Clone Wars

The forces of government gather in fear of hypothetical clones.

"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.

But politicians and the media have grossly overstated the physical dangers of cloning. The Dolly experiment started with 277 fused eggs, of which only 29 became embryos. All the embryos were transferred to 13 sheep. One became pregnant, with Dolly. The success rate per uterine transfer (one perfect offspring from 13 sheep, with no miscarriages) was better than the early success rates for in vitro fertilization. Subsequent animal experiments in Wisconsin have already made the process much more efficient, and improvements will presumably continue as long as further research is allowed.

More fundamentally, the government does not have the constitutional authority to decide who gets born--although it once thought it did, a period that constitutes a dark chapter of our national heritage. In the early 20th century, 30 states adopted eugenics laws, which required citizens with conditions thought to be inheritable (insanity, criminal tendencies, retardation, epilepsy, etc.) to be sterilized--partly as a means of "protecting" the unfortunate children from being born.

In 1927, the U.S. Supreme Court upheld such a law, with Oliver Wendell Holmes writing for the majority, "It would be better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind….Three generations of imbeciles are enough."

California's eugenics law in particular was admired and emulated in other countries--including Germany in 1933. But during and after World War II, when Americans learned how the Nazis had used their power to decide who was "perfect" enough to be born, public and judicial opinion about eugenics began to shift. By the 1960s, most of the eugenics laws in this country had been either repealed, fallen into disuse, or were struck down as violating constitutional guarantees of due process and equal protection.

Indeed, those old eugenics laws were a brief deviation from an American tradition that has otherwise been unbroken for over 200 years. In America, it has always been the prospective parents, never the government, who decided how much risk was acceptable for a mother and her baby--even where the potential harm was much more certain and serious than anything threatened by cloning.

Hence, in vitro fertilization and fertility drugs are legal, even though they create much higher risks of miscarriages, multiple births, and associated birth defects. Individuals who themselves have or are known carriers of serious inheritable mental or physical defects such as sickle cell anemia, hemophilia, cystic fibrosis, muscular dystrophy, and Tay-Sachs disease are allowed to reproduce, naturally and through in vitro fertilization, even though they risk having babies with serious, or even fatal, defects or diseases. Older mothers at risk of having babies with Down Syndrome, and even women with AIDS, are also allowed to reproduce, both naturally and artificially. Even if prenatal testing shows a fetus to have a serious defect like Down Syndrome, no law requires the parents to abort it to save it from a life of suffering.

In short, until science revealed that human cloning was possible, society assumed that prospective parents could decide for themselves and their unborn children how much risk and suffering were an acceptable part of life. But in the brave new world of the federal bureaucrat, that assumption no longer holds true.

Ironically, some cloning opponents have turned the eugenics argument on its head, contending that cloning could lead to "designer children" and superior beings who might one day rule mankind. But allowing infertile individuals to conceive children whose genome is nearly identical to their already existing genomes no more creates "designer children" than it creates "designer parents." More important, these opponents miss the point that only government has the broad coercive power over society as a whole necessary to make eugenics laws aimed at "improving the race." It is those who support laws to ban cloning who are in effect urging the passage of a new eugenics law, not those who want to keep government out of the business of deciding who is perfect enough or socially desirable enough to be born.

Another significant driving force behind attempts to restrict or reverse an expansion in human knowledge stems from religious convictions. Interestingly, there is no necessary theological opposition to cloning: For example, two leading rabbis and a Muslim scholar who testified before the National Bioethics Advisory Commission had no objection to the practice and even advanced religious arguments for cloning.

Still, politicians from both major parties have already advanced religious arguments against cloning. President Clinton wants to outlaw cloning as a challenge to "our cherished concepts of faith and humanity." House Majority Leader Dick Armey also opposes cloning, saying that "to be human is to be made in the image and likeness of a loving God," and that "creating multiple copies of God's unique handiwork" is bad for a variety of reasons. Senator Bond warns that "humans are not God and they should not be allowed to play God"--a formulation similar to that of Albert Moraczewski, a theologian with the National Conference of Catholic Bishops, who told the president's commission, "Cloning exceeds the limits of the delegated dominions given to the human race."

Of course, virtually every major medical, scientific, and technological advance in modern history was initially criticized as "playing God." To give just two recent examples, heart transplants and "test tube babies" both faced religious opposition when first introduced. Today, heart transplants save 2,000 lives every year, and in vitro fertilization helped infertile Americans have 11,000 babies in 1995 alone.

Religious belief doesn't require opposition to these sorts of expansions in human knowledge and technology. And basing a cloning ban primarily on religious grounds would seem to violate the Establishment Clause. But that's not the only potential constitutional problem with a ban.

Many courts and commentators say that a constitutional right of scientific inquiry is inherent in the rights of free speech and personal liberty. To be sure, certain governmental attempts to restrict the methods scientists can use have been upheld--for example, regulations requiring free and informed consent by experimental subjects. But those have to do with protecting the rights of others. Cloning bans try to stop research that everyone directly concerned wants to continue. As one member of the National Bioethics Advisory Commission observed, if the group's recommendation to ban cloning is enacted, it would apparently be the first time in American history that an entire field of medical research has been outlawed.

Prohibiting scientific and medical activities would also raise troubling enforcement issues. How exactly would the FBI--in its new role as "reproductive police" and scientific overseer--learn, then prove, that scientists, physicians, or parents were violating the ban? Would they raid research laboratories and universities? Seize and read the private medical records of infertility patients? Burst into operating rooms with their guns drawn? Grill new mothers about how their babies were conceived? Offer doctors reduced sentences for testifying against the patients whose babies they delivered? And would the government really confiscate, say, Stanford University Medical Center, if one of its many researchers or clinicians "goes too far"?

The year since the announcement of Dolly's birth has seen unprecedented efforts by government to expand its power over both human reproduction and science. Decisions traditionally made by individuals--such as whether and how to have children, or to study the secrets of nature--have suddenly been recast as political decisions to be made in Washington.

Human cloning, when it actually arrives, is not apt to have dire consequences. Children conceived through cloning technology will be not "Xerox copies" but unique individuals with their own personalities and full human rights. Once this basic fact is understood, the only people likely to be interested in creating children through cloning technology are incurably infertile individuals. There are already tens of millions of identical twins walking the earth, and they have posed no threat so far to God, the family, or country. A few more twins, born to parents who desperately want to have, raise, and love them as their own children, will hardly be noticed.

As for the nightmare fantasies spun by cloning opponents, even the president's special commission has admitted that fears of cloning being used to create hordes of Hitlers or armies of identical slaves are "based…on gross misunderstandings of human biology and psychology." And laws already prohibit criminal masterminds from holding slaves, abusing children, or cutting up people for spare body parts.

As harmless as the fact of cloning may be, the fear of cloning is already bearing bitter fruit: unprecedented extensions of government power, based either on unlikely nightmare scenarios or on an unreasoning fear that humans were "not meant" to know or do certain things. Far from protecting the "sanctity" of human life, such an attitude, if consistently applied, would doom the human race to a "natural" state of misery.

Mark D. Eibert ([e-mail]) is an attorney who practices law in San Mateo, California.