HUMAN CLONING AND GENETIC ENGINEERING:
THE CASE FOR PROCEEDING CAUTIOUSLY
The irony inherent in the debate on “whole human” reproductive
cloning is the amount that has been written and the emotions that
have been stirred regarding a scientific advance that has not yet
and that, at present, is only a potential threat to family
and social structures.
This article is in no way intended to
minimize the fears raised in the ongoing discussion regarding the
potential for superhuman or subhuman replicants,
or the potential
adverse impact upon the family from the need to nurture genetic
duplicates of one or two parents.
This paper is merely presented as
one alternative to the entertainment industry’s popular depiction of
the horrors of cloning
—a depiction that has the effect of detracting
from a debate that is, potentially, highly productive. Arguably, a
* Professor of Law and Director of the Health & Biomedical Law Concentration Program,
Suffolk University Law School. The author expresses grateful thanks to Maureen McBrien, a
second-year student at the Law School for her assistance in the research, preparation, and
editing of this Article.
As of this writing, Jose B. Cibelli, Robert P. Lanza, and Michael D. West, of the privately
held biotechnology company Advanced Cell Technology (ACT), have announced the first
human cloned embryo and the first human embryos generated only from eggs (i.e.,
parthenogenesis). Jose B. Cibelli et al., The First Human Cloned Embryo, 286 S
45–46 (2002). The impact of their achievement and announcement will be discussed infra, at
footnotes 54–58 and accompanying text.
See, e.g., Lori B. Andrews, Is There a Right to Clone? Constitutional Challenges to Bans
on Human Cloning, 11 H
. J.L. & T
. 643, 656–57 (1998); George J. Annas,
Commentary, Human Cloning: A Choice or an Echo?, 23 D
. 247, 249–50 (1998);
Note, Human Cloning and Substantive Due Process, 111 H
. L. R
. 2348, 2348, 2350–51
(1998) [hereinafter Human Cloning]; David Orentlicher, Cloning and the Preservation of
Family Integrity, 59 L
. L. R
. 1019, 1022–25 (1999). These writings—representative of the
dozens written on this as yet unattainable scientific possibility—all reflect upon the legal,
ethical, and moral grounds for permitting or prohibiting human cloning.
Dan Brock’s extraordinary article is extremely insightful on these points. See generally
Dan Brock, The Human Genome Project and Human Identity, 29 H
. L. R
. 7 (1992). See
also infra Part II (identifying and discussing physical and psychological advantages and
consequences to individuals and families).
See Orentlicher, supra note 2, at 1027–31.
(Columbia Studios 1997); M
(Columbia/Tristar Studios 1996);
(Universal Studios 1993); B
(Warner Bros. Studios 1982); T
(Fox 1978); S
(MGM/UA Studios 1973); see also Annas, supra note
2, at Part III (discussing how cloning has been depicted in science fiction movies and novels).
650 Albany Law Review [Vol. 65
more realistic focus upon the beneficial, as well as on the
destructive, potentials of human cloning would permit the evolution
of a reasoned set of legal controls designed to protect the interests of
individuals, the family, and society.
A debate motivated by fear is more likely to result in extreme
solutions or absolute prohibitions; these are unlikely to withstand
the test of time. Enforcement of absolute limitations in the face of
continuing scientific curiosity and societal needs will ultimately
Laws that attempt to ban what people want to have
or to find
are, generally, honored only in their breach. To presume
that the enactment of laws prohibiting the application of scientific
advances will end the debate on human cloning, is, in this author’s
belief, the height of folly. Our curiosity regarding the essential
elements of our physical being have led us to the strands of DNA
and, even deeper, to the basic protein structures of which those
strands are composed.
Human cloning is merely a predictable
tangent to the study of the human genome.
The purpose of this article is to suggest that an absolute
prohibition against human cloning is unworkable and ill-conceived;
and, further, that there is sufficient time to engage in a reasoned
Although laws prohibiting the production and consumption of alcohol are obvious
examples, other laws, such as the draft, are inconsistent with the public will and are useful
examples. See Philip E. Ross, The Futile Crackdown, F
, Oct. 18. 1999, at 70.
Prohibition laws are self-defeating.Smoking laws, for example, seem to have increased the
number of teenager smokers—perhaps because banned items are more attractive and alluring
to teenagers. See id. at 71, 76.
Prohibition is an oft-cited example. Laws that are too strict, like the outright prohibition
on alcohol in the 1930s, can have negative public policy impacts, such as fueling organized
See id. at 76.
The prestige of government has undoubtedly been lowered considerably by the
Prohibition law. For nothing is more destructive of respect for the government and the
law of the land than passing laws which cannot be enforced. It is an open secret that the
dangerous increase of crime in this country is closely connected with this.
, My First Impressions of the U.S.A., in I
Bargmann trans., Modern Library ed. 1994).
The current debate regarding the legalization of marijuana, the banning of cigarette
smoking in public spaces, and the conduct of research involving human embryos are relevant
examples. For state and federal marijuana penalties, see State Guide to Marijuana Penalties,
at http://www.norml.org/states/index.shtml (last visited Feb. 19, 2002). See also Prohibitions
Against Smoking on Scheduled Flights, 49 U.S.C.A. § 41706 (West Supp. 2001); L
. §§ 9:121–133 (West 2000) (establishing limitations and guidelines for in vitro
. tit. 22, § 1593 (1964) (criminalizing experimentation on
human fetuses or on “any product of conception considered live born”); M
112, § 12J (Law. Co-op. 1991) (prohibiting experimentation on live human fetuses).
See infra notes 44–45 and accompanying text (discussing the make-up of the human
See infra notes 46–48 and accompanying text (discussing how the mapping of the human
genome will in turn lead to further advances in cloning technology).
2002] The Case for Proceeding Cautiously 651
debate to develop the type of restrictions upon cloning practices that
will protect the interests of individuals, families, and the human
species, while permitting an exploration of the potential benefits of
cloning technologies. The first part below briefly discusses the
scientific history of cloning and how this has led to present efforts to
clone higher animals. The second part identifies the risks that have
been identified in the current debate, and also considers some of the
potential benefits implicated by both therapeutic and reproductive
cloning. The third part presents a constitutional framework for
either supporting or denying an individual right to engage in
human cloning. The fourth part considers the present national
legislative response to the prospect of both therapeutic and human
reproductive cloning. Finally, this paper presents suggestions for
the continuing debate and argues for the imposition of a more
logical framework in order to achieve a reasoned result in light of
the inevitable advances being made in the science of human cloning.
Scientific advances allowing the cloning of plant and lower animal
structures are longstanding.
The replication of organisms for
agricultural purposes has been commonplace for many years.
Similarly, cloning of certain animals, particularly for food
production, has become commonplace, if not universally accepted.
The progress heretofore made with respect to plants and lower
animals was dramatically enhanced with the public disclosure that
researchers in England had successfully cloned a female sheep by
transplanting the nucleus of a cell—removed from an adult sheep’s
udder—into an enucleated egg cell from an adult female sheep.
179 (1984) (citing a 1984 study on the transformation of yeast, stating that “[t]he ability to
transfer DNA into mammalian cells . . . has been known for over two decades”).
See id. at 175; see also John Charles Kunich, Mother Frankenstein, Doctor Nature, and
the Environmental Law of Genetic Engineering, 74 S. C
. L. R
. 807, 808–13 (2001)
(describing early techniques used for replication and recent genetic developments responsible
for successful agriculture production).
See Kunich, supra note 12, at 810–13 (explaining the historical development of genetic
engineering of crops, plants and livestock); Stacy J. Ratner, Note, Baa, Baa Cloned Sheep,
Have You Any Law? Legislative Responses to Animal Cloning in the European Union and the
United States, 22 B.C. I
. L. R
. 141, 144 (1999) (providing some potential
benefits of genetic cloning to the agricultural industry).
See I. Wilmut et al., Viable Offspring Derived from Fetal and Adult Mammalian Cells,
810, 810–11 (1997) (describing the procedure used to produce live lambs); Gina
Kolata, Scientist Reports First Cloning Ever of Adult Mammal, N.Y. T
, Feb. 23, 1997, at
652 Albany Law Review [Vol. 65
After 277 attempts, scientists at Roslin Institute utilizing the
process of somatic nuclear transfer succeeded in producing the
genetic twin of the sheep whose nucleus was transplanted into the
donee egg cell.
Out of twenty-nine live embryos, only one
successful offspring was achieved.
Nonetheless, Dolly, as the first
viable mammal cloned from the nucleus of an adult cell, became the
internationally recognized symbol for the future potential of cloning
and the spark for the debate on the efficacy of cloning humans.
Predictably, successful mammalian cloning culminating in the
birth of Dolly has also heightened both the temptation of scientists
and the consternation of ethicists regarding the application of
similar procedures in humans.
It is not simply the success of
Dolly, however, that has incited the curiosity of researchers. Rather
a confluence of circumstances and discoveries has occurred during
the last half-decade of the millennium—causing the prospect of
human cloning to have value apart from, or perhaps in the face of,
ethical concerns. These concerns include (1) advances and
discoveries with respect to stem cells, (2) the mapping of the human
genome, and (3) the integration of these achievements into the
science of human cloning.
A. Stem Cells
Potential applications for human cloning have been enhanced by
discoveries and advances in stem cell technology. In fact, as noted
below, the avowed purpose of those who have announced the first
cloned human embryo is to utilize this technology for the production
of human stem cells.
Two types of stem cells—totipotent and pluripotent—originate
from the embryo.
After fertilization, division of the egg begins and
the initial cleaving produces two totipotent stem cells. Each
totipotent stem cell possesses the capability to develop into a full
See Janet Rossant, Ph.D., The Science of Animal Cloning, in 2 C
ECOMMENDATIONS OF THE
B-1, B-10 (1997), available at http://bioethics.georgetown.edu/NBAC/PUBS.HTML.
Id. Almost two years later, the successful cloning of a cow was reported. See Gina
Kolata, Japanese Scientists Clone a Cow, Making Eight Copies, N.Y. T
, Dec. 9, 1998, at
A8 (noting that “[c]ows are the third adult mammal to be cloned”).
See Katheryn D. Katz, The Clonal Child: Procreative Liberty and Asexual Reproduction,
. L.J. S
. & T
. 1, 3–5.
National Institutes of Health, Stem Cells: A Primer, at http://www.nih.gov/news
/stemcell/primer.htm (May 2000) [hereinafter Stem Cells Primer] (explaining the role of both
totipotent and pluripotent stem cells in fetal development and emphasizing the potential for
virtually unlimited yield in this area of research).
2002] The Case for Proceeding Cautiously 653
human being. An example of the totipotent nature of these cells
exists in the incident of identical twins. Identical twins form as a
result of a separation of these two cells after the first cleavage. At
approximately four days after fertilization, the dividing cells form a
hollow sphere called an early blastocyst.
As the blastocyst develops, two layers become evident: an outer
layer of cells, called the outer cell mass (OCM); and an inner layer of
cells, called the inner cell mass (ICM). At this point in time, the
OCM becomes destined to develop into the placenta and other
sustaining tissues. These cells will not differentiate into the embryo
proper, but only into tissues that support fetal development in
utero. The ICM consists of the cells that will eventually develop
into the tissues of the human body, i.e., the embryo proper.
this time in development, the cells of the ICM have lost their
totipotent capabilities and have become what are known as
pluripotent stem cells. Although the embryo will be formed from
these cells, if isolated from the OCM and implanted into the uterus
they would never develop into a fetus.
These stem cells
nevertheless hold the capability to develop into numerous types of
cells if properly induced.
In addition to the key characteristic of potentiality, the ability to
differentiate into various cells, embryonic stem cells boast other
characteristics that distinguish them from the other cells of the
body. First, these stem cells have a higher resistance to senescence,
or cell aging and death.
This is advantageous because stem cells
can be maintained longer in culture for use in experiments and
research. Next, stem cells have the ability to continually reproduce
with little mutation occurring between generations.
30–31 (John N. Gardner ed.,
6th ed. 1990).
See Stem Cells Primer, supra note 18 (noting that “[a]lthough the inner cell mass cells
can form virtually every type of cell found in the human body, they cannot form an organism
because they are unable to give rise to the placenta and supporting tissues necessary for
development in the human uterus”).
N FOR THE
. & I
Id. Mutations between generations create problems for research, as cells become
unintentionally altered from previous cell generations. Thus, experiments performed on
normally mutating cells may not be compared to control experiments or to results from
experiments on non-mutated cells.
654 Albany Law Review [Vol. 65
nation of these two traits would enable researchers to keep a library
of stem cells.
After the completion of the initial collection of stem cells, their
replication through many generations would create a large supply of
viable, usable stem cells. Successfully maintaining such a cell line
could reduce or potentially eliminate the need to collect stem cells
from embryos or fetuses. In addition, the storage of stem cells
would decrease the time between problem identification and
treatment via donation.
Lastly, stem cells obtained from embryos and/or fetuses may be
less immunogenic in nature. Due to their immaturity, scientists
believe that stem cells may cause less of an immune response in
donees than mature, specialized cells taken from an adult or child.
These three unique characteristics viewed in totem demonstrate
that stem cells hold significant value as potentially important
2. Proposed Uses
Scientists hypothesize numerous clinical and research uses for
embryonic pluripotent stem cells. One such use involves tissue
transplantation. Traditionally, whole organs and tissues have been
harvested to replace diseased or damaged tissues. In order to
decrease rejection by the patient, the closest possible matching of
types, including histocompatibility, was paramount.
Yet finding a
perfect organ match is an arduous task, and the wait for a match is
See id. (stating that “[t]he isolation and subsequent growth of ES cells in culture allow
scientists to obtain millions of these cells in a single tissue culture flask, making something
once rare and precious now readily available to researchers”).
See generally Ania M. Frankowska, Note, Fetal Tissue Transplants: A Proposal to
Amend the Uniform Anatomical Gift Act, 1989 U. I
. L. R
. 1095, 1095–97 (discussing some
of the technical difficulties involved with the transplantation of fetal tissue, including how
rapid degradation of tissue obtained from aborted fetuses necessitates almost immediate
transplantation—a problem that would be solved with the storage of a supply of stem cells).
See Chapman, supra note 22, at 7 (emphasizing that the use of pluripotent stems cells in
the transplantation arena could “create an unlimited supply of cells, tissues, or even organs
that could be used to restore function without the requirement for toxic immunosuppression
and without regard to tissue matching compatibility”); Frankowska, supra note 25, at 1097
(noting that “[f]etal cells are immunologically reactive; this means the host body is less likely
to reject the transplanted fetal tissue”). Further, fetal “tissue’s lack of maturity also reduces
the incidence of graft-versus-host reaction, which occurs when the transplant tissue attacks
the host tissue in the recipient’s body.” Id.
See Darryl R.J. Macer, Ethical and Social Issues in Xenotransplantation, in B
ROCEEDINGS OF THE
Azariah et al. eds., 1997), at http://www.biol.tsukuba.ac.jp/~macer/india/bii31.html (last
visited Mar. 1, 2002).
2002] The Case for Proceeding Cautiously 655
often very long.
The implementation of stem cell storage would
lead to both a decrease in the amount of time for a patient to wait
before a transplant, and an increase in the chance for donee
Thus, stem cells have the potential for being
especially useful in treating diseases in which there is a shortage of
suitable tissue for transplant, such as Type I diabetes in children.
Another possible stem cell use being tested involves the
implantation of fetal stem cells into the brain of Parkinson’s disease
Though still in the early stages of experimentation,
evidence shows some effective replacement of lost nerve cells in
these patients. Further, researchers are optimistic about trans-
lating these methods to patients suffering from Alzheimer’s disease
and other degenerative nervous system diseases.
Institutes of Health (NIH) suggests that embryonic stem cells could
have possible utility in drug development.
New drugs could be
tested on tissues generated from stem cells, rather than on actual
humans; henceforth, a new drug would be tested on humans only
after it initially had been proven safe.
Studies in human reproduction and development lie on the more
research-oriented side of stem cell use. Instead of using embryos or
fetuses, researchers could use these precursor cells to investigate
how cell lineages are determined and what are the signals of
These are but a few areas in which stem cells, with
continuing research, would prove invaluable.
In November 1998, almost simultaneously came the
announcements that two groups of researchers had isolated the
elusive embryonic pluripotent stem cells.
Dr. James Thomson’s
group, at the University of Wisconsin, isolated stem cells directly
from the embryo at the blastocyst stage—the same methodology
For up-to-date statistics demonstrating the increasing shortage of donated organs
available for transplantation, see United Network for Organ Sharing (UNOS) Online,
Newsroom, Critical Data, at http://www.unos.org (2002).
See Stem Cells Primer, supra note 18.
Chapman, supra note 22, at 5.
Stem Cells Primer, supra note 18.
Chapman, supra note 22, at 6–7 (noting that “[h]uman ES cells may allow scientists to
investigate how early human cells become committed to the major lineages of the body”).
See Chapman, supra note 22, at 2 & n.1.
656 Albany Law Review [Vol. 65
utilized by researchers at Advanced Cell Technology (ACT) in
producing the first human cloned embryo.
used extra embryos from in vitro fertilization clinics. “[T]hese
embryos were in excess of the clinical need for infertility
treatment . . . [and] were made for purposes of reproduction, not
Informed consent of the gamete (sperm and egg) donors
was, however, obtained to permit harvesting of the embryos for
Dr. John Gearhart’s group, at Johns Hopkins Uni-
versity, isolated the stem cells from fetal tissues obtained from
terminated pregnancies, with the informed consent of the donor.
Another way to locate and ultimately extract stem cells is
proposed through somatic cell nuclear transfer (SCNT)—a method
that avoids the harvesting of embryos completely.
A somatic cell is
any cell in the body other than the reproductive sperm and egg cells.
This proposed methodology contemplates the transfer of a somatic
cell nucleus from a cell obtained from the ultimate patient/recipient
into an enucleated egg. This transfer basically would be a way of
“resetting the cell’s deoxyribonucleic acid (DNA).”
when the egg fuses with its new nucleus, it creates a new totipotent
combination cell. Once this new combination cell reaches the blas-
tocyst stage, collection of pluripotent stem cells and their re-
implantation into the patient can take place. These cells hold the
potential to be more easily accepted by the patient, as the cells’
DNA will have arisen from the patient’s own somatic cell.
B. Mapping the Human Genome
At the same time that research was proceeding toward the
ultimately successful cloning of Dolly and toward a deeper
understanding into stem cells, worldwide efforts were underway to
See Ronald Kotulak, For First Time, Body’s Building Blocks Captured, C
6, 1998, at C1 (defining blastocyst as “a mass of about 150 cells grown in a cell culture from a
fertilized human egg”), available at 1998 WL 2913735; Miranda Biven, Administrative
Developments: NIH Backs Federal Funding For Stem Cell Research, 27 J.L. M
. & E
95, 95–96 (1999).
Stem Cells Primer, supra note 18 (emphasis added).
Biven, supra note 37, at 96. The consent was obtained after—and independently of—the
decision to terminate the pregnancy. Stem Cells Primer, supra note 18.
See Biven, supra note 37, at 96 (reporting that this process, which is better known as
“cloning,” has primarily been performed using animal cells, not human cells).
Lewis D. Solomon, Reflections on Human Cloning, 27 H
. 659, 660 (1999).
See id. (discussing the benefits of using these cells to repair damaged tissue, e.g., how
using cloned cells would prevent tissue mismatch, thereby lessening the potential for tissue
2002] The Case for Proceeding Cautiously 657
map the human genome—to chart and place the believed-to-be
greater than 100,000 genes in the human body along the DNA
structures of which they are a part.
The efforts of the federally
funded Human Genome Project (HGP) achieved its goal of mapping
and sequencing the human genome as the new millennium
But the task of mapping, daunting as it may have
seemed less than a decade ago, is only the beginning of the research
programs that will be spawned by the HGP. Next comes the task of
sequencing the identified genes and analyzing the traits expressed
thereby which define our humanness—from eye color to intelligence,
from the length of toes to gender orientation—fully recognizing that
as the genetic interactions become more complex, even multi-genic
interactions are countered by environmental conditions and learned
Along with the identification of traits ascribed to specific
genes at specific locations, it is the hope that somatic and germ line
therapies will be discovered that will establish genetic links to
disease and afford medicine the means, by adjusting and altering
genetic protein structures, to ease the suffering inflicted by diseases
like Cystic Fibrosis, Parkinson’s, and cancer.
Those cures could
take place somatically in the suffering patient or, in the distant
future, conceivably in the family line—the germ line—so that all
future generations in a particular family bloodline would be free
from now-incurable maladies such as Huntington’s disease or breast
Funded at a cost of three billion dollars and jointly operated by the National Institutes of
Health and the Department of Energy, the Human Genome Project “is the largest coordinated
effort in biology ever directed at a single goal.” C
EED FOR AN
EVIEW OF THE
MPLICATIONS OF THE
, H.R. Rep. No.
102-478, at 1 (1992), 1992 WL 74179.
Mapping of the human genome was completed in 1994. See Maxwell J. Mehlman, The
Law of Above Averages: Leveling the New Genetic Enhancement Playing Field, 85 I
. 517, 519–20 & n.11 (2000). Sequencing of the human genome, at least the initial phase
of this endeavor, has been completed as of 2001. See News Release, Appelera Corporation,
Celera Genomics Completes Sequencing of the Genome from One Human Being (announcing
the completed sequencing phase of a human individual’s genome) (Apr. 6, 2000), at
http://www.pecorporation.com/press/prccorp040600.html; see also Stephen Handelman,
Wading Into the Gene Pool: A Genetic Bank in Quebec Could Be a Canadian Breakthrough in
., July 2, 2001, at 45; Celera Reports Advance in its Genome Quest, M
, Apr. 7, 2000.
(advancing the view that heredity and environment play key roles in shaping human
See Robertson Parkman, Gene Therapy in the 1990s, 65 S. C
. L. R
. 411, 420 (1991)
(describing the quest to find ways to use gene therapy to cure these and other diseases as “the
holy grail of gene therapy”).
See Roberta M. Berry, Genetic Enhancements in the Twenty-First Century: Three
658 Albany Law Review [Vol. 65
Evolving the means to undertake genetic manipulation is,
unfortunately, fraught with the same concerns that are associated
with the topic of human cloning: (1) what, if any, trait modifications
are appropriate; e.g., intelligence, strength, stature, or athletic
ability; (2) who shall have access, and who shall have the right to
choose; i.e., individuals, parents, the courts, and/or government; and
(3) who shall bear the cost. The argument has been made that, once
perfected, genetic alterations should be subsidized and available to
all economic levels of society.
Both human cloning and genetic manipulation raise fears of the
creation of a master and/or subjugated population. Arguably,
permitting germ line alteration of traits
may undermine human
dignity, and may even violate the United States Constitution.
Supreme Court in 1882 held that, as well as abolishing slavery, the
Thirteenth Amendment empowers Congress to prohibit any form of
infringement on an individual’s free will or civil liberties that could
be considered a form of enslavement or involuntary servitude.
Human cloning and genetic manipulation thus may run afoul of the
Thirteenth Amendment because the results of either could be
considered a form of genetic bondage, i.e., creating humans with a
predetermined genetic makeup, laden with expectation, thereby
limiting a cloned individual’s freedom. Courts may choose not to
support a procedure that implicates a genetic form of slavery,
undermines free will, and infringes upon the civil liberties
guaranteed under the Constitution.
Problems in Legal Imagining, 34 W
. 715, 717, 720–22 (1999)
(hypothesizing a “not-too-distant future” in which genetic enhancement technologies, having
become commonplace, will pose novel legal questions and require innovative legal solutions);
see also John C. Fletcher, Moral Problems and Ethical Issues in Prospective Human Gene
Therapy, 69 V
. L. R
. 515, 528–33 (1983) (proposing several benefits gene therapy would
bring to both medical treatment and prevention). Somatic gene therapy involves the
introduction of a cloned gene into somatic (body) cells by viral vector to replace either
genetically defective functions or alter pathological disease processes. Germ-line gene
therapy involves the introduction of a cloned gene by viral vector into germ-line cells so that
the resulting gene correction is passed to future generations. See Parkman, supra note 47, at
418–19 (providing a distinction between somatic and germ-line gene therapy and noting that
advancements in the latter, which affect future offspring as well, should be pursued
cautiously). These advancements, however, may not be available to all who desire it. See
Mehlman, supra note 45, at 540–54 (discussing the availability of genetic therapy and its
effect on increased social stratification).
See Mehlman, supra note 45, at 554–55 (arguing that inadequate guarantees of equal
access to genetic enhancement technology would result in social inequality).
See supra notes 46–48 and accompanying text.
The Thirteenth Amendment, in pertinent part, states that “[n]either slavery nor
involuntary servitude, except as a punishment for crime . . . shall exist within the United
States.” U.S. C
. amend. XIII, § 1.
See United States v. Harris, 106 U.S. 629, 640 (1882).
2002] The Case for Proceeding Cautiously 659
In fact, one may well argue that the unfettered ability to alter
genetic traits has the potential to cause greater societal horror and
dislocation than human cloning. As will be discussed more fully
below, unfettered application of genetic therapies to alter human
traits may undermine the evolutionary progress of the species.
While it remains unclear whether the human species will suffer
over the long term from the manipulation of genetic structures in
the germ line, there are substantial unknowns attendant to the
long-range impact of genetic modification accompanied by cloning.
Increased susceptibility to disease, increased occurrence of
developmental abnormalities, and adverse effect upon longevity are
but a few matters of current concern.
C. The Impact of Advances in Stem Cell Research and the Mapping
of the Human Genome upon the Future of Human Cloning
On the same biomedical stage where the mapping of the human
genome and the exploration of stem cells are playing their roles,
first enters Dolly and then the human cloned embryos of Advanced
Cell Technology (ACT).
As suggested above, it is the confluence of
these discoveries, rather than the individual occurrence of each,
that raises the most challenging ethical and legal issues; and these
will not be resolved simply by banning the progress of science.
The first human cloned embryos were developed by the scientists
at ACT on October 13, 2001, utilizing nuclear replacement tech-
nology similar to that employed in the cloning of Dolly.
aware of the potentially adverse public and political reaction to
See Andrews, supra note 2, at 649–52 (describing safety concerns associated with human
cloning as analogous to the current problems associated with animal cloning); Orentlicher,
supra note 2, at 1021 (citing developmental abnormalities, premature death, and rapid aging
as among the potential risks of cloning).
See Cibelli et al., supra note 1, at 45.
The procedure utilized by ACT for substantiating human genetic material is
apparently similar to that applied to reproduce Dolly. The process is a follows:
(1) Eggs are coaxed to mature in a culture dish. Each has a remnant egg cell called the
polar body and cumulus cells from the ovary clinging to it. (2) While an egg is held still
with a pipette, a needle is used to drill through the zona pellucida, removing a plug. (3)
After ejecting the zona plug, the needle is inserted back in the egg through the hole to
withdraw and discard the polar body and the egg’s genetic material. (4) A cumulus cell
from another egg is taken up into the needle. Cells called fibroblasts (or their nuclei) can
also be used in this step. (5) The cumulus cell is injected deep into the egg that has been
stripped of its genetic material. (6) The injected egg is exposed to a mixture of chemicals
and growth factors designed to activate it to divide. (7) After roughly 24 hours, the
activated egg begins dividing. The cells contain genetic material only from the injected
Id. at 46–47.
660 Albany Law Review [Vol. 65
their achievements, the principal scientists and researchers at ACT
have gone to great lengths to describe their efforts and
accomplishments as “therapeutic cloning”—cloning not designed to
achieve reproductive results.
The distinction, if one actually exists, does not arise from any
differences in the scientific processes. Nor does it arise from the
fact that in the case of reproductive cloning an embryo is produced
that is capable of being implanted into a woman’s uterus for the
purpose of producing human offspring, while in the case of thera-
peutic cloning one is not. Rather, the only difference seems to be
the point in the growth cycle of the embryo at which the scientists
involved in overseeing the cloning procedures halt its development,
thereby preventing the embryo from developing to the point of being
usable for reproductive purposes.
In other words, therapeutic
cloning utilizes the same technology as reproductive cloning, but
terminates the embryonic development at the blastocyst stage, at
which point the early embryo has evolved into approximately one
hundred cells, including an inner cell mass (ICM) containing stem
cells. At this juncture, the ACT scientists break open the blastocyst,
retrieve cells from the ICM, and transfer them to a culture medium
for the purpose of creating stem cell lines. Allowed to progress in a
proper environment, however, the so-called therapeutic cloned
embryo could evolve into a mature embryo for reproductive
Only self-imposed restraint and/or legislative
prohibition distinguishes the “therapeutic” human clone from its
Separate and apart from the definitional distinctions which
plague the current debate, two fundamental areas of conflict have
yet to be resolved: first, the physical and psychological (including
psychosocial) consequences of both whole-human reproductive and
therapeutic cloning; and second, the ongoing conflict regarding
reproductive rights and the definition of human life.
See id. at 46 (describing the distinction between “therapeutic” cloning and “reproductive”
Id. at 46–47.
See Ronald M. Green, The Ethical Considerations, 286 S
. 48, 48 (2001) (admitting
that there is potential for “a cloned organism” to develop “into a full human being”).
See infra Section III (providing a constitutional analysis of this issue).
2002] The Case for Proceeding Cautiously 661
A. Adverse Physical and Psychological Consequences
At least as important as the unknown physical consequences of
genetically altered clones, are the adverse psychosocial impacts and
inequalities that could result from selective alteration of traits.
Absent the process of genetic manipulation, cloning replicates from
the existing gene pool. The “replicants,” whether cellular or whole
human, are merely genetic mimics, and not altered genetic beings.
From an evolutionary perspective, some might argue that the
offspring are regressive because they are not the result of a
combined gene pool of a male and female from a prior generation.
Nevertheless, the greater danger occurs when human cloning is
combined with the penultimate ability of science to manipulate the
genetic structure of the germ line—the hereditary path of the
species. We should worry less about replicating an existing being
than about engineering a human nucleus to contain all of the social
enhancements that we seem to hold so dear: strength, stature,
intelligence, good looks, and/or engaging personality. In the latter
scenario, the combination of genetic manipulation and cloning
should sound a societal alarm. We must not treat the issue of
human cloning separately from the concerns raised during the HGP
regarding the development of genetic therapies and somatic cell and
germ line manipulation.
Before considering legal and ethical rights and remedies, it is
useful to catalogue the concerns that have been expressed regarding
the potential risks to the individual, the family, and society
attendant to the combined effects of both genetic manipulation and
1. Adverse Physical Consequences
The application of adult somatic cell alteration, germ line
manipulation, and/or human cloning—either alone or in
combination—could result in adverse physical consequences to the
offspring. Human cloning requires the deactivation and subsequent
Clones are not perfect mimics of one another. Mitochondrial genetic material from the
enucleated donor cell may contribute about five percent of the cloned individual’s genes. It is
not known presently whether this non-nucleic genetic material affects the gene structures of
the cloned offspring. See Andrews, supra note 2, at 647 (noting that “[u]nlike naturally
occurring twins . . . the clone will not be one hundred percent genetically identical [to the
donor]”); see also Mark D. Eibert, Human Cloning, Infertility, and Reproductive Freedom, at
http://www.reason.com/opeds/eibert.shtml (last visited Feb. 20, 2002) (maintaining that
cloning merely enables infertile couples to have what others “take for granted—the chance
to have raise and love their own genetic children”).
662 Albany Law Review [Vol. 65
reactivation of the differentiated DNA of the nucleus of the adult
cell, creating the possibility of revealing new mutations or damaging
This may be why it took 277 attempts to clone Dolly the
Additionally, there is concern that a human, cloned from
an adult somatic cell, might inherit the cellular age of the nucleus
donor, thus subjecting the clone to a shorter lifespan or debilitating
Further, since an adult somatic cell is used in the
cloning procedure, any mutations already present in that cell due to
age or genetic inheritance could manifest themselves in all of the
Also of grave consequence is the fact that once
altered in the germ line, the “adjusted” traits are carried from
generation to generation, affecting without choice (unless subse-
quently altered again) the future bloodline of the genetically altered
individual. Currently, we have no basis for knowing whether
diseases and/or physical deficiencies could become more prominent
in later generations as a result of cloning.
We must conclude that
our lack of knowledge creates a risk to future generations
concerning the combined effects of germ line genetic manipulation
and human cloning.
2. Adverse Psychological Impacts
While potential adverse physical consequences of genetic-trait
manipulation and human cloning arise from a lack of quantifiable
scientific information, adverse psychological consequences provide
for easy speculation, but are even more difficult to assess.
Nevertheless, it is not unreasonable to assume that genetic
manipulation combined with human cloning may have one or more
of the following adverse psychosocial impacts.
See Andrews, supra note 2, at 650.
Scientists are not certain whether Dolly inherited the cellular age of the adult sheep
from which she was cloned or whether she inherited a normal genetic clock. See id. at 650–
51. Evidence suggests the former because the tips of her chromosomes—telomeres, “which
tend to shrink as cells grow older—are shorter than normal for her age.” See Ronald M.
Green, I, Clone, S
. (Sept. 1999), available at http://www.sciam.com/1999/0999bionic
/0999green.html. In fact, Dolly, at age five-and-a-half, “‘has arthritis in her left hind leg at
the hip and the knee.’” CNN.com, Cloned Dolly Has Arthritis, (Jan. 4, 2002) at http:/
See Orentlicher, supra note 2, at 1021.
See Rossant, supra note 15, at 24.
2002] The Case for Proceeding Cautiously 663
a. Effect upon Parent-Child and/or Family Relationships
The fact that the offspring is a replicant of one parent raises
questions concerning the future relationship between the parent(s)
and the cloned child(ren). Will traditional authority structures be
threatened by the acknowledgement of the fact that the child is the
biological twin of the parent? Further, will the genetically altered
“twin” suffer regarding issues of self-image and identity, such that
establishing traditional family relationships will become difficult if
In ways we cannot yet comprehend, the clone’s
relationship status with respect to siblings and blood relatives may
be adversely affected by the psychological realization that the
genetically altered and biologically enhanced replicant is
generationally distinct and, in fact, is not a member of the
generation of his brothers, sisters, cousins, and other
b. Adverse Impact upon Self-Determination
A human clone’s sense of self-determination, of free will, may
suffer in several ways, particularly if the individual has been
genetically altered. For one, the replicant will in all probability
become aware of the life history of his or her “original”; their
successes and failures, admirable and deficient qualities, as well as
any specific enhancements which have occurred. Each revelation
will raise questions in the mind of the clone regarding his or her
own capabilities and qualities, and whether they will be limited in
the manner and fashion of the clone’s genetic predecessor-twin or
stand to benefit from the genetic manipulation.
While there may
be no valid basis for accepting such determinism, the psychological
effect of the knowledge that one is in a sense a duplicate of another
may well have the effect of encouraging behavior that is perceived to
be limited and/or determined by the genetic forebear. The replicant
could be psychically relegated to the life patterns existing in or
created by the pre-existing genetic donor. Opportunities, achieve-
See Andrews, supra note 2, at 653–54.
See Human Cloning, supra note 2, at 2351 (discussing the impact that cloning could
have on family relationships); see also L
, M.D., T
113 (1985) (declaring that “[c]larity about your origins is
crucial for self-identity, itself important for self-respect”).
See Andrews, supra note 2, at 655 (presenting the possibility that “the original’s life
‘would always haunt the later twin, standing as an undue influence on the latter’s life, and
shaping it in ways to which others lives are not vulnerable’”). (citation omitted).
664 Albany Law Review [Vol. 65
ments, and capabilities in effect become limited by that which came
before, as the clone perceives that it is trapped by biological realities
created by or upon the conduct and patterns of the behavior of the
Such a limitation upon self-determination and free will would be
especially apparent in a situation in which the clone was created to
“replace” a deceased family member. Parents fostering grief and
replacement expectations would perhaps subconsciously discourage
a replacement child’s manifestation of individuality and attempt to
limit his or her actions and interests to those manifested by the
If, instead of merely replicating, the donor-parent actually engi-
neers changes in genetic structures of the nucleus, the clone would
then face issues that go far beyond simply being a genetic twin. The
donor may have manipulated some traits to be superior (or inferior)
to its own, such as intelligence or strength. The remaining
unaltered qualities would be presumed by the clone to be either: (1)
incapable of change because of scientific limitations; (2) resulting
from a lack of the financial ability of the donor to alter some of the
existing traits; or (3) deliberately selected to remain unaltered.
Knowledge that the parent or parents may have altered some traits
and allowed others to remain unchanged would psychologically
burden and isolate the clone, could impose perceived limitations
upon his own capabilities, and may be used to rationalize deficient
or aberrant conduct. Deficient conduct is thereby explained and
perhaps even excused, based upon the fact that such conduct—
intellectual, emotional, or physical—was genetically pre-
c. Adverse Social Impacts Resulting from a Combination of Genetic
Engineering and Human Cloning
Just as family structures may suffer from a combination of
genetic engineering and cloning, so too may social structures be
sensitive and vulnerable to the impact of engineered replicants.
Precepts in our own society regarding equality of opportunity,
behavioral responsibility, and social worth will need to be
reconsidered where the engineered clone has been relegated to a
See id. See generally Mehlman, supra note 45; Berry, supra note 48.
See Andrews, supra note 2, at 653 (adding that cloned children might very well become
labeled as “disappointment[s]” if they failed to live up to their parents’ expectations).
See Brock, supra note 3, at 13–15 (considering legal and moral responsibility and how
they reflect “our conception of ourselves as [moral] agents”).
2002] The Case for Proceeding Cautiously 665
particular level of intelligence, strength, or aggressiveness. For
example, the law may evolve new theories of self-defense where it is
agreed that the overt conduct of the defendant (e.g., assault or
psychical abuse) may be reasonably anticipated because of
On a much broader societal scale cloning, if widely implemented,
may compromise genetic variation, which is our species’ greatest
defense. Cloning promotes genetic uniformity, thereby decreasing
the genetic variation that helps our species resist disease.
issues may also arise if people are cloned involuntarily without their
consent or knowledge—which is all too possible since the procedure
simply requires one somatic cell, which can be obtained from hair or
B. Positive Physical and Psychological Benefits
While the emphasis hereinabove has focused upon the potential
adverse physical and psychological consequences of human cloning,
it would be wrong not to include suggestions of potential benefits.
In general, human cloning offers couples and individuals for whom
other reproductive alternatives have been foreclosed an alternative
with several distinct advantages.
In the first instance, cloning offers a male who is incapable of
reproducing gametically, or who is unlikely to do so because of a low
sperm count, the ability to produce by transplanting nuclei from
other body tissue.
The resulting offspring is the genetic twin of
the donor male.
No genetic input from a donor female is
necessary, and—to the extent that the decision to reproduce by
cloning is made by a male-female couple, a single male, or a male-
male couple—the genetic characteristics of the nucleic donor have
See id. at 14 (noting that the effectiveness of criminal law in “command[ing] people to
conform their behavior” depends on the clarity and depth of each individual’s understanding
of the bounds placed on their behavior).
See Andrews, supra note 2, at 656 (“genetic adaptation has allowed the human species to
survive; producing genetically identical humans may therefore be threatening to the
See Orentlicher, supra note 2, at 1025.
See id. at 1027–28 (pointing out that the use of cloning allows infertile couples to “have
children genetically related to either one of them rather than to only one of them, as would be
the case if they had children only by artificial insemination or only by egg donation or
surrogacy”); Lawrence Wu, Note, Family Planning Through Cloning: Is There a Fundamental
Right?, 98 C
. L. R
. 1461, 1470 (1998).
Wu, supra note 75, at 1464–65 (distinguishing cloning from sexual reproduction in that
the former requires only a single genetic parent).
666 Albany Law Review [Vol. 65
been preserved without the introduction of a third-party surrogate.
The same analysis applies with respect to the choice to reproduce by
female couples and single females.
Human cloning eliminates the need for genetic parenting by a
third party who would otherwise be a stranger to the traditional or
single-parent family unit. The biological assistance provided by the
donor female is limited to enucleated egg donation and gestation.
Removing the third party from the reproductive process: (1)
preserves the genetic relationship to one parent in each instance
(each parent could alternate nucleic donation so that the family
would have genetic links to both);
and (2) reduces the degree to
which the third party or surrogate has a basis for claiming a
continuing relationship with the offspring.
Although a third-party female may be involved in either or both
egg-donation and gestation, family linkage to the third party will
largely be eliminated and, thus, the marriage or family structure—
to whatever extent one exists attendant to the reproductive effort—
will not be undermined by the introduction of a third party.
comparison to other means of assisted reproduction, cloning actually
preserves traditional family structures and, on this point, is
preferable to artificial insemination which utilizes third-party
sperm or egg donors.
Only successful in vitro fertilization (IVF)
without a surrogate has less impact upon traditional family
That process requires a male partner with viable
sperm and the extraction and fertilization of eggs capable of
gestation from the female partner.
Traditional IVF is, to date,
John A. Robertson, Two Models of Human Cloning, 27 H
. 609, 620–21
(1999) (explaining the sacrifice that a wife must endure when the child only has a genetic link
to the father).
Orentlicher, supra note 2, at 1028.
Id. at 1030 (noting that in cases where third party donors are utilized for reproduction,
“[i]t is . . . argued that relationships between parents and children are compromised by
artificial methods of reproduction because genetic parenthood no longer coexists with social
See id. See also Margaret Talbot, A Desire to Duplicate, N.Y. T
, Feb. 4, 2001
(Magazine), at 67 (suggesting that “cloning would allow . . . couple[s] to sidestep ‘a genetic
third party who, years down the line, might want to gain access to the child’”).
Orentlicher, supra note 2, at 1030–31.
Wu, supra note 75, at 1469–70 (describing two types of IVF which do not, in most cases,
require a surrogate).
REEDOM AND THE
98 (1994) (describing in vitro fertilization as a reproductive alternative for
2002] The Case for Proceeding Cautiously 667
lengthy, expensive, and often painful.
Human cloning may offer a
solution to some of the complexities inherent to IVF.
Similarly, it would be wrong to deny that germ line alterations
also offer potential benefits. Nuclear gene therapy performed on a
somatic cell which is subsequently cloned has the potential to
eliminate hereditarily transmitted diseases.
ticated techniques will lead to the ability to manipulate genetic and
protein structures to affect more complex human diseases. In this
process, cloning serves as an efficient means to transmit the
therapeutically altered DNA and proteins. Only once the ease of
genetic manipulation has become so great that the alteration of
complex physical traits (intelligence, personality, and strength, for
example) has become commonplace need we fear any threat to social
stability from the combination of such techniques with the science of
The researchers at ACT engaged in, by their own definition,
therapeutic cloning to produce stem cell lines. They claim that their
undertaking is not procreation and therefore is outside the scrutiny
of the courts with respect to an individual right to reproduce.
fact that the cloned human embryo created for therapeutic purposes
is disaggregated at the blastocyst stage arms those who distinguish
therapeutic cloning from reproductive cloning with the argument
that Constitutional comparisons to human reproduction are
It is a new type of biological entity never before seen in
nature. Although it possesses some potential for developing
into a full human being, this capacity is very limited. At the
blastocyst stage, when the organism is typically
disaggregated to create an embryonic stem cell line, it is a
ball of cells no bigger than the period at the end of this
sentence. . . . It has no organs, it cannot possibly think or
feel, and it has none of the attributes thought of as human.
Id. at 114–17 (chronicling the potential negative effects of in vitro fertilization).
See Berry, supra note 48, at 719–20 n.5 (explaining the scientific process of gene
therapy); see also Mehlman, supra note 45, at 520–21 (describing the Human Genome Project
and its aim to “devise gene therapies” for individuals with hereditary diseases).
See, Cibelli et. al., supra note 1, at 46 (distinguishing therapeutic cloning from
reproductive cloning and stating that ACT “support[s] a restriction on cloning for reproductive
purposes until the safety and ethical issues surrounding it are resolved”).
Green, supra note 58, at 48.
668 Albany Law Review [Vol. 65
As the prospect of human cloning becomes a legitimate topic of
discussion, proponents and opponents alike must confront the
proposition that cloning for reproductive purposes is a Consti-
tutionally protected right. Although human cloning in both its
therapeutic and reproductive forms is viewed as a procreative act,
the Constitutional basis for claiming such a right is less than clear.
Even those who argue that the Supreme Court supports the right to
procreate as a right of privacy inherent in the Fifth and Fourteenth
cannot simply assume that such protections also
extend to human cloning.
The rights of individual autonomy and personal choice in
marriage and family life are firmly established by the Supreme
Court as fundamental liberty interests.
Such elements are
included in the “zones of privacy” protected by the United States
The consequence is that legislative limitations and
government intrusion into family relationships
decisions are highly suspect.
The Court has never expressly stated, however, that even the
right to reproduce “naturally” is protected by the right of privacy
inherent in the Due Process Clauses of the Fifth and Fourteenth
Amendments, let alone the right to reproduce through human
cloning. Perhaps most significant is the argument that cloning for
See, e.g., Carey v. Population Servs. Int’l, 431 U.S. 678, 684–85 (1977) (holding that
procreation is “among the [personal] decisions that . . . individuals may make without
unjustified government interference”); Eisenstadt v. Baird, 405 U.S. 438, 453 (1971) (stating
that “[i]f the right of privacy means anything, it is the right of the individual married or
single, to be free from unwarranted government intrusion into matters so fundamentally
affecting a person as the decision to bear or beget a child”); Skinner v. Oklahoma, 316 U.S.
535, 541 (1942) (observing that “procreation [is] fundamental to the very existence and
survival of the race”).
See, e.g., Zablocki v. Redhail, 434 U.S. 374, 386 (1978) (invalidating a Wisconsin statute
requiring court permission to marry if the applicant already had children and placing the
decision to marry on the same level as decisions relating to procreation, childbirth,
childrearing, and family relationships); Roe v. Wade, 410 U.S. 113, 152 (1973) (stating that
the “right to privacy is broad enough to encompass a woman’s decision whether or not to
terminate her pregnancy”); Loving v. Virginia, 388 U.S. 1, 12 (1967) (finding a Virginia
miscegenation statute unconstitutional, in that it violated a fundamental right to marriage).
See Griswold v. Connecticut, 381 U.S. 479, 484 (1965). Justice Douglas opined that a
right of privacy was inherent in the Bill of Rights, such as in the First Amendment’s freedom
of association, the Fourth Amendment’s protection from unreasonable searches and seizures,
the Fifth Amendment’s self-incrimination protection, and the Ninth Amendment’s retention
of unenumerated rights by the people. Id. at 484.
See Moore v. City of E. Cleveland, 431 U.S. 494, 503–04 (finding that “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”).
See, e.g., Roe, 410 U.S. at 155–56 (noting that once a fundamental right has been
recognized, a “‘compelling state interest’” is required for the statute to pass constitutional
muster); Griswold, 381 U.S. at 485.
2002] The Case for Proceeding Cautiously 669
the production of stem cells is not reproduction at all within the
Constitutional definition of procreation.
Although reproductive to
the extent that stem cells are replicated from a human embryo,
cloning for the purpose of the production of stem cells is not a family
or procreative decision, but one undertaken for research or
therapeutic purposes. While the Court has addressed the need to
assure due process in protecting every person’s substantive rights to
“life, liberty and property,” this due process protection has yet to be
extended fully to reproduction, and certainly has not been extended
to replication. But the cases which implement a right of privacy as
the premise for reproductive rights concern the right to prevent
reproduction through contraception and abortion, not the right to
bring about procreation through natural or assisted reproduction.
It remains unclear whether any of the Constitutional protections
offered to autonomous reproductive choice will extend to assisted
reproduction generally, or to therapeutic and/or procreative human
Although the Supreme Court has yet to
expressly recognize a positive right to procreate, an Illinois federal
district court has interpreted the protective umbrella of
reproductive rights broadly, and in so doing has arguably recognized
a positive right to procreate. In Lifchez v. Hartigan,
It takes no great leap of logic to see that within the cluster of
constitutionally protected choices that includes the right to
have access to contraceptives, there must be included within
that cluster the right to submit to a medical procedure that
may bring about, rather than prevent, pregnancy.”
The legal argument that the constitutional right of privacy
encompasses methods used to prevent and bring about pregnancy is
If cloning is not reproduction at all, but is merely replication, then the constitutional
protections relevant to reproduction would arguably not apply to cloning. For a brief—and
rather conclusory—assertion of this position, see George J. Annas, Human Cloning: Should
the United States Legislate Against It? Yes: Individual Dignity Demands Nothing Less,
A.B.A.J., May 1997, at 80.
See Human Cloning, supra note 2, at 2354–55 & n.65 (distinguishing between the
protections provided by past Supreme Court jurisprudence and an absolute right to
procreation via human cloning).
See Human Cloning, supra note 2, at 2356–57 (stating that human cloning [does not]
deserve constitutional protection merely because it can be scientifically characterized as an
act of procreation”).
735 F. Supp. 1361 (N.D. Ill. 1990).
Id. at 1377. Section 6(7) of the Illinois Abortion Law was held unconstitutional, both
because it was vague in failing to define the terms “experimentation” and “therapeutic” in the
context of fertilization technologies, and because it infringed upon a woman’s fundamental
right to privacy. Id. at 1376–77.
670 Albany Law Review [Vol. 65
a line of reasoning that could be implemented if a reproductive
human cloning issue ever were to be brought before the Supreme
Although these recent trends in the law arguably suggest that
new reproductive technologies will be afforded constitutional
protection, not all “intimate and personal decisions” are embraced
by the Due Process Clause.
Over-generalized applications of due
process protection historically have been frowned upon by the
and it would be foolhardy to assume that human cloning
falls within the zone of autonomy protected by the Constitution.
The Court has limited the constitutionally protected right of
privacy, for example, to include only those liberties that are “‘deeply
rooted in this Nation’s history and tradition’”
cloning certainly is not.
Furthermore, the imposition of limits upon the constitutional
right of privacy is justified only when there is a “compelling state
and the limitations imposed to further that compelling
interest are narrowly drawn.
In regard to reproductive rights, for
example, while states cannot interfere with a woman’s decision to
terminate her pregnancy, Roe v. Wade
and its progeny established
that states can constitutionally limit reproductive acts by denying a
woman’s right to obtain an abortion in her third trimester.
have a legitimate interest in safeguarding health, maintaining
medical standards, and protecting potential life.
choices regarding reproduction are among the most sacrosanct one
can make, and, therefore, are protected by the mantle of due
Nonetheless, parental and family decisions that may
See Washington v. Glucksberg, 521 U.S. 702, 727–28 (1997).
See, e.g., Minnesota v. Carter, 525 U.S. 83, 97–98 (Scalia, J., concurring) (1998)
(commenting that the Constitution does not guarantee a “generalized ‘right of privacy’”).
Bowers v. Hardwick, 478 U.S. 186, 191–92 (1986). The Court refused to extend
constitutional protection to consensual homosexual relations, reasoning that neither
precedent, the express language of the Constitution, nor any of the formulations previously
used to find rights by implication support recognition of a fundamental liberty interest. Id. at
See generally Kramer v. Union Free Sch. Dist., 395 U.S. 621, 627 (1969); Shapiro v.
Thompson, 394 U.S. 618, 634 (1969); Sherbert v. Verner, 374 U.S. 398, 406 (1963).
See generally Griswold v. Connecticut, 381 U.S. 479, 485 (1965); Aptheker v. Sec’y of
State, 378 U.S. 500, 508 (1964).
410 U.S. 113 (1973).
See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 853 (1992).
See Casey, 505 U.S. at 853; Roe, 410 U.S. at 162.
See Casey, 505 U.S. at 851.
2002] The Case for Proceeding Cautiously 671
cause harm to family members are not necessarily within the zone
of privacy, and thus may be limited.
These issues have clear implications for any future scrutinization
by the Court of human cloning. Whether defined as therapeutic or
reproductive, if cloning were to be afforded constitutional protection
by the Court, it would, in this author’s belief, be subject to severe
definitional limitations and regulatory restrictions, with each state
citing numerous legitimate compelling interests warranting such
restrictions. This is both good and bad news for those who advocate
the cause of research in this area. In order for cloning to receive
due process protections, the possible individual and social harms
concomitant to cloning must be offset. Toward this end, human
cloning will have to be strictly defined and carefully and
continuously scrutinized in order to ensure conformance with
certain reproductive limitations. This view is consistent with the
position taken by the Court—that it will not hesitate to refine due
process protections where other individual rights are at stake.
At this point in the emergence of the science of cloning and
human genetic engineering, we face a number of definitional
variables which prevent us from arriving at a comprehensive legal
and regulatory framework for distinguishing between human
cloning for therapeutic and for reproductive purposes. Given these
uncertainties, we are unequipped to determine whether either or
both of these technologies—or, for similar reasons, whether human
cloning combined with genetic engineering—should be permitted
generally, permitted only under the strictest regulatory conditions,
or prohibited altogether. Legal scrutiny is complicated by the fact
that the science itself is at such an early stage of development.
There remain huge risks to individual safety and to the safety of the
species in advancing without extreme caution toward unrestricted
genetic manipulation and human cloning.
Partly because the range of possible applications and therapies is
presently unknown or, at best, imperfectly understood, there can be
only the most superficial and inadequate debate regarding issues of
the social impact of human cloning. We can pursue our science
fiction and anticipate the horrors attendant to the unfettered
creation of an offspring who is a genetic twin of the parent, or we
See, e.g., Glucksberg, 521 U.S. at 735 (upholding the State of Washington’s ban on
See Casey, 505 U.S. at 851 (explaining that the Due Process Clause affords
constitutional protection to various individual rights, including “marriage, procreation,
contraception, family relationships, child rearing, and education”).
672 Albany Law Review [Vol. 65
can be more patient and allow science to proceed to test and
experiment as long as the research and therapeutic protocols for
such actions are consistent with the highest standards we currently
expect for all human research.
The best response in the face of
such a high degree of uncertainty on so many levels is to defer
Constitutional analysis and undertake only a measured legislative
Being somewhat less anxious about the science will permit us to
deal with what arguably are the real issues inherent in the
emergence of human genetic manipulation and human cloning,
namely: (1) who will choose—the individual, the family, or the
state; and (2) who will pay—the individual, the private sector, or
government entities. The question of who chooses is really the
question of who benefits from genetic engineering and reproductive
human cloning and, ultimately, from the genetic engineering that
will be incorporated into the cloning process. Even more than the
impact of the science, the decision of who will pay for the benefits—
therapeutic or reproductive—may be the most challenging and most
threatening to societal harmony. Many, if not most, parents would
seek to provide the best level of genetic improvement to their
offspring. Unequal or socially stratified levels of access to the latest
medical advances may sow the seeds of popular revolutions
undreamed of in past centuries.
Finally, if genetic engineering and human cloning technologies
advance because of our natural human curiosity and desire to attain
them, then governmental efforts to restrict such research, both in
this country and abroad, will be largely futile. Science will advance,
privately funded if necessary, and without the protective mantle
offered by government regulation. By way of example, Advanced
Cell Technology has successfully cloned human embryos entirely
with private funding.
Faced with limitations on the ability of
government to stem the tide of science, the goal with respect to
research leading both to genetic therapy and to human cloning
should be reasonable regulation undertaken carefully and enforced
strictly, as opposed to outright prohibition. In an environment of
government oversight, with assistance and funding provided by
governmental agencies, there is sufficient leverage to require
disclosure of the nature of research being undertaken as well as
See, e.g., Protection of Human Subjects, 45 C.F.R. § 46 (2001) (defining the regulatory
standards for the protection of human research subjects, as promulgated by the Department
of Health and Human Services).
See Cibelli et al., supra note 1, at 45.
2002] The Case for Proceeding Cautiously 673
ample opportunity to regulate both the manner in which research is
conducted and the application of the technologies being developed
Proposed federal legislation to regulate human cloning has been
primarily reactionary, and the law continues to lag behind the
science. ACT’s announcement that it had successfully cloned
human embryos in November 2001, for example, influenced the
proposed Human Cloning Prevention Act of 2001 that purported to
prohibit federal agencies from making grants to, contracting with,
or paying “any individual, business, institution, or organization that
within the past one year has engaged in human cloning.”
Legislative debates have proven controversial, emotional, and
lengthy, as legislative representatives have simultaneously
struggled to make decisions, to understand complicated science, and
to balance the purported remarkable benefits of human cloning
against the dreadful risks associated with it.
Since March of 2001, various legislative amendments have been
proposed in response to the prospect of human cloning research,
primarily aimed at prohibiting all forms of human cloning. In
March 2001, the Ban on Human Cloning Act was the first of several
pieces of legislation that proposed the criminalization of human
cloning, by subjecting violators to fines and imprisonment of not
more than five years.
Subsequent resolutions have become
increasingly detailed and prohibitory, imposing greater fines and
criminal punishments and explaining banned procedures in greater
Congress also attempted to stifle the funds needed for
research by proposing the Human Cloning Research Prohibition
Act, which purported to eliminate the expenditure of federal funds
to conduct or support research on the cloning of human beings.
April 2001 marked the beginning of a series of nine varied items
of legislation proposed to amend the United States Code to include
chapters or sections prohibiting human cloning.
URROW ET AL
§ 1-7 (2d ed. 2000) (discussing how the
government’s spending power is the ultimate source of all regulation in the health care field).
Human Cloning Prevention Act of 2001, H.R. 3495, 107th Cong. § 2(a)(2) (2001).
Ban on Human Cloning Act, H.R. 1260, 107th Cong. § 2(c) (2001).
See, e.g., Human Cloning Prohibition Act of 2001, H.R. 1644, 107th Cong. §3 (2001);
Human Cloning Prohibition Act, S. 704, 107th Cong. §§ 3–4 (2001).
Human Cloning Research Prohibition Act, H.R. 1372, 107th Cong. § 2(a) (2001).
The following proposals all are variations of a proposed Human Cloning Prohibition Act
of 2001. See H.R. 1608, 107th Cong. § 3 (2001); H.R. 1644 § 3; H.R. 2505, 107th Cong. § 2
674 Albany Law Review [Vol. 65
human cloning for reproductive purposes and impose severe civil
and criminal penalties for violators. Only a few of the proposed
statutes adopt the premise advanced in this writing that a
measured rather than a prohibitory approach should be adopted
with regard to cloning.
Even amongst these resolutions, however,
the single proposal that permits the cloning of human embryonic
cells for research purposes
may be distinguished from the several
that do not.
The House of Representatives adopted an absolutist version of the
Human Cloning Prohibition Act of 2001 by voting in favor of the
Weldon-Stupak bill, on July 31, 2001.
Specifically, the Act
prohibits the shipment of embryos produced by human cloning and
criminalizes the effort of any person or entity engaged in,
performing, or participating in any attempt to perform human
Further, the knowing importation of an embryo produced
by human cloning is expressly prohibited.
Both civil and criminal
penalties are provided for in the Act, including imprisonment for up
to ten years and a minimum one million dollar fine.
The House also considered a liberal variation of the Human
Cloning Prohibition Act of 2001, that would inferentially have
permitted human cloning research. This variation, the biotech-
industry-favored Greenwood-Deutsch bill, proposed a compromise—
banning reproductive cloning, yet permitting human cloning for
While the Greenwood-Deutsch bill expressly prohibited
human reproductive cloning, the language of the bill did not apply
(2001); H.R. 2608, 107th Cong. § 2 (2001); H.R. 2172, 107th Cong. § 2 (2001); S. 704 § 3; S.
790, 107th Cong. § 3 (2001); S. 1758, 107th Cong. § 4 (2001); S. 1899, 107th Cong. § 2 (2002).
See also H.R. 3495 (proposing a “General Rule” prohibiting federal funding of human cloning).
See, e.g., H.R. 1372 §§ 2, 4 (providing protections for “promising work” in cloning
technologies that do not involve human embryo cells); Human Cloning Ban and Stem Cell
Research Protection Act of 2002, S. 1893, 107th Cong. (2002) (protecting some areas of cloning
research); see also H.R. 1644 § 3(a); H.R. 2505 § 2; S. 790; and S. 1899 (all three allowing
research in the cloning of non-human cells and/or organisms).
See S. 1893 § 2 (“Nothing in this section shall be construed to restrict areas of
biomedical, agricultural, and scientific research . . . including somatic cell nuclear transfer or
other technologies to clone molecules, DNA, cells, and tissues.”).
See S. 790 § 3; H.R. 2505 § 2; H.R. 1372 § 4; H.R. 1644 § 3; S. 1899 § 2. All of these
proposals specifically—and exclusively—protect research into the cloning of cells other than
The bill, H.R. 2505, was introduced by Republican Dave Weldon of Florida and
Democrat Bart Stupak of Michigan. The bill passed by vote of 265 to 162, with six not voting.
See Office of the Clerk, U.S. House of Representatives, Final Vote Results for Roll Call 304
(Human Cloning Prohibition Act) (July 31, 2001), available at http://clerkweb.house.gov.
Id. § 2(a).
2002] The Case for Proceeding Cautiously 675
to “[t]he use of somatic cell nuclear transfer technology to clone
molecules, DNA, cells, or tissues.”
Since this language permits
the cloning of cells, it would inherently have permitted the cloning
of human embryos for research purposes. The Greenwood-Deutsch
bill was the only proposed legislation seriously considered that
attempted to preserve the potential benefits of human cloning
research while still prohibiting the unsafe reproductive aspect of
The House’s decision to adopt the Weldon-Stupak bill, while
certainly constituting a major victory for those seeking an absolute
ban on all forms of human cloning, will have no legal effect until the
Senate also votes in favor of the Act. Pending Senate approval,
human cloning remains largely unregulated at the federal level.
Companies such as ACT will continue to forge ahead and to negate
most, if not all, of Congress’ well-intended efforts to impede their
progress. The question to be considered in light of the tenor of such
reactive and reactionary legislation is not the clarity of prohibitory
language or the attempts by Congress to ban all forms of human
cloning, but rather whether absolutist legislation such as the
Weldon-Stupak bill will effectively serve to protect the public while
anticipating future societal needs. At a minimum, if federal support
of research regarding human cloning is to be banned for the present,
such legislation should include sunset provisions to allow for orderly
reconsideration by Congress as advances occur which resolve issues
of safety and efficacy.
History proves the futility of prohibition laws.
Einstein noted, “nothing is more destructive of respect for the
government and the law of the land than passing laws which cannot
The Weldon-Stupak bill, endorsed by the Bush
has been referred to the Democrat-controlled
Senate, and only time will tell if the Senate will also embrace the
House’s broad ban, and halt the progression of human cloning
research in this country.
Id. § (2)(a). The same language appears in an earlier Greenwood sponsored bill. H.R.
2172 § 2(a).
Compare H.R. 2608; and H.R. 2172; with H.R. 2505.
See supra notes 6–8 and accompanying text.
, supra note 7, at 6.
See Julie Rovner, WH Declines to Weigh in on Legislation Banning Cloning, C
, June 21, 2001, available at 2001 WL 20347564 (clarifying the White House position on
human cloning generally and on competing pieces of legislation specifically).
676 Albany Law Review [Vol. 65
While fascinating both in its concept and for the purpose of
intellectual debate, the cloning of whole humans remains a “distant
Of more immediate significance is the cloning of
human tissue for therapeutic purposes: the manipulation of the
DNA of those tissues with genetic structures in order to alleviate
the suffering caused by diseases such as Alzheimer’s, diabetes,
Parkinson’s, cardiovascular disease, and various genetically linked
cancers. Therapeutic cloning of tissue might well assist in providing
the cellular medium to achieve goals such as the replacement of
bone, tissue, skin, and cartilage and the regeneration of spinal cord
tissues. Therapeutic cloning of tissue, however, would not be
intended to produce a whole human being.
Because there are potential benefits that may emerge from
current research in genetic therapies which may be applied to
therapeutic tissue cloning, we should not reject the concept of
replication. Prohibitory legislation which is all encompassing
undermines the advances that are being achieved through the
exploration of the human genome.
On the other hand, extreme caution is needed in undertaking
even early research to support the distant possibility of whole
human cloning. Whereas manipulation of the genome through
somatic cell therapies integrated into cloning procedures offers
therapeutic advantages to society, combining genetic engineering
and manipulation with somatic nuclear implantation for the
purpose of creating a human clones raises immense questions
regarding the impact upon individual well-being and social stability,
the transmission of disease, and the potential undermining of the
health and longevity of the offspring and the germ line.
The view expressed above, however, is that outright prohibition
will not stifle the inclination of scientists to advance both
therapeutic and reproductive cloning or to seek the ability to
replicate whole human clones. If we take the view that the science
often advances notwithstanding our immediate ethical, moral, and
social concerns, we will need to consider whether it would be better
to establish a supportive but firm regulatory environment for
overseeing and controlling that research, and in return to require
complete disclosure of the empirical and clinical processes; rather
See Storm in a Test Tube, T
, Dec. 1, 2001, at 76, 77 available at 2001 WL
7320940 (opining that “sensible regulations” could effectively allay fears of reproductive
cloning and balance the potential benefits of therapeutic cloning).
2002] The Case for Proceeding Cautiously 677
than simply and naively to prohibit through legislation or short-
term judicial solutions.
An enlightened governmental approach which encourages science
to inform society of its methods and discoveries is to be much
preferred over the alternative: research in genetic engineering and
human cloning that takes place in dark corners—hidden from the
light of public scrutiny.
See, e.g., H.R. 2505 (banning any type or manner of human cloning).