HUMAN CLONES AND INTERNATIONAL HUMAN RIGHTS
Kerry Lynn
Macintosh[*]
For several years,
the United Nations (U.N.) has struggled with the question of whether and how to
regulate human cloning. Despite
widespread agreement that reproductive cloning
should be banned, member states are divided on the question of whether research
cloning
should be allowed to continue. Some believe that stem cells harvested
from cloned embryos could be used for medical research and
therapies.[1] Others argue that it is
immoral to create embryos that have no chance at life, solely to harvest their
cells for the benefit of
others.[2]
Unable to bridge this ideological divide, the Sixth Committee (Legal) of the
General Assembly abandoned the effort to draft an international
convention
against human cloning, and established a Working Group to draft a non-binding
declaration instead.[2]
During
this process, Honduras proposed the United Nations Declaration on Human Cloning
(Declaration). The proposal called upon member
states to “prohibit all
forms of human cloning inasmuch as they are incompatible with human dignity and
the protection of human
life.”[2] In other words, the
Declaration condemned both research and reproductive
cloning.[3]
On February 18, 2005,
the Sixth Committee voted 71 to 35 with 43 abstentions to recommend to the
General Assembly the adoption of
the
Declaration.[4] This outcome was a
big disappointment to advocates of research cloning. Belgium immediately
declared that it did not feel bound
by the decision, and the United Kingdom
declared that research cloning would continue to be permitted
there.[5]
Despite such
protests, on March 8, 2005, the General Assembly voted 84 to 34 with 37
abstentions[6] to approve the
Declaration.[7] The United States
and Australia were among those countries voting in favor of the Declaration.
The Declaration seems likely to provoke debate on a number of points.
First, it does not define human dignity or explain why both
research and
reproductive cloning are incompatible with human
dignity.[8] This offers scholars,
politicians, and others a golden opportunity to offer their own interpretations.
Second, international human rights treaties and prior declarations have been
carefully worded to avoid any explicit recognition that
unborn children have a
right to life.[9] The Declaration,
by contrast, characterizes experimentation on cloned embryos as incompatible
with the protection of human life.
In so doing, it implicitly challenges the
non-status of the unborn in international human rights
law.[10]
Third, the Declaration
seems to assume that laws against cloning can actually stop cloning. If this
assumption is correct, no human
clones will be born. However, if the laws
cannot stop cloning, human clones are destined to be born in any event. What
impact will
anti-cloning laws have on those human clones?
This essay
examines this third and most crucial question. It is my thesis that
anti-cloning laws are counterproductive. They will
serve primarily to
stigmatize human clones as duplicative, defective, and unworthy of existence,
based on their immutable genetic
characteristics. This is not only unjust, but
runs counter to the fundamental principle of non-discrimination in international
human
rights law.
1. No Matter What the U.N. Does, Research
Cloning Will Continue.
My analysis begins with research cloning; any industry that involves the
creation of cloned human embryos is a likely forerunner
of reproductive cloning.
There is strong political support for research cloning among three groups.
First, scientists claim that stem cells derived from cloned
embryos could
provide medical therapies that match a patient’s own genetic structure.
This holds out the tantalizing prospect
that research cloning could lead to
cures for Alzheimer’s disease, cancer, diabetes, multiple sclerosis, and
spinal cord injuries,
among others. Of course, at this early stage, there is no
proof that research cloning will produce such wonder therapies, but, so
long as
there is a chance of alleviating human suffering, research cloning will find a
constituency among medical specialists and
their patients.
Second, a
broader group of scientists and secular humanists considers scientific knowledge
to be an important good. These individuals
are attracted to the possibility
that research cloning will add to human knowledge. Lastly, venture capitalists
and entrepreneurs
are interested in research cloning. If the technology can
produce viable medical therapies, they can make enormous amounts of money.
The U.N. Declaration on Human Cloning stands against these political forces.
Its purpose is persuasion: national governments can
take the Declaration home
and tell lawmakers that the international community wants them to enact laws
against all cloning.[11]
However, the Declaration was not supported by a true majority of the 191
member states of the General Assembly. Thirty-six members
were absent and did
not vote. Of the members who did vote, nearly as many abstained or voted
against the Declaration as voted in
favor. Dissenters included many European
and Asian countries that have the technology to engage in research cloning.
This striking
lack of consensus undermines the value of the Declaration in
international law[12] and undercuts
its ability to influence national legislative debates on cloning.
More
importantly, since the Declaration is non-binding, if dissenting member states
refuse to ban all cloning, the U.N. will not impose
sanctions against them.
Thus, the Declaration cannot stop research cloning.
Some might argue that
the Declaration is still very important, for it can serve as the first step
towards an international treaty
against all human cloning. Judging by recent
efforts, however, the successful drafting of a treaty may be years or even
decades
away. By the time the U.N. manages to draft a treaty, many member
states will have established research cloning industries and refuse
to sign.
Other states may sign the treaty but not ratify, particularly if no reservations
are permitted. Finally, unless the treaty
includes strong enforcement
provisions, even states that ratify may not have an incentive to enact national
implementing legislation
that will offend some political constituencies.
In
sum, a treaty may never exist, but even if it does, there will be no meaningful
international restrictions on research cloning
in much of the world.
2. The Growth of the Research Cloning
Industry Greatly Increases the Likelihood that Reproductive Cloning Will Be
Perfected and Human
Clones Born.
While the U.N. hesitates, the business of research cloning continues apace.
In 2004, South Korean scientists shocked the world by
asserting that they had
cloned human blastocysts, that is, advanced embryos containing hundreds of
cells.[13] Using innovative
protocols, the South Koreans claimed to have produced blastocysts from eggs at
rates of up to 29 percent.[14] They
also said they had harvested and cultured a line of embryonic stem cells from
one of 30 blastocysts.[15] The stem
cell line had a normal karyotype (that is, a complete diploid set of
chromosomes).
Unfortunately, as this essay goes to press, the authenticity
of the 2004 South Korean experiment has been called into
doubt.[16] However, research cloning
is progressing in the United States, despite the opposition of President George
Bush and the American delegation
to the U.N. American researchers were among the
first to succeed in cloning early human
embryos,[1] and politicians in
several states have rushed to create a legislative framework that promotes their
efforts.
For example, in 1997, the California State Legislature enacted a
law that placed a five year ban on reproductive cloning only. In
2002, the
Legislature voted to make the ban on reproductive cloning
permanent.[18] In a nod to the
state’s wealthy and powerful biotechnology lobby, however, the Legislature
did not ban research cloning.
Connecticut, Massachusetts, New Jersey, Rhode
Island, and Virginia have similar laws that ban reproductive cloning but permit
research
cloning.[19]
In 2004,
California voters approved a referendum that established a new state agency:
The California Institute for Regenerative Medicine
(CIRM).[20] The purpose of CIRM is
to regulate and fund stem cell research, including research on cloned human
embryos. The referendum also
authorized issuance of general obligation bonds to
finance this research, up to 3 billion dollars, subject to an annual
limit of 350 million dollars. Research scientists and biotechnology
entrepreneurs and investors are
sure to be attracted by this taxpayer-funded pot
of gold.
Technically, CIRM is prohibited from funding reproductive cloning
research. Of course, few mainstream scientists are interested in
reproductive
cloning in any event. To protect their own research interests, they routinely
denounce reproductive cloning, asserting
that it is inefficient and unsafe.
Politicians have taken up the same cry, frequently justifying proposed laws
against cloning on safety grounds. The U.N. Declaration
on Human Cloning is
consistent with this trend; it expresses concern about the serious medical and
physical dangers that human cloning
implies for the individuals
involved,[21] and calls on member
states to prohibit all forms of human cloning on the ground that they are
incompatible with the “protection
of human
life”.[22]
Safety concerns
have some basis at present. In adult cell cloning experiments performed on
animals through 2001, the percentage of
live births to embryos transferred
ranged from 0.32 to 11 percent.[23]
The vast majority of failures occur at the earliest stages, when eggs do not
develop into embryos, or embryos do not produce a
pregnancy.[24] Once a pregnancy is
established, some fetuses do miscarry, posing risks to surrogate
mothers.[25] Of cloned animals that
make it to birth, a few die, and others suffer from physical abnormalities.
The reasons for cloning failures are unclear. More than one factor may be
involved, and some factors may not be inherent in cloning.
For example, large
offspring syndrome (LOS) involves fetal overgrowth, abnormal placentas, fluid
accumulation, and cardiovascular
abnormalities. LOS has been observed, not only
in animal clones, but also in animals conceived through routine in vitro
fertilization.
Scientists believe that LOS results when embryos are damaged
during laboratory culture.[26] The
syndrome does not occur in human in vitro fertilization, causing some
researchers to conclude that it will not occur in human
cloning.[27]
Other
scientists theorize that cloning failures can be traced to so-called
reprogramming errors. To explain in simple terms, each
cell in the body of an
adult animal includes the entire genetic “blueprint” for that
animal. Each cell has taken on
a specialized function that involves the
expression of just a few genes. Skin cells express the genes necessary to
create and maintain
skin. Heart cells express the genes necessary to create and
maintain a heart. For reproductive cloning to work, when the nucleus
of a
specialized adult cell is inserted into an egg, the egg must
“reprogram” the nucleus so that it returns to an embryonic
pattern
of expression. If some of the genes required for proper embryonic development
are not expressed properly, the clone cannot
develop or may be unhealthy once
born.[28]
But reprogramming
errors threaten research cloning, too. Epigenetic abnormalities in cloned
embryos could lead to unreliable experimental
data and dangerous flaws in
medical therapies derived from those embryos. Abnormal expression of certain
genes can even cause tumors.[29]
Some research scientists have tried to minimize these risks, arguing that
competent cells are selected for the culture. In other
words, the process of
deriving stem cell lines from embryos tends to weed out cells with epigenetic
abnormalities, which simply die
in the Petri
dish.[30] That may be true
sometimes, but selection does not guarantee that therapies derived from cloned
embryos will be safe.
Therefore, other research scientists, including Dr.
Ian Wilmut, advocate a new approach to cloning experiments. They reason that
clones may suffer from epigenetic abnormalities for a variety of reasons, some
of which are not intrinsic to cloning. Scientists
need to design controlled
studies that can “disentangle” factors such as donor cell type,
culture media, embryo manipulation,
and nuclear transfer protocols from factors
that are specific to cloning as
such.[31] This will enable
scientists to develop new protocols and strategies for the creation of cloned
embryos without epigenetic defects.
Note the irony: To learn how to make
medical therapies from stem cells, scientists must first learn how to create
healthy human embryos
at the blastocyst stage, when stem cells can be harvested.
However, the creation of healthy human embryos is the first and most crucial
step in reproductive cloning. This is because human embryos ordinarily implant
in the lining of the uterus shortly after they grow
into
blastocysts.[32] If scientists
engaged in research cloning can learn to create embryos without epigenetic
abnormalities, they will eliminate the
main scientific barrier to safe
reproductive cloning. At that point, the first live birth of a human clone will
be just a uterine
transfer and nine months away.
3. Human Clones Will Not Be
Copies.
Looking to the future, if reproductive cloning becomes possible and
reasonably safe, and human clones are born, what will they be
like?
Regrettably, the public, media, and politicians are full of wrong
answers to this key question. Many people believe that cloning
technology can
be used to make duplicates of existing or dead persons.
This
“identity fallacy” manifests itself throughout the cloning debate.
Some arguments are obviously absurd. For example,
it is not possible to
replicate Adolf Hitler, Osama bin Laden, or any other dangerous
megalomaniac.[33]
However,
cloning opponents often advance other arguments that are grounded in the
identity fallacy.[34] Although it
is hard to identify the policy origins of the U.N. Declaration on Human Cloning
with any precision, here are some arguments
that might underlie its conclusion
that reproductive cloning is contrary to human dignity:
* Human clones will
lack individuality and will suffer psychological damage as a result of being
cloned.
* Human clones will not have an open future. They will be doomed
to relive the lives of their DNA donors.
*
Parents[35] of human clones will
hold unreasonable expectations for them.
* Families of human clones will
transgress generational boundaries and become dysfunctional. Mothers will give
birth to daughters
who are sisters; fathers will sexually abuse daughters who
are duplicates of their wives.
* Existing persons will be cloned
involuntarily and lose their individuality as a result.
* Cloning will be used to copy individuals who have superior physical or
mental traits. Cloning will crush the spirit of egalitarianism
and usher in a
new era of eugenics that will rival the Nazi drive to produce Aryan supermen.
Space constraints preclude a thorough critique of the foregoing arguments in
this essay. In a nutshell, however, the arguments fail
because the identity
fallacy is scientifically false.
Nature produces her own clones every
day, using a rather primitive method. If a single fertilized egg splits in two,
identical twins
are conceived. Due to their origin in a single fertilized egg,
the twins share the same nuclear and mitochondrial
DNA.[36] They also are gestated in
the same womb (though micro-environments within the womb can vary), and
ordinarily are raised in the same
family following birth. Despite these common
genetic, biological, and environmental influences, each member of an identical
twin
pair is a unique individual. Indeed, twin researchers have found that the
heritability of intelligence, cognitive skills, and personality
traits is only
about 50 percent.[37]
Scientists clone differently. To create embryos, they take nuclear DNA from
the cells of an adult (DNA donor), and inject it into
donated eggs that have had
their own chromosomes (but not mitochondria) removed beforehand. One or more
embryos must then be inserted
into the uterus of a woman for nine months of
gestation and eventual birth.
These scientific facts establish two
important points. First, a human clone cannot emerge from the womb as an adult;
he or she will
be a baby. Second, the creation processes for identical twins
and human clones differ significantly, with the following results.
Unlike identical twins, human clones and their DNA donors will share the
same chromosomes, but not the same mitochondria. Since mitochondria
process
energy, this could lead to differences in muscle, heart, eye, brain, or other
body systems that use a lot of
energy.[38] Human clones also will
be gestated in different uteri than their DNA donors, leading to differences in
how their common genes are
expressed.[39] Finally, human
clones will grow up in different families, eras, and cultures than their DNA
donors, contributing to the development
of different psychological traits,
tastes, and values. As a result, human clones will differ from their DNA donors
even more than
identical twins differ from each
other.[40] In some cases, they may
not even look the same as their DNA
donors.[41]
In sum, there is no
scientific basis for the identity fallacy or any of the arguments that flow from
it. Cloning will not flood the
world with evil dictators, pathetic copies,
duplicate wives, or arrogant
supermen,[42] simply because it
cannot. Human clones will be individuals, and their parents, friends,
and society will have no rational reason to treat them as anything
less.
Some might concede this point, yet argue that cloning must be banned because
people are not rational. According to this point of view, no matter what
the truth is, people will think human clones are copies, leading to
unreasonable expectations, psychological damage, and discrimination.
Human clones may indeed become victims of misunderstanding, since ignorance
surrounding cloning runs very deep. Nevertheless, enacting
anti-cloning laws is
a counterproductive strategy.
To explain why, I offer here a brief
historical analogy. For centuries, there were laws in the United States that
made it a crime
for a person of one race to marry a member of another
race.[43] These laws sought to
prevent the existence of mixed-race
children,[44] who the white majority
believed to be physically and mentally
inferior.[45] Some proponents of
the laws even argued that mixed-race children should not be born because they
would suffer from social stigma.[46]
The California Supreme Court was the first to issue a decision invalidating
such laws.[47] It rejected the
argument that mixed-race children should not exist because they would suffer
from the stigma of inferiority: “If
they do, the fault lies not with
their parents, but with the prejudices in the community and the laws that
perpetuate those prejudices
by giving legal force to the belief that
certain races are
inferior.”[48]
Now,
consider the argument that human clones should not exist because bigots might
treat them like copies. This reasoning improperly
uses prejudice to justify
more prejudice[49] in the form of
anti-cloning laws that give legal force to the belief that human clones are
copies. Since human clones are likely
to be born, no matter what laws say, it
is important to choose a more effective means of combating the identity fallacy
and its ill
effects; scientific education would be a good start.
4. Human Clones Will Not Be Manufactured
Products
Given the emphasis on human dignity in the Declaration, there is another
anti-cloning argument that deserves special mention here.
The United States
was a strong supporter of the Declaration. Three years before the Declaration
was approved, the President’s
Council on Bioethics issued a report
strongly condemning reproductive cloning. The report suggested that children
who are “begotten”
(that is, conceived through sexual reproduction)
are gifts from God; as such, they stand as the equal of their parents in dignity
and humanity. By contrast, cloning is a human project that treats children as
manmade objects designed to genetic order. This violates
human
dignity.[50]
Thus framed, human
dignity is a religious or moral argument which is not capable of scientific
proof.[51] However, this argument
can also be interpreted as a warning against bad consequences: cloning will
encourage parents to view their
children as manmade products.
This warning
runs counter to available evidence. Opponents of in vitro fertilization argued
that it would objectify children, yet
“test tube babies” function
well and are not different psychologically from children who were adopted or
conceived through
sexual
intercourse.[52]
Nevertheless,
the President’s Council on Bioethics has argued that cloning objectifies
human beings to a much greater degree
than other reproductive technologies,
because it begins with a specific end product in mind and is tailored to produce
that product.[53] As if this were
not enough, cloning, even if practiced on a small scale, allegedly involves a
paradigm shift from procreation to
manufacturing, which threatens to impair the
dignity of humankind as a
whole.[54]
Such arguments rest on
the premise that cloning can deliver a specific end product. In fact, as
explained in section 3 above, cloning
cannot do so, since human clones are not
copies. No one has any scientifically valid reason to view cloned children as
products,
or to consider humankind objectified in some grander sense. Such
perspectives are attributable not to cloning, but to abject ignorance
of what
cloning can accomplish, and perhaps even to the ill-conceived dignity argument
itself.
5. If Reproductive Cloning Can Be
Perfected, there Will Be a Demand for the Technology. Reproductive Cloning
Cannot Be Stopped.
If reproductive cloning cannot manufacture specific end products, why would
anyone want to use it? Where is the demand for the technology?
The answer
is simple. Since all cloning can do is produce babies, asexual reproduction is
a new assisted reproductive technology
that can be used to conceive genetic
offspring. It will appeal to three categories of persons for whom sexual
reproduction is not
possible or practical.
Some men and women lack functional
sperm or eggs, making sexual reproduction with their partners impossible. To
take advantage of
reproductive technologies ranging from artificial insemination
to in vitro fertilization these disabled individuals must use sperm
or eggs
donated by third parties. Cloning will offer them an opportunity to conceive
and bear their own genetic offspring
instead.[55]
Other men and
women are fertile and healthy, but carry unexpressed genetic disorders in their
chromosomes. Sexual reproduction is
a gamble for them; it could produce a child
with a new genome in which the disease is expressed. Asexual reproduction will
enable
these carriers to sidestep the risk, and have a child with a genome that
has already been proven not to express the
disease.[56]
Finally, gay and
lesbian couples cannot reproduce sexually without using sperm or eggs donated by
third parties. Some of these couples
may prefer to reproduce without having to
use genes that come from individuals who are not a part of their families.
Cloning will
give them the chance to do
so.[57]
Laws against
reproductive cloning can reduce but not eliminate this demand for two reasons.
The first is the ease of international
travel. For years, infertile men and
women have traveled to other countries to obtain egg donation, cytoplasm
transfer, and other
controversial fertility services and treatments that are
restricted or forbidden in their
homelands.[58] This history
suggests that men and women who are interested in reproductive cloning will
simply pack their bags and travel to jurisdictions
where the technology is safe
and legal. Once conception has occurred, cloning patients can come home pregnant
and tell family and
friends that they succeeded due to prayer, luck, or stress
reduction.
Granted, nations can craft their anti-cloning laws in an attempt
to block such travel. For example, although the United States does
not yet have
a federal law against cloning, the proposal that has achieved the most political
success in recent years prohibits importing
the product of
cloning.[59] This presumably
includes not only stem cell treatments derived from cloned embryos, but also
cloned fetuses and newborns.
However, detecting violations of such laws
will be a challenge. A pregnancy initiated through cloning will proceed like
any other
pregnancy. Moreover, newborns that strongly resemble one parent are
common. Thus, absent widespread and intrusive genetic testing,
authorities
cannot be sure which pregnancies and newborns resulted from cloning, making
enforcement difficult and incomplete.
If reproductive cloning were banned
worldwide, the ability to clone abroad legally would be eliminated. However, a
worldwide ban
does not seem probable at this time. The inability of the U.N. to
regulate cloning in any meaningful fashion increases the odds
that motivated
individuals will travel to get the cloning technology they need.
The
second reason laws will fail to stop reproductive cloning is that a black market
is likely to emerge. Research cloning experiments
will train scientists and
laboratory assistants to create healthy cloned embryos. Publications will make
the information available
to a wide audience, including fertility doctors. This
increases the odds that providers will offer reproductive cloning to those
able
to pay a price that corresponds to the legal risks involved.
Given the
debate over the morality of research cloning, it is even possible that cloning
opponents will engage in reproductive cloning.
Today, those who consider
themselves pro-life supporters protest in front of abortion clinics; tomorrow,
they may rescue cloned
embryos from destruction and implant them in the wombs of
volunteers who wish to serve as adoptive
parents.[60]
6. Human Clones Will Be Entitled to the
Same International Human Rights as Other Human Beings.
If reproductive cloning becomes scientifically possible, and cannot be
stopped by law, it follows that human clones will be born around
the world. The
next task of this essay is to determine what international human rights these
individuals will enjoy.
The U.N. Charter is a logical starting point.
Pursuant to this multilateral treaty, the U.N. is bound to promote
“universal
respect for, and observance of, human rights and fundamental
freedoms for all without distinction as to race, sex, language, or
religion.”[61] Nations that
are members of the U.N. are obligated to take action to achieve those
goals.[62]
The Charter does not
define human rights and fundamental freedoms. However, shortly after the U.N.
was formed, the General Assembly
adopted the Universal Declaration of Human
Rights (UDHR).[63] The UDHR
commands more respect than the average non-binding declaration. Some
international lawyers view it as an authoritative
interpretation of the Charter,
such that member states have the obligation to promote respect for and
observance of the rights stated
therein.[64]
In addition, there
are two international treaties that create binding legal obligations for those
member states that have signed and
ratified them. Together with the U.N.
Charter and the UDHR, the International Covenant on Civil and Political
Rights (ICCPR)[65] and the
International Covenant on Economic, Social and Cultural
Rights[66] round out an
international bill of rights.
Let us consider how some basic provisions in
this international bill of rights might apply to human clones born in defiance
of anti-cloning
laws.
Cloning transmits nuclear DNA. If a DNA donor is
human, his or her clone must be human
also.[67] Article 1 of the UDHR
proclaims that all “human beings” are born free and equal in dignity
and rights. Thus, human
clones are equal in dignity and rights to humans born
through sexual reproduction.[68]
The UDHR and the ICCPR build on equality by enshrining a principle of
non-discrimination. Legal experts believe non-discrimination
holds a
particularly high status in international
law.[69]
The language of both
documents is similar.[70] As a
treaty, the ICCPR arguably carries greater weight than the UDHR. Thus, for
purposes of discussion, this essay focuses on the
ICCPR, which states in article
2:
Each State Party to the present Covenant undertakes to respect and to ensure
to all individuals within its territory and subject to its jurisdiction
the rights recognized in the present Covenant, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other
status.[71]
“All individuals” must include human clones, because human
clones are human beings. Therefore, states must not deprive
a human clone of
ICCPR rights because he or she is black, or female, or Jewish—and so on.
More significantly, states must not deprive a human clone of ICCPR rights
because he or she is a human clone.
I reach this conclusion for two
reasons. First, article 2 prohibits distinctions based on birth. Presumably,
this language protects
the rights of children born to parents who are not
married to each other.[72] However,
the word “birth” is broad enough also to protect the rights of human
clones born to parents who have reproduced
asexually.
Second, article
2 prohibits distinctions based on “other status”. In other words,
distinctions must not be made on the
basis of a status that is comparable to any
of the enumerated
statuses.[73]
Race is the first
status listed in article 2. Race is an immutable characteristic which the
individual does not choose and cannot
change. Since a person is not responsible
for his or her race, it is unjust to deprive him or her of rights based on that
status.
Moreover, race does not impair one’s ability to contribute
to, or participate in, human society. Race does not undermine the
intrinsic
worthiness of an individual, or eliminate his or her claim to membership in the
human family. If the purpose of the ICCPR
(and UDHR) is to guarantee certain
rights to human beings, it makes sense that rights cannot be denied on the basis
of the irrelevant
status of race.
Reasoning by analogy, the defining
biological characteristic of a human clone is that he or she shares nuclear DNA
with another person.
DNA is not chosen and cannot be changed; it is acquired
upon conception and is immutable. It would be unjust to deprive human clones
of
human rights based on their genetic status.
Further, status as a human
clone does not affect one’s ability to contribute to, or participate in,
human society. As explained
in section 3 above, human clones are not the
soulless copies of science fiction, but individuals who are fully human in every
respect.
Nor does status as a human clone undermine the intrinsic worthiness of
an individual, or eliminate his or her claim to membership
in the human family.
If the purpose of the ICCPR (and UDHR) is to guarantee certain rights to human
beings, it makes sense that
rights cannot be denied on the basis of the
irrelevant fact that one person shares nuclear DNA with another.
I
conclude that the basic principle of non-discrimination entitles human clones to
all the rights and freedoms enumerated in the ICCPR
and UDHR, without
distinction based on their birth via asexual reproduction or status as human
clones.[74]
7. Anti-Cloning Laws Violate the
Principle that Laws Should Not Be Discriminatory.
For purposes of this essay, the most significant right to which human clones
are entitled is set forth in article 26 of the ICCPR,
which provides:
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect,
the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any
ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin,
property, birth or other
status.[75]
Unlike article 2, which prohibits discrimination only with respect to
rights enumerated in the ICCPR, article 26 has a broader
scope.[76] As the Human Rights
Committee has noted:
In the view of the Committee, article 26 does not merely duplicate the
guarantee already provided for in article 2 but provides in
itself an autonomous
right. It prohibits discrimination in law or in fact in any field regulated and
protected by public authorities.
Article 26 is therefore concerned with the
obligations imposed on States parties in regard to their legislation and the
application
thereof. Thus, when legislation is adopted by a State party, it
must comply with the requirement of article 26 that its content should not
be discriminatory. In other words, the application of the principle of
non‑discrimination contained in article 26 is not limited to those rights
which are provided for in the
Covenant.[77]
Thus, article 26 prohibits laws that discriminate on the base of race
and other enumerated grounds. For the reasons given above,
this includes laws
that discriminate against human clones on account of their birth via asexual
reproduction or status as human clones.
Article 26 does not define the
concept of “discrimination”. However, the Human Rights Committee
has offered a helpful
interpretation:
[T]he term “discrimination” as used in the Covenant should be
understood to imply any distinction, exclusion, restriction or preference
which is based on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin,
property, birth or other
status, and which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise by all persons, on an equal
footing, of all
rights and freedoms.[78]
Let us apply this concept to the topic at hand. To start with the most
obvious example, states must not enact laws that exclude human
clones from
schools, parks, transportation, and other public facilities. Such exclusion
would harm the dignity of human clones and
would serve no legitimate
governmental purpose.
Fortunately, this kind of discrimination is
unlikely to occur because it would be very difficult to implement. Unlike race,
status
as a human clone is not readily apparent, and cannot be verified absent
genetic testing. It would not be an easy thing to identify
a human clone and
eject him or her from a train or school.
However, it does not follow that
human clones will be safe from discriminatory laws. Those who are born will
be victimized by the very same anti-cloning laws that sought to prevent their
existence in the first place.
At first glance, this claim may seem
extraordinary or even absurd. On their face, anti-cloning laws prohibit only
the use of an unpopular
technology; the laws do not mention human clones
explicitly.
Surely, however, the ICCPR must prohibit laws that are facially
neutral but discriminatory in effect and
purpose.[79] Otherwise, states
could find devious ways of eviscerating the protection against discriminatory
laws that Article 26 is intended
to provide. Therefore, it is necessary to
examine anti-cloning laws for evidence of discriminatory effect and
purpose.
a) Anti-cloning Laws Have a Discriminatory Effect.
Consider the legal status of sexual reproduction. Though the law
occasionally prohibits sexual intercourse in certain contexts, it
does not
prohibit sexual reproduction as such. Indeed, the right to procreate and found
a family has been identified as a fundamental
human
right.[80] As a result of this
laissez faire attitude, humans born through sexual reproduction steadily
increase in number. They do not suffer
legal burdens on account of their origin
in sexual reproduction.
By contrast, anti-cloning laws ban asexual
reproduction outright. To the extent they can be enforced, the laws will reduce
the number
of human clones who are conceived, gestated, and born. For purposes
of this essay, I will assume that embryonic human clones do
not qualify as
“persons” entitled to protection against
discrimination.[81] However, cloned
babies and children born in defiance of cloning bans are entitled to such
protection. Thus, it is important to
identify the burdens that anti-cloning
laws will impose on them from the moment of their birth. Due to space
constraints, I describe
only two of these burdens here.
Whenever parents are
imprisoned for the crime of cloning, their cloned babies and children will
suffer. Torn away from those who
loved and wanted them the most, and cut off
from financial support, the innocent will be forced to depend on the not so
tender mercies
of the foster care system. This is a cost that is seldom
mentioned or recognized in the cloning debate.
Some parents will evade
detection and conviction. However, anti-cloning laws will impose a second
burden on cloned children that
is just as harmful as parental loss: legal
stigma.
Laws have an expressive function; that is, through their various
prescriptions and prohibitions, laws articulate the values of the
democratic
society that enacts them. To identify the values that anti-cloning laws
express, we must look to the policy arguments
used to justify their enactment.
When closely examined, many of these arguments turn out to have little to do
with cloning qua cloning. Instead, the arguments focus on human clones,
claiming that this class of human being must not be allowed to exist because
its
members have bad traits that endanger their own happiness and the happiness of
others.
Chief among these bigoted arguments is the identity fallacy and
its claim that human clones are copies. Variations on the fallacy
stereotype
human clones as lacking in individuality, autonomy, and emotional balance. Fear
of eugenic cloning further stereotypes
human clones as superior, arrogant, and
dangerous.
Anti-cloning laws based on identity arguments reinforce these
ugly stereotypes. Moreover, since individuality is an essential human
trait,
the laws also stigmatize human clones as less than human.
Exaggerated safety
arguments against cloning are no less
problematic.[82] Ignoring the
constant improvements in cloning technology, opponents insist that human clones
will necessarily suffer from terrible
birth defects. Anti-cloning laws based on
such safety arguments stigmatize human clones as sick and deformed.
Finally, the structure of anti-cloning laws is stigmatizing, in and of
itself. Most laws are written as flat bans with no sunset
clause, no provision
for periodic legislative review, and no exceptions. Criminal and civil
penalties are severe.[83] This
draconian approach expresses the ugly idea that human clones are a disaster in
the making that must be stopped at all costs.
Legal stigma is not a trivial
burden. Because laws reflect the will of the electorate, the ideas they express
are particularly powerful.
Once the laws mark them as duplicative, dangerous,
and deformed, human clones will be at increased risk of emotional distress,
ostracism,
discrimination in housing and employment, and victimization at the
hands of vigilantes.[84]
b) Anti-cloning Laws Have a Discriminatory Purpose.
Anti-cloning laws reflect not only a discriminatory effect, but also a
discriminatory purpose.
As the identity and safety arguments reveal, many
people have prejudged human clones as duplicative, dangerous, and deformed. But
those who want to stop human clones have limited options. As explained above in
section 6, once human clones come into existence,
they will be entitled to the
same human rights as other human beings. No democratic government could openly
conduct a pogrom against
them without generating a strong international protest.
Instead, anti-cloning laws attempt to solve the “problem”
through a program of existential segregation: that is, they criminalize
cloning technology in an effort to prevent human clones from coming into
existence in the first place.
Granted, this is not traditional
apartheid—no human clones are being excluded from schools, transportation,
or other public
facilities. Nevertheless, existential segregation is
discrimination, repackaged in a clever new form. It eliminates the need for
apartheid by attempting to stop the unpopular class at its inception.
Some readers might disagree with my argument that anti-cloning laws
deliberately discriminate against human clones. They might argue
that lawmakers
intend only to exclude human clones from life, and not to harm them once they
are born. This objection rings hollow,
however. Human clones will suffer legal
burdens that flow directly from the laws that target them for non-existence
prior to birth.
If lawmakers are willing to inflict such burdens as part of
their program of existential segregation, it is appropriate to ascribe
those
burdens to their original discriminatory intent.
Other readers might
assert that lawmakers want to stop cloning for reasons that have nothing to do
with the traits of human clones.
They might argue that it is the act of
cloning that is wrong, because it usurps God’s domain (creation), treats
humans as objects of manufacture, and endangers
the health of egg donors and
gestational mothers.
All of these same arguments have been raised against
in vitro fertilization. Opponents on the right and left have complained for
decades that in vitro fertilization is an act of hubris that offends God,
objectifies children and endangers egg donors and gestational
mothers. Yet, in
vitro fertilization is uncontroversial and remains legal.
To discover why
lawmakers treat cloning so differently, one must subtract out the arguments that
the two technologies have in common,
and look for a factor that is unique to
cloning. What remains is the identity fallacy. Any law based on the identity
fallacy is
based on false and prejudiced beliefs about human clones and is
discriminatory.
c) Discrimination Against Human Clones Is
Not Justified. Although article 26 of the ICCPR prohibits discriminatory
laws, the Human Rights Committee has explained that this does not require
the
elimination of all legal distinctions:
Finally, the Committee observes that not every differentiation of treatment
will constitute discrimination, if the criteria for such
differentiation are
reasonable and objective and if the aim is to achieve a purpose which is
legitimate under the
Covenant.[85]
There are few, if any, legitimate reasons for the frantic drive to legislate
human clones into nonexistence. As explained in section
3 above, human clones
can never be copies of anyone, good or bad. This single scientific fact holds
the power to invalidate each
and every argument that is traceable to the
identity fallacy. This includes the fear that cloning might be used for eugenic
purposes,
thereby condemning us all to relive the horrors of the Nazi era.
The argument that cloning is a form of manufacturing human life fails to the
extent that it is rooted in the identity
fallacy.[86] If cloning cannot
produce copies, it cannot produce designer products; there is no scientifically
valid reason for parents to view
their cloned children as products or for the
rest of us to believe that our humanity has been diminished.
What about safety concerns? States have a legitimate interest in protecting
the health of mothers and
children.[87] However, it is
important to remember that human reproduction is inherently inefficient and
risky.
In sexual reproduction, 75 percent of all conceptions fail to
implant or spontaneously abort.[88]
Late term miscarriages, stillbirths, neonatal deaths, and maternal deaths
occur.[89] Birth defects in
newborns are common, ranging from 4 to 12 percent of births, depending on the
age of the mother.[90] Many of
these tragic outcomes happen because sexual reproduction is a cruel gamble; it
produces many failed genomes for every successful
one.
By contrast, cloning
uses genomes that already have proven their ability to create healthy babies.
Coupled with scientific advances,
this fact suggests that outcomes could one day
move into the same range that is tolerated for sexual reproduction.
Yet,
most anti-cloning laws are flat bans that do not provide for periodic
legislative review so that safety improvements can be taken
into account. Given
the prospects for improvement, such laws are a disproportionate means to the end
of safety.[91]
Moreover,
when there are legitimate concerns about the safety of new medical technologies,
governments usually respond with temporary
regulations, and not with blanket
prohibitions. The fact that cloning has been treated so differently indicates
that something other
than safety lies at the heart of opposition to cloning. A
leading culprit is the identity fallacy and the instinctive revulsion
it
inspires toward human clones. We must not allow safety to be used as an excuse
for discrimination against the members of an unpopular
class in violation of
article 26.
To summarize this section, anti-cloning laws are inconsistent with the
fundamental principle of non-discrimination enshrined in the
international bill
of rights. Far from being necessary to protect human dignity, the laws are a
greater affront to human dignity
than is cloning itself, for they discriminate
against human clones based on their genetic
characteristics.[92]
8. Conclusion
During the 20th century, many states enacted laws that relegated racial
minorities and other unpopular groups to separate public facilities,
or worse,
concentration camps. The U.N. has devoted much of its work to ensuring that
such inequities never happen again. Toward
that end, the international bill of
rights has enshrined the principle of non-discrimination.
The 21st century
presents new challenges. Researchers are working to perfect embryo cloning, and
there are people who need cloning
to reproduce. Taken together, these facts
suggest that human clones will be born in the near future.
If the
non-discrimination principle is to retain its vitality in the new millennium, it
must be interpreted to prohibit laws that
attempt to exclude the members of an
unpopular class from existence—at least, whenever scientific and social
realities indicate
that some members of the class are bound to be born despite
the laws. Laws that seek to implement existential segregation are profoundly
stigmatizing and impair the recognition, enjoyment or exercise by all persons,
on an equal footing, of all rights and
freedoms.[93]
[*] Professor of Law,
Santa Clara University. I am deeply grateful for the advice I have received from
Professors June Carbone, Dinah
Shelton, Barbara Stark, and Beth Van Schaack.
Their expertise in the field of international human rights has helped me
enormously.
[1] In accordance with this view
Belgium proposed an international convention against reproductive cloning only.
Twenty-two other U.N.
members joined Belgium, including China, France, Greece,
Japan and the United Kingdom. See U.N. GAOR, 59th Sess., 516th mtg. at
3–5, U.N. Doc. A/59/516 (Nov. 19, 2004).
2 Consistent with
this view, Costa Rica proposed an international convention against all human
cloning. Sixty-one other members of
the U.N. joined Costa Rica, including
Australia, the United States, and many countries in Latin America and Africa.
See id. at 1-3.
3See id. at
7.
[2] U.N. Gen. Assembly, Sixth
Comm., Working Group Established Pursuant to Gen. Assembly Decision 59/547 to
Finalize the Text of a United
Nations Declaration on Human Cloning, Report of
the Working Group Established Pursuant to General Assembly Decision 59/547 to
Finalize the Text of a United Nations Declaration
on Human Cloning, Annex I,
subsec. b, U.N. Doc. A/C.6/59/L.27/Rev.1 (Feb. 23,
2005).
[3] Thus, the Declaration
went farther than the earlier Universal Declaration on the Human Genome and
Human Rights, which provided:
“Practices which are contrary to human
dignity, such as reproductive cloning of human beings, shall not be
permitted.”
UNESCO Gen. Conf. Res. 29 C/Res. 16, art. 11, reprinted
in Records of the General Conference, UNESCO, 29th Sess., 29C/Res. 19, at 41
(1997); adopted by the U.N. General Assembly in the Universal
Declaration on the
Human Genome and Human Rights, G.A. Res. 53/152, U.N. GAOR, 53d Sess., 152d
mtg., U.N. Doc. A/RES/53/152 (Mar.
10,
1999).
[4] See U.N. GAOR,
59th Sess., 516th mtg. at 5, U.N. Doc. A/59/516/Add.1 (Feb. 24,
2005).
[5] See Associated
Press, U.N. Committee Adopts Cloning Resolution, FOX NEWS, Feb. 19, 2005,
http://www.foxnews.com/printer_friendly_story/0,3566,148134,00.html.
[6]
See Press Release, General Assembly, General Assembly Adopts United
Nations Declaration on Human Cloning by Vote of 84-34-37, U.N. Doc.
GA/10333
(Mar. 8, 2005), available at
http://www.un.org/News/Press/docs/2005/ga10333.doc.htm [hereinafter U.N. Press
Release].
[7] See G.A.
Res. 59/280, Annex, U.N. GAOR, 59th Sess., 280th mtg., U.N. Doc. A/RES/59/280
(Mar. 23, 2005).
[8] After
voting on the Declaration, many U.N. representatives made public statements but
did not elaborate on the relationship between
cloning and human dignity.
See U.N. Press Release, supra note 9. Unfortunately, documents
leading up to the approval of the Declaration are not particularly illuminating.
Committee reports
during the abortive effort to produce an international
convention reflect a consensus that reproductive cloning raises moral,
religious,
ethical and scientific concerns, and has far-reaching implications
for human dignity. However, the reports do not lay out arguments
or specific
facts in support of this consensus. See U.N. Gen. Assembly, Sixth Comm.,
Working Group on an International Convention Against the Reproductive Cloning of
Human Beings, Report of the Working Group on an International Convention
Against the Reproductive Cloning of Human Beings, Annex II, U.N. Doc.
A/C.6/57/L.4 (Sept. 30, 2002); U.N. Gen. Assembly, Ad Hoc Committee on an
International Convention against the
Reproductive Cloning of Human Beings,
Report of the Ad Hoc Committee on an International Convention against the
Reproductive Cloning of Human Beings, ¶ 11, U.N. GAOR, 57th Sess.,
Supp. No. 51, U.N. Doc. A/57/51 (Feb. 25, 2002). Perhaps U.N. diplomats framed
cloning in terms
of human dignity because that concept is broad enough to
encompass a wide range of arguments against both reproductive and research
cloning. See, e.g., WHO.int, A Dozen Questions (and Answers) on
Human Cloning, http://www.who.int/ethics/topics/cloning/en/ (last visited May 9,
2005)
(listing a hodge-podge of anti-cloning arguments under the heading of
dignity).
[9] See
Philip Alston, The Unborn Child and Abortion under the Draft Convention on
the Rights of the Child, 12 HUM. RTS. Q. 156, 161, 178 (1990); Dinah
Shelton, International Law on Protection of the Fetus, in ABORTION
AND PROTECTION OF THE HUMAN FETUS 1, 14 (Stanislaw J. Frankowski & George F.
Cole eds., 1987). For example, in the “Baby
Boy” case, the
Inter-American Commission on Human Rights found that legalized abortion did not
violate the right to life guaranteed
in the American Declaration of Rights and
Duties of Man (ADRDM). The Commission reasoned that the drafters had rejected
language
that would have explicitly extended the right to life to the unborn.
The Commission also rejected the claim that the ADRDM must
be interpreted as
barring abortion when considered in light of its related treaty, the American
Convention on Human Rights. The
Convention included language protecting the
right to life “in general” from the moment of conception, but this
was a
compromise designed to accommodate existing laws that permitted legalized
abortion. See White v. United States, Case 2141, Inter-Am. C.H.R.,
Resolution No. 23/81, OEA/Ser.L/V/II.54, doc. 9 rev. 1
(1981).
[10] Cf. JOHN
CHARLES KUNICH, THE NAKED CLONE: HOW CLONING BANS THREATEN OUR PERSONAL RIGHTS
136 (2003) (arguing that research cloning reopens
the question of when life
begins for purposes of the U.S.
Constitution).
[11] The
Declaration calls upon member states immediately to adopt and implement national
legislation to effectuate its principles. See G.A. Res. 59/280,
supra note 10, para.
e.
[12] Cf. Texaco
Overseas Petroleum Co. v. Libyan Arab Republic, 17 I.L.M. 1 (1978) (Int’l
Arbitral Award of Jan. 19, 1997) (arbitrator gave no weight to certain
provisions in the Charter of Economic
Rights and Duties of States because
industrialized countries with market economies had abstained or voted against
them).
[13] See Woo Suk
Hwang et al., Evidence of a Pluripotent Human Embryonic Stem Cell Line
Derived from a Cloned Blastocyst, 303 SCIENCE 1669
(2004).
[14] See id. at
1670.
[15] See id.
[16] In early
2005, Hwang Woo Suk claimed he had created 11 stem cell lines that matched
patient DNA. Subsequent tests showed this claim
was false. Results from
independent tests of Hwang’s 2004 experiment are pending. See Rick
Weiss, None of Stem Cell Lines Sientist Said He Created Exists, S.F.
CHRON., Dec. 30, 2005, at A16.
17 See Jose B. Cibelli
et al., The First Human Cloned Embryo, 286 SCI. AM. 44 (2002) (reporting
the first creation of a cloned human embryo that grew to six
cells).
[18] See CAL. BUS.
& PROF. CODE § 2260.5 (West 2003) and §§ 16004, 16105 (West
2004); CAL. HEALTH & SAFETY CODE §§
24185, 24186, 24187 (West
2004).
[19] See Conn.
Public Act 05-149 (2005); 2005 Mass. Adv. Legis. Serv. 27 (Law. Co-op.); N.J.
STAT. ANN. § 2C:11A-1 (West 2004); R.I. GEN. LAWS §§ 23-16.4 to
-4 (2003); VA. CODE ANN. §§
32.1-162.21, 32.1-162.22 (Michie 2003).
[20] CIRM Home Page,
http://www.cirm.ca.gov (last visited Sept. 23,
2005).
[21] See G.A. Res.
59/280, supra note 10, Annex, at
2.
[22] Id. para. b. This
language is also broad enough to condemn research cloning, which involves the
deliberate creation and destruction
of human
embryos.
[23] See COMM. ON
SCI., ENG’G, & PUB. POLICY, NAT’L ACADS., SCIENTIFIC AND MEDICAL
ASPECTS OF HUMAN REPRODUCTIVE CLONING 114-19
app. b, tbl.1 (2002) [hereinafter
NAS REPORT].
[24] See id.
[25] See id. at
40.
[26] See id. at 41.
[27] See J. Keith Killian
et al., Divergent Evolution in M6P/IGF2R Imprinting from the Jurassic to the
Quaternary, 10 HUM. MOLECULAR GENETICS 1721 (2001).
[28] See NAS REPORT,
supra note 26, at 43; Konrad Hochedlinger & Rudolf Jaenisch,
Nuclear Transplantation, Embryonic Stem Cells, and the Potential for Cell
Therapy, 349 NEW ENG. J. MED. 275, 276-77
(2003).
[29] See Susan M.
Rhind et al., Human Cloning: Can It Be Made Safe?, 4 NATURE REVS.
GENETICS 855, 862 (2003).
[30]
See Hochedlinger & Jaenisch, supra note 31, at
281.
[31] See Rhind,
supra note 32, at
859-61.
[32] See SHERMAN
J. SILBER, HOW TO GET PREGNANT WITH THE NEW TECHNOLOGY 80-81 (Warner Books
1991).
[33] See,
e.g., NAT’L BIOETHICS ADVISORY COMM’N, CLONING HUMAN BEINGS:
REPORT AND RECOMMENDATIONS OF THE NATIONAL BIOETHICS ADVISORY
COMMISSION 69
(1997) [hereinafter NBAC REPORT].
[34] See, e.g.,
CAL. ADVISORY COMM. ON HUMAN CLONING, CLONING CALIFORNIANS?: REPORT OF THE
CALIFORNIA ADVISORY COMMITTEE ON HUMAN CLONING 24-27 (2002);
PRESIDENT’S
COUNCIL ON BIOETHICS, HUMAN CLONING AND HUMAN DIGNITY: AN ETHICAL INQUIRY
102-04, 111 (2002) [hereinafter COUNCIL
REPORT].
[35] When it comes to
cloning and human clones, it is important to define what one means by the term
“parent”. In this essay,
I use the term to refer to any person who
uses cloning to produce a child, so long as he or she plans to raise the child
as his or
her own. This broad usage is appropriate for two reasons. First, a
person who decides to have and raise a child is playing the
social role of
parent. Second, as I explain in section 5 below, cloning is likely to emerge as
an assisted reproductive technology
that helps the infertile and others have
genetic offspring. At least one and often both members of a marriage or
partnership are
likely to qualify as biological and legal parents of their
cloned offspring. For a more thorough discussion of this point, see
KERRY LYNN MACINTOSH, ILLEGAL BEINGS: HUMAN CLONES AND THE LAW 236 n.2
(2005).
[36] Every human egg
contains mitochondria, that is, tiny structures that produce energy within human
cells. See BRUCE ALBERTS ET AL., MOLECULAR BIOLOGY OF THE CELL 30 (4th
ed. 2002). Mitochondria have their own DNA, which is inherited down
the
maternal line.
[37] See
Nancy L. Segal, Human Cloning: Insights from Twins and Twin Research, 53
HASTINGS L.J. 1073, 1076
(2002).
[38] See NAS
REPORT, supra note 26, at 26.
[39] See DAVID S. MOORE,
THE DEPENDENT GENE: THE FALLACY OF “NATURE VS. NURTURE” 117-28
(2001).
[40] See,
e.g., KUNICH, supra note 13, at
124.
[41] Differences could be
particularly marked in the case of a female baby. As the baby developed in the
womb, each cell would randomly
switch off one of her two X chromosomes. This X
inactivation would not be influenced by whatever happened to the DNA donor when
she was a developing embryo. See MACINTOSH, supra note 38, at
24-25; see also Tae Young Shin et al., A Cat Cloned by Nuclear
Transplantation, 415 NATURE 859 (2002) (reporting the birth of the first
cloned kitten, Cc, who had different fur patterns than her DNA
donor).
[42] Concerns about the
eugenic potential of cloning are misplaced for an additional reason. Even if a
superior genome could be replicated
in the bodies of human clones, these
individuals would be vastly outnumbered by the teeming hordes of ordinary people
born through
sexual reproduction. See GREGORY PENCE, WHO’S AFRAID
OF HUMAN CLONING? 130 (1998). Regression to the mean would be inevitable
– defeating the
eugenic program – unless governments across the
globe enacted coercive laws requiring asexual reproduction in preference to
sexual reproduction. That is the stuff of science fiction novels, not serious
public policy debate.
[43]
See Harvey M. Applebaum, Miscegenation Statutes: A Constitutional and
Social Problem, 53 GEO. L.J. 49, 50
(1964).
[44] See id. at
64.
[45] See, e.g.,
Scott v. State, 39 Ga. 321, 324
(1869).
[46] See,
e.g., State v. Brown, 108 So. 2d 233, 234 (La.
1959).
[47] See Perez v.
Sharp, 198 P.2d 17 (Cal. 1948). Nearly 20 years later, the U.S. Supreme Court
held that anti-miscegenation laws violated the equal protection and due process
rights of interracial couples. See Loving v. Virginia, [1967] USSC 168; 388 U.S. 1
(1967).
[48] Perez,
198 P.2d at 26.
[49] See
PENCE, supra note 45, at
46.
[50] See COUNCIL
REPORT, supra note 37, at 8-10, 104-07.
[51] See NBAC REPORT,
supra note 36, at 49.
[52]
See Susan Golombok et al., The European Study of Assisted Reproduction
Families: The Transition to Adolescence, 17 HUM. REPROD. 830
(2002).
[53] See COUNCIL
REPORT, supra note 37, at
106.
[54] See id. at
107.
[55] See,
e.g., Mark D. Eibert, Human Cloning: Myths, Medical Benefits and
Constitutional Rights, 53 HASTINGS L.J. 1097, 1101
(2002).
[56] See,
e.g., John A. Robertson, Liberty, Identity, and Human Cloning, 76
TEX. L. REV. 1371, 1379
(1998).
[57] See
id. at 1380.
[58]
See, e.g., Debora Spar, Reproductive Tourism and the Regulatory
Map, 352 NEW ENG. J. MED. 531
(2005).
[59] See H.R.
1357, 109th Cong. § 2 (2005). The House of Representatives passed a nearly
identical bill in 2003 by a strong vote of
249 to 155. See H.R. 534,
108th Cong. § 2 (2003); Edward Epstein, House Passes Bill to Prohibit
Human Cloning, S.F. CHRON., Feb. 28, 2003, at A3. A companion bill failed
to clear the Senate, due to opposition from senators who support research
cloning.
[60] Services already
exist to locate adoptive parents for surplus embryos created and frozen in the
course of in vitro fertilization.
For example, Nightlight Christian Adoptions
offers a Snowflakes Embryo Adoption Program. Snowflakes Embryo Adoption Program
Home
Page, http://www.nightlight.org/snowflakeslanding.asp (last visited Sept.
24, 2005).
[61] U.N. Charter art.
55, para. c.
[62] See id.
art. 56.
[63] Universal
Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen.
mtg., U.N. Doc. A/810 (Dec. 12,
1948).
[64] See,
e.g., Filartiga v. Pena-Irala, [1980] USCA2 576; 630 F.2d 876, 883 (2d Cir. 1980); Thomas
Buergenthal, International Human Rights Law and Institutions: Accomplishments
and Prospects, 63 WASH. L. REV. 1, 9
(1988).
[65] International
Covenant on Civil and Political Rights, opened for signature Dec. 16,
1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. The United States signed and
ratified the ICCPR but declared that the treaty was not self executing. The
ICCPR
has no legal effect in the United States because implementing legislation
has never been introduced. See Barbara Stark, Baby Girls from China
in New York: A Thrice-Told Tale, 2003 UTAH L. R. 1231, 1236 n.21
(2003).
[66] International
Covenant on Economic, Social and Cultural Rights, opened for signature Dec.
16, 1966, 993 U.N.T.S. 3 [hereinafter
ICESCR].
[67] Article 1 of the
Universal Declaration on the Human Genome and Human Rights reinforces this
conclusion; it provides that “[t]he
human genome underlies the fundamental
unity of all members of the human family.” Universal Declaration on the
Human Genome
and Human Rights, supra note 6, art. 1. Those who bear an
entirely human genome should, at a minimum, qualify for status as human beings.
Thus, human clones
present an easy case. I do not mean to imply that genetics
should be the sole or determining factor in more difficult cases, such
as
human/animal hybrids. In such a case, a richer analysis that also considered
developmental and cultural factors would be
necessary.
[68] Similarly, the
Universal Declaration on the Human Genome and Human Rights provides that
“[e]veryone has a right to respect
for their dignity and for their rights
regardless of their genetic characteristics.” Id. art. 2(a). This
indicates human clones are entitled to respect for their dignity and rights even
though they share nuclear DNA with
another person. See KUNICH,
supra note 13, at 64.
[69]
See Dinah Shelton, Human Rights and the Hierarchy of International Law
Sources and Norms: Hierarchy of Norms and Human Rights: Of Trumps and
Winners, 65 SASK. L. REV. 299, 310-11 (2002); see also Bertrand G.
Ramcharan, Equality and Nondiscrimination, in THE INTERNATIONAL
BILL OF RIGHTS, THE COVENANT ON CIVIL AND POLITICAL RIGHTS 246, 247 (Louis
Henkin ed., 1981) (equality and non-discrimination
are bedrock principles in the
international law of human
rights).
[70] The UDHR provides:
“Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction
of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth
or other status.” See Universal Declaration of
Human Rights, supra note 66, art.
2.
[71] See ICCPR,
supra note 68, art. 2, § 1 (emphasis
added).
[72] Cf. Marckx v.
Belgium, 31 Eur. Ct. H.R. (ser. A) (1979) (legal distinctions made between
legitimate and illegitimate children violate
the Convention for the
Protection of Human Rights and Fundamental Freedoms, which guarantees rights
without discrimination grounded on
birth).
[73] See
Ramcharan, supra note 72, at
256.
[74] These rights and
freedoms should help to protect human clones from the sort of abuse frequently
depicted in science fiction. For
example, Article 8, § 1, of the ICCPR and
Article 4 of the Universal Declaration of Human Rights provide that no one shall
be
held in slavery or servitude. Similarly, Article 6 of the ICCPR and Article
3 of the Universal Declaration of Human Rights recognize
that every human being
has the right to life. Therefore, scenarios in which human clones are enslaved
or killed for their vital
organs are unrealistic. See, e.g.,
THE ISLAND (Dreamworks
2005).
[75] See ICCPR,
supra note 68, art.
26.
[76] Article 26 of the ICCPR
differs from article 7 of the Universal Declaration of Human Rights, which
provides: “All are equal
before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to equal
protection
against any discrimination in violation of this Declaration
and against any incitement to such discrimination.” Some might read the
emphasized clause in the second sentence of article
7 as limiting the principle
of non-discrimination to rights enumerated in the Universal Declaration of Human
Rights. See, e.g., Karl Josef Partsch, Fundamental Principles
of Human Rights: Self-Determination, Equality and Non-Discrimination, in 1
THE INTERNATIONAL DIMENSIONS OF HUMAN RIGHTS 61, 71 (Karel Vasak & Philip
Alston eds., 1982). However, such a reading would
render article 7 redundant
with article 2 of the Universal Declaration of Human Rights. The first sentence
of article 7 is broader;
the language assures entitlement without discrimination
to equal protection of the law. This language could be read consistently
with
article 26 of the ICCPR as prohibiting discriminatory laws in
general.
[77] Human Rights
Committee, Report of the Human Rights Committee, General Comment No. 18:
Non-discrimination, Annex VI, para. 12, U.N. GAOR, 45th Sess., Supp. No. 40,
U.N. Doc. A/45/40 (Oct. 4, 1990) (emphasis added), reprinted in
Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev. 7, at 146, 148 (May 12, 2004)
[hereinafter General Comment No.
18].
[78] See
id. para. 7 (emphasis added), reprinted in U.N. Doc.
HRI/GEN/1/Rev. 7, at 147.
[79]
Cf. JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW §
14.4, at 621 (5th ed. 1995) (facially neutral laws violate the U.S.
Constitution
when designed to discriminate against minority
groups).
[80] See,
e.g., ICCPR, supra note 68, art. 23, § 2; see also
Skinner v. Okla. ex rel. Williamson[1942] USSC 129; , 316 U.S. 535, 541
(1942).
[81] Cf. Shelton,
supra note 12, at 10 (article 6 of the ICCPR provides a right to life
without taking a textual position on when life
begins).
[82] For a more complete
account of how safety arguments have been exaggerated and influenced by
considerations that have nothing to do
with science, see MACINTOSH,
supra note 38, at
44-69.
[83] See id. at
76-88.
[84] See id. at
122-23.
[85] General Comment
No. 18, supra note 80, para.
13.
[86] Some might counter that
the injury to human dignity lies in the act of employing human rather than
divine means to achieve conception.
This is a religious argument; in the United
States, it would not be recognized as a legitimate governmental interest.
See Lawrence v. Texas, [2003] USSC 4776; 539 U.S. 558, 578 (2003).
[87] Indeed, some might argue
that states have a treaty obligation to ban cloning in order to protect the
health of mothers and newborns.
They might point to the ICESCR, which
recognizes a right of everyone to the enjoyment of the highest attainable
standard of physical
and mental health, and requires states to reduce the rate
of stillbirths and infant mortality and ensure the healthy development
of the
child. See ICESCR, supra note 69, art. 12, §§ 1 and
2(a). However, any such argument would be flawed. Let us begin with mothers.
Women (and men)
have a right under article 23, § 2 of the ICCPR to found a
family. For those unable to reproduce sexually, cloning provides
an alternative
means of founding a family. Women will not be getting pregnant by accident;
they will have considered and assumed
the risks of gestating clones. Therefore,
even if cloning is hazardous, it seems unreasonable to deny women the right to
make their
own decisions regarding a matter that involves not just their health,
but also their reproductive freedom. Banning cloning to protect
the right to
health of newborns is even more problematic. The right to health is not a right
to be healthy. See U.N. ESCOR, Comm. on Econ., Cultural, and Soc. Rts.,
General Comment No. 14: The Right to the Highest Attainable Standard of
Health, ¶ 8, 22d Sess., U.N. Doc. E/C.12/2000/4 (2000), reprinted
in Compilation of General Comments and General Recommendations Adopted by
Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev. 7, at 86, 88 (May 12,
2004). This is good, for a right to be healthy could be used to justify
eugenics
laws designed to prevent the birth of physically or mentally flawed
offspring.
[88] See LEE M.
SILVER, REMAKING EDEN: CLONING AND BEYOND IN A BRAVE NEW WORLD 43
(1997).
[89] See
MACINTOSH, supra note 38, at
65.
[90] See Lee Silver,
Public Policy Crafted in Response to Public Ignorance is Bad Public
Policy, 53 HASTINGS L.J. 1037, 1043
(2002).
[91] In an effort to
render safety a permanent barrier, the President’s Council on Bioethics
has argued that there is no ethical
way to make reproductive cloning safe
through experimentation because the cloned child cannot consent to his
participation. See COUNCIL REPORT, supra note 37, at 91-94. This
argument glosses over important questions. Ethics guidelines for medical
research typically protect “human
subjects”: that is, living
individuals, rather than embryos or fetuses. See Basic HHS Policy for
Protection of Human Research Subjects, 45 C.F.R. § 46.102(f) (2005). By
the time a cloned child is born
and becomes a human subject entitled to
protection under the guidelines, the “experiment” is already
complete. Nor is
it clear that reproduction qualifies as “research”
subject to ethical guidelines. If it does, sexual reproduction also
must be
unethical, since the outcome is uncertain for the baby involved. Perhaps
parents can be said to consent on behalf of their
child, but that principle
applies to cloning also. Finally, even if initial attempts at reproductive
cloning can be classified as
unethical, the realities of cloning make them
likely to occur somewhere in the world. Once those initial efforts prove
cloning safe,
a cloning ban cannot be justified on safety grounds.
[92] See Universal
Declaration on the Human Genome and Human Rights, supra note 6, art.
2(b); see also Oscar Schachter, Human Dignity as a Normative
Concept, 77 AM. J. INT’L L. 848, 852 (1983) (dissemination of negative
stereotypes of groups offends human dignity).
[93] See General Comment No.
18, supra note 80, para. 7.
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