embryo, and
fetus are human and are living. The question is whether they merit the
moral protection accorded to clearly defined persons.'').
98. 1 Blackstone 125.
99. 1 Blackstone 126. See also Stemmer v. Kline, 19 N.J.Misc. 15,
17 A.2d 58, 59 (1940) (``At common law, a child en ventre sa mere was
separate entity entitled to recognition and protection by courts and
recognized as a `person'.'').
100. See e.g., Dennis J. Horan, Clarke D. Forsythe & Edward R.
Grant, Two Ships Passing in the Night: An Interpretavist Review of the
White-Stevens Colloquy on Roe v. Wade, 6 St. Louis U. Pub. L. Rev. 229,
276 & n.276 (1987) (citing writings of Paulus and Marcianus in Corpus
Juris Civilis).
101. John Keown, Abortion, Doctors and the Law 26-48 (1988).
102. Glanville Williams, The Sanctity of Life and the Criminal Law
227 (1957); Keown, supra note 10, at 20.
103. Keown, supra note 10, at 26-48.
104. 1 Blackstone 450 (``his child, either born or unborn'')
105. Horan, Forsythe & Grant, 6 St. Louis at 289-90 & nn.359-378.
106. 1 Blackstone 446 (``declares herself with child'')
107. Horan, Forsythe & Grant, 6 St. Louis U. Pub. L. Rev. at 290
n.369; Clarke D. Forsythe, Homicide of the Unborn Child: The Born Alive
Rule and Other Legal Anachronisms, 21 Val. U.L. Rev. 563 (1987).
108. Parker, 50 Mass. at 266 (citing 1 Blackstone 129).
109. 22 N.J. 52, 56-57 (1849). The court finished this statement by
saying that ``yet it seems no where to regard it as in life, or to have
respect to its preservation as a living being.'' Id. The answer here is
the difference between different burdens of proof in civil and criminal
law, as well as the evidentiary issues involved.
110. Lennart Nilsson, A Child Is Born 15 (1990).
111. Valentine Seaman, The Midwives Monitor and the Mothers Mirror
70-72 (1800).
112. See generally, Forsythe, 21 Val. U.L. Rev. at 571 n.42, 572-
73.
113. Thomas Denman, An Introduction to the Practice of Midwifery
287 (3d ed. 1829).
114. 1 John Beck, Elements of Medical Jurisprudence 276 (11th ed.
1860).
115. 3 Wharton and Stille, Medical Jurisprudence 7 (5th ed. 1905).
116. 6 St. Louis at 279-280 (collecting authorities); 21 Val. U.L.
Rev. at nn. 39-53 (collecting authorities).
117. 6 St. Louis Pub. L. Rev. at 285 & n.338. For a description of
the common law history of abortion, see Horan, Forsythe & Grant, 6 St.
Louis U. Pub. L. Rev. at 278-300; Robert Byrn, An American Tragedy: The
Supreme Court on Abortion, 41 Fordham L. Rev. 807 (1973); Robert
Destro, Abortion and the Constitution: The Need for a Life-Protective
Amendment, 63 Cal. L. Rev. 1250 (1975); Joseph Dellapenna, The History
of Abortion: Technology, Morality and Law, 40 U. Pitt. L. Rev. 359
(1979); Shelley Gavigan, The Criminal Sanction as it Relates to Human
Reproduction: The Genesis of the Statutory Prohibition of Abortion, 5
J. Legal Hist. 20 (1984).
118. Lamb v. State, 10 A. 208, 208 (Md. Ct. App. 1887).
119. Joel Prentiss Bishop, Bishop on Statutory Crimes sec. 744, at
447 (2d ed. 1883); Frances Wharton, American Criminal Law secs. 1220-
30, at 210-218 (6th rev. ed. 1868).
120. Wharton at secs. 1220-1230 (cit. omit.).
121. J. Pritchard, P. MacDonald & N. Gant, Williams Obstetrics 218
(17th ed. 1985).
122. Regina v. Sims, Gouldsb. 176, 75 Eng. Rep. 1075 (K.B. 1601).
123. See generally, Clarke D. Forsythe, Homicide of the Unborn
Child: The Born Alive Rule and Other Legal Anachronisms, 21 Val. U.L.
Rev. 563, 584 (1987); Horan, Forsythe & Grant, 6 St. Louis Pub. L. Rev.
at 285-88.
124. A. Taylor, Medical Jurisprudence 411 (7th ed. 1861).
125. Forsythe, 21 Val. U.L. Rev. at 568 & n.28.
126. See Forsythe, 21 Val. U.L. Rev. 563.
127. 2 Walter Russell, A Treatise on Crimes and Misdemeanors 671-72
(Garland Pub. reprint 1979) (1865).
128. State v. Cotton, 197 Ariz. 584, 5 P.3d 918, 922 (Ariz.App.
2000) (adopting rule that ``the death of an infant who is born alive
from injuries inflicted in utero constitutes homicide,'' citing United
v. Spencer, 839 F.2d 1341 (9th Cir. 1988); Ranger v. Georgia, 249 Ga.
315, 290 S.E.2d 63 (1982); Illinois v. Bolar, 109 Ill.App.3d 384, 440
N.E.2d 639 (1982); Williams v. Maryland, 316 Md. 677, 561 A.2d 216
(1989); New Jersey v. Anderson, 135 N.J.Super. 423, 343 A.2d 505
(1975), rev'd on other grounds, 173 N.J.Super. 75, 413 A.2d 611 (1980);
People v. Hall, 158 A.D.2d 69, 557 N.Y.S.2d 879 (1990); Cuellar v.
State, 957 S.W.2d 134 (Tex. Ct. App. 1997); Wisconsin v. Cornelius, 152
Wis.2d 272, 448 N.W.2d 434 (1989)).
129. Mark Scott, Quickening in the Common Law: The Legal Precedent
Roe Attempted and Failed to Use, 1 Mich. Law & Pol. Rev. 199, 261
(1996) (legal protection extended to ``a living member of the human
species''); Forsythe, 21 Val. U.L. Rev. at 265ff.
130. 410 U.S. at 161-162, 163.
131. See Horan, Forsythe & Grant, 6 St. Louis at 281-82 n.306-311
(collecting authorities).
132. Forsythe, 21 Val. U.L. Rev. at 569 & n.33.
133. A. Taylor, Medical Jurisprudence 413 (7th ed. 1861).
134. 138 Mass. 14 (1884).
135. See generally, Clarke D. Forsythe, The Legacy of Oliver
Wendell Holmes, 69 U. Det. Mercy L. Rev. 677, 685-89 (1992).
136. William Prosser, Law of Torts 335-36 (4th ed. 1971) (emphasis
added); Prosser & Keeton on Torts 367-72 (5th ed. 1984); Prosser Wade &
Schwartz, Torts 421-36 (9th ed. 1994).
137. 410 U.S. at 161, 162.
138. Prosser, Law of Torts, at 337 (4th ed. 1971) (emphasis added).
See generally, David Kadar, The Law of Tortious Prenatal Death Since
Roe v. Wade, 45 Mo. L. Rev. 639 (1980).
139. David W. Louisell, Biology, Law and Reason: Man as Self-
Creator, 16 Am. J. Juris. 1, 19-20 (1971).
140. Some courts concluded that Roe prevented protection of the
unborn child even outside the context of abortion. See e.g., Bopp &
Coleson, The Right to Abortion: Anomalous, Absolute, and Ripe for
Reversal, 3 B.Y.U. J. Pub. L. at 256-57 (citing cases). But that
erroneous understanding has been abandoned in recent years. See e.g.,
People v. Davis, 7 Cal.4th 797, 30 Cal.Rptr.2d 50 872 P.2d 591 (1994).
141. See e.g., People v. Davis, 7 Cal.4th 797, 30 Cal.Rptr.2d 50
872 P.2d 591 (1994); State v. Merrill, 450 N.W.2d 318 (Minn. 1990),
cert. denied sub. nom. Merrill v. Minnesota, 496 U.S. 931 (1990). For
various surveys of the current status of legal developments protecting
the unborn child in criminal and tort law, see Forsythe, 32 Val. U.L.
Rev. at 494-501; Bopp & Coleson, The Right to Abortion: Anomalous,
Absolute, and Ripe for Reversal, 3 B.Y.U. J. Pub. L. 247-261; Horan,
Forsythe & Grant, 6 St. Louis Pub. L. Rev. at 307-309.
142. See generally, Sheldon R. Shapiro, Annotation, Right to
Maintain Action or to Recover Damages for Death of Unborn Child, 84
A.L.R.3d 411 (1978 & Supp. 1997).
143. Paul B. Linton, Planned Parenthood v. Casey: The Flight from
Reason in the Supreme Court, 13 St. Louis U. Pub. L. Rev. 15, 47-48
n.141 (1993) (citing 28 states).
144. Hudak v. Georgy, 634 A.2d 600, 602 (Pa. 1993).
145. Ariz. Rev. Stat. 13-1103(A)(5) (West 1989 & Supp. 1995); Ill.
Comp. Stat. ch. 720, 5/9-1.2, 5/9-2.1, 5/9-3.2 (1994); Ind. Code Ann.
35-42-1-6 (Burns 1994) (feticide); La. Rev. Stat. Ann. tit. 14, 32.5-
32.8 (read in conjunction with tit. 14, 2(11) (West 1996 Supp.); Minn.
Stat. Ann. 609.266, 209.2661-609.2665, 609.268(1) (1987 & Supp. 1996);
Mo. Rev. Stat. 1.205, 565.024 (Vernon 1996 Supp.)(see State v. Knapp,
843 S.W.2d 345 (Mo. 1992); N.D. Cent. Code 12.1-17.1-01 to 12.1-17-04
(1995 Supp.); Ohio Sub. Senate Bill No. 239 (1996); PA Senate Bill No.
45 (1997); S.D Cod. Laws Ann 22-17-6 (1988); 22-16-1, 22-16-1.1, 22-16-
4, 22-16-15, 22-16-20, 22-16-41, read in conjunction with 22-1-2(31),
22-1-2(50A) (1996 Supp.); Utah Code Ann. 76-5-201 (1995). Prosecutions
under the Illinois law, without regard to time of gestation, are
common. See e.g., Steven J. Stark, ``Boyfriend, 21, is charged in
pregnant teen's slaying,'' Chicago Tribune, Sunday, March 8, 1998, sec.
4, p. 3, col. 5 (defendant charged with ``intentional homicide of an
unborn child'').
146. Cal. Pen Code 187(a) (1988). See People v. Davis, 7 Cal.4th
797, 30 Cal.Rptr.2d 50, 872 P.2d 591 (1994).
147. Fla. Stat. Ann. 782.09 (West 1992); Ga. Code Ann. 16-5-80, 40-
6-393.1 (Harrison 1994), 52-7-12.3 (Harrison 1996 Supp.); Mich. Comp.
Laws Ann. 750.322 (West 1991) (Larkin v. Cahalan, 389 Mich. 533, 208
N.W.2d 176 (1973)); Miss. Code Ann. 97-3-37 (1994); Nev. Rev. Stat.
200.210 (1995); Okla. Stat. Ann. tit. 21, 713 (West 1983); Wash. Rev.
Code Ann. 9A.32.060(1)(b) (1988); Wis. Rev. Stat. 940.04(2)(a) (West
1996).
148. Iowa Code Ann. 707.7 (West 1993) (as amended by H.F. 2109
(1996)); Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984),
Commonwealth v. Lawrence, 404 Mass. 378, 536 N.E.2d 571 (1989); State
v. Horne, 282 S.C. 444, 319 S.E.2d 7093 (1984); Tenn. Code Ann. 39-13-
201 (Michie 1991 & Supp. 1995); R.I. Gen. Laws 11-23-5 (Michie 1994).
149. People v. Davis, 7 Cal.4th 797, 30 Cal.Rptr.2d 50, 872 P.2d
591 (1994); Hughes v. State, 868 P.2d 730 (Okla. Crim. App. 1994);
Brinkley v. State, 253 Ga. 541, 322 S.E.2d 49 (1984); Smith v. Newsome,
815 F.2d 1386 (11th Cir. 1987); People v. Ford, 221 Ill.App.3d 354, 581
N.E.2d 1189 (1991); People v. Campos, 227 IllApp.3d 434, 592 N.E.2d 83
(1992); People v. Shum, 117 Ill.2d 317, 512 N.E.2d 1183 (1987), cert.
denied sub nom. Shurn v. Illinois, 484 U.S. 1079 (1988); State v.
Merrill, 450 N.W.2d 318 (Minn. 1990), cert. denied, 496 U.S 931 (1990);
State v. Bauer, 471 N.W.2d 363 (Minn.App. 1991); State v. Knapp, 843
S.W.2d 345 (Mo. 1992); State v. Black, 188 Wis.2d 639, 526 N.W.2d 132
(1994).
150. State v. Merrill, 450 N.W.2d 318 (Minn. 1990), cert. denied
sub. nom. Merrill v. Minnesota, 496 U.S 931 (1990).
151. See note 153 supra.
152. People v. Davis, 7 Cal. 4th 797, Cal. Rptr. 2d 50, 872 P. 2d
591 (1994).
153. See e.g., J.M. Tanner, Fetus into Man: Physical Growth from
Conception to Maturity (Harvard University Press 1978) (where
conception and fertilization are properly treated as equivalent, and
``true foetal age'' is counted as beginning with fertilization (p.38-
39)).
154. Ind. Code Ann. Sec. 35-42-1-3 through 35-42-1-6 (2000).
155. Paul Linton, 13 St. Louis U. Pub. L. Rev. at 120 (Appendix B,
collecting legislation and caselaw from 38 states). The exception to
this general trend has been state judicial decisions addressing the
status of human embryos in divorce proceedings. See Daniel Avila, The
Present Standing of the Human Embryo in United States Law, 1 Nat'l
Catholic Bioethics Q. 197 (2000) (forthcoming) (citing Davis v. Davis,
842 S.W.2d 588 (Tenn. 1992), cert. denied, 507 U.S. 911 (1993); Kass v.
Kass, 696 N.E.2d 174 (N.Y. 1998); A.Z. v. B.Z., 725 N.E.2d 1051 (Mass.
2000); J.B. v. M.B., 751 A.2d 613 (N.J.App. 2000), cert. granted, 760
A.2d 783 (N.J. 2000); Litowitz v. Litowitz, 10 P.3d 1086 (Wash.App.
2000)). However, these decisions have been decided upon contract, not
constitutional, principles (except for Davis) and have been decided in
the absence of legislation governing such decisions. State law, of
course, does not govern federal legislation.
156. Reprinted as Gilbert Meilaender, ``Begetting and Cloning,''
First Things 41, 43 (June/July 1997). See also Gilbert Meilaender,
Cloning in Protestant Perspective, 32 Val. U.L. Rev. 707 (1998).
157. Declaration of Helsinki, World Medical Association (1989),
reprinted in 5 Warren T. Reich, Encyclopedia of Bioethics 2766 (Rev.
ed. 1995). See also id at 2767 (``In research on man, the interest of
science and society should never take precedence over considerations
related to the well-being of the subject.''). See also Declaration of
Geneva, World Medical Association (1948) (``I will maintain the utmost
respect for human life from the time of conception.''), reprinted in 5
Warren T. Reich, Encyclopedia of Bioethics 2646-47 (Rev. ed. 1995).
158. James Watson, Moving Toward the Clonal Man, 227 The Atlantic
50, 53 (May, 1971).
Senator Brownback. Thank you, Mr. Forsythe. I appreciate
you coming forward and testifying. I believe you have a law
review article that was done on this point as well. What was
that law review article?
Mr. Forsythe. The Valparaiso Law Review article. It was
published in the 32 Valparaiso University Law Review 469 in
1998.
Senator Brownback. Very good. I look forward to talking
with you, too, about the legal issues with banning implantation
of a cloned entity as we go into questioning.
Dr. Jaenisch.
STATEMENT OF DR. RUDOLF JAENISCH, PROFESSOR OF BIOLOGY, MIT,
WHITEHEAD INSTITUTE (REPRESENTING THE AMERICAN SOCIETY FOR CELL
BIOLOGY)
Dr. Jaenisch. Thank you, Mr. Chairman, for allowing me to
testify today. My name is Rudolf Jaenisch. I am here today as a
representative of the American Society of Cell Biology. I am a
professor of biology at MIT and at the Whitehead Institute in
Boston, and a basic scientist with long-term interest in
understanding the mechanism of human development and, more
recently, to understand the problems of mammalian cloning. Why
do most clones act abnormal?
I want to emphasize, I do not work with human stem cells. I
do not intend to work with human stem cells in the future. I
only work with mice. I have no vested interest in this topic.
In March, I testified before the House Subcommittee on Human
Cloning Research. I emphasized there the scientific concerns of
human cloning. Animal research predicts that most human clones,
if they would ever be produced, would be not normal. Together
with the creator of Dolly, the sheep, we wrote an article in
Science where we outlined our concerns and summarized the
problems. I would like to submit this article for the record.
Senator Brownback. It will be in the record.
[The information referred to follows:]
Article Submitted by Rudolf Jaenisch and Ian Wilmut
Entitled ``Don't Clone Humans! ''
The successes in animal cloning suggest to some that the technology
has matured sufficiently to justify its application to human cloning.
An in vitro fertilization specialist and a reproductive physiologist
recently announced their intent to clone babies within a year's time
(1). There are many social and ethical reasons why we would never be in
favor of copying a person. However, our immediate concern is that this
proposal fails to take into account problems encountered in animal
cloning.
Since the birth of Dolly the sheep (2), successful cloning has been
reported in mice (3), cattle (4), goats (5), and pigs (6, 7), and
enough experience has accumulated to realize the risks. Animal cloning
is inefficient and is likely to remain so for the foreseeable future.
Cloning results in gestational or neonatal developmental failures. At
best, a few percent of the nuclear transfer embryos survive to birth
and, of those, many die within the perinatal period. There is no reason
to believe that the outcomes of attempted human cloning will be any
different. The few cloned ruminants that have survived to term and
appear normal are often oversized, a condition referred to as ``large
offspring syndrome'' (8). Far more common are more drastic defects that
occur during development. Placental malfunction is thought to be a
cause of the frequently observed embryonic death during gestation.
Newborn clones often display respiratory distress and circulatory
problems, the most common causes of neonatal death. Even apparently
healthy survivors may suffer from immune dysfunction, or kidney or
brain malformation, which can contribute to death later. So, if human
cloning is attempted, those embryos that do not die early may live to
become abnormal children and adults; both are troubling outcomes.
The fetal abnormalities and abnormalities in those few clones that
are born live are not readily traceable to the source of the donor
nuclei. The most likely explanation may be failures in genomic
reprogramming. Normal development depends upon a precise sequence of
changes in the configuration of the chromatin and in the methylation
state of the genomic DNA. These epigenetic alterations control tissue-
specific expression of genes. For cloning technology, the crucial
question is a simple one: Is the configuration of chromatin changes
acquired by a donor nucleus in the injected oocyte functionally
identical to that resulting from gametogenesis and fertilization?
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Epigenetic reprogramming is normally accomplished during
spermatogenesis and oogenesis, processes that in humans take months and
years, respectively. During nuclear cloning, the reprogramming of the
somatic donor nucleus must occur within minutes or, at most, hours
between the time that nuclear transfer is completed and the onset of
cleavage of the activated egg begins. Prenatal mortality of nuclear
clones could be due to inappropriate reprogramming, which could lead in
turn to dysregulation of gene expression. Some long-term postnatal
survivors are likely to have subtle epigenetic defects that are below
the threshold that threatens viability.
Circumstantial evidence begins to hint at defects in programming of
gene expression in cloned animals (9, 10). Expression of imprinted
genes was significantly altered when mouse or sheep embryos were
cultured in vitro before being implanted into the uterus (11, 12).
Thus, even minimal disturbance of the embryo's environment can lead to
epigenetic dysregulation of key developmental genes. Also, preliminary
observations suggest that widespread gene dysregulation in cloned mice
is associated with neonatal lethality (13).
There is every reason to think that the human cloning experiments
announced by P. Zavos and S. Antinori will have the same high failure
rates as laboratories have experienced when attempting animal cloning.
Zavos tried to reassure the public by saying that: ``We can grade
embryos. We can do genetic screening. We can do quality control.'' (1).
The implication is that they plan to use the methods of routine
prenatal diagnosis employed for the detection of chromosomal and other
genetic abnormalities. However, there are no methods available now or
in the foreseeable future to examine the overall epigenetic state of
the genome.
Public reaction to human cloning failures could hinder research in
embryonic stem cells for the repair of organs and tissues. Research is
being conducted into programming these cells to turn into specific
tissues types, which could (for example) be used to regenerate nerve
cells and those in the heart muscle, benefiting patients with
Parkinson's, Alzheimer's, and heart disease. The potential benefit of
this therapeutic cell cloning will be enormous, and this research
should not be associated with the human cloning activists.
We believe attempts to clone human beings at a time when the
scientific issues of nuclear cloning have not been clarified are
dangerous and irresponsible. In the United States, the National
Bioethics Advisory Commission (14) reached that conclusion 5 years ago,
``At present, the use of this technique to create a child would be a
premature experiment that would expose the fetus and the developing
child to unacceptable risks.'' All the data collected subsequently
reinforce this point of view.
References and Notes
1. A. Stern, Boston Globe, 27 January 2001, p. A7
2. I. Wilmut et al., Nature 385, 810 (1997).
3. T. Wakayama et al., Nature 394, 369 (1998).
4. Y. Kato et al., Science 282, 2095 (1998).
5. A. Baguisi et al., Nature Biotechnol. 17, 456 (1999).
6. I. Polejaeva et al., Nature 407, 86 (2000).
7. A. Onishi et al., Science 289, 1188 (2000).
8. L. E. Young et al., Rev. Reprod. 3, 155 (1998).
9. P. De Sousa et al., Cloning 1, 63 (1999).
10. R. Daniels et al., Biol. Reprod. 63, 1034 (2000).
11. S. Khosla et al., Biol. Reprod. 64, 918 (2001).
12. L. E. Young et al., Nature Genet. 27, 153 (2001).
13. R. Jaenisch et al., unpublished observations.
14. NBAC, Executive Summary, Cloning Human Beings http://
bioethics.gov/pubs.html p. ii (June 1997).
15. We thank R. Weinberg, G. Fink, D. Page, A. Chess, W. Rideout,
L. Young, H. Griffin, and L. Paterson.
Dr. Jaenisch. A major concern for us was that the
irresponsible proposals of cloning activists to propose human
cloning may lead to an unfortunate confusion in public opinion
with very valuable research. We were worried that reproductive
cloning, what these cloning activists propose, would be mixed
up with serious and beneficial research on embryonic stem cells
and then stop therapeutic cloning. This is the topic I want to
address.
Since I am the only scientist on this panel, I think I
would like to clarify the scientific issues here, so I would
sharply differentiate between reproductive cloning and
therapeutic cloning. In reproductive cloning, the intent is to
create a new human being. There are not only scientific
problems, but there are serious ethical and social problems,
and they have been addressed.
In therapeutic cloning, the intent is to generate cells for
transplantation, not to create a human being It never involves
transfer of the embryo into the uterus of a woman. It involves
the transfer of a somatic nucleus into the egg, with the intent
to generate in a culture an embryonic stem cell line which
could be the source for tissue repair of any cell of the body
of the patient.
I disagree with Representative Weldon. The ES (Embryonic
Stem) cells do not have the potential to become, ever, a human
being. They are exclusively created for the benefit of the
donor person, not for the benefit of other people.
So my stand is very clear. I am opposed to human
reproductive cloning, even if it was safe, but I believe it
would be very unfortunate if the door was closed to therapeutic
cloning, which has potentially great benefits, and this is
outlined in the Science paper I submitted. I do not want to
further waste words on reproductive cloning.
So, what are embryonic stem cells, what is their promise,
and what are the alternatives? Somatic stem cells, or adult
stem cells, I believe will be a major topic today. So I would
like to differentiate and define those two approaches.
Embryonic stem cells are the only truly pluripotent stem cells
that can develop into any tissue type.
Most importantly, and I want to reemphasize this point,
embryonic stem cells have unlimited number of divisions. They
are immortal. It is easy to generate kilograms of cells derived
from an embryonic stem cell if so desired.
Adult stem cells, or somatic stem cells, is a recent very
exciting area of research. The unexpected finding is that some
cells, even the adult, have the potential to differentiate into
mature, functional cells. The question is, I think, and this
has been raised before, is this an alternative to using
embryonic stem cells for transplantation medicine?
Now, let me point out a few problems with the adult stem
cells. Many of their properties are not known. For example,
these cells are not defined. They are a rare population and we
do not know how to define them. They cannot grow in vitro, in
culture; the problem is, they stop dividing, they lack the
potential for differentiation in a defined way. These are a few
of the problems which we encountered, and there is a serious
lack of understanding of the biology of this interesting
population of cells. Extensive research is needed to create the
foundation for their medical use.
Let me compare this situation with embryonic stem cells.
After two decades of research on embryonic stem cells, we know
we can create specific, differentiated derivatives of these
embryonic stem cells. We know it works. One of the most
exciting experiments was published last week in Science
Magazine, where a group from NIH reported generation of a mini
organ in the culture dish of a pancreas, of islet cells which
showed that it functions properly upon physiological stimuli--
glucose--to secrete insulin. These cells are the ones that are
defective in diabetic patients.
Embryonic stem cells have been shown to generate
efficiently functional dopaminergic cells, neurons, which are
defective in Parkinson's patients, and stem cells very
efficiently generate cardiac muscle cells, which I think is
very important.
So at this point I think the most promising progress of
generating insulin-producing cells, or cells treating
Parkinson's, are really the embryonic stem cells. The somatic
stem cells are much less defined at this point. There are
serious problems which we have not solved yet. One of the most
important problems: they stop dividing in culture. Adult neural
stem cells, for example, stop dividing after 1 week in culture.
Only fetal somatic stem cells divide longer, which, of
course, are not useful for this type of problem we are
discussing. There is no evidence that somatic stem cells can
grow long-term and give rise to useful cell types for clinical
applications, and it is very difficult to predict the progress
of science. It is safe to state, however, that the embryonic
stem cell approach is predictable, and it will work. It may be
in the clinic in 2, 3, or 4 years.
In contrast, for somatic stem cells, we do not understand
many of the basic biological parameters. This approach, if it
works at all, may be in clinical use in 5, 8, 10, 15 years. I
do not volunteer to predict. This is the main question you, as
U.S. legislators, have to struggle with: do we want to close
the door to the most advanced and promising research and deny
many patients who suffer from these diseases we mentioned a
predictable route for potential cure, which will be available
soon?
Let me make a final point, and this is the economical
implications. This research is not only of high medical
relevance, but it has enormous economic implications. It will
go on in other countries like Great Britain and Japan and other
European countries, regardless of what is decided in this
country. They will reap the benefits of the research. The U.S.
will be left behind.
I want to give you an example. The example is Germany. I
grew up in Germany, so I am very familiar with Germany. When in
the seventies molecular cloning came on line, Germany decided
to ban molecular cloning. The U.S., very wisely, allowed in a
controlled way for this research to go on. The result is clear.
The biotech industry in the U.S. is the most advanced in the
world. Germany still struggles to recover from its former
political decision.
So my question is, do you really want a situation when in 2
or 3 years a patient suffering from Parkinson's or diabetes in
Great Britain would have available to him the most advanced
technology and therapeutic intervention to cure his disease,
but the same patient living in this country would be denied
that therapy and might have to be consoled by the fact that it
might be available in 10 or 15 years? I think this is a serious
ethical dilemma which you are facing here. The American Society
of Cell Biology and all serious colleagues I know urge you, if
legislation is needed, you should specifically direct this
legislation to reproductive cloning.
I believe reproductive cloning should not be allowed, even
if it was safe, although I recognize there are other people who
think differently. However, any legislation should not impede
or interfere with the exciting recent and potentially very
important developments for preventing and curing human disease.
If we prevent this research, we will probably regret this in
the years to come, as Germany does now regret its former policy
toward molecular cloning. It is very difficult to catch up.
Thank you very much for giving me the opportunity to talk
to you.
[The prepared statement of Dr. Jaenisch follows:]
Prepared Statement of Rudolf Jaenisch, M.D., Professor of Biology, MIT,
Whitehead Institute (Representing the American Society For Cell
Biology)
Mr. Chairman and members of the Subcommittee, I am Rudolf Jaenisch
and I am here today as a representative of the American Society For
Cell Biology. The Society represents more than 10,000 basic biomedical
researchers throughout the United States and the world, most of whom
work in our Nation's leading research universities and institutes. It
is my pleasure to appear before you today.
I am a founding Member of the Whitehead Institute and Professor of
Biology at MIT. Before coming the Whitehead Institute I was the head of
the Department of Tumor Virology at the Heinrich Pette Institute of the
University of Hamburg in Germany. I am privileged to have helped
establish the field of transgenic science. Transgenic science deals
with the transfer of genes to create mouse models of human disease.
On March 28, I testified before the House Subcommittee on Oversight
and Investigations at a hearing entitled ``Issues Raised by Human
Cloning Research.'' There I emphasized the scientific concerns of human
cloning that have resulted from the problems encountered in animal
cloning. Our experience with animal cloning allows us to predict with a
high degree of confidence that few cloned humans will survive to birth
and, of those, the majority will be abnormal. The most likely cause of
abnormal clone development is faulty reprogramming of the genome. This
may lead to abnormal gene expression of any of the 30,000 genes
residing in the animal. Faulty reprogramming does not lead to
chromosomal or genetic alterations of the genome, so methods that are
used in routine prenatal screening to detect chromosomal or genetic
abnormalities in a fetus cannot detect these reprogramming errors.
There are no available methods now or in the foreseeable to future to
assess whether the genome of cloned embryo has been correctly
reprogrammed. The ASCB stated in 1998 its clear opposition to the
cloning of a human being and remains a steadfast opponent today.
There is, however a critical distinction between the cloning of a
human being--which is both morally questionable and scientifically
dangerous--and the therapeutic cloning of cells for the purpose of
developing tissue that may ultimately allow defective cells in people
to be replaced by healthy cells. The Human Cloning Prohibition Act of
2001 prohibits the use of somatic cell nuclear transfer for the
purposes of human cloning. This undoubtedly intended to prevent the
cloning of a human being, but it also, perhaps inadvertently, would
tragically limit biomedical research. Therapeutic cloning has the
capability to turn human cells into specific tissue types, for example,
to regenerate nerve cells and heart muscle cells, benefiting patients
with Parkinson's, Alzheimer and heart disease. The potential benefits
of therapeutic cell cloning are indisputable--the only uncertainty is
when they will be realized.
Public reaction to animal cloning and the disreputable threats of
human cloning are in grave danger of hindering critical research in
embryonic stem cells for the repair of organs and tissues. Just over a
year ago, a milestone in biomedical research was achieved when human
embryonic stem lines were obtained by growing cells from the inner cell
mass of early stage human embryos. Research work over the past 20 years
using mouse embryonic stem cells has demonstrated the promise of these
cells for basic research and potential disease therapy. ES cells by
themselves cannot form a mouse, but they can differentiate into any of
the cell types that comprise a mouse. Mouse ES cells have been used to
elucidate many important aspects of normal mouse embryology and
development, but, most important, mouse ES cells are currently being
used in a variety of ``proof of therapeutic principle'' experiments in
several animal models of human disease. For example, these cells appear
to be able to produce neural progenitors that can repair spinal cord
damage and reconstitute brain cells that produce the chemicals that
control cognition, motion and sensory perception. If reproducible with
human ES cells, this could lead to effective treatment of Parkinson's
disease and Alzheimer's disease. Similarly, the production of healthy
bone marrow cells to treat cancer and other hematopoietic diseases, and
pancreatic cells to alleviate diabetes are all within reach, so long as
well-intentioned efforts to prevent the cloning of human beings--
living, talking, feeling, walking around human beings--do not have
unintentionally interfere.
We may be on the cusp of a new era of medicine, one in which cell
therapy could restore normal function to a variety of affected tissues
using stem cells. To understand the need for rapid research progress
with human pluripotent stem cells, one need look no further than many
common, and often fatal, diseases such as cancer, heart disease and
kidney disease. These diseases are treatable in whole or in part by
tissue or organ transplants, but there are persistent and deadly
problems of rejection and a woefully inadequate supply of suitable
donor organs and tissues. In addition, the grim arithmetic of most
organ transplants requires those who are seriously ill to wait for the
tragic accidental death of another person so that they may live. Worse,
for juvenile diabetes and many other diseases, there is not even a
suitable transplantation therapy or other cure. Unless we use federal
funds for all aspects of human pluripotent stem cell research new
treatments for these conditions may be delayed by years, and many who
might otherwise have been saved will surely die or endure needless
suffering.
Cloning is an extremely complex area of biology in which the
process itself is only now beginning to be understood. It is premature
to ban a technique that is still in the process of evolving. At no
point in our nation's history has Congress banned an area of scientific
exploration or technology by federal legislation. We were at a similar
crossroads 25 years ago with recombinant DNA technology, which indeed,
as predicted, revolutionized science by spawning biotechnology and all
of its medical and economic returns to this country. There is
widespread support of the National Bioethics Advisory Commission's call
for a voluntary international moratorium on human nuclear transfer for
the purpose of creating a new human being. In addition, the Food and
Drug Administration has specifically claimed that clinical research
using cloning technology to create a human being is subject to FDA
regulation under the Public Health Service Act and the Federal Food,
Drug and Cosmetic Act. The ASCB urges that if legislation is needed, it
should specifically be concerned with the reproduction of a human being
by nuclear transfer. At the same time, any legislation should not
impede or interfere with existing and potential critical research
fundamental to the prevention or cure of human disease. This research
often includes the cloning of human and animal cell lines and DNA, but
not whole human beings.
Thank you for the opportunity to provide testimony on this
important issue.
Senator Brownback. Thank you, Dr. Jaenisch. I might point
out to you that in the bill, I do not know if you had a chance
to look at this section in the bill, but the bill does not
prevent the cloning of tissue. What the bill prevents is the
cloning of a full human embryo. Let me just read this section
to you. I want to make sure you are aware of it. This is a
quote from the bill:
``Nothing in this section shall restrict areas of scientific
research not specifically prohibited by this section, including
research in the use of nuclear transfer or other cloning
techniques to produce molecules, DNA, cells other than human
embryos, tissues, organs, plants or animals, other than
humans.''
So the prevention, the ban in the bill is on the cloning of
a human--the cloning of a human embryo. So I do not know if we
are talking past each other on this, but that is the specific
language that is in the bill.
Dr. Jaenisch. But what I tried to argue is that the so-
called therapeutic cloning, which involves the somatic transfer
of a somatic cell into the egg, the nucleus being from the
patient, would be used to derive an embryonic stem cell, which
is totally compatible with this patient, and that can be used
for transplantation. This would not be possible with another
embryonic stem cell which is derived from some other embryo,
from in vitro fertilization. I think this is a very important
difference.
Senator Brownback. I look forward to pursuing this with you
in questioning to make sure I understand what you are talking
about, and if it is covered here or not. Thank you for being
here.
Dr. Kass, thank you for coming.
STATEMENT OF DR. LEON R. KASS, Ph.D., ADDIE CLARK HARDING
PROFESSOR, COMMITTEE ON SOCIAL THOUGHT, UNIVERSITY OF CHICAGO
Dr. Kass. Thank you very much, Mr. Chairman. My name is
Leon Kass. I am a professor at the University of Chicago. I was
originally trained in medicine and biochemistry. I have been
for 30 years professionally concerned with the ethical
implications of biomedical advance, and I cut my teeth on this
subject of human cloning in 1967.
I am profoundly grateful to you, Senator Brownback, for
your vision in recognizing the momentous choice that is now
before us, and for your courage in stepping up to steer us away
from what is surely a very great danger to the future of our
humanity.
I am here to testify in favor of the Human Cloning
Prohibition Act, because I believe that efforts to clone a
human being constitute unethical experiments on the child-to-
be, indeed, represent a radical form of child abuse. I also
oppose this practice because it represents a giant step toward
turning procreation into manufacture, leading to (and certainly
legitimating in advance) the eugenic redesigning of our
children according to our specifications. This is a fork in the
road, and down one path is the Brave New World.
As you pointed out, Mr. Chairman, the overwhelming majority
of the American people are opposed to cloning human beings, to
the reproductive cloning of human beings. I believe a majority
of Members of Congress are also opposed to this practice. But
it is not enough to be opposed to it, for if we do nothing
about it, we shall have it, and we shall have it soon. By our
silence we will have said ``yes'' to it, when it comes along in
the very near future. And if we try to go about stopping it in
the wrong way, we shall also have it.
I have submitted lengthy written testimony, the argument of
which boils down to this. The situation is urgent. Even as we
speak, reputable scientists whose names we know are engaged in
the practice of trying for the first time to bring a human
child into being through the process of cloning.
Second--and others have already alluded to this--the
consequences of doing so are grave. This is a fork in the road.
Once we take it, there will be no turning back, for we will
have established a principle that it is OK to choose in advance
what kind of a child our children will be. Therefore, if we do
not want to go down this road, an effective ban is needed, and
needed now, before we are overtaken by events. That leaves us
with the question: What, then, is the most effective way to ban
reproductive human cloning?
Two legislative bans competed with each other the last time
Congress took up this issue in 1998. One bill would have banned
only so-called reproductive cloning by prohibiting the transfer
of a cloned embryo to a woman to initiate a pregnancy. The
other bill would have banned all cloning by prohibiting the
creation, even, of the embryonic human clones.
Both sides oppose reproductive cloning, but because of the
divide over the question of embryo research we got no ban at
all. It would be tragic if we again failed to produce an
effective ban on cloning, cloning human beings, especially now
that certain people are going ahead with it, and defying us to
try to stop them.
A few years ago, I was looking for a middle way between the
two alternatives that we had last time, but I am now convinced
we need an all-out ban on human cloning, including the creation
of the embryonic clones. Anyone truly serious about preventing
human reproductive cloning must seek to stop the process from
the beginning, and I am convinced that no other approach will
work, and here is why.
In a word, a ban on only reproductive cloning will turn out
to be unenforceable. Once cloned embryos are produced and
available in laboratories and assisted reproduction centers, it
will be virtually impossible to control what is done with them.
Biotechnical experiments take place in laboratories hidden from
public view, and huge stockpiles of cloned human embryos could
then be produced and bought and sold without anybody's knowing
about it.
As we have seen with in vitro embryos created to treat
infertility, embryos produced for one reason can be used for
any reason. Today, spare embryos once created to begin a
pregnancy are now used in research. Tomorrow, clones created
for research will be used to begin a pregnancy.
Assisted reproduction takes place in the privacy of a
doctor-patient relationship, making outside scrutiny extremely
difficult. Many infertility experts will probably obey a ban on
reproductive cloning, but others can and will defy it with
impunity, their doings covered by the veil of secrecy that is
the principle of medical confidentiality. Even should the
illegal deed become known, governmental attempts to enforce the
reproductive ban would run into a swarm of moral and legal
challenges, both to any efforts aimed at preventing transfer to
the woman and, even worse, to efforts seeking to prevent birth
after the transfer has occurred.
Consider, a woman who wished to receive the embryonic clone
would no doubt seek a judicial restraining order, suing to have
the law overturned in the name of a constitutionally protected
liberty interest in her own reproductive choice to clone. And
should an ``illicit clonal pregnancy'' be discovered, no
Government agency is going to compel a woman to abort the
clone, and there would be an understandable swarm of protest
should she be fined or jailed after she gives birth. I predict
there would even be sentimental opposition to punishing the
doctor for violating the law once the clone is born, unless, of
course, it turns out to be severely abnormal.
For all these reasons, the only practically effective and
legally sound approach is to block human cloning at the start,
at the production of the embryonic clone. Such a ban can be
rightly characterized not as interference with reproductive
freedom, nor even as an interference with scientific inquiry,
but as an attempt to prevent the unhealthy, unsavory, and
unwelcome manufacture of and traffic in human clones.
This bill that you have introduced, Mr. Chairman, is in my
view extremely carefully drafted, and it provides substantial
criminal and monetary penalties for violating the law, shifting
the incentives against the current renegades who want to
proceed. And as you have pointed out, the bill makes very clear
that there is to be no interference with the scientifically and
medically useful practices of cloning DNA fragments, the
duplication of somatic cells, or stem cells and tissue culture,
et cetera.
If enacted, by the way, this bill would bring the United
States into line with the already and soon-to-be-enacted
practices of many other nations, and, I repeat, it offers us
the best and, I think, the only realistic chance we have of
keeping human cloning from happening, or happening much.
The issue of cloning is most emphatically not an issue of
pro-life versus pro-choice. It is not mainly about death and
destruction, and it is not about a woman's right to choose. It
is only and emphatically about baby design and manufacture, the
opening skirmish of a long battle against eugenics and against
the post human future. It is an issue that should not divide
what is usually called the left and the right. It is an issue
that should unite everyone interested in keeping human
procreation human.
Everyone needs to understand that, whatever they may think
about the moral status of embryos, once embryonic clones are
produced in laboratories, yes, for their stem cells, the
eugenic revolution will have begun, and we will have lost our
best chance to do anything about it.
The present danger posed by human cloning is,
paradoxically, also a golden opportunity. In a truly
unprecedented way, we can strike a blow for the human control
of the technological project, for wisdom, for prudence, and for
human dignity. The prospect of cloning, so repulsive to
contemplate, is the occasion for deciding whether we shall be
slaves of unregulated innovation and, ultimately, its
artifacts, or whether we shall remain free human beings who
guide our medical powers toward the enhancement of human
dignity. The preservation of the humanity of the human future
is in our hands, and we must seize this occasion.
Thank you.
[The prepared statement of Dr. Kass follows:]
Prepared Statement of Leon R. Kass, M.D., Ph.D., Addie Clark Harding
Professor, University of Chicago
Senator Brownback and Members of the Committee. My name is Leon
Kass, and I am the Addie Clark Harding Professor in the Committee on
Social Thought and the College at the University of Chicago. Originally
trained both as a physician and a biochemist, I have for more than
thirty years been professionally concerned with the social and ethical
implications of biomedical advance. In fact, my first writing on this
subject was in 1967 on the dangers of human cloning. I am therefore
very grateful for the opportunity to testify before this Committee in
support of the bill to prohibit human cloning. And I profoundly
grateful to you, Senator Brownback, for your vision in recognizing the
momentous choice that is now before us and for your courage in stepping
up to steer us away from what is surely a very great danger to the
future of our humanity.
My testimony in support of this bill is in the form of an essay
written precisely to gain support for such a bill. (The essay will
appear soon in The New Republic.) I begin by calling attention to what
is humanly at stake in the decision about human cloning and also to the
fact that we have here a golden opportunity to exercise deliberate
human command over where biotechnology may be taking us. I next present
four arguments against reproductive cloning of human beings: (1) it
constitutes unethical experimentation; (2) it threatens identity and
individuality; (3) it turns procreation into manufacture (especially
when understood as the harbinger of manipulations to come); and (4) it
means despotism over children and perversion of parenthood. I conclude
by arguing, on multiple grounds, that the only effective way to prevent
reproductive cloning is to stop the process at the start, at the stage
of creating the embryonic clones, just as is provided for in the
present bill, and I show the weaknesses of the other widely discussed
alternative. I heartily endorse this bill not only because it offers
our only real hope of preventing the cloning of human beings, but also
because it will give us for the first time some control over those
biotechnological powers that threaten to bring about a ``post-human''
future.
Here is the essay, in full.
preventing a brave new world: why we should ban human cloning now
The urgency of the great political struggles of the twentieth
century, successfully waged against totalitarianisms first right and
then left, seems to have blinded many people to a deeper and ultimately
darker truth about the present age: all contemporary societies are
travelling briskly in the same utopian direction. All are wedded to the
modern technological project; all march eagerly to the drums of
progress and fly proudly the banner of modern science; all sing loudly
the Baconian anthem, ``Conquer nature, relieve man's estate.'' Leading
the triumphal procession is modern medicine, becoming daily ever more
powerful in its battle against disease, decay, and death thanks
especially to astonishing achievements in biomedical science and
technology--achievements for which we must surely be grateful.
Yet contemplating present and projected advances in genetic and
reproductive technologies, in neuroscience and psychopharmacology, and
in the development of artificial organs and computer-chip implants for
human brains, we now clearly recognize new uses for biotechnical power
that soar beyond the traditional medical goals of healing disease and
relieving suffering. Human nature itself lies on the operating table,
ready for alteration, eugenic and psychic ``enhancement,'' and
wholesale redesign. In leading laboratories, academic and industrial,
new creators are confidently amassing their powers and quietly honing
their skills, while on the street their evangelists are zealously
prophesying a post-human future. For anyone who cares about preserving
our humanity, it is time to pay attention.
Some transforming powers are already here. The pill. In vitro
fertilization. Bottled embryos. Surrogate wombs. Cloning. Genetic
screening. Genetic manipulation. Organ harvests. Mechanical spare
parts. Chimeras. Brain implants. Ritalin for the young, Viagra for the
old, and Prozac for everyone. And, to leave this vale of tears, a
little extra morphine accompanied by Muzak.
Years ago Aldous Huxley saw it coming. In his charming but
disturbing novel, Brave New World (published in 1932, yet more powerful
on each re-reading), he made its meaning strikingly visible for all to
see. Unlike other frightening futuristic novels of the past century,
such as Orwell's already dated Nineteen Eighty-four, Huxley shows us a
dystopia that goes with, rather than against, the human grain--indeed,
it is animated by our own most humane and progressive aspirations.
Following those aspirations to their ultimate realization, Huxley
enables us to recognize those less obvious but often more pernicious
evils that are inextricably linked to successful attainment of partial
goods.
Huxley paints human life seven centuries hence, living under the
gentle hand of humanitarianism rendered fully competent by genetic
manipulation, psychoactive drugs, hypnopaedeia, and high-tech
amusements. At long last, mankind has succeeded in eliminating disease,
aggression, war, anxiety, suffering, guilt, envy, and grief. But this
victory comes at the heavy price of homogenization, mediocrity, trivial
pursuits, shallow attachments, debased tastes, spurious contentment,
and souls without loves or longings. The Brave New World has achieved
prosperity, community, stability, and nigh-universal contentment, only
to be peopled by creatures of human shape but of stunted humanity. They
consume, fornicate, take ``soma,'' enjoy ``centrifugal bumble-puppy,''
and operate the machinery that makes it all possible. They do not read,
write, think, love, or govern themselves. Art and science, virtue and
religion, family and friendship are all passe. What matters most is
bodily health and immediate gratification: ``Never put off till
tomorrow the fun you can have today.'' Brave new man is so dehumanized
that he does not even recognize what has been lost.
Huxley's novel is, of course, science fiction. Prozac is not yet
Huxley's soma; cloning by nuclear transfer or splitting embryos is not
exactly Bokanovskification; MTV and virtual-reality parlors are not
quite the ``feelies''; and our current safe-and-consequenceless sexual
practices are not universally as loveless or as empty as in the novel.
But the kinships are disquieting, all the more so since our
technologies of bio-psycho-engineering are still in their infancy--yet
in ways that make all too clear what they might look like in their full
maturity. Indeed, the cultural changes technology has already wrought
among us should make us even more worried than Huxley would have us be.
In Huxley's novel, everything proceeds under the direction of an
omnipotent--albeit benevolent--world state. But the dehumanization he
portrays does not really require despotism or external control. To the
contrary, precisely because the society of the future will deliver
exactly what we most want--health, safety, comfort, plenty, pleasure,
peace of mind and length of days--we can reach the same humanly debased
condition solely on the basis of free human choice. No need for World
Controllers. Just give us the technological imperative, liberal
democratic society, compassionate humanitarianism, moral pluralism, and
free markets and we can take ourselves to Brave New World all by
ourselves--and, what is most distressing, without even deliberately
deciding to go. In case you hadn't noticed, the train has left the
station and is gathering speed, but no one seems to be in charge.
Some among us are, of course, delighted by this state of affairs:
some scientists and biotechnologists, their entrepreneurial backers,
and a cheering claque of sci-fi enthusiasts, futurologists, and
libertarians. There are dreams to be realized, powers to be exercised,
honors to be won, and money--big money--to be made. But most of us are
worried, and not, as the proponents self-servingly claim, because we
are either ignorant of science or afraid of the unknown. To the
contrary, we can see all too clearly where the train is headed, and we
do not like the destination. We can distinguish mere cleverness about
means from wisdom about ends, and we are loath to entrust the future of
the race to those who can't tell the difference. No friend of humanity
cheers for a post-human future.
Yet for all our disquiet, we have until now done nothing to prevent
it. We either hide our heads in the sand because we enjoy the blessings
medicine keeps supplying, or we rationalize our inaction by declaring
that human engineering is inevitable and we can do nothing about it. In
either case, we are complicit in preparing for our own degradation, in
some respects more to blame than the biozealots who, however misguided,
are putting their money where their mouth is. Denial and despair,
unattractive outlooks in any situation, become morally reprehensible
when circumstances summon us to keep the world safe for human
flourishing. Our immediate ancestors, taking up the challenge of their
time, rose to the occasion and rescued the human future from the cruel
dehumanizations of Nazi and Soviet tyranny. It is our more difficult
task to find ways to preserve it from the soft dehumanizations of well-
meaning but hubristic bio-technical ``re-creationism''--and to do it,
of course, without undermining biomedical science or rejecting its
genuine contributions to human welfare.
impediments to exercising responsibility
Truth to tell, it will not be easy for us to do so, and we know it.
But rising to the challenge requires recognizing the difficulties. For
there are indeed many features of modern life that will conspire to
frustrate efforts aimed at the human control of the biomedical project.
First, we Americans believe in technological automatism: where we do
not foolishly believe that all innovation is progress, we
fatalistically believe that it is inevitable (``if it can be done, it
will be done, like it or not''). Second, we believe in freedom: freedom
of scientists to inquire, technologists to develop, and entrepreneurs
to invest and profit, and freedom of private citizens to make use of
existing technologies to satisfy any and all personal desires,
including the desire to reproduce by whatever means. Third, the
biomedical enterprise occupies the moral high ground of compassionate
humanitarianism, upholding the supreme values of modern life--cure
disease, prolong life, relieve suffering--in competition with which
other moral goods rarely stand a chance. (``What the public wants is
not to be sick,'' says James (DNA) Watson, ``and if we help them not to
be sick, they'll be on our side.'') Fourth, regarding other moral
goods, our cultural pluralism and easy-going relativism make it
difficult to reach consensus on what we should embrace and what we
should oppose: moral objections to this or that biomedical practice are
often facilely dismissed as religious or sectarian. Many people are
unwilling to pronounce judgments about what is good or bad, right and
wrong, even in matters of great importance, even for themselves, never
mind for others or society as a whole. Fifth, the biomedical project is
now deeply entangled with commerce: there are increasingly powerful
economic interests in favor of going full steam ahead, and no economic
interests in favor of going slow. Sixth, because we live in a
democracy, we face political difficulties in gaining a consensus to
direct our future, and we have almost no political experience in trying
to curtail the development of any new biomedical technology. Finally,
and perhaps most troubling, our views of the meaning of our humanity
have been so transformed by the scientific-technological approach to
the world that we are in danger of forgetting what we have to lose,
humanly speaking.
But though the difficulties are real, our situation today is far
from hopeless. Regarding each of the aforementioned impediments, there
is another side to the story. Though we love our gadgets and believe in
progress, we have lost our innocence regarding technology. The
environmental movement especially has alerted us to unintended damage
caused by unregulated technological advance and has taught us how
certain dangerous practices can be curbed. Though we favor freedom of
inquiry, we recognize that experiments are deeds not speeches, and we
prohibit experimentation on human subjects without their consent, even
when cures from disease might be had by unfettered research. And we
limit so-called reproductive freedom by proscribing incest, polygamy,
and the buying and selling of babies. Although we esteem medical
progress, biomedical institutions have ethics committees that judge
research proposals on moral grounds, and, when necessary, uphold the
primacy of human freedom and dignity even over scientific discovery.
Notwithstanding our moral pluralism, national commissions and review
bodies have sometimes reached moral consensus to recommend limits on
permissible scientific research and technological application. On the
economic front, the patenting of genes and life forms and the rapid
rise of genomic commerce have elicited strong concerns and criticisms,
leading even former enthusiasts for the new biology to recoil from the
impending commodification of human life. Though we lack political
institutions experienced in setting limits on biomedical innovation,
federal agencies years ago rejected the development of the plutonium-
powered artificial heart, and we have nationally prohibited commercial
traffic in organs for transplantation, even though a market would
increase the needed supply. In recent years, several American states
and many foreign countries have successfully taken political action,
making certain practices illegal and placing others under moratoria
(e.g., creation of human embryos solely for research; human germline
genetic alteration). Finally, most of us are not yet so degraded or
cynical as to fail to be revolted by the society depicted in Huxley's
novel. Though the obstacles to effective action are significant, they
offer no excuse for resignation. Besides, it would be disgraceful to
concede defeat even before we enter the fray.
Not the least of our difficulties in trying to exercise control
over where biology is taking us is the fact that we do not get to
decide, once and for all, for or against the destination of a post-
human world. The scientific discoveries and technical powers that will
take us there come to us piecemeal, one at a time and seemingly
independent from one another, each often attractively introduced as a
measure that will ``help us not to be sick.'' But sometimes we come to
a clear fork in the road where decision is possible and where we know
that the decision we make will make a world of difference, indeed, will
make a permanently different world. Fortunately, we stand now at the
point of such a momentous decision. Events have conspired to provide us
with a perfect opportunity to seize the initiative and to gain some
control of the biotechnical project. I refer to the prospect of human
cloning, a practice absolutely central to Huxley's fictional world.
Indeed, creating and manipulating life in the laboratory is the gateway
to the Brave New World, not only in fiction but also in fact.
cloning: a perfect opportunity for responsibility
``To clone or not to clone a human being'' is no longer a fanciful
question. Success in cloning first sheep, then also cows, mice, pigs,
and goats, make it perfectly clear that a fateful decision is now at
hand: whether we should welcome or even tolerate the cloning of human
beings. If recent newspaper reports are to be believed, reputable
scientists and physicians have announced their intention to produce the
first human clone in the coming year, and efforts may already be
underway as you read.
The media, gawking and titillating as is their wont, have been
softening us up for this possibility, by turning the bizarre into the
familiar. In the four years since the birth of Dolly the cloned sheep,
the tone of discussing the prospect of human cloning has gone from
``Yuk,'' through ``Oh?'' and ``Gee whiz,'' to ``Why not?'' The
sentimentalizers, aided by leading bioethicists, have downplayed talk
about eugenically cloning the beautiful and the brawny or the best and
the brightest. They have taken instead to defending clonal reproduction
for humanitarian or compassionate reasons: to treat infertility in
people who are said to ``have no other choice,'' to avoid the risk of
severe genetic disease, to ``replace'' a child who has died. For the
sake of these rare benefits, they would have us countenance the entire
practice of human cloning, the consequences be damned.
But we dare not be complacent about what is at issue, for the
stakes are very high indeed. Human cloning, though partly continuous
with previous reproductive technologies, is also something radically
new, both in itself and in its easily foreseeable consequences--
especially when coupled to powers for genetic ``enhancement'' and germ-
line genetic modification that may soon become available, thanks to the
recently completed Human Genome Project. I exaggerate, but in the
direction of the truth: we are compelled to decide nothing less than
whether human procreation is going to remain human, whether children
are going to be made-to-order rather than begotten, and whether we wish
to say yes in principle to the road that leads to the dehumanized hell
of Brave New World.
Four years ago, I addressed this subject in these pages, defending
and trying to articulate the moral grounds of our repugnance at the
prospect of human cloning (``The Wisdom of Repugnance,'' TNR, June 2,
1997; see also Leon R. Kass and James Q. Wilson, The Ethics of Human
Cloning, 1998). Though I will (without apology) revisit some of my
former arguments--events since then have only strengthened my
conviction that cloning is a bad idea whose time should not come--my
emphasis this time is more practical. To be sure, I would still like to
persuade undecided readers that cloning is a serious evil, both in
itself and in what it leads to. But I am more interested in encouraging
those who oppose human cloning but who think we are impotent to prevent
it; and I hope to mobilize them to support new and solid legislative
efforts to stop it. In addition, I want readers who may worry less
about cloning and more about impending prospects of germline genetic
manipulation or other eugenic practices to realize the unique practical
opportunity now available to us.
For we have here a golden opportunity to exercise some control over
where biology is taking us. Cloning technology is discrete and well-
defined, and requires considerable technical know-how and dexterity; we
can therefore know by name many of the likely practitioners. The public
demand for cloning is extremely low; most people are decidedly against
it; nothing scientifically or medically important would be lost by
banning clonal reproduction; alternative and non-objectionable means
are available to obtain some of the most important medical benefits
claimed for (non-reproductive) human cloning; commercial interests in
human cloning are, for now, quite limited; and the nations of the world
are actively seeking to prevent it. Now may be as good a chance as we
will ever have to get our hands on the wheel of the runaway train now
headed for a post-human world and to steer it toward a more dignified
human future.
Before making my case, that we might proceed on common ground, I
offer a brief synopsis of the state of the art.
what's wrong with cloning?
What is cloning? Cloning, or asexual reproduction, is the
production of individuals who are genetically identical to an already
existing individual. The procedure's name is fancy--somatic cell
nuclear transfer--but its concept is simple. Take a mature but
unfertilized egg; remove or inactivate its nucleus; introduce a nucleus
obtained from a specialized (i.e., somatic) cell of an adult organism.
Once the egg begins to divide, transfer the little embryo to a woman's
uterus to initiate a pregnancy. Since almost all the hereditary
material of a cell is contained within its nucleus, the re-nucleated
egg and the individual into which it develops are genetically identical
to the organism that was the source of the transferred nucleus.
An unlimited number of genetically identical individuals--a clone--
could be produced by nuclear transfer. In principle, any person, male
or female, newborn or adult, could be cloned, and in any quantity; and,
because stored cells can outlive their sources, one may even clone the
dead. Because cloning requires no personal involvement by the person
whose genetic material is used, it could easily be used to reproduce
living or deceased persons without their consent--a threat to
reproductive freedom that has received relatively little attention.
Some possible misconceptions need to be avoided. First, cloning is
not Xeroxing: the clone of Bill Clinton, though his genetic double,
would enter the world hairless, toothless, and peeing in his diapers,
like any other human infant. But neither is cloning just like natural
twinning: the cloned twin will be identical to an older, existing
adult; it will arise not by chance but by deliberate design; and the
entire genetic make-up will be pre-selected by the parents and/or
scientists. Further, the success rate, at least at first, will probably
not be very high: the Scots transferred 277 adult nuclei into sheep
eggs, implanted 29 clonal embryos, but achieved the birth of only one
live lamb clone. For this reason among others, it is unlikely that, at
least for now, the practice would be very popular (except among the
Raelians!), and there is little immediate worry of mass-scale
production of multicopies. Still, for the tens of thousands of people
who sustain over 300 assisted-reproduction clinics in the United States
and already avail themselves of in vitro fertilization and other
techniques, cloning would be an option with virtually no added fuss.
Dr. Panos Zavos, the Kentucky reproduction specialist who has announced
his plans to clone a child, claims that he has already received
thousands of e-mailed requests from people eager to clone, despite the
known risks of failure and damaged offspring. Should commercial
interests develop in ``nucleus-banking,'' as they have in sperm-banking
and egg-harvesting; should famous athletes or other celebrities decide
to market their DNA the way they now market their autographs and nearly
everything else; should techniques of embryo and germline genetic
testing and manipulation arrive as anticipated, increasing the use of
laboratory-assistance in order to obtain ``better'' babies-then,
cloning, if permitted, could become more than a marginal practice
simply on the basis of free reproductive choice.
What to think about this prospect? Nothing good. Indeed, most
people are repelled by nearly all aspects of human cloning: the
possibility of mass production of human beings, with large clones of
look-alikes, compromised in their individuality; the idea of father-son
or mother-daughter twins; the bizarre prospect of a woman bearing and
rearing a genetic copy of herself, her spouse, or even her deceased
father or mother; the grotesqueness of conceiving a child as an exact
``replacement'' for another who has died; the utilitarian creation of
embryonic duplicates of oneself, to be frozen away or created when
needed to provide homologous tissues or organs for transplantation; the
narcissism of those who would clone themselves and the arrogance of
others who think they know who deserves to be cloned; the Franken-
steinian hubris to create human life and increasingly to control its
destiny; men playing at being God. Almost no one finds any of the
suggested reasons for human cloning compelling; almost everyone
anticipates its possible misuses and abuses. And the popular belief
that human cloning cannot be prevented makes the prospect all the more
revolting.
Revulsion is not an argument; and some of yesterday's repugnances
are today calmly accepted--though, one must add, not always for the
better. In crucial cases, however, repugnance is the emotional
expression of deep wisdom, beyond reason's power fully to articulate
it. Can anyone really give an argument fully adequate to the horror
which is father-daughter incest (even with consent), or having sex with
animals, or mutilating a corpse, or eating human flesh, or raping or
murdering another human being? Would anybody's failure to give full
rational justification for his revulsion at those practices make that
revulsion ethically suspect? Not at all.
Let me suggest that our repugnance at human cloning belongs in that
category. We are repelled by the prospect of cloning human beings not
because of the strangeness or novelty of the undertaking, but because
we intuit and feel, immediately and without argument, the violation of
things that we rightfully hold dear. We sense that cloning represents a
profound defilement of our given nature as procreative beings and of
the social relations built on this natural ground. We also sense that
cloning is a radical form of child abuse. In this age in which
everything is held to be permissible so long as it is freely done and
in which our bodies are regarded as mere instruments of our autonomous
rational wills, repugnance may be the only voice left that speaks up to
defend the central core of our humanity. Shallow are the souls that
have forgotten how to shudder.
Yet repugnance need not stand naked before the bar of reason. The
wisdom of our horror at human cloning can be partially articulated,
even if that is finally one of those instances about which the heart
has its reasons that reason cannot entirely know.
I offer four objections to human cloning: (1) it constitutes
unethical experimentation; (2) it threatens identity and individuality;
(3) it turns procreation into manufacture (especially when understood
as the harbinger of manipulations to come); and (4) it means despotism
over children and perversion of parenthood. Please note: I speak only
about so-called reproductive cloning, not about the creation of cloned
embryos for research (a subject to which I will have to return). The
objections that may be raised against creating (or using) embryos for
research are entirely independent of whether the research embryos are
produced by cloning. What is radically distinct and radically new is
reproductive cloning.
First, any attempt to clone a human being would constitute an
unethical experiment upon the resulting child-to-be. In all the animal
experiments, fewer than two to three percent of all cloning attempts
succeed. Not only are there fetal deaths and stillborn infants, but
many of the so-called ``successes'' are in fact failures. As has only
recently become clear, there is a very high incidence of major
disabilities and deformities in cloned animals that attain live birth.
Cloned cows often have heart and lung problems; cloned mice later
develop pathological obesity; other live-born cloned animals fail to
reach normal developmental milestones. The problem, scientists suggest,
may lie in the fact that egg with the new somatic nucleus must
reprogram itself in a matter of minutes or hours (whereas the nucleus
of an unaltered egg has been prepared over months and years). There is
thus a greatly increased likelihood of error in translating the genetic
instructions, leading to developmental defects some of which will show
themselves only much later. (Note well: these induced abnormalities may
also affect the stem cells that scientists hope to harvest from cloned
embryos. Lousy embryos, lousy stem cells.)
Nearly all scientists now agree that attempts to clone a human
being carry massive risks of producing unhealthy, abnormal, and
malformed children. What are we to do with them? Shall we just discard
the ones that fall short of expectations? Considered opinion is today
nearly unanimous, even among scientists: attempts at human cloning are
irresponsible and unethical. We cannot ethically even get to know
whether or not human cloning is feasible.
Second, cloning, if successful, would create serious issues of
identity and individuality. The clone may experience concerns about his
distinctive identity not only because he will be in genotype and
appearance identical to another human being, but, in this case, because
he may also be twin to the person who is his ``father'' or ``mother''--
if one can still call them that. Unaccountably, people treat as
innocent the homey case of intrafamilial cloning--cloning of husband or
wife (or single mother); they forget about the unique dangers of mixing
the twin relation with the parent-child relation. (For that situation,
the relation of contemporaneous twins is no precedent; yet even this
less problematic situation teaches us how difficult it is to wrest
independence from the being for whom one has the most powerful
affinity.) Virtually no parent is going to be able to treat a clone of
himself or herself as one does a child generated by the lottery of sex.
What will happen when the adolescent clone of Mommy becomes the
spitting image of the woman Daddy once fell in love with? In case of
divorce, will Mommy still love the clone of Daddy, even though she can
no longer stand the sight of Daddy himself?
Most people think about cloning from the point of view of adults
choosing to clone. Almost no one thinks about what it would be like to
be the cloned child. Almost certainly, his or her new life will
constantly be scrutinized in relation to that of the older copy. Even
in the absence of unusual parental expectations for the clone--say, to
live the same life, only without its errors--the child is likely to be
ever a curiosity, ever a potential source of deja vu. Unlike ``normal''
identical twins, a cloned individual--copied from whomever--will be
saddled with a genotype that has already lived. He will not be fully a
surprise to the world: people are likely always to compare his doings
in life with that of his alter ego, especially if he is a clone of
someone gifted or famous. True, his nurture and circumstance will be
different; genotype is not exactly destiny. But one must also expect
parental efforts to shape this new life after the original--or at least
to view the child with the original version always firmly in mind. For
why else did they clone from the star basketball player, mathematician,
and beauty queen--or even dear old Dad--in the first place?
Third, human cloning would represent a giant step toward turning
begetting into making, procreation into manufacture (literally,
something ``hand made''), a process already begun with in vitro
fertilization and genetic testing of embryos. With cloning, not only is
the process in hand, but the total genetic blueprint of the cloned
individual is selected and determined by the human artisans. To be
sure, subsequent development is still according to natural processes;
and the resulting children will be recognizably human. But we here
would be taking a major step into making man himself simply another one
of the man-made things.
How does begetting differ from making? In natural procreation,
human beings come together to give existence to another being who is
formed exactly as we were, by what we are--living, hence perishable,
hence aspiringly erotic, hence procreative human beings. But in clonal
reproduction, and in the more advanced forms of manufacture to which it
will lead, we give existence to a being not by what we are but by what
we intend and design.
Let me be clear. The problem is not the mere intervention of
technique, and the point is not that ``nature knows best.'' The problem
is that any child whose being, character, and capacities exist owing to
human design does not stand on the same plane as its makers. As with
any product of our making, no matter how excellent, the artificer
stands above it, not as an equal but as a superior, transcending it by
his will and creative prowess. In human cloning, scientists and
prospective ``parents'' adopt a technocratic attitude toward human
children: human children become their artifacts. Such an arrangement is
profoundly dehumanizing, no matter how good the product.
Procreation dehumanized into manufacture is further degraded by
commodifi-
cation, a virtually inescapable result of allowing baby-making to
proceed under the banner of commerce. Genetic and reproductive
biotechnology companies are already growth industries, but they will
soon go into commercial orbit now that the Human Genome Project has
been completed. ``Human eggs for sale'' is already a big business,
masquerading under the pretence of ``donation.'' Newspaper
advertisements on elite college campuses offer up to $50,000 for an egg
``donor'' tall enough to play women's basketball and having high enough
SATs to get into Stanford; to no one's surprise, at such prices there
are many young coeds eager to help shoppers obtain the finest babies
money can buy. (The egg and womb-renting entrepreneurs shamelessly
proceed on the ancient, disgusting misogynist premise that most women
will give you access to their bodies, provided that the price is
right.) Even before the capacity for human cloning is perfected,
established companies will have invested in the harvesting of eggs from
ovaries obtained at autopsy or through ovarian surgery, practiced
embryonic genetic alteration, and initiated the stockpiling of
prospective donor tissues. Through the rental of surrogate-womb
services and through the buying and selling of tissues and embryos,
priced according to the merit of the donor, the commodification of
nascent human life will be unstoppable.
Finally, the practice of human cloning by nuclear transfer--like
other anticipated forms of genetically engineering the next
generation--would enshrine and aggravate a profound and mischief-making
misunderstanding of the meaning of having children and of the parent-
child relationship. When a couple normally chooses to procreate, the
partners are saying yes to the emergence of new life in its novelty,
are saying yes not only to having a child but also to having whatever
child this child turns out to be. In accepting our finitude and opening
ourselves to our replacement, we tacitly confess the limits of our
control. Embracing the future by procreating means precisely that we
are relinquishing our grip, in the very activity of taking up our own
share in what we hope will be the immortality of human life and the
human species. This means that our children are not our children: They
are not our property, they are not our possessions. Neither are they
supposed to live our lives for us, nor anyone else's life but their
own. Their genetic distinctiveness and independence are the natural
foreshadowing of the deep truth that they have their own and never-
before-enacted life to live. Though sprung from a past, they take an
uncharted course into the future.
Much mischief is already done by parents who try to live
vicariously through their children. Children are sometimes compelled to
fulfill the broken dreams of unhappy parents. But whereas most parents
normally have hopes for their children, cloning parents will have
expectations. In cloning, such overbearing parents will have taken at
the start a decisive step that contradicts the entire meaning of the
open and forward-looking nature of parent-child relations. The child is
given a genotype that has already lived, with full expectation that
this blueprint of a past life ought to be controlling of the life that
is to come. A wanted child now means a child who exists precisely to
fulfill parental wants. Like all the more precise eugenic manipulations
that will follow in its wake, cloning is thus inherently despotic, for
it seeks to make one's children after one's own image (or an image of
one's choosing) and their future according to one's will.
Lest you think me hyperbolic, consider concretely the new realities
of responsibility and guilt in the households of the cloned. No longer
only the sins but also the genetic choices of the parents will be
visited on the children--and beyond the third and fourth generation--
and everyone will know who is responsible. No parent will be able to
blame nature or the lottery of sex for an unhappy adolescent's big
nose, dull wit, musical ineptitude, nervous disposition, or anything
else that he hates about himself. Fairly or not, children will hold
their cloners responsible for everything, for nature as well as
nurture. And parents, especially the better ones, will be limitlessly
liable to guilt. Only the truly despotic souls will sleep the sleep of
the innocent.
The arguments against cloning I have just presented I have
prepared, necessarily, for adults, addressing my readers as fellow
citizens faced with a momentous policy decision: shall we permit our
neighbors to clone and be cloned? As I indicated when I began, I know
that such moral and philosophical arguments may not be equal to the
task. So let me put them to you again in a nutshell, asking you to
think this time about cloning as if you were not a person being cloned
but the younger duplicated copy. Even if you were a healthy clone,
would you want to be constantly compared with the adult original in
whose image you have been made? Wouldn't you want to have your own
unique identity and an open-ended future, fully a surprise to yourself
and the world? Are you happy being the copy of Mom, even though she
drives you crazy? Are you pleased that everyone expects you to play
chess just because you were cloned from Bobby Fisher? Don't you think
that it is a form of child abuse for parents to attempt to determine in
advance just exactly what kind of a child you are supposed to be? Do
you want to live under the tyranny of their biologically determined
expectations? Knowing what you know, would you like to turn human
procreation into manufacture, producing children as artifacts?
answering the critics
The defenders of cloning, of course, are not wittingly friends of
despotism. Indeed, deaf to most other considerations, they regard
themselves mainly as friends of freedom: the freedom of individuals to
reproduce, the freedom of scientists and inventors to discover and
devise and to foster ``progress'' in genetic knowledge and technique,
the freedom of entrepreneurs to profit in the market. They want large-
scale cloning only for animals, but they wish to preserve cloning as a
human option for exercising our ``right to reproduce''--our right to
have children, and children with ``desirable genes.'' As some point
out, under our ``right to reproduce'' we already practice early forms
of unnatural, artificial, and extramarital reproduction, and we already
practice early forms of eugenic choice. For that reason, they argue,
cloning is no big deal.
We have here a perfect example of the logic of the slippery slope,
and the slippery way in which it already works in that area. Only a few
years ago, slippery slope arguments were used to oppose artificial
insemination and in vitro fertilization using unrelated sperm donors.
Principles used to justify those practices, it was said, will be used
to justify more artificial and more eugenic practices, including
cloning. Not so, the defenders retorted, since we can make the
necessary distinctions. And now, without even a gesture at making the
necessary distinctions, the continuity of practice is held by itself to
be justificatory.
The principle of reproductive freedom currently enunciated by the
proponents of cloning logically embraces the ethical acceptability of
sliding all the way down: to producing children wholly in the
laboratory from sperm to term (should it become feasible), and to
producing children whose entire genetic makeup will be the product of
parental eugenic planning and choice. If reproductive freedom means the
right to have a child of one's own choosing, by whatever means, it
knows and accepts no limits.
Proponents want us to believe that there are legitimate uses of
cloning that can be distinguished from illegitimate uses, but by their
own principles no such limits can be found. (Nor could any such limits
be enforced in practice: once cloning is permitted, no one ever need
discover whom one is cloning and why.) Reproductive freedom, as they
understand it, is governed solely by the subjective wishes of the
parents-to-be. The sentimentally appealing case of the childless
married couple is, on those grounds, indistinguishable from the case of
an individual (married or not) who would like to clone someone famous
or talented, living or dead. Further, the principle here endorsed
justifies not only cloning but, indeed, all future artificial attempts
to create (manufacture) ``better'' or ``perfect'' babies.
The ``perfect baby,'' of course, is the project not of the
infertility doctors, but of the eugenic scientists and their
supporters, who, for the time being, are content to hide behind the
skirts of the partisans of reproductive freedom and compassion for the
infertile. For them, the paramount right is not the so-called right to
reproduce but what biologist Bentley Glass called, a quarter of a
century ago, ``the right of every child to be born with a sound
physical and mental constitution, based on a sound genotype . . . the
inalienable right to a sound heritage.'' But to secure that right and
to achieve the requisite quality control over new human life, human
conception and gestation will need to be brought fully into the bright
light of the laboratory, beneath which the child-to-be can be
fertilized, nourished, pruned, weeded, watched, inspected, prodded,
pinched, cajoled, injected, tested, rated, graded, approved, stamped,
wrapped, sealed, and delivered. There is no other way to produce the
perfect baby.
If you think that such scenarios require outside coercion or
governmental tyranny you are mistaken. Once it becomes possible, with
the aid of human genomics, to produce or select for what some regard as
``better babies''--smarter, prettier, healthier, or more athletic--
parents will leap at the opportunity to ``improve'' their offspring.
Not to do so will be socially regarded as a form of child neglect.
Those who would ordinarily be opposed to such tinkering will be under
enormous pressure to compete on behalf of their as yet unborn
children--just as they scheme almost from birth on how to get their
children into Harvard. Never mind that, lacking a standard of ``good''
or ``better,'' no one can really know whether any such changes will
truly be improvements. Once the genetic genies put the babies into the
bottle, there will be no way to get them out.
Proponents of cloning urge us to forget about the science fiction
scenarios of laboratory manufacture or multiple-copied clones and to
focus only on the sympathetic cases of infertile couples exercising
their reproductive rights. But why, if the single cases are so
innocent, should multiplying their performance be so off-putting?
(Similarly, why do others object to people's making money from that
practice if the practice itself is perfectly acceptable?) The so-called
science fiction cases--like Brave New World--make vivid the meaning of
what looks to us, mistakenly, to be benign. They reveal how what looks
like compassionate humanitarianism is, in the end, crushing
dehumanization.
toward an effective ban
Whether or not they share my reasons, most people today share my
conclusion: human cloning is unethical in itself and dangerous in its
likely consequences, including the precedent it will establish for
designing our children. Some reach this conclusion for their own good
reasons, different from my own: concerns about distributive justice in
access to eugenic cloning; worries about the genetic effects of asexual
``inbreeding''; aversion to the implicit premise of genetic
determinism; objections to the embryonic and fetal wastage that must
necessarily accompany the efforts; religious opposition to ``man
playing God.'' Never mind why: the overwhelming majority of our fellow
Americans remain firmly opposed to cloning human beings. For us, the
real questions are: What should we do about it? How can we best
succeed? These questions should concern everyone eager to secure
deliberate human control over the powers that could redesign our
humanity, even if cloning is not the place they would choose to make
their stand.
What we should do is to work to prevent human cloning by making it
illegal. We should aim for a global legal ban if possible and a
unilateral national ban at a minimum--and soon, before the fact is upon
us. To be sure, legal bans can be violated; but we do curtail much
mischief by outlawing incest, voluntary servitude, and the buying and
selling of organs and babies. To be sure, renegade scientists may
secretly undertake to violate such a law, but we can deter them both by
criminal sanctions and monetary penalties, as well as by removing any
incentive they have to proudly claim credit for their technological
bravado. Such a ban on clonal baby-making, moreover, will not harm the
progress of basic genetic science and technology. On the contrary, it
will reassure the public that scientists are happy to proceed without
violating the deep ethical norms and intuitions of the human community.
It will also protect honorable scientists from public backlash against
the brazen misconduct of the rogues. As many scientists have publicly
confessed, free and worthy science probably has much more to fear from
a strong public reaction to a cloning fiasco than it does from a
cloning ban, provided that it is judiciously crafted and vigorously
enforced against those who would violate it.
Four states (Michigan, Louisiana, California, Rhode Island) have
already enacted a ban on human cloning, and several others are likely
to follow suit this year. Michigan, for example, has made it a felony,
punishable by imprisonment for not more than 10 years or a fine of not
more than $10 million, or both, to ``intentionally engage in or attempt
to engage in human cloning,'' where human cloning means ``the use of
human somatic cell nuclear transfer technology to produce a human
embryo.'' Internationally, the movement to ban human cloning gains
momentum. France and Germany have banned cloning (and germline genetic
engineering), the Council of Europe is working to have it banned in all
of its 41 member countries, and Canada is expected to follow suit. The
United Nations, UNESCO, and the Group of Seven have called for a global
ban on human cloning. Given the decisive actions of the rest of the
industrialized world, the United States looks to some observers to be a
rogue nation.
A few years ago, soon after the birth of Dolly, President Clinton
called for legislation to outlaw human cloning and attempts were made
to produce a national ban. Yet none was enacted, despite general
agreement in Congress that it would be desirable to have one. Learning
from this past failure, we can, I believe, do better this time around.
Besides, circumstances have changed greatly in the intervening three
years, making a ban both more urgent yet, happily, less problematic.
One might have thought that it would be easy enough to find clear
statutory language for prohibiting attempts to clone a human being (and
other nations have apparently not found it difficult). But, alas, in
the last national go-around, there was trouble over the apparently
vague term, ``human being,'' and whether it includes the early (pre-
implantation) embryonic stages of human life.
Two major anti-cloning bills were introduced into the Senate in
1998. The Democratic bill (Kennedy-Feinstein) would have banned so-
called reproductive cloning by prohibiting transfer of cloned embryos
into a woman to initiate a pregnancy. The Republican bill (Frist-Bond)
would have banned all cloning by prohibiting the creation even of
embryonic human clones. Both sides opposed ``reproductive cloning,''
the attempt to bring to birth a living human child who is the clone of
someone now (or previously) alive. But the Democratic bill sanctioned
creating cloned embryos for research purposes; the Republican bill did
not. The pro-life movement clearly could not support the former,
whereas the scientific community and the biotechnology industry opposed
the latter; indeed, they successfully lobbied a dozen Republican
senators to oppose taking a vote on the Republican bill (which even its
supporters now admit was badly drafted). Because of a deep and
unbridgeable gulf over the question of embryo research, we did not get
the Congressional ban on reproductive cloning that nearly everyone
wanted. It would be tragic if we again fail to produce a ban on human
cloning because of its seemingly unavoidable entanglement with the more
divisive embryo research issue.
To find a way around this impasse, several people (I among them)
advocated a legislative ``third way,'' one that firmly banned only
reproductive cloning but, unlike Kennedy-Feinstein, did not legitimate
creating cloned embryos for research. This, it turns out, is hard to
do. It is easy enough to state the necessary negative disclaimer that
would set aside the embryo research question: ``Nothing in this act
shall be taken to determine the legality of creating cloned embryos for
research; this act neither permits nor prohibits such activity.'' It is
much more difficult to state the positive prohibition in terms that are
unambiguous and acceptable to all sides. To indicate only one
difficulty: indifference to the creation of the embryonic clones
coupled with a ban (only) on their transfer would place the federal
government in the position of demanding the destruction of nascent
life--a bitter pill to swallow even for pro-choice advocates.
Given both these difficulties and the imminence of attempts at
human cloning, I now believe that what we need is an all-out ban on
human cloning, including the creation of embryonic clones. I am
convinced that all half-way measures will prove to be morally, legally,
and strategically flawed, and--most important--that they will not be
effective in obtaining the desired result. Anyone truly serious about
preventing human reproductive cloning must seek to stop the process
from the beginning. Both our changed circumstances and the now evident
defects of the less restrictive alternatives make this by far the most
attractive and effective option. Here's why.
Creating cloned human children (``reproductive cloning'')
necessarily begins by producing cloned human embryos. Preventing the
latter would prevent the former, and prudence alone might counsel
building such a ``fence around the law.'' Yet some scientists favor
embryo cloning as a way of obtaining embryos for research or as sources
of cells and tissues for the possible benefit of others. (This practice
they misleadingly call ``therapeutic cloning''--rather than the more
accurate ``cloning for research'' or ``experimental cloning''--in order
to obscure the fact that the clone will be ``treated'' only to
exploitation and destruction, and that any potential future
beneficiaries and any future ``therapies'' are for now purely
hypothetical). The prospect of creating new human life solely to be
exploited in this way has been condemned on moral grounds by many
people--including The Washington Post, former President Clinton, and
many other supporters of a woman's right to abortion--as displaying a
profound disrespect for life. Even those who are willing to scavenge
so-called ``spare embryos''--those products of in vitro fertilization
made in excess of the people's reproductive needs, and otherwise likely
to be discarded--draw back from creating human embryos explicitly and
solely for research purposes. They reject outright what they regard as
shameless exploitation and instrumentalization of nascent human life.
In addition, others who are agnostic about the moral status of the
embryo, see the wisdom of not needlessly offending the sensibilities of
their fellow citizens who are opposed to such practices.
But even setting aside these obvious moral first impressions, a few
moments of reflection shows why an anti-cloning law that permitted
cloning of embryos but criminalized their transfer to produce a child
would be a moral blunder. Here would be a law that was not merely
permissively ``pro-choice'' but emphatically and prescriptively ``anti-
life.'' While permitting the creation of an embryonic life, it would
make it a federal offense to try to keep it alive and bring it to
birth. Whatever one thinks of the moral or ontological status of the
human embryo, moral sense and practical wisdom recoil from having the
government of the United States on record as requiring the destruction
of nascent life and, what is worse, demanding the punishment of those
who would act to preserve it by (feloniously!) giving it birth.
But the problem with the approach targeting only reproductive
cloning (that is, the transfer of the embryo to a woman's uterus) is
not only moral, but also legal and strategic. In a word, a ban on only
reproductive cloning will turn out to be unenforceable. Once cloned
embryos are produced and available in laboratories and assisted-
reproduction centers, it will be virtually impossible to control what
is done with them. Biotechnical experiments take place in laboratories
hidden from public view, and, given the rise of high stakes commerce in
biotechnology, secretly concealed from the competition. As we have seen
with in vitro embryos created to treat infertility, embryos produced
for one reason can be used for any reason: today, ``spare embryos''
once created to begin a pregnancy are now used in research; tomorrow,
clones created for research will be used to begin a pregnancy.
Assisted-reproduction takes place within the privacy of the doctor-
patient relationship, making outside scrutiny extremely difficult. Many
infertility experts probably will obey the law, but others can and will
defy it with impunity, their doings covered by the veil of secrecy that
is the principle of medical confidentiality. Moreover, the transfer of
embryos to begin a pregnancy is a simple procedure (especially compared
with manufacturing the embryo in the first place), simple enough that
its final steps could be self-administered by the woman who would thus
take the doctor off the hook of having ``caused'' the illegal transfer.
(I have in mind something analogous to Kevorkian's suicide machine,
which was designed to enable the patient to push the plunger and the
good ``doctor'' to evade criminal liability.)
Even should the deed become known, governmental attempts to enforce
the reproductive ban would run into a swarm of moral and legal
challenges, both to any efforts aimed at preventing transfer to a woman
and--even worse--to efforts seeking to prevent birth after transfer has
occurred. A woman who wished to receive the embryo clone would no doubt
seek a judicial restraining order, suing to have the law overturned in
the name of an alleged constitutionally protected liberty interest in
her own reproductive choices. (The cloned child would be born before
the legal proceedings were complete.) And, should an ``illicit clonal
pregnancy'' be discovered, no governmental agency is going to compel a
woman to abort the clone, and there will be an understandable storm of
protest should she be fined or jailed after she gives birth. There
would even be sentimental opposition to punishing the doctor for
violating the law--unless, of course, the clone turns out to be
severely abnormal.
For all these reasons, the only practically effective and legally
sound approach is to block human cloning at the start, at the
production of the embryo clone. Such a ban can be rightly characterized
not as interference with reproductive freedom, nor even as interference
with scientific inquiry, but as an attempt to prevent the unhealthy,
unsavory, and unwelcome manufacture of and traffic in human clones.
Some scientists, pharmaceutical companies, and bio-entrepreneurs
will, of course, balk at this restriction. They want to get their hands
on those embryos, and especially for their stem cells, those
pluripotent cells that can, in principle, be turned into any cells and
tissues in the body, potentially useful for transplantation to repair
somatic damage. Embryonic stem cells need not come from cloned embryos,
but, say the scientists, stem cells obtained from clones could be
therapeutically injected into the embryo's adult ``twin'' without any
risk of immunological rejection. It is the promise of rejection-free
tissues for transplantation that has been, to date, the most successful
argument in favor of experimental cloning. But new discoveries have
shown that we can probably obtain the same benefits without the need
for embryo cloning. The facts are much different than they were three
years ago and the weight in the debate about cloning for research
should shift to reflect them.
Numerous recent studies have shown that it is possible to obtain
highly potent stem cells from the bodies of children and adults--from
blood, bone marrow, brain, pancreas, and, most recently, from fat.
Beyond all expectations, these non-embryonic stem cells have been shown
to have the capacity to turn into a wide variety of specialized cells
and tissues. (At the same time, early human therapeutic efforts with
stem cells derived from embryos have produced some horrible results,
the cells going wild in their new hosts and producing other tissues in
addition to those in need of replacement. If an in vitro embryo is
undetectably abnormal--as so often they are--the cells derived from it
may also be abnormal.) Because cells derived from our own bodies are
more easily and cheaply available than cells harvested from specially
manufactured clones, we will almost surely be able to obtain from
ourselves any needed homologous transplantable cells and tissues,
without the need for egg donors and cloned embryonic copies of
ourselves. By pouring our resources into adult (or, more accurately,
``non-embryonic'') stem cell research, we can also avoid the morally
and legally vexing issues in embryo research. And more to our present
subject, by eschewing the cloning of embryos, we make the cloning of
human beings much less likely.
Last week an excellent federal anti-cloning bill was introduced in
Congress, sponsored by Senator Sam Brownback in the Senate and
Representative David Weldon in the House. Very carefully drafted, this
legislation seeks to prevent the cloning of human beings at the very
first step, by preventing somatic cell nuclear transfer to produce
embryonic clones, and provides substantial criminal and monetary
penalties for violating the law. The bill makes very clear that there
is to be no interference with the scientific and medically useful
practices of cloning of DNA fragments (molecular cloning), the
duplication of somatic cells (or stem cells) in tissue culture (cell
cloning), and whole-organism or embryo cloning of non-human animals. If
enacted, this law would bring the United States into line with the
already and soon to be enacted practices of many other nations. Most
important, it offers us the best--indeed, the only realistic--chance we
have to keep human cloning from happening, or happening much.
Getting this bill passed will not be easy. The pharmaceutical and
biotech companies and some scientific and patient-advocacy associations
will claim that the bill is the work of Bio-Luddites: anti-science, a
threat to free inquiry, and an obstacle to obtaining urgently needed
therapies for disease. Some feminists and pro-choice groups will claim
that this legislation is really only a sneaky device for fighting Roe
v. Wade, and they will resist anything that might be taken even to hint
that a human embryo has any moral worth. On the other side, some right-
to-life purists, who care not how babies are made only so long as life
not be destroyed, will withhold their support because the bill does not
take a position against embryo twinning or embryo research in general.
These arguments, all of them wrong, must be resisted. This is most
emphatically not an issue of pro-life versus pro-choice. It is not
about death and destruction or about a woman's right to choose. It is
only and emphatically about baby design and manufacture, the opening
skirmish of a long battle with eugenics and against the post-human
future. As such, it is an issue that does not and should not divide
what is usually called ``the left'' and ``the right''; indeed, there
are people across the political spectrum who are coalescing in the
efforts to stop human cloning. (The prime sponsor of Michigan's
comprehensive anti-cloning law is a pro-choice Democratic legislator.)
Everyone needs to understand that--whatever we may think about the
moral status of embryos--once embryonic clones are produced in the
laboratories, the eugenic revolution will have begun. And we shall have
lost our best chance to do anything about it.
As we argue in the coming weeks about this legislation, let's be
clear about the urgency of our situation and the meaning of our action
or inaction. Scientists and doctors whose names we know, and probably
many others we don't know, are today working to clone human beings.
They know the immediate hazards, but they are undeterred. They are
prepared to screen and destroy anything that looks abnormal. They don't
care that they won't be able to detect most of the possible defects. So
confident are they in their rectitude that they are willing to ignore
all future consequences of the power to clone human beings. They are
prepared to gamble with the well-being of any live-born clones, and, if
I am right, with a great deal more, all for the glory of being the
first to replicate a human being. They are, in short, daring the
community to defy them. Under these new circumstances, our silence can
only mean acquiescence. To do nothing now is, in effect, to accept the
responsibility for the deed and for all that follows predictably in its
wake.
shifting the burden of proof
I appreciate that a federal legislative ban on human cloning is
without American precedent, at least in matters technological. Perhaps
such a ban will prove ineffective; perhaps it will eventually be shown
to have been a mistake. (If so, it could later be reversed.) But, if
enacted, it will have achieved one overwhelmingly important result, in
addition to its contribution to thwarting cloning: it would place the
burden of practical proof where it belongs, requiring proponents to
show very clearly what great social or medical good can be had only by
the cloning of human beings. Only for such a compelling case, yet to be
made or even imagined, should we wish to risk this--or any future--
major departure in human procreation. (The Brownback bill explicitly
allows for such future reconsideration through its explicit provision
mandating further study.)
We Americans have lived by and prospered under a rosy optimism
about scientific and technological progress. The technological
imperative has, on balance, probably served us well, though we should
admit that there is no accurate method for weighing benefits and harms.
Even when we recognize the unwelcome outcomes of technological advance,
we Americans remain confident in our ability to fix all the ``bad''
consequences--whether by regulation or by means of still newer and
better technologies. But there is very good reason for shifting the
paradigm around, at least regarding those technological interventions
into the human body and mind that will surely effect fundamental (and
likely irreversible) changes in human nature, basic human
relationships, and what it means to be a human being. Here we surely
should not be willing to risk everything in the naive hope that, should
things go wrong, we can later set them right again.
Some have argued that cloning is almost certainly going to remain a
marginal practice, and that we should therefore permit people to
practice it. But such a view is shortsighted. Even if cloning is rarely
undertaken, a society in which it is tolerated is no longer the same
society--any more than is a society that permits (even small-scale)
incest or cannibalism or voluntary slavery. A society that allows
cloning has, whether it knows it or not, tacitly said yes to converting
procreation into manufacture and to treating children as pure projects
of our will. Willy-nilly, it has said yes to the eugenic redesign of
future generations. The principles thus legitimated could--and will--be
used to legitimate the entire humanitarian superhighway to Brave New
World.
The present danger posed by human cloning is, paradoxically, also a
golden opportunity. In a truly unprecedented way, we can strike a blow
for the human control of the technological project, for wisdom,
prudence, and human dignity. The prospect of human cloning, so
repulsive to contemplate, is the occasion for deciding whether we shall
be slaves of unregulated innovation, and ultimately its artifacts, or
whether we shall remain free human beings who guide our technique
toward the enhancement of human dignity. The preservation of the
humanity of the human future is in our hands. Let us seize the
occasion.
Senator Brownback. Thank you, Dr. Kass. I can tell you have
thought about this a great deal for a long time.
Mr. Kristol, welcome to the Committee. We look forward to
your testimony.
STATEMENT OF MR. WILLIAM KRISTOL, CHAIRMAN, THE BIOETHICS
PROJECT OF THE NEW CITIZENSHIP PROJECT
Mr. Kristol. Thank you, Mr. Chairman. Mr. Chairman, Senator
Dorgan, you will recall that when President Bush addressed you
in the State of the Union address 2 months ago, he quoted only
one thinker, Yogi Berra, and he quoted Yogi Berra as giving you
this important advice: ``When you come to a fork in the road,
take it.''
I think we are genuinely now at a fork in the road in the
area of bioethics, in particular with respect to cloning. That
is not true, obviously, in other areas of politics, where we
try to make sensible compromises between different
constituencies, different claims.
Politicians--often like to avoid going down one or another
fork in the road, because much of politics is compromising and
judging between competing demands, both of which often have
some merit. But in this case I think the choice has to be made.
To govern is to choose, as Churchill said, and now we do
face a momentous choice: do we stumble heedlessly, into a brave
new world of eugenic enhancement and technological manufacture
of human beings, or do we avert such a future?
This battle over cloning is only the first battle in trying
to draw a distinction between medicine, between gene therapy
and other forms of healing and advanced forms of healing, which
all of us welcome, and the eugenic enhancement and the
technological manufacture of human beings. I do not believe
there is any way to stop ourselves from going down the path of
eugenic enhancement and technological manufacture without
stopping all human cloning, including embryonic human cloning,
today.
I commend you, therefore, for your courage in stepping up
to the plate on this issue. It is an easy one to want to avoid.
The promise of scientific advances is a real promise.
Obviously, we are all very keen on scientific advances, and it
is hard to face the criticism that somehow what one is doing is
slowing down the march of science. But there are times when one
has to stand up and say yes, certain kinds of scientific
advance are not worth the price we pay, if the price really is
the moral price of what it means to be human, and if the price
is starting down a road that, however attractive it seems at
first, turns out to be something of a nightmare.
Is it hopeless? Often, in discussions on this topic, people
say, ``Well, that is very interesting, but come on, you cannot
stop scientific progress.'' It is difficult to stop the march,
or to change the course of the march of science and technology.
On the other hand, we were told that it was hopeless to
overthrow communism just a generation ago. We were told that it
was hopeless to remove sentiments of racial bigotry two
generations ago. They were deeply embedded in human nature
certainly in the history of this country.
Surely mere legislation in Congress could not establish
equality of civil rights for all Americans, we were told.
Surely a mere foreign policy initiative by the President could
not undo communism, which seemed so deeply entrenched and so
formidable. Yet we did not listen to those who told us that it
was hopeless, or that the current situation was inevitable,
that there was no point in even trying.
Lyndon Johnson led us to try to overcome segregation and
discrimination, and in large measure we have. We have certainly
been on the right path since then. Ronald Reagan led us to work
to overcome communism. In large measure, we have. I think we
are at a similar moment of choice now.
In the Federalist Papers over two centuries ago, Madison
wrote that the American experiment is based on the honorable
determination to rest all our political experiments on the
capacity of mankind for self-government. Science and technology
pose a challenge sometimes to that capacity, just as slavery
did, just as communism did, but to succumb is to forego our
claim to self-government, our claim that we can govern
ourselves by reflection and choice.
We ought not simply say, ``Well, this seems to be science,
it is too hard to regulate, it is too difficult, it is too
controversial, let us not do anything''. Not to choose is, of
course, to make a choice. It is to allow us to go down the
road, to a brave new world.
I would just make two final points, briefly. Remember, if
we stop the so-called progress of science at this point we are
not making an irrevocable decision. Of course, if we go down
this road, we are making an irrevocable decision. Once the
genie is out of the bottle here, I do not think it can be put
back in.
In my view, if a responsible legislator is willing to
acknowledge that there are doubts about human cloning, doubts
about the morality and ethical propriety of embryonic cloning,
then he or she has a responsibility to stop it now. Five years
from now, if we have learned more, if we have become convinced
that this does not open the door to a horrible brave new world,
then fine, we can always remove the ban.
We cannot undo what will have happened, however, in the
next 5 or 10 years if there is no ban.
If one is uncertain about the implications of going ahead
with embryonic cloning, or so-called therapeutic cloning, one
has to err on the side of stopping it, at least for now.
President Bush has spoken eloquently about his hope of
ushering in a new responsibility era. Leaders from both parties
have embraced this concept, as I think they ought to. What
greater responsibility do we have than halting a brave new
world in which the programmed reproduction of man will, in
fact, dehumanize him?
Thank you.
[The prepared statement of Mr. Kristol follows:]
Prepared Statement of William Kristol, Chairman, The Bioethics Project
of The New Citizenship Project
Mr. Chairman, members of the committee, thank you for the
opportunity to appear today to address the issue of cloning.
President Bush quoted only one thinker in his unadorned--and quite
effective--State of the Union address two months ago: Yogi Berra. The
president commended to his congressional audience Mr. Berra's famous
dictum, ``When you come to a fork in the road, take it.''
The president was preaching to the choir. American politicians
don't like having to make difficult choices. Who can blame them? They
have to balance diverse interests and juggle competing demands while
doing justice to differing views among the citizens they represent. To
govern is to choose, we're sometimes told. But, often, to govern in a
big, pluralistic democracy like ours is not to choose, or not to choose
too starkly, certainly not to choose irrevocably. After all, lots of
choices are false choices; lots of bold decisions turn out badly.
Avoiding forks in the road often isn't a bad idea.
George W. Bush knows this. After all, he's neither a conservative
nor a moderate--he's a compassionate conservative. He wants to cut
taxes--but also to increase government spending. He wants to cut back
regulations--but also to reassure environmentalists. He wants to
strengthen our commitment to Taiwan--but also to work with Beijing. All
of this is reasonable enough. And it's characteristic of politics in a
Madisonian republic.
But a Madisonian republic has its Lincolnian moments. Occasionally,
there really is a fork in the road. Occasionally, to govern is to
choose--and not to choose is not to govern. Two generations ago, we had
to choose whether to overcome segregation and discrimination. Under
Lyndon Johnson's leadership, we made that choice. One generation ago,
we had to choose whether we would try to overcome Communism abroad.
Ronald Reagan led us in making that choice.
Today, we face a decision at least as momentous: whether we stumble
heedlessly into a brave new world of eugenic enhancement and
technological manufacture of human beings, or whether we will avert
such a future. President Bush will lead us--or will fail to lead us--in
that choice.
We are at an extraordinary moment of scientific progress, and
scientific peril. The genetic revolution offers great hope for the
medical treatment of disease, through gene therapy and other forms of
healing. But if this revolution is not subject to human guidance and
limitation, it will produce consequences that will be detrimental--no,
devastating--to human liberty and human dignity.
These consequences have been laid out in detail, and the arguments
against them made with great distinction, by thinkers ranging from Hans
Jonas and Paul Ramsey a few decades ago to Leon Kass and Gilbert
Meilaender today. But for current, practical purposes, our political
leaders do not have to have studied all these arguments. All our
politicians have to do now is to realize that, if they do not call a
halt to certain experiments, if they do not limit the ``progress'' of
science in certain ways, it will be virtually impossible to do so
later. ``Containment'' is necessary now if we are to have a hope for a
humane future later. Perhaps we who fear that the programmed
reproduction of man will dehumanize him are wrong. Still, as a nation
we surely owe ourselves, and our descendants, a serious debate before
we march blindly down one fork of the road.
But isn't it hopeless? Doesn't modernity mean that technology
always trumps politics? Isn't scientific ``progress'' unstoppable?
No. No more than Communist domination of half the world was
unstoppable, or that the further use of nuclear weapons after 1945 was
unstoppable. No more than racial bigotry was unchangeable.
And in any case, to bow to the inevitability of this kind of
scientific ``progress'' is to give up on the core of the American
experiment: ``that honorable determination,'' as Madison put it in
Federalist #39, ``to rest all our political experiments on the capacity
of mankind for self-government.'' Science and technology may pose an
even greater challenge to this determination than did slavery or
communism. But to succumb is to forego our claim to self-government.
What, now, is to be done? The cloning of human beings is on the
horizon. Ban it. Mr. Chairman, you have introduced carefully drafted
legislation to prohibit all human cloning. The legislation deserves the
support of serious political leaders in both parties.
President Bush has spoken eloquently about his hope of ushering in
a new ``responsibility era.'' What greater responsibility do we have
than halting a brave new world--one that, to quote Leon Kass, would put
``human nature itself on the operating table, ready for alteration,
`enhancement,' and wholesale redesign?'' A ban on human cloning would
only be a first step down the road of responsibility and self-
government--but it would be an important first step.
Yogi Berra and George W. Bush are both baseball fans. The
superiority of baseball to football is beautifully captured by one of
Mr. Berra's insights: Baseball ``ain't like football. You can't make up
no trick plays.'' There are no trick plays for politicians in the area
of bioethics. President Bush--and our other political leaders--will
have to step up to the plate and vindicate the capacity of mankind for
self-government.
Mr. Chairman, thank you for this opportunity to appear before you
and the committee.
______
The Bioethics Project
statement of purpose
Each day's headlines confront us with fresh evidence of the
prospect of a ``brave new world.'' Human cloning, transgenic chimeras,
and ``designer'' babies are no longer the domain of science fiction;
they are imminent possibilities. These ``advances'' are part of a
revolution in bioscience and genetics that has tremendous promise to
heal disease and relieve human suffering. But this revolution--if
divorced from ethical guidance--poses a grave threat to human dignity
and liberty.
The Bioethics Project seeks to confront that threat. We support the
achievements of human investigation in the biosciences. But we believe
scientific progress also needs to be governed by moral principles that
protect the dignity and worth of each individual. Without such
constraints, we face the prospect of a tyranny of technology over
humanity.
The American people sense the dangers as well as the rewards of the
emerging era of biotechnology. But our political and legal systems seem
unprepared to confront these risks. The Bioethics Project intends to
encourage debate and inform public opinion about these fundamental
issues. We aim to consider what are the appropriate limits in public
policy, regulation and law to ensure that science enhances human
dignity, rather than debases it. We aim to help draw the lines between
a better human world and a new inhuman one.
The issues we face today require us to decide whether children will
be made or manufactured; whether biotechnology will serve mankind or
enslave it; whether, as C. S. Lewis put it in The Abolition of Man,
``what we call Man's power over nature turns out to be a power
exercised by some men over other men with Nature as its instrument.''
Before this prospect, other issues pale in significance. The challenge
of scientific ``progress'' loosed from natural, human, or religious
moorings is the challenge before us. We intend to help our fellow
Americans meet it.
Senator Brownback. Thank you, Mr. Kristol. Let us run the
time clock at 10 minutes. This has been an excellent panel. I
appreciate the discussion, appreciate the points of view each
of you put forward.
Mr. Forsythe, I want to start with you. On the issue of the
legal status of the clone--and you have written on this, in law
review articles--if we have a cloned embryo, whether it is for
reproductive or so-called ``therapeutic'' purposes, what is its
legal status?
Mr. Forsythe. Well, Senator, I think it is quite clear that
it is born for purposes, for legal purposes, and it is subject,
it is entitled to the full protection of the law as a matter of
theory, as a matter of criminal law, as a matter of homicide
law. However, no prosecutor in the country that I know of has
yet to try to protect human embryos in the laboratory under a
homicide law, but it is important to point out that there is no
question that it is living. There is no question that it is
human.
Senator Brownback. This is at all stages?
Mr. Forsythe. Correct. As you know, specifically, some
States, perhaps 9 or 10 States, Louisiana among them, have
specifically legislated on prohibiting destructive human embryo
research. They have gone beyond the generalities of criminal
law and homicide law, and have specifically prohibited
destructive human embryo research, and I believe that in those
States that legislation has been effective without deterring
scientific progress.
Senator Brownback. Now, if there is a cloned human embryo,
who makes the determination as to its future? Who has the legal
right to make the determination of the future of this cloned
human embryo?
Mr. Forsythe. Well, if no governmental official, no
prosecutor steps in to exert the protection of the criminal
law, it is probably the subject of contract law, agreement
between the institution and the donor of the cells.
In the case of--as you know, in various States there have
been cases involving husbands and wives who have divorced, and
the question is, what is the status of preserved human embryos
during that custody dispute, and some State courts have
primarily looked to contract law between the institution and
the husband and wife, or between the husband and wife in the
absence of specific State legislation on that question.
Senator Brownback. So it would be decided by the agreement
between, in this case if we have a cloned human embryo, it
would be the contract law between the laboratory and the
donator of the genetic material?
Mr. Forsythe. Correct, and these--of course, these
laboratories are becoming very sophisticated in producing
standard documents and contracts to establish the relationship
between the institution and the laboratory or the fertility
center, and the donor of the cells, or the married couple who
are the parents.
Senator Brownback. But it is your first statement, though,
that they have the legal status and rights of a human being
from the very start?
Mr. Forsythe. Correct.
Senator Brownback. Dr. Jaenisch, I want to make sure that I
am clear where you stand on this issue. Now, you are here
representing your association and yourself as well. You are
here representing the association?
Dr. Jaenisch. I represent the association and myself and my
colleague scientists.
Senator Brownback. OK. You oppose reproductive human
cloning?
Dr. Jaenisch. Yes.
Senator Brownback. You would support a Federal ban on
reproductive human cloning?
Dr. Jaenisch. I believe it should be prevented.
Senator Brownback. So we are just talking about the
research in human cloning. You would call it ``therapeutic''
human cloning, others would call it destructive human cloning,
but you do not want this person to be born?
Dr. Jaenisch. I think I would like to make these points
once more. I think this is a very important point you bring up.
Senator Brownback. I want to make sure I understand where
you are on this.
Dr. Jaenisch. Yes, I would support that point. I would
support that, the so-called ``therapeutic'' cloning which
involves the transfer of somatic cells of a person who has
given his or her consent to generate an embryonic stem cell
exclusively for the therapeutic benefit of this particular
person.
I would support that, because this is the only source, I
think, of cells of any tissue type which could help this
patient in transplantation therapy, where no rejection will
occur, because these cells, which come from this cloned
embryonic stem cell, are of the same immunological makeup as
the patient.
Senator Brownback. All right. So you do support the
creation of a human embryo made out of somebody else's DNA
material if they consented to the use of that person to create,
a human embryo clone. Is that correct?
Dr. Jaenisch. Up to that stage when normally the embryo
would be implanted, about the 100-cell stage, a ball of cells.
Actually, I have a picture of a human embryo if you would like
to see it. At this point the embryo is not implanted. It is
kept in a Petri dish, and it gives rise to embryonic stem
cells. These embryonic stem cells, and I think this point is
very important, have not the potential, ever, to produce a
human being. However, in culture, they can produce any type of
tissue cell which you desire.
Senator Brownback. OK. Now, I want to pursue this line here
with you. So you do support the cloning of a human embryo, but
not the implantation of that human embryo?
Dr. Jaenisch. I am opposed to the implantation, because
then it becomes a very difficult to control process, and I
think there are many ethical problems.
Senator Brownback. How long will this human embryo that has
been cloned, how long do you support its continued existence as
a human embryo?
Dr. Jaenisch. It is like a normal in vitro fertilization.
You let these embryos develop to a stage of pre-implantation
development, when they would implant, or you put the embryo in
a Petri dish and let it grow to become an embryonic stem cell.
Senator Brownback. Now, who makes the legal decision for
the future of this cloned human embryo? Is it the laboratory,
or is it the person who donated the DNA?
Dr. Jaenisch. That is an important point that should be
addressed by the legislation. I believe it should be the donor,
because these clones--these cloned embryonic stem cells I
believe should be exclusively for the use for this particular
person. One could consider the cloned embryonic stem cell line
derived by this therapeutic cloning approach is like a tissue
from a donor where the donor has consented to give an organ to
another person, to a sibling, only this would be for himself.
Senator Brownback. Now, if I understand, Mr. Forsythe is
saying this human embryo, once created, has the rights of a
person under our legal code.
Dr. Jaenisch. It may be of interest to compare how the
British Government has solved that problem. I have with me a
document on how they have considered this very important
problem.
Senator Brownback. Well, you can certainly submit it for
our record if you would like. I think we have solved it for our
country.
Senator Dorgan. I wonder if I could ask a question at this
point, for my benefit.
Dr. Jaenisch. The summary is that there are two extreme
views of a human embryo. One is that a person is created with
fertilization. I think in this view there are serious ethical
problems with therapeutic cloning. The other extreme view, is
that the fertilized embryo is just a tissue from the patient.
The British Government adopted, after long, and I think
very exemplary discussion, the middle ground, which says that
one accepts a special status of the early human embryo, before
implantation, but this property is weighed against the
potential benefits arising from the proposed research which has
been approved. The current restriction and controls of embryo
use research reflect this latter view, providing the human
embryo with a degree of protection in law, but allowing the
benefits of the proposed research be weighed against the
respect due to the embryo. This was the position of the British
Government, and I believe this is the position of other
countries in Europe and in Japan.
Senator Brownback. Thank you, Mr. Jaenisch. Now, you
support the creation of a cloned human embryo for research
purposes, is that what you and your association supports?
Dr. Jaenisch. May I clarify what I mean, which is my
personal opinion. I believe that anything done with human
material is not any more basic research, but it is applied
research. It has to serve the patient or medical application. I
think basic research is done with animals with the goal of
understanding the basic principles. If you do it with humans, I
think it is applied research, which we have to consider in a
different frame.
Senator Brownback. Well, I am trying to deal with the laws,
and trying to frame laws, and I am making sure that I
understand what you would support. You want to see the
destruction of a human embryo for the use of its stem cells
codified in law, is that correct?
Dr. Jaenisch. Yes, but I would like to----
Senator Brownback. And then it not be implanted?
Dr. Jaenisch. It should not be implanted. It cannot be
implanted. It has lost the potential to become a human being.
Senator Brownback. It has lost the potential to become a
human being?
Dr. Jaenisch. It has lost the potential to become a human
being.
Senator Brownback. OK, now tell me how it has lost the
potential to become a human being.
Dr. Jaenisch. Embryonic stem cells cannot, for example,
give rise to a placenta, embryonic stem cells are not
totipotent, only the egg is totipotent. The egg can do
everything, placenta and embryo. The embryonic stem cell can
only do somatic tissues of the embryo.
Senator Brownback. But I am talking about a human embryo, a
cloned human embryo. You stated you support cloning for so-
called ``therapeutic'' purposes, so at that point it could be
implanted, when it is cloned--and you support that.
Dr. Jaenisch. I support this because it is not, I believe,
the creation of new life. It is really taking a copy of your
own cell and making an embryo for a very, very specific
purpose, for therapeutic reasons.
Senator Brownback. Now, I understand that point, but the
cloned human embryo for this purpose could be implanted, and
could lead to a full human being, is that correct?
Dr. Jaenisch. Yes. It has the ability.
Senator Brownback. Just as a scientist, it has the ability
to do this?
Dr. Jaenisch. The potential to become a human being, I
totally agree with you, but this potential, I think, is very
difficult to realize.
Senator Brownback. Now, Dr. Jaenisch, what if, then, we
create this cloned human embryo, the person that donated the
DNA, who you are saying you think they are the ones who should
make the legal decision for this, decides they do not want it
destroyed. They want it implanted.
Dr. Jaenisch. I believe this would be illegal, but I am not
a legislator.
Senator Brownback. Now, you put yourself in my shoes. We
have made this now illegal, but the person decides to do it
anyway.
Dr. Jaenisch. I think this is a very important issue which
has been brought up several times before Let me say clearly
what the British Government decided, and I read through the
law. The point was made before: once you allow transfer of a
somatic nucleus into an egg, it should not be implanted, and
you should control this.
The British Government has clearly addressed this point. It
made it a criminal offense to implant an embryo produced this
way into the uterus. This is a criminal offense, whereas the
generation of an embryonic stem cell would be permitted, so
they clearly distinguish between those two approaches, and I
would support that view.
Senator Brownback. And I think we tried to as well, but I
want to get to Mr. Forsythe, the lawyer in this, if I could.
What happens if we are at that point where we have banned
reproductive human cloning, but we have not banned the
``therapeutic'' cloning, and somebody has created a human
embryo, and then decided they do not want the embryo destroyed,
they want it implanted. What is the legal status then of the
human clone that has been implanted?
Mr. Forsythe. Well, I think the legal status is the same. I
think perhaps, Senator, you are touching on constitutional
implications, or the implications under our current
constitutional law of prohibiting implantation versus
prohibiting the cloning of the embryos at the outset. I do
believe that prohibiting implantation would create unique legal
problems, and certainly make the bill much more susceptible to
a constitutional challenge, because it would be interfering
with the desires of a particular woman to obtain a pregnancy,
to initiate a pregnancy.
Senator Brownback. Does she have that constitutional right?
Mr. Forsythe. The Supreme Court case law does not currently
guarantee that. That is beyond, it is outside the scope of Roe
v. Wade, which, as the Court has defined it, is--the abortion
liberty, as the Court has defined it, is the right to terminate
pregnancy--to terminate pregnancy, not initiate it through in
vitro fertilization, and that has never been held to be a
constitutional right yet, but this would certainly provoke
perhaps a test case.
Senator Brownback. Well, it strikes me as extraordinary to
think that we, as a Government, would then force this person to
abort this child. I cannot fathom that we would do that.
Mr. Forsythe. No, Senator, that is not going to happen. No
court is going to permit it.
Senator Brownback. Mr. Dorgan, I do want to come back for
another round.
Senator Dorgan. Mr. Chairman, thank you very much. This is
obviously a complicated and controversial set of issues, and I
must confess I know relatively little about it, and certainly
not much about the science of it.
I would like to ask a couple of questions, having learned
just a bit with this exchange. I would like to ask Mr. Forsythe
the distinction between someone who used a clone of a human
embryo and implanted it, if, in fact, the Congress had seen fit
to make that implantation illegal, what is the distinction
between that and someone else who simply decided we are going
to clone a human being after Congress had made that illegal?
What is the distinction?
Mr. Forsythe. I am not sure there is a distinction there,
if you say, cloning a human being is creating the embryo and
implanting it.
Senator Dorgan. Right. I am asking this question because I
think it is settled in the Congress that we do not support
human cloning. We believe it is inappropriate. We believe it
ought to be prohibited. I do not know of one of my colleagues
in the Senate who would come to this body and say, ``No, we
support human cloning''. I think that issue is settled, and to
the extent that someone proceeds with the cloning of a human
being after we have made it illegal, there are certain
sanctions.
I suppose it would beg the same question you just asked
about aborting a fetus in that circumstance, would it not? I am
trying to understand the distinction.
Mr. Forsythe. Yes, exactly. You collide with the woman's
reproductive freedom at that point. I think it would be
obviously unconstitutional. Under Roe v. Wade it would be
unconstitutional. It would be illegal under preexisting law.
No Government, no State in this Union has ever tried to
forcibly abort someone, and so that would simply be----
Senator Dorgan. It occurred to me while you were having
this conversation, Mr. Chairman, with Dr. Jaenisch, that one
could decide that the value to society is significant with
respect to therapeutic research and ``therapeutic'' cloning of
cells only for the purposes of developing embryonic stem cells,
which Dr. Jaenisch says cannot produce a human being. If that
is the only purpose of the cloning, then one would decide down
the road that is something that we should allow. But we would
not allow the implantation. We would sanction that by providing
criminal penalties. In that case, it seems to me that you are
in the same circumstance with respect to our decision about
human cloning. We would provide criminal penalties for those
who would engage in human cloning. We would provide criminal
penalties for those who would implant that cloned cell.
Let me go in a slightly different direction, if I might.
Dr. Kass, you indicated this is only about baby design and
manufacture. Dr. Jaenisch says it is about ``therapeutic''
cloning. Do you just dismiss everything Dr. Jaenisch says? Is
it the case that you believe this is only about baby design and
manufacture?
Dr. Kass. I think the intent of the law, the agreement
amongst the Members of Congress is, they want to stop
reproductive cloning because they believe, for whatever reason,
that this is unethical, both now and even should it become
safe. That is what we are trying to stop.
The second question is, how can you stop it, and I argue
the only way to stop it is by stopping reproduction of the
embryonic clones right from the beginning, before they reach
that blastocyst stage, when Dr. Jaenisch wants and says quite
rightly that the stem cells could be taken. I do not think you
can simply control the practice once the embryonic clones are
here.
Senator Dorgan. On that point, might I ask what is the
difference between controlling the human cloning and
controlling the implantation of the cloned embryo?
Dr. Kass. My argument is, it is a difficult technical
procedure to produce the embryonic clone, but the transfer is
easy. If you are really interested in stopping reproductive
cloning--because you cannot keep control of the embryos once
they are available and in multiple copies, because you cannot
simply confine their use to those therapeutic purposes of which
Dr. Jaenisch speaks, and because you cannot enforce the law
either at the point of transfer or afterwards--it seems to me
that to be effective as a ban on baby-making, it has to stop
the process at the start. Otherwise you will have an
ineffective law. The law would be made an ass of, and we will
not be able to stop it.
Senator Dorgan. Dr. Jaenisch, would you like to respond to
that?
Dr. Jaenisch. Well, I think the purpose in what you call
therapeutic cloning is very clear. It is not to produce a human
being. I think we agree on this. Rather the purpose is a very
beneficial one, to produce tissues for transplantation, and I
believe the law should, but I am not a lawyer, distinguish
between these two scenarios. It is criminal to implant the
cloned embryo with the purpose to produce a fetus.
I support this view, and certainly the British Government
and other Governments have made the distinction very clear.
Implantation is criminal in these countries, and I would hope
this distinction could be made in this country.
Dr. Kass. The question is whether that distinction can be
upheld in the law. The British have put it on the books. The
question is, can they make it work?
Senator Dorgan. I am not clear at this point what the
Chairman's intentions are with his bill with respect to the
issue of dividing at the level of implantation. Again, let me
say to you, Mr. Chairman and to others, I do not pretend to be
an expert in these areas. These are very complicated, very
difficult areas of science, medicine, and ethics.
I have lost a daughter to heart disease. I will not ever
decide to be a part of shutting off research that will give
life to people, or give hope to people who are suffering from
heart disease, diabetes, ALS, MS and so forth. But again,
medical research, while breathtaking and exciting in its search
for answers, is a very complicated area.
I do not come here to dismiss one side or the other. I
think this is a real, honest-to-goodness, thoughtful debate
that this country has to have, and I do not think either side
has much of an edge at this moment. As someone who has a very
personal interest in medical research, I do not want to see
anyone, for illogical purposes, shut off from promising areas
of research.
I am interested, Mr. Chairman, in trying to work with you
and understand exactly what your bill does and what your bill
does not do. As I indicated, I think you are raising a lot of
the right issues on human cloning. As I said, I do not know one
member of the Senate who supports the cloning of a human being,
but we have gradations of complexity and difficulty well below
those decisions, and that is what this panel is all about. Did
you want to add something?
Senator Brownback. I was just going to say the bill that I
put forward bans human cloning. It does not ban the
multiplication of cells, of DNA material, of anything along
that nature at all. But it says that you cannot clone another
human being, whether for research purposes or for
``therapeutic'' or for reproductive purposes. And the reason we
had Mr. Forsythe there was to point out the legal status. Once
that clone is created, actually, somebody could sue on behalf
of the clone, that is to be implanted, because of its legal
status, and that that is a likelihood taking place if you start
down one of these forks in the roads, and that is----
Senator Dorgan. You are dealing in areas that I certainly
confess I do not understand. I do not understand how that
embryo can be a human being if not implanted. It seems to me
that the act of implanting that embryo gives it some form
toward viability. We are dealing with areas that I do not spend
a lot of time in, but this is interesting. As I understand what
you are saying, Mr. Chairman, the point to which Dr. Jaenisch
took us, that is, the cloning of that embryo prior to
implantation would be impossible under your legislation; is
that correct?
Senator Brownback. If it is a human embryo clone, yes. So
not if it is just DNA material, cells that are not in the
embryo, so it is a human embryo.
Senator Dorgan. Yes. The ability to derive the embryonic
stem cells, even though they cannot produce a human being, that
Dr. Jaenisch describes, would not be available under your
legislation?
Senator Brownback. If they can come at it with a way other
than creating a human embryo, it is legal under the
legislation, but not in the creation of a human embryo. Yes,
Dr. Kass.
Dr. Kass. I think there is no one on this panel who is on
my side of the question that belittles the therapeutic
possibilities of stem cell research. This is a great great
thing that is coming. But the question is whether we have
alternatives to getting these stem cells from the embryonic
clones. Dr. Jaenisch, in his prepared remarks, made some
comparisons between stem cells derived from embryos and stem
cells derived from adult tissue, and he does make certain
arguments that one field seems to be ahead of the other, but he
did not say that it would be impossible to get these
therapeutically beneficial stem cells from our own bodily
tissues.
Now compare the following things: If I need new heart
tissue, would it not be easier to obtain some stem cells from
my fat or from my blood or from my bone marrow, and get them to
grow heart tissue and use them? It would be morally
unproblematic and much more economical. One wouldn't have to
create an embryo, one wouldn't have to decide all these
metaphysical and legal questions and the constitutional status
of the embryo. Nobody thought 3 or 4 years ago that this adult
stem cell research was going where it is.
If we slow down on the embryonic side for prudential
reasons and put a lot of money into adult stem research, it's
not clear that we would not do as well with the latter. And Dr.
Jaenisch, I would be interested in his comments. Does he really
say that we cannot get the therapeutic benefits from the adult
stem cells, that we have to have embryos for research?
Senator Brownback. Dr. Jaenisch.
Dr. Jaenisch. I think it's an important issue that you
bring up, and I believe that the somatic stem cells have great
potential. But we are now at the stage with somatic stem cells
where we were with embryonic stem cells two decades ago. We
have to learn the basic problems and properties of these cells.
And I'm not alone to say that. Last week in Science, David
Baltimore, Nobel laureate and president of Rockefeller, and Irv
Weisman, professor at Stanford, the premier scientist of stem
cell research in bone marrow, wrote a Science article that
exactly says the same thing: Adult stem cells at this point of
our understanding do not have the potential to be useful, at
least given our current knowledge. I think the point is, we
need much more research.
The point that I was trying to make is, the usefulness of
embryonic stem cells has been established by two decades of
research: we know it's going to work, and this approach will be
available in I think a short time, 2 or 3 years, for clinical
application. So the patients who are now suffering from
Parkinson's and diabetes may be helped. I think these are the
ones, that pose the ethical dilemma. Do you want to prevent
them from using this most advanced technology to cure their
illness, which they could obtain in Britain but not in this
country? Living here, should they be asked to wait another
decade or two? I don't know. I cannot volunteer to predict how
fast this progress with somatic stem cell research will be, if
it ever is realized.
I really think it is very exciting research, the somatic
stem cells. I think these are great cells. The British Royal
Society, which is the premier scientific body in Great Britain,
addressed that issue, and came to exactly the same conclusion
which I summarized, and I could read you some of the statements
which were the basis for the British legislation.
I think there is uniform agreement among scientists working
on somatic stem cells or embryonic stem cells that there is no
reason at this point to stop embryonic stem cell research
because somatic stem cells provide the alternative. We do not
know yet if they do. I think there is a uniform agreement among
all scientists in Britain, in this country and in other
countries. I think this is very important; it is a problem of
time here, and we don't know, we don't understand the basic
problems of somatic stem cells.
We cannot grow them indefinitely. Adult neural stem cells
quit growing after a week; only fetal neural stem cells grow
for a longer time, and they are not useful for what we are
talking about.
Senator Dorgan. Mr. Chairman, my time has expired. I have
to be at the Dirksen Building for another hearing at 4 o'clock.
Senator Brownback. Thanks for coming.
Senator Dorgan. I want to thank you for holding this
hearing. I also thank the panel for being here today. I think I
am probably more representative of the U.S. Senate than the
chairman of this Subcommittee, in the sense that he spent a
great deal of time on this subject, many of us have not. It is,
as I indicated, very complicated, very controversial, and also
very important. Your willingness to come and present
statements, I think, is very helpful to us. I am sorry I am not
able to hear the last panel, but I will be able to take their
testimony with me this evening and read through it. But thank
you very much for being a part of this discussion.
Senator Brownback. Thank you. Let us call up the next
panel, because we are getting short of time here.
Mr. Robert Best, President of Cultural Life Foundation; Mr.
Richard Doerflinger, Associate Director for Policy Development,
National Conference of Catholic Bishops; Mr. Carl Feldbaum,
President of BIO; and Mr. Jaydee Hanson, Assistant General
Secretary, General Board of Church and Society, United
Methodist Church.
I want to advise the panel, I am supposed to preside at the
overall Senate at 4 o'clock, and I am trying to find a
substitute, and if we do not get a substitute, then we will
reconvene if that is possible with this panel at probably about
10 minutes after 5. We are trying to get that--is that
something that would work with the panelists if we are--we were
supposed to get this hearing over by 4 o'clock.
[Pause.]
Senator Brownback. I want to hold up just a minute here to
see if I am supposed to run over to the floor and preside
before we go on.
[Pause.]
Senator Brownback. We are going to go ahead and get
started. They have given me a 15-minute reprieve, so we are
going to get started and hopefully they will get somebody to
substitute on the floor chairing for me during that period of
time.
Mr. Best, let us start with you, and I look forward to your
testimony. If you can summarize, that would be good, so we can
get as far down as we can as quickly as possible.
STATEMENT OF MR. ROBERT A. BEST, PRESIDENT, THE CULTURE OF LIFE
FOUNDATION, INC.
Mr. Best. Thank you very much, Mr. Chairman. It's good to
be back in this Senate where I spent 12 years of my life
working on trade and tax issues for the Senate Finance
Committee. I want to commend you for your leadership on an
issue that transcends the economic issues that we debate in
Congress, the issue of human life.
Our foundation supports your bill. We are a foundation of
leaders in different fields. We have medical and scientific
personnel, as well as legal scholars. We believe that the
cloning of human embryos is antithetical to the root principles
of any civilized society. These root principles include equal
protection under the law, the rights of minorities and those
least able to defend themselves.
Every human being has inviolable rights that cannot be
trespassed upon by those who are strong, powerful and willing
to use them for experiments to further their own scientific or
health-related ends. Some may think that when it comes to human
health and reproduction, science should be permitted to do
anything it is capable of doing. However, the experience of the
last century teaches us that science must be guided by
morality.
Not only in Germany but in our own nation, scientific
experiments were conducted on persons who could not defend
themselves, and often for racial purposes disguised as
``health''. Cloning a human embryo constitutes a grave
deformation of the nature of human generation, transforming a
holy act within matrimony between a man and a woman into animal
breeding or manufacturing. Cloning a human being threatens the
humanness and lays the foundation for biological chaos.
If animal cloning is any precedent, there is a likelihood
that human beings that are cloned may well have gross
deformities and be considered subject for further lethal
experiments or sentenced to an early death.
Cloning also threatens our democracy. If human beings
become designed and manufactured goods, then the equality
clause of the Declaration of Independence and the concept of
one person, one vote lose their meaning.
There is close to universal repugnance to cloning for
``reproductive purposes'', but cloning for so-called
``therapeutic purposes'', meaning the cloning of embryos as a
source of tissue for research and for medical treatment is
equally objectionable. The Brownback-Weldon bill would prohibit
cloning of human embryos for research and medical purposes, as
well as for ``reproductive'' purposes. This prohibition is
wholly appropriate.
In cloning for research and medical purposes, embryos are
created and then destroyed, which is to say killed. Some use
euphemistic language to evade this fact, but to clone
successfully is to create a new embryo, and cloning for medical
and scientific purposes destroys that embryo and therefore
kills a human person at the earliest stage of his or her
existence, utterly incapable of self defense.
The humanity of the embryo is not a theoretical or faith
based construct. It is an objective fact, that the newly
created embryo possesses its genetic identity and the
capability, if it receives the normal and routine nurturing and
protection of a mother's womb, to develop into a human being
just as independent as any one of us.
It also possesses a soul principle which united to its
specific physical characteristics, make it a unique,
unrepeatable human person. Some would deny the embryo's
humanity because it requires nurturing and protection to
develop, but at the earliest stages of life and often at the
end stages, we all require nurturing. If lack of dependence on
the nurturing care of others were to be a criterion for being
human, then many people in hospitals and nursing homes, and
airliners and coal miners would not be human.
People may be temporarily or even permanently in need of
extensive care, but they are as human as the rest of us, in the
same way human embryos are fully human. To willfully refuse to
recognize this possibly inconvenient fact is to institute a
tyranny of the strong over the weak, which would eventually be
lethal to all of us.
Once the humanity of the embryo is understood, the
objectionable nature of so-called therapeutic cloning becomes
self-evident. It is a violation of the Hippocratic tradition of
medicine which instructs a healer to first ``do no harm'',
because no greater harm could be done to the human embryo than
its destruction.
Even if the use of human embryos for research purposes were
not lethal, it would constitute medical experimentation on
human persons without their individual voluntary consent, and
would therefore violate the Nuremberg Code which was created
after post-war trial of Nazi criminals. The Code is not a law
or a treaty, but it is an important internationally-recognized
ethical norm.
The Helsinki Declaration of the World Medical Association
includes the basic principle that, and I quote,
``Every biomedical research project involving human subjects
should be preceded by careful assessment of the predictable
risks in comparison with the foreseeable benefits to the
subject of others. Concern for the interest of the subject must
always prevail over the interests of science and society.''
To create or use and, in the process, destroy a new human
life for the sole reason of being a source of spare parts or as
test beds for biomedical research, is deeply offensive to human
dignity. To use people in this way would apply a qualitative
and materialistic view of life even more harsh than what was
prevalent in this country during the time of slavery. It is the
ultimate in the manipulation of another person for one's own
benefit. Cloning embryos for such purposes turns a new human
being into an object for lethal experiment rather than as a
subject of love.
The advocates of so-called ``therapeutic'' cloning assert
that the needs of those who meet their narrow and subjective
definition of the living would benefit from the experimentation
or treatment involving human embryos. They point to the very
real and widespread suffering and needs ranging from diseases
and injuries to the brain and nervous systems, to infertility,
to justify the work they hope to undertake.
However, there is a growing mountain of evidence that
alternatives exist. Adult neural stem cells can transform
themselves into blood cells. Adult bone marrow cells can become
liver cells. Cells from discarded umbilical cords can be used
effectively. And the latest seems to be fat cells, of which we
have an abundant supply in this country, including on me.
[Laughter.]
Mr. Best. There is not the same rejection issue using adult
stem cells that has already occurred using so-called embryonic
stem cells.
In conclusion, Mr. Chairman, we thank you for this
opportunity, we support your bill, and look forward to the full
committee and the full Senate providing this ban.
I ask that the full statement and some appendices be
included in the record as well.
Senator Brownback. Without objection.
[The prepared statement of Mr. Best follows:]
Prepared Statement of Robert A. Best, President, the Culture of Life
Foundation, Inc.
Mr. Chairman, members of the Subcommittee, I applaud your
determination to legislate a prohibition on the cloning of human
embryos. Cloning of human embryos is antithetical to root principles of
a civilized society. A civilized nation protects the weakest, most
dependent human beings, believing and enshrining into law equal
protection principles premised on the truth that we are all created
equal with an inviolable dignity in the ``image and likeness of God'',
our Creator.
The issue of cloning a human embryo may seem to be scientifically
and ethically perplexing, and there may be some who say that the role
of government is to stand back and permit science to do anything it is
capable of doing in the area of human health and reproduction.
Thankfully, you correctly recognize the fundamental threat that human
cloning poses to our civilized society, based on Judeo-Christian
principles and the presumption of equality before the law. Cloning a
human embryo involves a radical manipulation of our human nature. It is
a grave deformation of the nature of human generation, transforming it
into no more than animal breeding or the manufacture of some material
device. If society loses the sense of the essential distinction of
human life from animal life and material things, whether in theory or
in the practice of attempting to clone a human embryo, it has lost its
stature as a human society. It has lost the compass of humanness and
is, instead, laying the foundation for the replacement of a human
living with biological chaos.
If human beings become manufactured goods, with manufacturers
competing to create the smartest or healthiest or fastest human being,
then the equality clause of the Declaration of Independence and the
concept of ``one person, one vote'' lose their meaning.
When the issue of human cloning has surfaced over the past years,
most often the focus is on what some call ``reproductive cloning.''
Those who use the phrase generally mean implanting and bringing to
birth a human being brought into existence initially as a one-celled
embryo by the process of somatic cell nuclear transfer. At this time,
there is almost unanimity in judging the wrong of even attempting
``reproductive cloning'' and a consensus on the need to prohibit
legally anyone attempting it. Present divisions and violence within our
society could be greatly magnified in civil strife between citizens if
reproductive cloning were permitted. We would cease to be a democracy
based on equal protection under the law. The temptation to play God in
the creation of the ``perfect human being'' would set off the lowest
competitive instincts not only among the scientific community but among
would be parents of the ``perfect child''.
Reproductive cloning gets all the headlines, but there is another
rationale being advanced for cloning--cloning human embryos as a source
of embryonic tissue for research and for medical treatment, which I
know also concerns the Subcommittee and which has also been
appropriately addressed in the Brownback-Weldon bill. This so-called
``therapeutic cloning'' sounds benign, but it is as deadly as so-called
``therapeutic abortion.'' The successful transfer of the nucleus of a
somatic cell to a de-nucleated egg leading to a fusion of the somatic
cell nucleus with the egg creates an embryo. Terms like ``totipotent
cell'', ``clump of embryonic cells'', and ``fertilized oocyte'' are
used by some to evade the issue or to make the issue seem too arcane
for laypeople to understand. But the science is unavoidably clear: to
clone successfully by somatic cell nuclear transfer is to create a new
embryo. ``Therapeutic'' cloning i.e., cloning of a human embryo for
research and medical purposes, always results in the destruction, which
is to say the death, of a human person. To cause this death for any
purpose would be immoral, as we know from the longstanding and
widespread human and religious traditions, which have prohibited as
immoral the direct taking of innocent human life--Judeo-Christian
tradition. As was confirmed by the horrible experience of the last
bloody century, when regimes used their willing scientists and medical
professionals to attempt to create a ``superior race'' or simply to
solve the problems of some at the expense of others--genetic
engineering involving the taking of innocent life in pursuit of
``perfection'' leads to destruction.
Even if the goals of scientific research are commendable in terms
of health needs of our citizens, they cannot be pursued by evil means,
including the death of the ``least among us'', the human embryo. In
addition, to cause this death for so-called therapeutic reasons would
violate the Hippocratic tradition of medicine which instructs a healer
to ``first, do no harm''. The harm to the embryo would be the greatest
harm anyone can do to another person.
Even if the use of embryos for research purposes were not lethal,
such a practice would fly in the face of the ethical and moral
tradition of this country. Research on embryos produced through
cloning, like research on any human embryos and fetuses, would
constitute medical experimentation on human persons without their
individual voluntary consent, and would violate the Nuremberg Code.
This code, created following the trials of leading Nazis after World
War II, is not a law or treaty obligation. But the Code is a fair
summary of the civilized ethical standard of experimentation on living
human beings.
It may appear that there is a big distinction between a Nazi
medical experiment on an unwilling prisoner, on the one hand, and the
pulling apart of what appears to be a small clump of tissue, on the
other. But appearances deceive, and in this age of bioscience it is
particularly important to be guided not by appearances but by
underlying truth. The truth is, the human embryo is a human being or
person, temporarily unable to communicate and temporarily dependent on
others. Whether created by cloning or by the fertilization of an egg by
a sperm, the resulting embryo is a new human being with its DNA, its
genetic identity, in place, and the capability, if properly protected
and nurtured over time, to become as independent as any one in this
room. The protection and nurturing required is not extraordinary, but
simply the normal development in a human uterus, the same protection
and nurturing that brought each one of us to first blink at the
delivery room lights.
It would be illogical to state that the embryo's need for
protection and nurturing is so great that its claim to humanity is
forfeited. Each person requires protection and nurturing, to varying
extents, at each stage of life. The only difference is degree. If we
accord human status only to those who apparently do not in their
current state require protection and nurturing, then the hospitals and
nursing homes and airliners and coal mines are full of beings that are
less than fully human. Of course, all of us instinctively reject such a
definition: our Mom may be in a nursing home and extensively dependent
on the care from other people, but she is still fully human. Similarly,
the person at the earliest stage of life is also a human being, with
all the rights pertaining thereto.
To view the embryo any other way, to limit and narrow our
definition of personhood to a question of the person's present, perhaps
momentary, independence, would be to institute a tyranny of the strong
over the weak that would eventually be lethal to all of us. One might
say, ``but I'm strong and smart and independent, what do I have to fear
from limiting human rights to people like me?''. My response would be,
we all start out weak, we end up weak, and we have unplanned moments of
weakness throughout our lives. We therefore have a personal as well as
a community interest in protecting life at all stages of development.
To permit human cloning, that is, the creation of that individual
new human life, for the sole reason of ending that life in the
interests of research or medical experimentation, is also deeply
offensive to human dignity. The use of human embryos as spare parts
sources and test beds not only kills a person, but it denigrates the
dignity of being human by bringing a person into existence and then
manipulating him or her for one's own purpose. It would denigrate the
dignity of the persons involved in the killing and all those who would
condone such killing. The cloning process turns a new human being into
an object for lethal experiment, rather than a subject for love.
The advocates of so-called therapeutic cloning assert that the
needs of those who meet their narrow and subjective definition of ``the
living'' would benefit from experimentation on or treatment with tissue
taken from human embryos. They raise very real and widespread cases of
human suffering and need, ranging from diseases and injuries of the
brain and nervous system to infertility, to justify the work they wish
to undertake. No matter how noble the reason, however, the taking of an
innocent human life is never justified. Fortunately, because of the
continued success researchers are having with adult stem cells, there
is even less basis for the insufficient but emotionally strong argument
for lethal experimentation using human embryos. For example, in just
the last thirty days we have read about some real breakthroughs:
The April 2001 edition of Tissue Engineering described how
researchers at the University of California at Los Angeles and the
University of Pittsburgh isolated adult stem cells from human fat
tissue to grow bone, cartilage, and muscle, as well as fat. Commenting
on this breakthrough, Dr. Eric Olson, chair of the Department of
Molecular Biology at the University of Texas Southwestern Medical
Center in Dallas, was quoted by The Washington Post (April 10, 2001, p
A1) as saying, ``every other week there's another interesting finding
of adult cells turning into neurons or blood cells or heart muscle
cells. Apparently our traditional views need to be reevaluated.''
The same issue of Tissue Engineering described how Dr.
Douglas Smith of the University of Pennsylvania Medical School has
stretched nerve cells to become the connections, or axons, between
nerve cells in an effort to bridge the gap that occurs in spinal cord
injuries, so that communications can be restored in the spinal column.
On April 18 scientists at Cambridge University in England
announced that they had also made progress against spinal column
injury. Scar tissue, which forms at the injury site, blocks nerve cell
regeneration that would otherwise restore communications along the
severed link. The British scientists found that injection of an enzyme,
chondroitinase, breaks down the scar tissue and facilitates
regeneration of the nerve cells.
On April 11, the Anthrogenesis Corporation of Cedar
Knolls, N.J., announced that it had developed a way to extract human
stem cells from the placenta, and that the cells were the equivalent of
human embryonic stem cells (The New York Times, April 12, 2001).
There are other highly significant findings, such as the University
of South Florida work, announced last August, in which adult stem cells
from bone marrow grew into the brain cells appropriate to specific
parts of the brain, or the research results announced last November by
Dr. Fred Gage of the Salk Institute, demonstrating that adult stem
cells taken from the spinal cords of rats can become neurons. In sum,
research into the causes and rehabilitation of diseases and injuries of
the brain and nervous system is producing spectacular results without
the use of embryos, and there is every indication that the research
results will continue to snowball. Although heavily funded and publicly
touted by the scientists who are invested in it, research involving
human embryos has had nowhere near the success that adult stem cells
and other techniques have enjoyed. We don't need to kill human embryos,
that is, human beings at the earliest days of their existence, in order
to defeat these diseases and injuries. It is therefore especially
appropriate that the cloning ban in the Brownback-Weldon bill would
also prohibit cloning for so-called therapeutic purposes.
Human cloning is sometimes justified on the grounds that it is the
last hope of those suffering from infertility, but the Culture of Life
Foundation is aware of a completely natural and non-invasive
infertility regimen which claims success rates of up to 80%. This
regimen, called the Creighton Model System, was developed by Dr. Thomas
Hilgers of the Pope Paul VI Institute of Omaha, Nebraska. I suggest the
Subcommittee contact him for additional information. His address,
phone, and fax information is: 6901 Mercy Road, Omaha, NE 68106-2621.
Phone (402) 390-6600, Fax (402)390-9851, Internet: www.popepaulvi.com
There are many other reasons why all human cloning should be
banned, and I stress that these reasons are real, practical, not
theoretical, and are based on universal truths.
First, human cloning changes the nature and meaning of human
sexuality. If a new person can be produced by taking the nucleus of a
somatic cell from a man and injecting it into the de-nucleated egg of a
woman, then human sexuality becomes superfluous. From its age-old
purpose of transforming human love into new life, sexuality in an age
of cloning would become, even more than it has unfortunately already
become, simply an itch to scratch. We have seen in the past half-
century, as the connection between sexuality and reproduction has
weakened in the ``sexual revolution'', a rise in negative social
indicators such as divorces, abortions, an explosion of sexually
transmitted diseases including one that is 100% fatal, and greatly
increased exploitation of women in prostitution and pornography. By
further weakening sexuality's reproductive purpose, cloning would
therefore further weaken families and communities.
Second, human cloning would weaken or even pervert basic human
relationships such as family, fatherhood and motherhood, consanguinity,
and kinship. For example, if a clone resulted from the nucleus of a
somatic cell taken from his ``father'', his biological tie to his
``mother'' would be vastly different than that of a natural child.
Apart from mitochondria DNA, which is outside the nucleus and is always
passed on the maternal side, the clone would inherit no
characteristics, no other DNA, no genetic material, from his mother.
This very different biological tie could contribute to a different
emotional mother-son tie as well. Further, as the clone would likely be
``the spitten image'' of his father, the mother's already different
relationship with her child would become truly bizarre. Human cloning
therefore perverts the relationships that are fundamental to our mental
health and to the health of society.
Third, human cloning would compromise the dignity of the cloned
person because she would forever know she was biologically identical to
another person. Richard Seed, a scientist who wants to set up a cloning
clinic in the U.S., has reportedly said that he wished he could have
obtained a blood sample from Mother Teresa from which to clone a saint.
Of course, the resulting little girl would only be biologically
identical to Mother Teresa. The unique life-principle or soul would
make her an entirely unique human person. Her own environment and
experiences also contribute to her uniqueness. There will never be
``another Mother Teresa''. But the expectations that others would put
on that child, and the expectations she might place on herself, would
possibly make for a miserable life. She would have lost the essential
human freedom to be oneself. The children of the famous and notorious
sometimes carry a heavy burden, but at least they retain the freedom of
their own individuality. The cloned person would have lost that basic
freedom because of the decision of another person.
The threat of power over others is a fourth reason to oppose human
cloning. Most parents consciously choose to have children, and some try
to influence the development of their child in utero. All responsible
parents exercise authority over their children after birth and use
their authority to educate and develop their children. This use of
parental authority is natural. But human cloning gives a person
absolute dominion over the existence of another. Whether the person
comes into existence at all, when the person comes into existence, what
the person's genetic material will be, what the person's intelligence
and appearance and special skills will be--all this would be determined
by another person. As I noted earlier, if people can have this kind of
power over others, than the equality clause is just empty words from a
quaint past. Those who would clone people seek a dominion over others
which can only be termed ``Godlike''. Like the bypassing of human
sexuality to achieve reproduction, the calling into existence of a
precisely specified new person is an exercise in apparent human
omnipotence.
A fifth reason to oppose human cloning is that it will increase a
trend which we need to reverse, if we want to retain our freedom: the
trend toward evaluating other people on the basis of their qualities
instead of on their existence. Human cloning will always be the outcome
of a choice about the specific traits and qualities of a child. As we
have seen, cloning turns human reproduction into a manufacturing
process. In time, given our national genius at capitalism, particular
qualities and the raw material needed to obtain them will be available
in exchange for money. Health insurers, for example, have a financial
incentive to favor healthier children. Wealthy parents will use cloning
to get ever-higher ``quality'' children (''quality'' meaning whatever
the fashion of the time dictates) while poor people, reproducing in the
traditional way, would possibly lag ever farther behind. Again, the
strain imposed on our concept of equality will be too much, and self-
government will end.
I said earlier that human cloning would be an exercise in apparent
human omnipotence. I say ``apparent'' because, unlike the natural
reproductive system, which has brought us to this point, cloning is
fraught with physical risks. Many of those risks have already been
displayed in the cloning of mammals. For example, Dolly the cloned
sheep was the one live birth derived from 277 sheep embryos that were
created in the experiment. Cloned embryos appear to develop into
larger-than-normal fetuses, resulting in a high incidence of
stillbirths and Caesarean section deliveries. Developmental problems
associated with abnormal size of human clones would include a high
incidence of death in the first few weeks from heart and circulatory
problems, diabetes, underdeveloped lungs, or immune system problems.
The January death from a common infection of a cloned wild gaur (an
endangered South Asian species) at Trans-Ova Genetics in Sioux Center,
Iowa, may indicate that cloned animals have a lower resistance to
disease. Another problem is the potential for clones to have aging DNA
and thus an accelerated aging process. Lord Robert Winston, one of the
developers of in vitro fertilization, has stated that because of the
faster aging process, he would not want a child of his to be cloned.
The current low rate of cloning success with mammals (two clones
born per 100 implantations, according to one source, up to 17 per 100
according to another) suggests a similarly low success rate for human
cloning. And even if a seemingly normal and healthy animal is born, a
defect that was not apparent can suddenly cause death, as was the case
with a cloned sheep born last December at the same center that produced
Dolly. The March 25, 2001, New York Times, reporting on the cloning of
animals, described a high rate of spontaneous abortion and post-natal
developmental delays, heart defects, lung problems, and malfunctioning
immune systems among cloned animals who had initially seemed normal.
But let us stipulate that human ingenuity will gradually increase the
success rate: who could live with having caused the pain of the many
human clones who suffered and died along the way?
One section of the Brownback-Weldon bill is unneeded, in my view,
and that is the section creating a commission to study the issues
surrounding human cloning. There is no question that human cloning is
profoundly wrong, regardless of the purpose for which it is undertaken.
Every act of human cloning would be somewhere between cruel and lethal.
It is a good example of science gone wild, without any guidance by
ethics or morals. We recall from the twentieth century where science
unfettered by ethics or morals can take us. We know cloning should not
be done, and a commission is not needed to confirm what we already
know. Morality and ethics are not the proper fields of government-
created commissions. That said, the Culture of Life Foundation
wholehearted supports the rest of the bill and appreciates the concern
that this subcommittee has for the health and well-being of all
Americans, at all stages of their lives.
Senator Brownback. Gentlemen, I apologize, but they are
calling me to the floor to preside, and I am going to have to
do that until the hour of 5 o'clock. Can you stay until, it
will probably be about 5:10 when I would get back, would that
work for you? If not, I guess it is a problem, but we will be
in recess until 5:10 and we will come back and reconvene the
hearing. Thank you.
[Recess.]
Senator Brownback. I apologize again for having to go over
and preside. We thought we would be able to get done with the
hearing by the time of 4 o'clock, and that obviously did not
take place. So, my apologies to the panelists and those in
attendance for the long break. We will continue from this
point.
Next to present will be Mr. Carl Feldbaum, president of
BIO, the Biotechnology Industry Organization. Mr. Feldbaum, I
look forward to your testimony.
STATEMENT OF MR. CARL B. FELDBAUM, PRESIDENT, BIOTECHNOLOGY
INDUSTRY ORGANIZATION
Mr. Feldbaum. Thank you, Senator Brownback. Just to set the
stage, BIO represents 950 biotechnology company and academic
institutions in all 50 states. Most of the hard work in our
industry is directed toward currently unmet medical needs, new
therapies and cures for Alzheimer's and Parkinson's diseases,
diabetes, various cancers, heart disease, and literally
hundreds of debilitating, and perhaps thousands as we read out
the human genome, life threatening genetic conditions.
Let me begin by making my position and the position of the
Biotechnology Industry Organization perfectly clear. BIO
opposes the use of cloning technology for reproductive uses to
clone a human being. We are unalterably opposed to that, simply
for reasons that have been stated, but they bear restatement
and reemphasis. It is simply too unsafe technically, and raises
far too many unresolved ethical and social questions, many of
which have been referred to in earlier testimony.
It is obvious that this is a very sensitive issue, and we
respect that. The issue and the quarrel here, if there is one,
is not a religious one. We are searching for ways to treat
thousands of individuals, indeed hundreds of thousands, who are
currently suffering, and many of whom are likely to die young
if ways are not found to help them. I did not anticipate that
some of this earlier testimony would involve some questions
about legal status.
I am formerly a prosecutor. Actually, in the earlier stage
of my career I was an assistant district attorney in
Philadelphia under District Attorney Arlen Specter, another
good Kansan, some years ago, from Russell, Kansas originally,
and I am a cancer patient as well. So I speak from a number of
perspectives.
We have already heard just how unsafe human cloning is. It
did take well over 270 attempts before Dolly was successfully
cloned, and even if the odds of cloning a healthy child were
brought down to one in three or one in two, it simply would
remain unacceptable.
The Food and Drug Administration, the FDA, has publicly
stated that it has jurisdiction over human reproductive cloning
experiments and that it will not approve them. We support that
view and hope that the next FDA commissioner, whoever that
might be, will assert FDA's current statutory authority
forcefully.
Let me remake a distinction that was attempted to be made
earlier today. It is critical to distinguish the use of cloning
technology, again, reproductive cloning, from what we have
called therapeutic cloning. And these therapeutic cloning
techniques are essential, we believe, to new therapies and
cures for some of the diseases that I have mentioned and have
been mentioned earlier, Parkinson's, Alzheimer's, diabetes,
heart conditions in particular, but there may be many many
others, particularly as we find that most human diseases have
some genetic component.
As I wrote in a letter to President Bush on February 1st of
this year, stating BIO's position, and I said to be perfectly
clear, we support cloning of specific human cells, genes and
other tissues that do not and cannot lead to a cloned human
being. Therapeutic cloning technology can create pure
populations of functional cells to replace damaged cells in the
human body, and biomedical researchers are learning how to turn
undifferentiated human stem cells into neurons, liver cells and
heart muscle cells, among others.
This would for example, allow patients with heart disease
to receive new heart muscle cells that would greatly improve
their cardiac function.
And going further, specific cellular cloning techniques
such as somatic cell nuclear transfer are critical to these
developments. They are necessary steps in producing sufficient
quantities of vigorous replacement cells for the clinical
treatment of patients, cells that could be transplanted without
triggering an immune response rejection. I think that is the
critical distinction when we are talking about somatic cell
nuclear transfer.
Let me just make a comment. I am abbreviating my testimony,
which I would ask be put in the record in whole.
Senator Brownback. Without objection.
Mr. Feldbaum. Thank you. Mr. Chairman, we have debated
reproductive cloning before, as you know. After the unveiling
of Dolly the sheep, a few senators introduced legislation that
would have not only banned human reproductive cloning, but it
would have probably inadvertently prohibited critical and
meaningful biomedical research. When opponents of the
underlying bill staged a filibuster, supporters received only
42 votes for cloture. A review of the debate shows that while
all senators appeared to oppose human reproductive cloning, a
majority would not support legislation that would again perhaps
inadvertently shut down some of this important research.
We all agree that the current safety and social factors
make human reproductive cloning repugnant, but it is just as
critical in our enthusiasm to prevent reproductive cloning that
we not ban vital research.
Again, thank you for the opportunity to testify, and I will
be happy to answer any questions.
[The prepared statement of Mr. Feldbaum follows:]
Prepared Statement of Carl B. Feldbaum, President,
Biotechnology Industry Organization
Good afternoon. My name is Carl Feldbaum. I am the president of the
Biotechnology Industry Organization, otherwise known as BIO. BIO
represents more than 950 biotechnology companies, academic institutions
and state biotechnology centers in all 50 U.S. states and 33 other
nations. BIO's members are involved in the research and development of
medical, agricultural, industrial and environmental biotechnology
products. Most of the hard work in our industry is directed toward
currently unmet medical needs: new therapies and cures for Alzheimer's
and Parkinson's diseases, diabetes, various cancers, heart disease and
hundreds of debilitating and many life-threatening genetic conditions.
Mr. Chairman, and members of the Subcommittee, thank you for the
opportunity to testify today. Let me begin by making my position
perfectly clear: BIO opposes human reproductive cloning. It is simply
too unsafe technically and raises far too many unresolved ethical and
social questions.
That's why I wrote to President Bush on February first of this
year, urging him to extend the voluntary moratorium on human
reproductive cloning, which was instituted in 1997. As I said in that
letter, ``Cloning humans challenges some of our most fundamental
concepts about ourselves as social and spiritual beings. These concepts
include what it means to be a parent, a brother, a sister and a family.
``While in our daily lives we may know identical twins, we have
never experienced identical twins different in age or, indeed,
different in generation. As parents, we watch with wonder and awe as
our children develop into unique adults. Cloning humans could create
different expectations. Children undoubtedly would be evaluated based
on the life, health, character and accomplishments of the donor who
provides the genetic materials to be duplicated. Indeed, these factors
may be the very reasons for someone wanting to clone a human being.'' I
respectfully ask for the entire letter to be included in the hearing
record.
Perhaps even more compelling, it is extremely unsafe to attempt
human reproductive cloning. In most animals, reproductive cloning
currently has no better than a 3 to 5 percent success rate. In fact,
scientists have been attempting to clone numerous species for the past
15 years with no success at all. What that means, simply and
graphically, is that very few of the cloned animal embryos implanted in
a surrogate mother animal survive. The others either die in utero--
sometimes at very late stages of pregnancy--or die soon after birth.
Only in cattle have we begun to achieve some improvement. What I am
saying is that we cannot extrapolate to humans the data from the
handful of species in which reproductive cloning is now possible. This
grim record emphasizes just how unsafe this procedure is, whether it's
applied to sheep, goats, dogs, cats, whatever.
I understand that it took over 270 attempts before Dolly was
successfully cloned. Even if the odds of cloning a healthy child were
brought down to one in three or one in two, it would be simply
unacceptable. Rogue and grandstanding so-called scientists who claim
they can--and will--clone humans for reproductive purposes insult the
hundreds of thousands of responsible, reputable scientists who are
working hard to find new therapies and cures for millions of
individuals suffering from a wide range of genetic diseases and
conditions.
The Food and Drug Administration (FDA) has publicly stated that it
has jurisdiction over human reproductive cloning experiments and that
it will not approve them. BIO supports that view and hopes that the
next FDA commissioner--whoever that might be--will assert FDA's current
statutory authority forcefully.
beneficial uses of cloning technology
Allow me to shift gears now, and make a critical distinction. It is
critical to distinguish the use of cloning technology to create a
baby--reproductive cloning--from therapeutic cloning. Therapeutic
cloning techniques are central to the production of breakthrough
medicines, diagnostics and vaccines to treat Alzheimer's, diabetes,
Parkinson's, heart attacks, various cancers and hundreds of other
genetic diseases. Therapeutic cloning could also produce replacement
skin, cartilage and bone tissue for burn and accident victims and bring
us ways to regenerate retinal and spinal cord tissue. Therapeutic
cloning cannot produce a whole human being. This work should be allowed
to move forward.
Allow me a minute or two to explain how therapeutic cloning can be
used to develop products that will greatly improve the practice of
medicine and, in turn, enormously improve the quality of life of
individuals suffering from many of the most serious illnesses known to
human kind.
Regenerative Medicine
Many diseases disrupt cellular function or destroy tissue. Heart
attacks, strokes and diabetes are examples of common conditions in
which critical cells are lost to disease. Today's medicine cannot
completely restore this function. Regenerative medicine holds the
potential to cause an individual's malfunctioning cells to work
properly again or even to replace dead or irreparably damaged cells
with fresh, healthy ones, thereby restoring organ function. The goal is
to provide cells that won't be rejected when they are transplanted into
the body.
Again, as I wrote in my letter to President Bush in February, ``To
be perfectly clear, we support cloning of specific human cells, genes
and other tissues that do not and cannot lead to a cloned human
being.'' Therapeutic cloning technology can create pure populations of
functional cells to replace damaged cells in the human body. Biomedical
researchers are learning how to turn undifferentiated human stem cells
into neurons, liver cells and heart muscle cells. Thus far, these human
replacement cells appear to function normally in vitro, raising the
possibility that they can be used in the treatment of devastating
chronic diseases affecting these particular tissue types. This would,
for instance, allow patients with heart disease to receive new heart
muscle cells that would greatly improve cardiac function.
Studies published in last week's issue of Science magazine confirm
the enormous potential of using cloning techniques in regenerative
medicine. In those studies, which were done with mice, researchers were
able to generate new neural cells and islets (insulin-producing cells).
We hope to perfect these techniques to successfully transplant those
cells. The potential benefit from this research to millions of people
with diabetes, Parkinson's disease and spinal cord injuries is
extraordinary.
Specific cellular cloning techniques, such as somatic cell nuclear
transfer, are critical to these developments. They are necessary steps
in producing sufficient quantities of vigorous replacement cells for
the clinical treatment of patients, cells that could be transplanted
without triggering an immune-response rejection.
predictive toxicology/drug discovery
Companies also use therapeutic cloning techniques to develop
research tools that help them determine if new drugs are safe for
people. The use of normal, cloned human liver cells to test for certain
toxic metabolites in drugs under development would reduce the danger of
human clinical trials by eliminating such compounds before they are
tested in humans. This process could both safeguard and streamline the
drug development process, bringing drugs to patients sooner and more
safely, and reduce the current reliance upon animal testing.
legislative action
Mr. Chairman, Congress has debated reproductive cloning before.
After the unveiling of Dolly the sheep, a physicist named Richard Seed
announced that he would perform human cloning experiments. The
congressional debate that followed is instructive. At that time, a few
senators introduced legislation that would have not only banned human
reproductive cloning, but also would have prohibited critical
meaningful, biomedical research. When opponents of the underlying bill
staged a filibuster, supporters received only 42 votes for cloture. A
review of the debate shows that while all senators opposed human
reproductive cloning, a majority would not support far-reaching
legislation that would--perhaps inadvertently--shut down important
biomedical research.
As the current Congress pursues legislative prohibitions on human
reproductive cloning, we urge both caution and a distinction between
reproductive and therapeutic cloning. We all agree that given the
current safety and social factors, human reproductive cloning is
repugnant. However, it is critical that in our enthusiasm to prevent
reproductive cloning, we not ban vital research, turning wholly
legitimate biomedical researchers into outlaws, and thus squelching the
hope of relief for millions of suffering individuals.
Our nation is on the cusp of reaping the rewards from our
significant investment in biomedical research. The U.S. biotech
industry is the envy of much of the world, especially our ability to
turn basic research at NIH and universities into applied research at
biotech companies and in turn, into new therapies and cures for
individual patients. Using somatic cell nuclear transfer and other
cloning technologies, biotech researchers will continue to learn about
cell differentiation, oocyte ``reprogramming'' and other areas of micro
and molecular biology. Armed with this information, they can eventually
crack the codes of diseases and conditions that have plagued us for
hundreds of years, indeed, for millennia.
conclusion
In conclusion, Mr. Chairman, human reproductive cloning remains
unsafe, and the ethical issues it raises have not been reasonably
resolved. The voluntary moratorium on human reproductive cloning should
remain in place, and no federal funds should be used for human
reproductive cloning. If the Congress in its wisdom decides that
legislation to outlaw reproductive cloning is needed, that legislation
must be carefully drawn to ensure that it will not stop vital research
using therapeutic cloning.
Again, thank you for the opportunity to testify. I'll be happy to
answer any questions.
______
Biotechnology Industry Organization,
Washington, DC, February 1, 2001.
Hon. George W. Bush,
President of the United States,
The White House,
Washington, DC.
Dear Mr. President: Recently certain groups have announced plans to
clone human beings. The Biotechnology Industry Organization (BIO)
opposes these efforts, and we urge you to support continuation of the
current voluntary moratorium on these experiments in the United States.
BIO represents more than 940 biotechnology companies and academic
institutions in all 50 states.
The moratorium on cloning human beings was implemented in March
1997 as an immediate response to concerns raised by the cloning of a
sheep, named Dolly, from genetic material of an adult cell. The
scientific breakthrough's implications riveted the world and generated
calls in many nations for a ban on applications of cloning technology
to create human beings.
To be perfectly clear, we support cloning of specific human cells,
genes and other tissues that do not and cannot lead to a cloned human
being. These techniques are integral to the production of breakthrough
medicines, diagnostics and vaccines to treat heart attacks, various
cancers, Alzheimer's, diabetes, hepatitis and other diseases. This type
of cloning could also produce replacement skin, cartilage and bone
tissue for burn and accident victims, and result in ways to regenerate
retinal and spinal cord tissue. More than a quarter billion people
worldwide already have benefited from biotechnology therapies and
vaccines.
BIO was among the first to support a moratorium on cloning human
beings because we view this specific cloning technology as unsafe and
because the prospect of cloning humans raises profound moral, religious
and bioethical concerns.
The National Bioethics Advisory Commission (NBAC), following a 1997
study on the implications of human cloning, recommended the moratorium
be continued. NBAC further urged a ban on federal funding of any
attempt to create a child by cloning and urged compliance with a
voluntary moratorium by private and non-federally funded sectors.
In its conclusions, NBAC called cloning human beings unsafe and
morally unacceptable. The U.S. Food and Drug Administration affirmed
that it had jurisdiction over any human cloning experiments and would
not approve them.
Mr. President, today the technology to clone a human being still is
not safe and the full range of moral and ethical concerns still has not
been addressed.
Cloning humans challenges some of our most fundamental concepts
about ourselves as social and spiritual beings. These concepts include
what it means to be a parent, a brother, a sister and a family.
While in our daily lives we may know identical twins, we have never
experienced identical twins different in age or, indeed, different in
generation. As parents, we watch with wonder and awe as our children
develop into unique adults. Cloning humans could create different
expectations. Children undoubtedly would be evaluated based on the
life, health, character and accomplishments of the donor who provides
the genetic material to be duplicated. Indeed, these factors may be the
very reasons for someone wanting to clone a human being.
The current moratorium on cloning humans should remain until our
nation has had time to fully explore the impact of such cloning.
Otherwise, we may risk a public backlash against responsible
biotechnology research that is making progress daily in developing new
treatments and cures for our most devastating and intractable diseases.
I welcome the opportunity to discuss this critical and timely issue
with you and your staff.
Sincerely,
Carl B. Feldbaum,
President, Biotechnology Industry Organization.
Senator Brownback. I look forward to reading your letter to
the President and your testimony. I think we are consistent
with what your stance is in the bill that I have introduced,
and so I look forward to some discussion of that point of view.
Mr. Hanson, thank you for joining us.
STATEMENT OF MR. JAYDEE HANSON, ASSISTANT GENERAL SECRETARY FOR
PUBLIC WITNESS AND ADVOCACY, GENERAL BOARD OF CHURCH AND
SOCIETY, THE UNITED METHODIST CHURCH
Mr. Hanson. Thank you. I am Jaydee Hanson, the Assistant
General Secretary for Public Witness and Advocacy, for the
General Board of Church and Society, of the United Methodist
Church. I am pleased to be asked to testify before the
Committee. I note with appreciation that the legislation that
you have introduced, Senator Brownback, is legislation that
supports the principles on cloning adopted a year ago by the
United Methodist Church.
The General Conference of the United Methodist Church is
the only church body that speaks for the entire 1.4 million
member United Methodist Church. A year ago in May 2000, the
General Conference both reaffirmed its support for legal
abortions, albeit with a number of restrictions we would like,
and called for a ban on all human cloning, including the
cloning of human embryos. This, and I am quoting from General
Conference policy, this would include all projects privately or
government funded that are intended to advance human cloning.
Many other denominations have also issued statements
opposing human cloning. The United Methodist Church opposition
to cloning comes from our understanding of a theology of God's
creation and how humans are to be stewards of God's creation.
The United Methodist Church is not an antiscience
organization. We have 122 schools and colleges that include
hospitals, and we teach that God works through science. But the
new biological technologies including cloning force us to
examine as never before the meaning of life, our understanding
of ourselves as humans, and our proper role in God's creation.
The General Conference, and I quote again, cautions that
the prevalent principle in research that what ought to be done
should be done is insufficient rationale and should not be the
prevalent principle in guiding the development of new
technologies. Technologies need moral and ethical guidance.
As United Methodists, our reflections on these issues
emerge from our faith. We remember that creation has its
origin, value and destiny in God, and that humans are stewards
of creation and that technology has brought both great harm and
great benefit. As people of faith, we believe our identity as
humans is more than our genetic inheritance, our social
environment or the sum of the two. We are created by God and
have been redeemed by Jesus Christ.
In light of these theological claims and other questions,
fears and expectations, we recognize that our present human
knowledge is incomplete and finite. We do not know all the
consequences of cloning. It is important that the limits of
human knowledge be considered as policy is made.
In the interests of time, I have shortened my comments as
well, and ask that they be included in the record.
Senator Brownback. Yes, without objection.
Mr. Hanson. The General Conference statement on human
cloning notes a number of ways that human cloning would have
social and theological implications. The use and abuse of
people, the exploitation of women, the tearing of the fabric of
the family, the compromising of human distinctiveness, the
lessening of genetic diversity, the direction of research and
development on cloning would likely be controlled by corporate
profit.
The General Conference further noted that given the
profound theological and moral implications, and the
imperfection of human knowledge, that there should be a
moratorium even on cloning related research.
When I teach Sunday school I remind my students that the
most difficult choices that we face are not those that are
clear right and wrong choices. The most difficult choices we
face are to do good the wrong way. Jesus was tempted in the
wilderness by the devil to do several good things, to turn
stone into bread, to throw himself from the temple so that
angels would save him to show the glory of God; to become an
earthly ruler. Jesus resisted these temptations.
We have temptations we need to resist too. The temptations
offered by those who would clone human embryos and humans are
profound. They suggest that by these technologies alone will
serious diseases be solved. Cloning human embryos was first
presented as essential to providing enough stem cells for
research, but we are learning every day that new adult stem
cells are being found.
Be wary of the temptation to adopt today's latest
technology as the final understanding of God's way of creating
and healing humans. Be wary also of language. Avoid the
temptation to call experimental procedures therapy. Cloning
proponents will argue that cloning will soon become a normal
way of reproducing humans and that the initial opposition will
fade away when safety concerns are addressed. The cloning of
humans should never be allowed to become normal.
The U.S. Congress has the opportunity to join with many
other countries where the United Methodist Church has members
and ban human cloning. The rest of the world is looking for the
United States to provide leadership on this issue. The U.S.
Congress, moreover, should not take halfway measures with
regard to cloning. Some have argued that banning the
reproduction of a human clone is sufficient, and that the
cloning of human embryos should not be banned. We urge you to
both ban the cloning of human embryos and to prohibit the
patenting of human embryos. To allow the production of cloned
human embryos makes it highly likely that any ban on
reproductive cloning would be easily violated.
Thank you for your time.
[The prepared statement of Mr. Hanson follows:]
Prepared Statement of Jaydee Hanson, Assistant General Secretary for
Public Witness and Advocacy, General Board of Church and Society, The
United Methodist Church
We are pleased to testify on the issue of cloning before this
committee. We note with appreciation that the legislation introduced by
Subcommittee Chair Senator Brownback is legislation that supports the
principles on cloning adopted by The United Methodist Church.
The General Conference of The United Methodist Church is the only
church body that speaks for the entire 8.4 million-member United
Methodist Church. One year ago, in May 2000, the General Conference
called ``for a ban on all human cloning, including the cloning of human
embryos. This would include all projects, privately or governmentally
funded, that are intended to advance human cloning.'' (The Book of
Resolutions of The United Methodist Church, 2000, p. 254)
The General Conference based its position on the work of the United
Methodist Genetic Science Task Force, which began its work in 1989,
some 8 years before a Scottish laboratory succeeded in cloning
``Dolly''.
Since the cloning of Dolly, this issue of cloning has sparked
enormous and sustained concern in the general public, including the
church. Many other denominations other than the United Methodist Church
have also issued statements opposing human cloning. The United
Methodist Church opposition to cloning comes from our understanding of
a theology of God's creation and how humans are to be stewards of God's
creation. The new biological technologies, including cloning, force us
to examine as never before, the meaning of life, our understanding of
ourselves as humans, and our proper role in God's creation. The General
Conference ``caution(s) that the prevalent principle in research that
what can be done should be done is insufficient rationale . . . and
should not be the prevalent principle guiding the development of new
technologies . . . technologies need moral and ethical guidance.''
(Book of Resolutions, p. 248)
As United Methodists, our reflections on these issues emerge from
our faith. We remember that creation has its origin, value, and destiny
in God, that humans are stewards of creation, and that technology has
brought both great benefit and harm to creation. As people of faith, we
believe that our identity as humans is more than our genetic
inheritance, our social environment, or the sum of the two. We are
created by God and have been redeemed by Jesus Christ. In light of
these theological claims and other questions, fears and expectations,
we recognize that our present human knowledge on this issue is
incomplete and finite. We do not know all of the consequences of
cloning . . . it is important that the limits of human knowledge be
considered as policy is made. (Book of Resolutions, p.254)
Dr. Rebekah Miles, associate professor of ethics, at Perkins School
of Theology, Southern Methodist University and a member of the United
Methodist Task Force on Genetic Science summarized the questions asked
by our taskforce.
Will human cloning compromise our God-given uniqueness or
distinctiveness?
How might human cloning be misused by sinful humans to further
their selfish ends and objectify other people?
Is a desire to replicate one's genetic inheritance in a human clone
an attempt to deny our inevitable finitude as human beings?
Will human cloning further social injustice . . .?
When does human alteration of creation go so far as to become a
violation of God's creation?
What is the difference between our human capacities for creation
and God's?
Our Genetic Science Task Force concluded that cloning would
compromise human distinctiveness, that it would be used as a way to
further social injustice, and was a violation of their understanding of
God's Creation and as such should be banned.
The General Conference statement on human cloning notes a number of
ways that human cloning would have social and theological
ramifications: (the) use and abuse of people, exploitation of women,
(the) tearing of the fabric of the family, the compromising of human
distinctiveness, the lessening of genetic diversity, the direction of
research and development (on cloning would likely be) . . . controlled
by corporate profit . . . (Book of Resolutions, p. 254) The General
Conference further noted that Given the profound theological and moral
implications, the imperfection of human knowledge that there be a
moratorium on cloning-related research.
The most difficult choices we face are often to do good the wrong
way.
Jesus was tempted in the wilderness by the devil to do several
``good'' things: To turn stone into bread; to throw himself from the
temple so that angels would save him and show the glory of God; to
become an earthly ruler. Jesus resisted these temptations.
The temptations offered by those who would clone human embryos and
humans are profound. They suggest by these technologies alone will
serious diseases be solved. Cloning human embryos was first presented
as essential to providing enough stem cells for research, but we are
learning every day that new adult stem cells are being found. Be wary
of the temptation to adopt today's latest technology as the final
understanding of God's ways of creating and healing humans.
Cloning proponents will argue that cloning will soon be come a
normal way of reproducing humans and that initial opposition will fade
away when safety concerns are addressed. The cloning of human humans
should never be allowed to become ``normal''. The US Congress has the
opportunity to join with many other countries where the United
Methodist Church has members and ban human cloning. The rest of the
world is looking to the United States for leadership on this issue. The
US Congress, moreover, should not take halfway measures with regard to
cloning. Some have argued that banning the reproduction of a human
clone is sufficient and that cloning of human embryos should not be
banned. We would urge you to both ban the cloning of human embryos and
to prohibit the patenting of human embryos. To allow the production of
cloned human embryos makes it highly likely that any ban on
reproductive cloning would be easily violated.
Senator Brownback. Thank you, Mr. Hanson, and thank you for
those comments.
Mr. Doerflinger.
STATEMENT OF MR. RICHARD M. DOERFLINGER, ASSOCIATE
DIRECTOR FOR POLICY DEVELOPMENT, SECRETARIAT FOR PRO-LIFE
ACTIVITIES, NATIONAL CONFERENCE OF
CATHOLIC BISHOPS
Mr. Doerflinger. Thank you, Mr. Chairman, for this
opportunity to testify and to express the support of the
National Conference of Catholic Bishops for a Federal ban on
human cloning as proposed in your bill.
Human cloning shows disrespect for life in the very act of
generating it, manufacturing human beings in the laboratory to
specifications predetermined by the desires of others. Because
cloning divorces human reproduction from the context of a
loving union between man and woman, such children in fact have
no parents in the usual sense of the word. Hence they have no
defenders against manipulation and abuse by unethical
researchers, unless this body and others like it step forward.
A cloned human being, in our view, should be treated as a
human person with fundamental rights. Cloning is not wrong
because cloned humans lack human dignity. It is wrong because
they have human dignity, and are being brought into the world
in a way that fails to respect that dignity.
Cloning, as we have heard, is proposed as a way to make
live born children, so-called ``reproductive'' cloning, and as
a way to make human embryos for destructive experiments, which
some call ``therapeutic'' cloning.
The difference is this. In the first, reproductive cloning,
as Dr. Jaenisch has testified, very few cloned humans survive
to live birth; in the second, none would.
Efforts to ban only ``reproductive'' cloning would not in
our view ban cloning at all, but simply ban allowing cloned
humans to survive. I do note that even Dr. Jaenisch referred to
the child, the embryo, and the fetus in the womb as a cloned
human. At least we have common ground there.
A law that banned ``reproductive'' cloning would allow
researchers to use cloning for unlimited mass production of
embryos for experimentation, and then require them to destroy
the embryos. Faced with the problem of a 95 to 99 percent
prenatal death rate from attempts at cloning, such proposals
would solve the problem by simply increasing the death rate to
100 percent.
Politically motivated efforts to distinguish
``reproductive'' from ``therapeutic'' cloning or ``baby
cloning'' from ``embryo cloning'', tend to confuse the issue.
We should subject these euphemisms to some reality therapy,
toward which end I offer five statements or propositions.
One, all human cloning is embryo cloning. As Lee Silver of
Princeton has said, real biological cloning can only take place
at the level of the cell. When somatic cell nuclear transfer is
used to replace the nucleus of an egg with the nucleus of a
human body cell and the resulting cell is stimulated, a human
embryo results and cloning has occurred, as your bill clearly
recognizes.
Two, therefore, in an important sense, all human cloning is
reproductive cloning. Once one creates a human embryo, one has
engaged in reproductive behavior, albeit a very strange form of
asexual reproduction in this case. Subsequent stages of
development--gestation, birth, infancy--are simply those which
normally occur in the growth of any human being. The complete
human genome that once belonged to one member of the human
species now also belongs to another. Even government
commissions favoring embryo research call the early human
embryo ``a developing form of human life'' which deserves our
respect.
So once the embryo is created, we face new moral questions.
We can no longer ask, ``Should we clone?'' but ``What do we do
with this human life we have produced by cloning?'' If all
available answers to that question are lethal to the cloned
human 95 to 100 percent of the time, we have no business
engaging in human cloning.
Three, all human cloning at present is experimental
cloning. Even efforts to move toward bringing a cloned child to
term would first require many trials, perhaps many many
hundreds of trials, using embryos not intended for live birth.
Legislation allowing experimental cloning would facilitate
efforts to refine the process and clear the way for production
of live born children.
Four, no human cloning is ``therapeutic'' cloning. Labeling
cloning for destructive experiments as ``therapeutic'' cloning
is a stroke of marketing genius but it does considerable
violence to the English language. In law and medical ethics,
experiments that harm one member of the human species solely
for the benefit of others is precisely nontherapeutic
experimentation; that is the definition of a nontherapeutic
experiment.
Nontherapeutic research on human embryos is a crime in
Louisiana, Michigan, Pennsylvania and some other states. And
the therapeutic need for human cloning is more doubtful than
ever in light of recent advances in adult stem cell research
and other alternatives. One of the more startling overviews of
the issue is the recent April 5th issue of the British journal
Nature, which concludes that therapeutic cloning has ``fallen
from favor'' among scientists and is now expected not to have a
``large clinical impact''. The therapeutic case for cloning is
medically weak and morally abhorrent.
My final proposition, No. 5: Because cloned humans are
humans, any proposal to prevent human cloning must not do to
those humans anything that would be universally condemned if
done to other humans at the same stage of development. Can we
not agree, for example, that cloned embryos deserve as much
respect as other human embryos of the same stage, whatever you
say that level of respect may be, whether it is the respect due
to a person or something less?
I ask this because we do have a consensus that cuts across
the usual political and ideological lines on these matters. If
the law allows cloning to produce embryos for research but
prohibits transfer to the womb, then if transfer does occur, as
others have said in this hearing, the only legal remedy seems
to be government coerced abortion, or punishing women for
getting pregnant and giving birth. That would be revolting to
people on all sides of the abortion issue.
But even if such a law somehow stops the embryo at the very
threshold of the womb, it would have to require the embryo to
be killed, defining for the first time in our history a class
of humans it is a crime not to destroy. That is impossible to
reconcile with the respect and moral consideration that even
supporters of embryo research have said should be accorded to
all embryos.
And in such a proposal, our government would be approving
the one practice in human embryo research that is widely
condemned even by leading supporters of abortion rights--
specially creating human embryos solely for the purpose of
research that will kill them. This is a practice condemned as
``unconscionable'' by The Washington Post, and ``grotesque at
best'' by the Chicago Sun-Times; a practice that is rejected by
Senator Specter's Stem Cell Research Act, by the NIH guidelines
on embryonic stem cell research, and even by Members of
Congress who have on other grounds contested other clauses of
the current Federal law against funding embryo research.
And until now, even the biotechnology industry had seemed
to accept this consensus. They praised the NIH guidelines for
drawing a clear ethical line between research on so- called
spare embryos and actually creating embryos specially for
destructive research. They now seem to have abandoned that
transitional political position.
My final point is this. Some would reject your bill, which
I believe is the most effective legislation against human
cloning, solely to protect the use of cloning for the practice
of creating human embryos solely for research, which is of
highly questionable benefit and has been rejected by
policymakers on both sides of the abortion and stem cell
debates. Such a position should not prevent Congress from
taking the right course on this issue.
Thank you.
[The prepared statement of Mr. Doerflinger follows:]
Prepared Statement of Richard M. Doerflinger, Associate Director for
Policy Development, Secretariat for Pro-Life Activities, National
Conference of Catholic Bishops
I am Richard M. Doerflinger, Associate Director for Policy
Development at the Secretariat for Pro-Life Activities, National
Conference of Catholic Bishops. I am grateful for this opportunity to
testify on human cloning, and to express our Conference's support for a
federal ban on the practice as proposed in Senator Brownback's ``Human
Cloning Prohibition Act of 2001'' (S. 790).
The sanctity and dignity of human life is a cornerstone of Catholic
moral and social teaching. We believe a society can be judged by the
respect it shows for human life, especially in its most vulnerable
stages and conditions.
At first glance, human cloning may not seem to threaten respect for
life because it is presented as a means for creating life, not
destroying it. Yet it shows disrespect for life in the very act of
generating it. Here human life does not arise from an act of love, but
is manufactured in the laboratory to preset specifications determined
by the desires of others. Developing human beings are treated as
objects, not as individuals with their own identity and rights. Because
cloning completely divorces human reproduction from the context of a
loving union between man and woman, such children have no ``parents''
in the usual sense. As a group of experts advising the Holy See has
written:
In the cloning process the basic relationships of the human
person are perverted: filiation, consanguinity, kinship,
parenthood. A woman can be the twin sister of her mother, lack
a biological father and be the daughter of her grandmother. In
vitro fertilization has already led to the confusion of
parentage, but cloning will mean the radical rupture of these
bonds.\1\
From the dehumanizing nature of this technique flow many disturbing
consequences. Because human clones would be produced by a means that
involves no loving relationship, no personal investment or
responsibility for a new life, but only laboratory technique, they
would be uniquely at risk of being treated as ``second-class'' human
beings.
In the present state of science, attempts to produce a liveborn
child by cloning would require taking a callous attitude toward human
life. Animal trials show that 95% to 99% of cloned embryos die. Of
those which survive, many are stillborn or die shortly after birth. The
rest may face unpredictable but potentially devastating health
problems. Those problems are not detectable before birth, because they
do not come from genetic defects as such--they arise from the
disorganized expression of genes, because cloning plays havoc with the
usual process of genetic reorganization in the embryo.\2\
Scenarios often cited as justifications for human cloning are
actually symptoms of the disordered view of human life that it reflects
and promotes. It is said that cloning could be used to create
``copies'' of illustrious people, or to replace a deceased loved one,
or even to provide genetically matched tissues or organs for the person
whose genetic material was used for the procedure. Each such proposal
is indicative of a utilitarian view of human life, in which a fellow
human is treated as a means to someone else's ends--instead of as a
person with his or her own inherent dignity. This same attitude lies at
the root of human slavery.
Let me be perfectly clear. In objective reality a cloned human
being would not be an ``object'' or a substandard human being. Whatever
the circumstances of his or her origin, he or she would deserve to be
treated as a human person with an individual identity. But the
depersonalized technique of manufacture known as cloning disregards
this dignity and sets the stage for further exploitation. Cloning is
not wrong because cloned human beings would lack human dignity--it is
wrong because they have human dignity, and are being brought into the
world in a way that fails to respect that dignity.
Ironically, startling evidence of the dehumanizing aspects of
cloning is found in some proposals ostensibly aimed at preventing human
cloning. These initiatives would not ban human cloning at all--but
would simply ban any effort to allow cloned human embryos to survive.
In these proposals, researchers are allowed to use cloning for the
unlimited mass production of human embryos for experimentation--and are
then required by law to destroy them, instead of allowing them to
implant in a woman's womb.
In other words: Faced with a 99% death rate from cloning, such
proposals would ``solve'' the problem by ensuring that the death rate
rises to 100%. No live clones, therefore no evidence that anyone
performed cloning. This is reassuring for researchers and biotechnology
companies who may wish the freedom to make countless identical human
guinea pigs for lethal experiments. It is no great comfort to the dead
human clones; nor is it a solution worthy of us as a nation.
Sometimes it is said that such proposals would ban ``reproductive
cloning'' or ``live birth cloning,'' while allowing ``therapeutic
cloning'' or ``embryo cloning.'' This may sound superficially
reasonable. If banning all cloning is too difficult a task, perhaps we
could ban half of it--and the half that is ``therapeutic'' sounds like
the half we'd like to keep.
But this description relies on a fundamental confusion as to what
cloning is. I can sum up the real situation in a few propositions.
1. All human cloning is embryo cloning. Some accounts of cloning
seem to imagine that cloning for research purposes produces an embryo,
while cloning for reproductive purposes produces a baby or even a fully
grown adult--like new copies of Michael Keaton or Arnold Schwarzenegger
springing full-grown from a laboratory. This is, of course, nonsense.
In the words of Professor Lee Silver of Princeton University, a leading
advocate of human cloning: ``Real biological cloning can only take
place at the level of the cell.'' \3\
Cloning technology can also be used to produce other kinds of
cells; these are not the subject of this hearing, and they are
explicitly excluded from the scope of Senator Brownback's legislation.
But when somatic cell nuclear transfer is used to replace the nucleus
of an egg with the nucleus of a human body cell and the resulting cell
is stimulated, a human embryo results, whatever one's ultimate plans on
what to do next.\4\
2. In an important sense, all human cloning is reproductive
cloning. Once one creates a live human embryo by cloning, one has
engaged in reproduction--albeit a very strange form of asexual
reproduction. All subsequent stages of development--gestation, birth,
infancy, etc.--are simply those which normally occur in the development
of any human being (though reaching them may be far more precarious for
the cloned human, due to the damage inflicted by the cloning
procedure).
To say this is not to make a controversial moral claim about
personhood or legal rights.\5\ It is to state a biological fact: Once
one produces an embryo by cloning, a new living being has arrived and
the key event in reproduction has taken place. The complete human
genome that once belonged to one member of the human species now also
belongs to another. Anything that now happens to this being will be
``environmental'' influence upon a being already in existence--transfer
to a womb and live birth, for example, are chiefly simple changes in
location.
Moreover, even government study commissions favoring harmful human
embryo experiments concede that with the generation of a new embryo, a
new life has come into the world. They describe the early embryo as ``a
developing form of human life'' which ``warrants serious moral
consideration.'' \6\
Thus generating this new human life in the laboratory confronts us
with new moral questions: Not ``Should we clone?'' but ``What do we do
with this living human we have produced by cloning?'' If all the
available answers are lethal to the cloned human 95% to 100% of the
time, we should not allow cloning.
3. All human cloning, at present, is experimental cloning. The line
between ``reproductive'' and ``experimental'' cloning is especially
porous at present, because any attempt to move toward bringing a cloned
child to live birth would first require many thousands of trials using
embryos not intended for live birth. Years of destructive research of
this kind may be necessary before anyone could bring a cloned human
through the entire gestational process with any reasonable expectation
of a healthy child. Therefore legislation which seeks to bar
implantation of a cloned embryo for purposes of live birth, while
allowing unlimited experimental cloning, would actually facilitate
efforts to refine the cloning procedure and prepare for the production
of liveborn children. This would be irresponsible in light of the
compelling principled objections to producing liveborn humans by
cloning.
4. No human cloning is ``therapeutic'' cloning. The attempt to
label cloning for purposes of destructive experiments as ``therapeutic
cloning'' is a stroke of marketing genius by supporters of human embryo
research. But it does serious damage to the English language and common
sense, for two reasons.
First, the experiments contemplated here are universally called
``nontherapeutic experimentation'' in law and medical ethics--that is,
the experiments harm or kill the research subject (in this case the
cloned human embryo) without any prospect of benefitting that subject.
This standard meaning of ``nontherapeutic'' research is found, for
example, in various state laws forbidding such research on human
embryos as a crime.\7\ Experiments performed on one subject solely for
possible benefit to others are never called ``therapeutic research'' in
any other context, and there is no reason to change that in this
context.
Second, the ``therapeutic'' need for human cloning has always been
highly speculative; it now seems more doubtful than ever in light of
recent advances in adult stem cell research and other noncontroversial
alternatives. In the stem cell research debate, as one recent news
report observes, ``There is one thing everyone agrees on: Adult stem
cells are proving to be far more versatile than originally thought.''
\8\ Adult stem cells have shown they can be ``pluripotent''--producing
a wide array of different cells and tissues.\9\ They can also be
multiplied in culture to produce an ample supply of tissue for
transplantation.\10\ Best of all, using a patient's own cells solves
all problems of tissue rejection, the chief advantage cited until now
for use of cloning.\11\
In its 1997 report on human cloning, the National Bioethics
Advisory Commission reviewed the idea of cloning human embryos to
create ``customized stem cell lines'' but described this as ``a rather
expensive and far-fetched scenario''--and added that a moral assessment
is necessary as well:
Because of ethical and moral concerns raised by the use of
embryos for research purposes it would be far more desirable to
explore the direct use of human cells of adult origin to
produce specialized cells or tissues for transplantation into
patients.\12\
Now PPL Therapeutics, the Scottish firm involved in creating ``Dolly''
the sheep, says it has indeed found a way to reprogram ordinary adult
cells to become stem cells capable of being directed to form almost any
kind of cell or tissue--without creating or destroying any embryos.\13\
Even in the field of embryonic stem cell research, new developments
have called into question the need for cloning. The problem of tissue
rejection may not be as serious as once thought when cells from early
human development are used, and there are other ways of solving the
problem--for example, by genetically modifying cells to become a closer
match to a patient.\14\
For all these reasons, a recent overview of the field concludes
that human ``therapeutic cloning'' is ``falling from favour,'' that
``many experts do not now expect therapeutic cloning to have a large
clinical impact.'' Even James Thomson of the University of Wisconsin, a
leading practitioner and advocate of embryonic stem cell research
generally, calls this approach ``astronomically expensive''; in light
of the enormous wastefulness of the cloning process and the damage it
does to gene expression, ``many researchers have come to doubt whether
therapeutic cloning will ever be efficient enough to be commercially
viable'' even if one could set aside the grave moral issues
involved.\15\
We should clearly understand what would be entailed by any effort
to implement a ``therapeutic cloning'' regimen for stem cell
transplants. This would not be a case in which human embryos are
destroyed once to form a permanent cell line for future use. For each
individual patient, countless human embryos--the patient's genetic twin
brothers or sisters--would have to be created in the laboratory and
then destroyed for their stem cells, in the hope of producing
genetically matched tissue for transplantation. Thus the creation and
destruction of human life in the laboratory would become an ongoing
aspect not only of medical research but of everyday medical practice.
And what would become of those who have profound moral objections to
cloning, and to having new lives created and destroyed for our benefit?
Would we be told that we must choose between our life and our
conscience?
In short, the ``therapeutic'' case for cloning is as morally
abhorrent as it is medically questionable. Which brings me to a final
proposition on how to assess proposals for preventing human cloning.
5. Because cloned humans are humans, any proposal to prevent human
cloning must not do to cloned humans anything that would be universally
condemned if done to other humans at the same stage of development.
This proposition can be universally endorsed by people on both
sides of the cloning issue, and on both sides of the abortion issue. To
quote Lee Silver once more: ``Cloned children will be full-fledged
human beings, indistinguishable in biological terms from all other
members of the human species.'' \16\ Thus, for example, cloned embryos
deserve as much respect as other human embryos of the same stage--
whatever that level of respect may be.
Silver's point about cloned humans being ``indistinguishable'' from
others raises a major practical problem for efforts to allow creation
of cloned embryos while forbidding their transfer to a womb. Once the
embryo is created in a fertility clinic's research lab (as such a law
would permit) and is available for transfer, how could the government
tell that this embryo was or was not created by cloning? And if it
cannot do so, how can it enforce a prohibition on transferring cloned
embryos (but not IVF embryos) to a woman's womb?
However, an even more serious moral and legal issue arises at this
point. If the government allows use of cloning to produce human embryos
for research but prohibits transfer to the womb, what will it be
requiring people to do? If transfer has already occurred, the only
remedy would seem to be government-mandated abortion--or at least,
jailing or otherwise punishing women for remaining pregnant and giving
birth. We need not dwell on the abhorrence such a solution would
rightly provoke among people on all sides of the abortion issue. It
would be as ``anti-choice'' as it is ``anti-life.''
However, even if the law could act before transfer actually occurs,
the problem is equally intractable. For the law would have to require
that these embryos be killed--defining for the first time in U.S.
history a class of human embryos that it is a crime not to destroy. It
is impossible to reconcile such a law with the profound ``respect'' and
``serious moral consideration'' that even supporters of human embryo
research say should be accorded to all human embryos.
If the law permitted creation of cloned embryos for research, while
prohibiting their creation for any other purpose (or prohibiting any
other use of them once created), the government would be approving the
one practice in human embryo research that is widely condemned even by
supporters of abortion rights: specially creating human embryos solely
for the purpose of research that will kill them.
In 1994 the National Institutes of Health did propose funding such
abuses, as part of a larger proposal for funding human embryo research
generally. The moral outcry against this aspect of the proposal,
however, was almost universal. Opinion polls showed massive opposition,
and the NIH panel making the recommendation was inundated with over
50,000 letters of protest. The Washington Post, while reaffirming its
support for legalized abortion, attacked the Panel's recommendation:
The creation of human embryos specifically for research that
will destroy them is unconscionable . . . [I]t is not necessary
to be against abortion rights, or to believe human life
literally begins at conception, to be deeply alarmed by the
notion of scientists' purposely causing conceptions in a
context entirely divorced from even the potential of
reproduction.\17\
The Chicago Sun-Times likewise editorialized:
We can debate all day whether an embryo is or isn't a person.
But it is unquestionably human life, complete with its own
unique set of human genes that inform and drive its own
development. The idea of the manufacture of such a magnificent
thing as a human life purely for the purpose of conducting
research is grotesque, at best. Whether or not it is federally
funded.\18\
In the end, President Clinton set aside the recommendation for creation
of ``research embryos.''
Every year since then, Congress has prohibited funding for all
harmful embryo research at the National Institutes of Health, through
the Dickey amendment to the annual Labor/HHS appropriations bills.\19\
However, even members of Congress who have led the opposition to the
Dickey amendment agree with its rejection of special creation of human
embryos for research. On the only occasion when an amendment was
offered on the House floor to weaken the Dickey amendment, the sponsors
emphasized that it would leave intact the clause rejecting the creation
of embryos for research.\20\ Similarly, the recent NIH guidelines for
embryonic stem cell research, as well as Senator Specter's ``Stem Cell
Research Act of 2001,'' explicitly reject the idea of using embryos
specially created for research purposes.\21\
As mentioned above, at least nine states generally prohibit harmful
experiments on human embryos living outside a woman's body. A federal
law that facilitates such experimentation, by approving it as the only
accepted use for human embryo cloning, would mark a radical departure
from state precedents on respect for nascent human life.\22\ In short,
human embryos produced by cloning would be created specifically, and
solely, for destructive embryo experiments that are a crime in some
states.
Ironically, it seems the cloning procedure is so demeaning and
dehumanizing that people somehow assume that a brief life as an object
of research, followed by destruction, is ``good enough'' for any human
produced by this technique. The fact that the procedure invites such
morally irresponsible policies is another reason to ban it. For if an
embryo produced by cloning cannot even garner the respect that we all
agree should be accorded to all other human embryos, but is treated as
a dangerous entity that must not be allowed to survive, how will we
view any human clone who is ultimately born alive? As a mere ``organ
farm'' for others? Or could we compartmentalize our thinking, so that
an embryo created solely for destructive research will be greeted as a
new individual with full human rights if someone does bring him or her
to full term? In light of some uses proposed even now for born human
clones, it would be foolish to assume that our society will shift gears
so easily.
We must remember that it is morally wrong and irresponsible to make
human clones, not to be a human clone. The innocent victim of cloning
should not receive a government-sanctioned death penalty simply for the
crime of existing. Therefore the approach taken by the Brownback/Weldon
bill, prohibiting the use of cloning to initiate the development of a
new human organism, is the only morally responsible approach as well as
the clearest and most effective one in practical terms.
In short: Some would reject the most straightforward and effective
legislation against human cloning, solely to protect the use of cloning
for a practice (creating human embryos solely for research) which is of
highly questionable use and has been rejected by policy makers on both
sides of the abortion and stem cell debates. Such advocacy should not
prevent Congress from taking the right course on this issue.
Research in the cloning of animals, plants, and even human genes,
tissues and cells (other than embryos) can be beneficial and presents
no intrinsic moral problem. However, when research turns its attention
to human subjects, we must be sure not to undermine human dignity in
the pursuit of human progress. Human experimentation divorced from
moral considerations might progress more quickly on a technical level--
but at the loss of our humanity.
A ban on human cloning will help direct the scientific enterprise
toward research that benefits human beings without producing,
exploiting and destroying fellow human beings to gain those benefits.
Creating human life solely to cannibalize and destroy it is the most
unconscionable use of human cloning--not its highest justification.
Endnotes
1. Reflections from the Pontifical Academy for Life, ``Human
Cloning Is Immoral'' (July 9, 1997), in The Pope Speaks, vol. 43, no. 1
(January/February 1998), p. 29. Also see: Congregation for the Doctrine
of the Faith, Donum Vitae (Instruction on Respect for Human Life in its
Origin and on the Dignity of Procreation)(March 10, 1987), I.6 and
II.B.
2. See Testimony before the House Energy and Commerce Subcommittee
on
Oversight and Investigations, March 28, 2001, presented by Dr. Mark E.
West-
husin and Dr. Rudolf Jaenishch (http://energycommerce.house.gov/107/
hearings/03282001Hearing141/hearing.htm).
3. Lee M. Silver, Remaking Eden: How Genetic Engineering and
Cloning Will Transform the American Family (Avon Books 1998) at 124.
4. See the Fact Sheet, ``Does Human Cloning Produce an Embryo?'',
Secretariat for Pro-Life Activities, National Conference of Catholic
Bishops, March 31, 1998 (www.nccbuscc.org/prolife/issues/bioethic/
fact398.htm).
5. Professor Silver, for example, agrees that cloning is
accomplished at the embryonic level, while also claiming that the
cloned embryo (and all other embryos) lack full moral significance
until later in development. To his Princeton colleague Peter Singer and
some other bioethicists, humans do not acquire the rights of persons
until some time after birth. See P. Singer, ``Justifying Infanticide,''
in Writings on an Ethical Life (HarperCollins 2000), 186-193.
6. Final Report of the Human Embryo Research Panel (National
Institutes of Health: September 27, 1994) at 2. The National Bioethics
Advisory Commission, which defined the embryo as ``the beginning of any
organism in the early stages of development,'' likewise said that ``the
embryo merits respect as a form of human life'' (though not, the
Commission thought, the level of respect owed to persons). See Ethical
Issues in Human Stem Cell Research (National Bioethics Advisory
Commission: September 1999) at 85, 50. Also see the sources cited in
the Fact Sheet, ``What is an Embryo?'', Secretariat for Pro-Life
Activities, National Conference of Catholic Bishops, Feb. 26, 1998
(www.nccbuscc.org/prolife/issues/bioethic/fact298.htm).
7. For example, see La. Rev. Stat. tit. 14 Sec. 87.2 (a crime to
conduct any experiment or study on a human embryo except to preserve
the health of that embryo) and tit. 40 Sec. 1299.35.13 (prohibiting
experimentation on an unborn child unless it is therapeutic to that
child); Mich. Comp. Laws Sec. 333.2685 (prohibiting use of a live human
embryo for nontherapeutic research that will harm the embryo); Pa.
Cons. Stat. tit. 18 Sec. 3216(a) (nontherapeutic experimentation on an
unborn child at any stage is a felony; defining ``nontherapeutic'');
S.D. Codified Laws Sec. Sec. 34-14-16 through 34-14-20 (prohibiting
nontherapeutic research that harms or destroys a human embryo; defining
``nontherapeutic research'').
8. A. Zitner, ``Diabetes Study Fuels Stem Cell Funding War,'' Los
Angeles Times, April 27, 2001 (www.latimes.com/news/nation/updates2/
lat--stemwar010427.htm).
9. Citing eleven other studies, a study funded by the National
Institutes of Health (NIH) and the Christopher Reeve Paralysis
Foundation states: ``Pluripotent stem cells have been detected in
multiple tissues in the adult, participating in normal replacement and
repair, while undergoing self-renewal.'' D. Woodbury et al., ``Adult
Rat and Human Bone Marrow Stromal Cells Differentiate Into Neurons,''
61 Journal of Neuroscience Research 364-370 (August 15, 2000) at 364.
10. See: D. Colter et al., ``Rapid expansion of recycling stem
cells in cultures of plastic-adherent cells from human bone marrow,''
97 Proc. Natl. Acad. Sci. USA 3213-8 (March 28, 2000)(adult stem cells
amplified a billion-fold in six weeks, retaining their
multipotentiality for differentiation); E. Rosler et al.,
``Cocultivation of umbilical cord blood cells with endothelial cells
leads to extensive amplification of competent CD34+CD38- cells,'' 28
Exp. Hematol. 841-52 (July 2000).
11. A recent report on use of adult stem cells to form new muscles,
nerves, liver cells and blood vessels observes: ``None of these
approaches use embryonic stem cells, which some oppose on ethical
grounds. Another advantage is that they use tissue taken from the
patient's own body, so there is no risk of rejection or need for drugs
to suppress immune system defenses.'' See ``Approach may renew worn
hearts,'' Associated Press, November 12, 2000.
12. Cloning Human Beings: Report and Recommendations of the
National Bioethics Advisory Commission (Rockville, MD: June 1997) at
30-31. The Commission outlined three alternative avenues of stem cell
research, two of which seemed not to involve creating human embryos at
all.
13. ``PPL follows Dolly with cell breakthrough,'' Financial Times,
February 23, 2001.
14. P. Aldhous, ``Can they rebuild us?'', 410 Nature 622-5 (5 April
2001) at 623.
15. Id. at 622.
16. Silver at 125.
17. Editorial, ``Embryos: Drawing the Line,'' The Washington Post,
October 2, 1994 at C6.
18. Editorial, ``Embryo Research Is Inhuman,'' Chicago Sun-Times,
October 10, 1994 at 25.
19. The current version is Section 510 of the Labor/HHS
appropriations bill for Fiscal Year 2001, H.R. 5656 (enacted through
Section 1(a)(1) of H.R. 4577, the FY `01 Consolidated Appropriations
Act, Public Law 106-554). It bans funding any creation of human embryos
(by cloning or other means) for research purposes, and any research in
which human embryos are harmed or destroyed.
20. ``Let me say that I agree with our colleagues who say that we
should not be involved in the creation of embryos for research. I
completely agree with my colleagues on that score,'' said Rep. Nancy
Pelosi, arguing in favor of research on ``spare'' embryos originally
created for fertility treatment. The sponsor of the weakening
amendment, Rep. Nita Lowey, said: ``I want to make it very clear: We
are not talking about creating embryos. . . . President Clinton again
has made it very clear that early-stage embryo research may be
permitted but that the use of Federal funds to create embryos solely
for research purposes would be prohibited. We can all be assured that
the research at the National Institutes of Health will be conducted
with the highest level of integrity. No embryos will be created for
research purposes. . .'' 142 Cong. Record at H7343 (July 11,
1996)(emphasis added). The weakening amendment failed nonetheless, 167
to 256. Id. at H7364. While this debate concerned federal funding,
supporters of the Lowey amendment said it was ``very hard to
understand'' why standards for ethical research should be different for
publicly funded and privately funded research. See remarks of Rep.
Fazio at H7341-2.
21. The NIH guidelines deny funding for ``research utilizing
pluripotent stem cells that were derived from human embryos created for
research purposes,'' and ``research in which human pluripotent stem
cells are derived using somatic cell nuclear transfer, i.e., the
transfer of a human somatic cell nucleus into a human or animal egg.''
National Institutes of Health Guidelines for Research Using Human
Pluripotent Stem Cells, 65 Fed. Reg. 51976-81 (August 25, 2000) at
51981. Senator Specter's bill supports embryonic stem cell research but
insists that ``the research involved shall not result in the creation
of human embryos.'' 107th Congress, S. 723, Sec. 2.
22. In Louisiana, for example, a human embryo fertilized in the
laboratory may generally be used only for efforts at a live birth, not
for research. La. Rev. Stat. tit. 9 Sec. 122. What would happen if a
new federal law turned this on its head, and banned live birth while
allowing destructive research on cloned embryos--keeping in mind that
cloned embryos may be biologically indistinguishable from IVF embryos
once they are created?
Senator Brownback. Thank you, Mr. Doerflinger, and thank
you all, gentlemen. This is very interesting and instructive.
I want to go, if I could, to Mr. Feldbaum, because I want
to make sure I understand the position of BIO, the
Biotechnology Industry Organization. I have here the letter you
sent to the President in February of this year, which you
quoted as well.
You state in here and you read your quotation, to be
perfectly clear, we support cloning of specific human cells,
genes and other tissues that do not, and cannot lead to a
cloned human being. Now I want to make sure I understand what
you are talking about in the somatic cell cloning technology,
or the terminology that you are using here.
Would you create and do you support the creation of a
cloned human embryo for research or experimentation purposes?
Mr. Feldbaum. No.
Senator Brownback. OK, at all. You do not support that?
Mr. Feldbaum. Trying to be very clear about this, and there
are a number of semantic differences that have been thrown up
here, that even within the biotech industry have various
degrees of acceptance. There is a wide range of opinion among
the scientists about some of the fundamental questions that
have been raised by Dr. Doerflinger in particular, and earlier
by Dr. Kass.
We are in favor of continuing the ability to do somatic
cell nuclear transfer, because that is the one apparent
technique that would allow cells that would be your cells or my
cells, and would not be rejected by our immune systems if it
developed into say liver or cardiac tissue.
Senator Brownback. Right. What do you mean by that
technique? Describe what you mean by that technique.
Mr. Feldbaum. What I mean is somatic cell as
distinguished--first, let me preface this. I am not a
scientist. I have a degree in biology from the mesozoic period
in this era. But what I am talking about is a somatic cell as
opposed to a germ cell, a somatic cell taken perhaps from my
skin, or the inside of my mouth, or a hair follicle.
Senator Brownback. And put where?
Mr. Feldbaum. And putting that, the nucleus of that somatic
cell, in an egg cell from which the nucleus has been taken
away, taken out.
Senator Brownback. And then starting the growth of that?
Mr. Feldbaum. Starting the cell division of that. Now we
are against the act of implantation, and we would favor the
type of bill that has already been passed in California and in
Rhode Island, that comes down very clearly with criminal
penalties against the implantation leading to the implantation
that could lead to the birth of a human child.
And the prosecution is not against the mother. It certainly
never would be, or would we advocate, would it involve the
abortion of that child, but it would go against the physician
and the clinic, criminal penalties.
Senator Brownback. OK. Now Mr. Feldbaum, then, if I could
understand what you are saying, you would take, say for
instance my DNA material, your DNA material, from a cell that
we would have, you would denucleii an egg and insert that into
the egg, and then restart the process of reproduction.
Now, Mr. Feldbaum, isn't it true then that that cloned
human embryo could become a human being if it was implanted
into a female?
Mr. Feldbaum. I am told that it could, and I also am told,
and we have been told several times this afternoon that it took
277 attempts to clone Dolly, that there are--technical is
probably the wrong word. The results of all those experiments
were anywhere from embryos that died at early or late stages in
pregnancy, stillborns, animals that died soon after birth. I
mean, that is intolerable when applied to a human child, and we
are not in favor of that.
The California and the Rhode Island bills specifically come
down on the implantation of that.
Senator Brownback. But now if I can understand though, then
your letter, when you say this, that do not and cannot lead to
a cloned human being, then you are saying that while yes, this
could become a human being, you are opposed to the implantation
of this human embryo.
Mr. Feldbaum. That is correct.
Senator Brownback. OK. So it could become a human being if
somebody implanted it?
Mr. Feldbaum. That is correct. That is what I am told, it
could be, but again, the odds of it becoming healthy, being
born healthy, right now are really such long odds that it is
something that every responsible scientist in the industry
finds absolutely repugnant.
Dr. Kass said in his statement that reputable scientists, I
hope to quote him correctly, reputable scientists are trying to
do this. I do not think that is the case. I think reputed
scientists are trying to do it, but if they announce that they
are trying to do this, they are no longer reputable in our
view.
Senator Brownback. I think, Mr. Feldbaum, the problem that
I am having here is that you would support a bill that would
allow the creation of a cloned human embryo whose legal status
would be no different from any other human embryo. Once it is a
human embryo, it would have a legal status the same as any
other. Would that not be correct?
Mr. Feldbaum. Well, I have heard a great deal of legal
opinion actually, to my surprise today, but I had to ask
myself, without filing a legal brief in preparation for this
testimony, whether it is different than the legal rights of
thousands of embryos that have been created in in vitro
fertilization clinics.
Senator Brownback. Is it any different from those?
Mr. Feldbaum. Physically, I believe it is the same. These
are embryos that I understand for the most part, if not used,
are discarded.
Senator Brownback. In some cases they are and in some cases
they are not, but still, the legal status would be the same and
the possibility of it becoming a human remains.
Mr. Feldbaum. It depends on implantation.
Senator Brownback. You say that it depends on implantation.
Now, you had supported, your organization had previously
supported the guidelines put forward I believe, NIH guidelines
on the differences between embryonic stem cell and cloned
embryos, and you had supported and said that this is clearly a
distinction, there is a distinction between a cloned embryo and
the embryonic stem cells, and you supported that distinction.
Is that correct?
Mr. Feldbaum. I don't believe that----
Senator Brownback. OK. Well maybe take me through, then,
your position on that, because Mr. Doerflinger raises the point
of view that you have changed positions on this particular
issue, that you used to be against cloning human embryos and in
favor of just the maintenance of embryonic stem cells, and now
you are saying no, we do favor the cloning of a human embryo.
Mr. Feldbaum. I am not saying that. What we have said is
that we want to preserve the technique of somatic cell nuclear
transfer because that allows cells to be produced that are
uniquely yours or uniquely mine, that would not be rejected if
they were, if they became liver cells or cardiac cells, or
islet cells, pancreatic cells if we were diabetic. We are in
favor of that.
We are also in favor of the ability to use the embryos
currently in in vitro fertilization clinics that would be
otherwise discarded, as a source of embryonic tissue.
Senator Brownback. OK.
Mr. Feldbaum. And to my knowledge, and I used to be a
prosecutor, we have no enforcement as a trade association,
enforcement or subpoena ability in this regard, but I am told
quite authoritatively that no one is creating embryos to use,
embryonic stem cells in research.
Senator Brownback. What in your organization's opinion is
the legal status of the human embryo, is it person or property?
Mr. Feldbaum. We have not taken a position on the
definition of a human embryo. Our organization does not have a
statement or position on when life begins. In fact, there is a
wide range of views about that. We have many religious and
social perspectives within the industry that have a point of
view that would agree with definitions that have been
articulated here earlier, and many others who have not. What
the industry appears to believe and have a great consensus on
is the importance of this research going on in terms of somatic
cell nuclear transfer and the ability to use embryonic tissues
that would otherwise be discarded, is critical to the new field
of regenerative medicine.
Senator Brownback. Now, have you done a legal research or
review as to the legal status? I mean, I would think if your
organization, particularly if it is desirous of creating a
cloned human embryo, would clearly want to know what is the
legal status of this, not talking about religious or moral, but
that you would do the legal background work. Have you done that
as an organization?
Mr. Feldbaum. We have not. At your invitation, we would
proceed.
Senator Brownback. I would hope that you would. I would
think you would definitely want to know what is the legal
status here of something, before we start down this area of
research that some would like to do.
Mr. Feldbaum. Well, there has been no consensus on some of
the issues, really some of the issues debated in the larger
context of when life begins.
Senator Brownback. You know, we have had a long debate in
this country about legal status of personhood. We used to have
it on, it used to be in our Constitution, of a question of
personhood and what was the legal status of certain classes of
human beings. I would request that you would. I would think
that you would clearly want to know what this is before we
proceed this route.
I would also ask you, if you would, because some will be
doing this research as well, that once you create a cloned
human embryo, and you are doing it for research purposes, but
that is somebody's genetic material that is there. Who gets the
final say as to whether or not this is then destroyed or
implanted, and do you think you can stand the legal challenge
if somewhere down the road somebody desires to have this cloned
human embryo implanted? I would think you would clearly want to
know that because of the responsibility of whatever
organization that might be a part of your association takes
upon itself if it funds the research, if it does the technical
work into creating this human embryo, that then because of
legal maneuvering or whatever else, becomes implanted.
Mr. Feldbaum. Senator, I will certainly accept your
invitation to initiate some legal research, but I just want to
make it clear, we do not represent in vitro fertilization
clinics, and any legal arrangements made with them do not
involve my organization.
Senator Brownback. I am not asking that either.
Mr. Feldbaum. That is why I am just saying, I am unable to
answer. I am standing on one leg right now.
Senator Brownback. And I do not want you to answer
regarding IV clinics, but I do want you to answer regarding the
industry that is seeking to create human embryo clones, that
then you would be doing the technical work, or members of your
association would, would be doing the scientific experiment,
would be doing the development of this young human embryo. Is
that--Do you seek to do that?
Mr. Feldbaum. Well, I, with all due respect, I do not know
that I can accept the characterization as you state it, but I
am happy to go back and look at the research as it is
conducted, and present a legal view on it.
Senator Brownback. How long does your association propose
that the young human embryo be allowed to develop before
destroying this for its cells?
Mr. Feldbaum. We have not taken a position on that,
although we have accepted the guidelines that were presented by
NIH last year.
Senator Brownback. And would continue to accept those
guidelines?
Mr. Feldbaum. Yes.
Senator Brownback. And any put forward by FDA?
Mr. Feldbaum. Not that I know of.
Senator Brownback. OK.
Mr. Feldbaum. Not that I know of, although I do know that
FDA has asserted its jurisdiction in this area. That assertion,
was not strong enough to inhibit further legislative action on
this, but we would be also in favor of reexamining that
authority to determine whether it is in fact strong enough.
Senator Brownback. Do you know how long a human embryo can
grow, not just be held at a frozen point, but grow outside of
the womb?
Mr. Feldbaum. I do not. I do not.
Senator Brownback. Because I am wondering if techniques
will be developed in the future that it would be able to
prolong that growth for a lengthy period of time. Science is
doing amazing things, and I am wondering how much, how long it
is going to be able to maintain that human embryo growing
outside. I do not know if any other members of the panel know
the answer to that question.
Dr. Doerflinger?
Mr. Doerflinger. At least when the NIH Human Embryo
Research Panel was meeting in 1994, the claim was that 2 weeks
might be the outside time now during which an embryo could be
maintained in a laboratory before it could go no further. There
did not seem to be necessarily any outside barrier to
ultimately doing complete extracorporeal development of an
embryo. I suppose that if implantation in the womb is the mark
for what makes you a human being, that means that if they
succeed in that experiment, there would be adults walking
around who would never be a human being. Implantation is simply
a change of location.
Senator Brownback. Mr. Feldbaum, do you have any thoughts
regarding that comment?
Mr. Feldbaum. No, I really--I do not have any expert
opinion or even a strong personal view on that. We just, I
think the implantation is a signal event that has worked
legislatively already, and it is what I would suggest we go
back to. I am not sure that the breadth and depth of this
discussion will be able to be captured in any legislation,
frankly, that is enactable.
Senator Brownback. I hope you get a chance to review the
legislation I proposed, of what its effort is.
One other question, if I could for you, Mr. Feldbaum, and I
appreciate you coming forward here, as there are a lot of
questions surrounding human cloning.
I continue to hear people suggest that in the future, they
are looking at introducing genetic material into the human
species from outside the human species, similar to what is
taking place in animals and in plants, where they will take
genetic material from different plant lines or even from
animals, and insert them into humans, and I believe members of
your organization have done that quite successfully, and that
people are discussing taking material from cattle, chickens,
genetic material from outside the human species, grafts, and
putting it into human species.
Is that being discussed by members of your association?
Mr. Feldbaum. Not to my knowledge. That would qualify as a
germ cell line research, which is altering the human
reproductive cells in ways that those characteristics that
would be introduced would be carried from one generation to the
other, and there is a complete moratorium on germ line
research, and we are not in favor of it. It raises, as you have
said, many too many questions.
This is the distinction between germ line research and
somatic cell research, and there is a--somatic cell research,
frankly, from my condition or a number of other conditions, if
there were a way to transfer DNA that would protect me from a
certain cancer, from whatever source, but it wouldn't be passed
on to future generations, I would have a choice of whether to
welcome it or not, and frankly, I would welcome it, if it were
a therapy or cure.
Senator Brownback. So you would support the introduction
of, say some genetic material from an animal, a pig, into the
human gene line, into yours, if it would prevent cancer?
Mr. Feldbaum. No, sir. I would not accept any introduction
into my germ line or approve the introduction into any other
individual's germ line. If there were some medicine that was
basically DNA that could be injected or infused and I would be
cured of one disease or another, and that would not affect my
germ line ability to pass anything on, but it would cure me of
any disease or condition, I probably would accept that.
Senator Brownback. Would you categorically reject the
introduction of other DNA material from outside the human
species into the human species?
Mr. Feldbaum. Into the germ line, yes, I would.
Senator Brownback. And your organization would
categorically, has it categorically rejected yet?
Mr. Feldbaum. Yes, it has, sir.
Senator Brownback. Good, thank you. Are there any comments
that other members of the panel?
Mr. Best. Yes, Mr. Chairman, it has been a very interesting
afternoon. You know, it seems to me that the so-called
``somatic cell nuclear transfer'' is a ``scientific'' phrase to
determine the moment of fertilization or conception, the
beginning of life. Mr. Feldbaum's letter to the President,
which indicates that he supports cloning of specific human
cells, genes and other tissues that ``do not and cannot lead to
a cloned human being'', is, I suggest, deceptive, because that
human embryo is destroyed to use the cells, genes and other
tissues. Therefore it cannot become a fully developed ``human
being''.
So, I think it is a little bit disingenuous to say it
cannot become a human being because it is destroyed as a human
embryo, which is a human being. So, Mr. Chairman, the fancy
``scientific'' words of ``somatic cell nuclear transfer'' do
not disguise the fact that we are creating a human embryo--a
human being--that, if implanted, would continue to develop as
we did. Under your cross-examination of Dr. Jaenisch, he
admitted that an embryo, if implanted, would become or could
become a fully developed human being, Mr. Feldbaum said the
same thing. Thus, to mandate the destruction of those embryos
simply because they are manufactured seems to me to be terribly
wrong. Frankly, Mr. Chairman, the manufacturing of human beings
through IVF processes, is itself, terribly wrong. There are
other technologies to help women with infertility problems
which we refer to in our testimony. The British program of
embryo creation and forced destruction is not the road to
follow for a civilized society.
Senator Brownback. Thank you for your comments. Thank you
all, gentlemen, and thank you for waiting longer, and
particularly Mr. Feldbaum for answering a number of questions.
I have many others, looking at this. I think we can all agree,
there is a great deal of repugnance of what is being discussed
in our nation, and the question comes before us of a number of
unintended consequences of what people may well, and I am sure
from various science fields, desire to do for the good of
mankind. But there are enormous questions about it.
I am sure in the past, other people have looked at things
that they have proposed to do, in some cases to humans, and did
it for the good of mankind, and we turned and looked back in
hindsight and with great horror at what happened.
Thank you. This discussion will continue. I do have several
letters that I am submitting into the record of testimony
regarding this hearing. We will discuss this further in the
future, I am sure.
Senator Brownback. The hearing is adjourned.
[The hearing adjourned at 5:55 p.m.]
A P P E N D I X
Prepared Statement of Joan Samuelson, President,
Parkinson's Action Network
Mr. Chairman and members of the Subcommittee, thank you for this
opportunity to testify about important issues that arise on the cutting
edge of high-tech, life-saving biomedical research. As one of more than
a million Americans who suffer from Parkinson's disease, this issue has
deep personal significance. I appreciate the opportunity to submit my
testimony for the record and am sorry I could not appear before you in
person.
The Parkinson's Action Network was created in 1991 to give voice to
a community that has been largely invisible, and as a consequence has
not received the federal research investment equal to its great
potential. The Network's mission is to educate the country and its
leaders about the need to speed research, deliver breakthroughs and
cure this dreadful disease.
Parkinson's is a devastating progressive neurological disorder that
makes it difficult to walk, causes uncontrollable tremors, and in its
final states robs individuals of the ability to speak or move.
Parkinson's is caused by the degeneration of brain cells that produce
dopamine, a neurochemical controlling motor function. There is great
reason for hope, however. In the last several years, scientists have
made tremendous progress in the search for a Parkinson's cure.
One of the most promising lines of research involves using human
embryonic stem cells--the cells made available by leftover frozen
embryos created by and for couples undergoing the scientific miracle of
in vitro fertilization. Stem cells are the building blocks of the body,
with the ability to divide indefinitely and differentiate into
virtually any type of cell in the human body. Scientific experts
testifying before Congress in December of 1998 named Parkinson's as the
first disorder that they expected to benefit from stem cells, and
predicted it could be done within a decade--and as soon as five years--
if the funds needed to tackle this problem were available.
Since embryonic stem cells were first isolated by scientists at the
University of Wisconsin and Johns Hopkins University in 1998, their
enormous potential to save the lives of untold millions of Americans
has become increasingly evident. Their promise lies in their ability to
become life-saving dopamine cells for Parkinson's patients, bone marrow
cells to treat cancer, insulin producing islet cells for patients with
juvenile diabetes, just to name a few possibilities.
Therapeutic cloning, a subject of this hearing, could potentially
speed this line of research by providing a new source of stem cells.
However, before I go any further, I want to state clearly and concisely
that the Parkinson's Action Network steadfastly opposes human
reproductive cloning. We agree with the other witnesses testifying at
this hearing, who we believe represent the overwhelming view of the
scientific community, Members of Congress and other Americans that
human reproductive cloning is dangerous and ethically questionable and
should not be pursued.
Having said that, the Parkinson's Action Network does support
further research on therapeutic cloning of cells that could be used to
replace damaged cells in patients with Parkinson's and many other
diseases. Unlike reproductive cloning, therapeutic cell cloning will
not lead to the creation of a human being. What it will do is provide
another source of stem cells that could differentiate into dopamine
producing cells, potentially producing a cure for Parkinson's disease.
I am not a scientist, but I am someone who struggles through each
day with a chronic illness. I speak for the larger Parkinson's
community for whom time is not neutral. We need a medical rescue and we
need it now. Scientists agree it is possible this decade. To shut down
one avenue of medical research that could speed the pace of a cure
would be unthinkable--lives would be lost. With appropriate ethical
safeguards, we must aggressively pursue all forms of stem cell research
in order to realize its potential as soon as humanly possible.
Opponents of stem cell research have tried to lump together human
reproductive cloning and therapeutic cloning and mislead the public
into thinking they are the same thing. There is virtually unanimous
agreement that cloning a human being--creating a duplicate person--is
not something that should be attempted. Cloning potentially life-saving
cells--each smaller than a pinprick--is another story. Why shouldn't
those of us suffering from deadly diseases be able to use one part of
our bodies to cure another part? Therapeutic cloning could allow us to
do just that by ``growing'' new cells that could replace those that are
damaged or lost.
Additionally, some argue that embryonic stem cell research is not
necessary at all. They say ``adult'' stem cells may be just as
effective and have seized recent press accounts describing research on
fat and placental cells as potential sources of stem cells and used
them to argue that embryonic stem cell research may no longer be
necessary. This is simply untrue.
The potential value of ``adult'' stem cells is much less certain
and experts in this field of research agree that it will take years of
further study to determine their therapeutic potential. As Doug Melton,
Ph.D., Chairman of Harvard University's Department of Molecular and
Cellular Biology, pointed out in an April 22 letter to The Washington
Post, such claims are ``extremely premature.'' He explained that ``. .
. fat cells have not yet been shown to be able to differentiate into
cells of any kind. Nor has it been shown that the cells studied are
truly stem cells . . . ''
As Congress begins to debate legislation that would regulate or ban
human cloning, the Parkinson's Action Network urges you to ensure that
such legislation does not impede cell research that could lead to cures
for devastating diseases such as Parkinson's, Alzheimer's, cancer,
diabetes and others. If Congress stands in the way of this research,
millions of Americans will be forced to wait as the clock ticks,
enduring unnecessary suffering and death.
Again, I thank the Subcommittee for the opportunity to submit
testimony for the record.