[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 
                             Transportation






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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

                              ----------                              
                                                                   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.
  

                                
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