"There are some avenues that should be off limits to science. If scientists will not draw the line for themselves, it is up to the elected representatives of the people to draw it for them."
Thus declared Sen. Christopher "Kit" Bond (R-Mo.) one of the sponsors of S. 1601, the official Republican bill to outlaw human cloning. The bill would impose a 10-year prison sentence on anyone who uses "human somatic cell nuclear transfer technology" to produce an embryo, even if only to study cloning in the laboratory. If enacted into law, the bill would effectively ban all research into the potential benefits of human cloning. Scientists who use the technology for any reason--and infertile women who use it to have children--would go to jail.
Not to be outdone, Democrats have come up with a competing bill. Sens. Ted Kennedy (Mass.) and Dianne Feinstein (Calif.) have proposed S. 1602, which would ban human cloning for at least 10 years. It would allow scientists to conduct limited experiments with cloning in the laboratory, provided any human embryos are destroyed at an early stage rather than implanted into a woman's uterus and allowed to be born.
If the experiment goes too far, the Kennedy-Feinstein bill would impose a $1 million fine and government confiscation of all property, real or personal, used in or derived from the experiment. The same penalties that apply to scientists appear to apply to new parents who might use the technology to have babies.
The near unanimity on Capitol Hill about the need to ban human cloning makes it likely that some sort of bill will be voted on this session and that it will seriously restrict scientists' ability to study human cloning. In the meantime, federal bureaucrats have leapt into the breach. In January, the U.S. Food and Drug Administration announced that it planned to "regulate" (that is, prohibit) human cloning. In the past, the FDA has largely ignored the fertility industry, making no effort to regulate in vitro fertilization, methods for injecting sperm into eggs, and other advanced reproductive technologies that have much in common with cloning techniques.
An FDA spokesperson told me that although Congress never expressly granted the agency jurisdiction over cloning, the FDA can regulate it under its statutory authority over biological products (like vaccines or blood used in transfusions) and drugs. But even Rep. Vernon Ehlers (R-Mich.), one of the most outspoken congressional opponents of cloning, admits that "it's hard to argue that a cloning procedure is a drug." Of course, even if Congress had granted the FDA explicit authority to regulate cloning, such authority would only be valid if Congress had the constitutional power to regulate reproduction--which is itself a highly questionable assumption (more on that later).
Nor have state legislatures been standing still. Effective January 1, California became the first state to outlaw human cloning. California's law defines "cloning" so broadly and inaccurately--as creating children by the transfer of nuclei from any type of cell to enucleated eggs--that it also bans a promising new infertility treatment that has nothing to do with cloning. In that new procedure, doctors transfer nuclei from older, dysfunctional eggs (not differentiated adult cells as in cloning) to young, healthy donor eggs, and then inseminate the eggs with the husband's sperm--thus conceiving an ordinary child bearing the genes of both parents. Taking California as their bellwether, many other states are poised to follow in passing very restrictive measures.
What started this unprecedented governmental grab for power over both human reproduction and scientific inquiry? Within days after Dolly, the cloned sheep, made her debut, President Clinton publicly condemned human cloning. He opined that "any discovery that touches upon human creation is not simply a matter of scientific inquiry. It is a matter of morality and spirituality as well. Each human life is unique, born of a miracle that reaches beyond laboratory science."
Clinton then ordered his National Bioethics Advisory Commission to spend all of 90 days studying the issue--after which the board announced that it agreed with Clinton. Thus, Clinton succeeded in framing the debate this way: Human cloning was inherently bad, and the federal government had the power to outlaw it.
But in fact, it's far from clear that the government has such far-reaching authority. Several fundamental constitutional principles conflict with any cloning ban. Chief among them are the right of adults to have children and the right of scientists to investigate nature.
The Supreme Court has ruled that every American has a constitutional right to "bear or beget" children. This includes the right of infertile people to use sophisticated medical technologies like in vitro fertilization. As the U.S. District Court for the Northern District of Illinois explained, "Within the cluster of constitutionally protected choices that includes the right to have access to contraceptives, there must be included...the right to submit to a medical procedure that may bring about, rather than prevent, pregnancy."
About 15 percent of Americans are infertile, and doctors often cannot help them. Federal statistics show that in vitro fertilization and related technologies have an average national success rate of less than 20 percent. Similarly, a Consumer Reports study concludes that fertility clinics produce babies for only 25 percent of patients. That leaves millions of people who still cannot have children, often because they can't produce viable eggs or sperm, even with fertility drugs. Until recently, their only options have been to adopt or to use eggs or sperm donated by strangers.
Once cloning technology is perfected, however, infertile individuals will no longer need viable eggs or sperm to conceive their own genetic children--any body cell will do. Thus, cloning may soon offer many Americans the only way possible to exercise their constitutional right to reproduce. For them, cloning bans are the practical equivalent of forced sterilization.
In 1942, the Supreme Court struck down a law requiring the sterilization of convicted criminals, holding that procreation is "one of the basic civil rights of man," and that denying convicts the right to have children constitutes "irreparable injury" and "forever deprived [them] of a basic liberty." To uphold a cloning ban, then, a court would have to rule that naturally infertile citizens have less right to try to have children than convicted rapists and child molesters do.
Many politicians and bureaucrats who want to ban human cloning say they need their new powers to "protect" children. Reciting a long list of speculative harms, ranging from possible physical deformities to the psychic pain of being an identical twin, they argue in essence that cloned children would be better off never being born at all.
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