Liberty, Identity, and Human Cloning

by John A. Robertson (continued)

A. The Problem of Wrongful Life

Most of the harms said to flow from human cloning focus on the welfare of children who are given the same DNA as another individual. Whether the feared harm is physical safety, individuality, autonomy, instrumentalization, or threats to lineage, all are claims that the child who results is intrinsically or irrevocably harmed by the experience and, thus, that the best policy would be to prevent cloning from occurring to prevent the harm that the resulting child would experience. Such claims have wide appeal, but they raise a central conceptual problem that calls into question whether preventing harm to offspring ever justifies preventing their birth altogether. The problem arises because, but for the technique in question, the cloned person would not exist. Banning the technique may prevent a child from being born into the circumstances of concern, but it does so, not by assuring that it is born in different circumstances, but by preventing it from being born at all.

Preventing existence as a way to prevent harm to the person who would exist makes sense for that person only if it reasonably appears that once born, the child’s existence would be so full of pain and suffering that its interests would be best served by nonexistence. But it is rare that the techniques at issue – whether cloning or other genetic manipulations – would cause harm or suffering to such an extent. The strongest case would be a child born with Tay Sachs disease, who after six months or so of normal development, begins a progression toward inevitable death at about two years. Other genetic defects, such as sickle cell anemia, cystic fibrosis, or Down’s Syndrome, do not have such devastating effects that a child born with those conditions would be better off, from its own perspective, never living at all. None of the assisted reproductive techniques, including those using donors and surrogates, lead to a child whose life would be invariably full of such great suffering that it too never should be born. Nor is being born with the DNA of another likely to have such devastating effects on the child that it is better off, once it exists, in not continuing life.

There have been two main responses by those who reject the implications of this position. One is to deny its premises; the other is to grant it but find reasons other than concern about offspring welfare for calling the birth wrongful. The first strategy-denying the argument’s premises and conclusion-is commonly asserted in bioethical writing, but there is usually little argument or analysis, and when there is, it usually misses or confuses key steps in the argument.

An exception to the lack of analytic rigor are the views of philosophers Derek Parfit and Dan Brock, who would replace an individual or person-based notion of harm, on which my argument rests, with a class-based notion. Yet even they acknowledge that the notion of harm to a class, rather than to an individual, can be sustained only if the number of the members of the class is kept constant-for example, when a member of the class of all children born, who has a defect such as cloning, can be replaced with another child without that defect. If that condition cannot be met, they admit that they have not shown that the person-regarding concept of harm fails. But the couple seeking to have the cloned child ordinarily cannot have another healthy child, or they would not have resorted to cloning in the first place.

A different strategy is to accept the argument but assert that the child’s birth was harmful for reasons other than the welfare of the child per se. Here the response comes close to asserting that the offense that others feel because less than normal children are born is a sufficient ground for preventing couples from producing such children. But an argument based on offense still seems to rest either on the assumption that the child would have been better off never being born at all, or that the parents are acting without regard for the child’s welfare.

Proponents of the wrongful life theory may also think that the parents could have easily had another “non-defective” child. But this too overlooks the interests of the child who is now born, albeit with the defect or condition in question. From the now existing child’s perspective-the perspective of this particular child-it is not harmed by existence, because it has no alternative to existing with the defect or condition of concern, and it finds its current existence, being the only one available to it, very fine indeed. Moreover, the argument assumes that the parents who intentionally bring a disabled child into the world have no concern for that child. If they are prepared to rear and love it regardless of its condition, it is wrong to say that its birth denigrates respect for life or persons.

An added problem is that proponents of this response seem unaware of the implications of their position. If their claim that parents act wrongfully when they knowingly allow children to be born in some less than ideal or normal condition, then parents in many situations would be acting wrongfully. The underlying principle on which their claim rests would condemn women who, after prenatal diagnosis, test positive for Down’s syndrome, cystic fibrosis, or Tay Sachs and then refuse to abort, or who refuse testing after getting pregnant when they know that there is a one-in-four risk of having a child with severe genetic disease, or who refuse carrier screening in the first place. These decisions are much more likely to cause the birth of children with special problems or conditions than assisted reproduction or cloning. Surely offense alone that one would knowingly bring a disabled or handicapped child into the world is not a sufficient basis for prohibiting couples from making that choice, at least when they plan to rear the child themselves and have the resources to do so.

Despite these difficulties, proponents of the view that birth can be prevented because the child can only be born harmed seem genuinely concerned about the welfare of children. They see the physical and psychological difficulties that they think cloned or genetically selected or engineered children will have, and they blame the parents for knowingly bringing this situation about. Indeed, they perceive the opposite position as seriously confused and insensitive to the plight of children. In their eyes, that view would always excuse as harmless any parental prebirth manipulation because the parents could always claim that this child would not even have been born but for the very act claimed to have harmed it. The problem is that their position leads them to prevent the birth-to deny existence-to the very people they claim to respect. If the children whose welfare is at issue are to exist at all, it can only be in the condition which proponents of this argument say justifies preventing their birth.

The debate between these positions is likely to continue, for each side thinks that the other is causing harm to children, although they see it occurring in different ways. In such a conflicted situation the best solution is to move the discussion to a different level or to ask a different question in the hope of identifying areas of agreement. One area of agreement might lie in defining the likely effects of giving particular DNA to individuals. If we can agree that on closer analysis the effects of cloning are much less serious or ominous than originally considered, then there may be no need to resolve the wrongful life issue, for there will be no serious claim that the resulting lives are wrongful, or indeed, that they are greatly diminished or inferior to non-cloned lives (which are not available to them). In making this inquiry, we should compare the effects of cloning to the effects that we tolerate in other reproductive and genetic selection decisions. Only if cloning presents substantial risks of untoward effects over current practices do we need to confront the differences in the approaches outlined here.

Another ground for agreement may lie in recalling why a decision about whether the child is harmed when it has no other way to be born matters. As a legal or policy matter, that issue is important because harm to the child by virtue of its own birth would constitute the substantial harm to others necessary to justify infringements of procreative liberty. But if procreative liberty is not involved, then lesser degrees of harm will suffice to support restrictions on liberty. If the effects on children of greatest concern occur in situations in which the initiator or clone source will not rear, then those uses might not fall within the zone of procreative liberty and therefore do not deserve special respect. If so, concerns about the child’s welfare, even if not technically involving harm to the child, may legitimately be taken into account.

A third area of potential agreement lies in evolving understandings of proper parenting and reproductive behavior. Whatever one’s views about wrongful life, people might find some consensus based on their assessment of whether cloning is necessary, in light of accessible alternatives, for a couple to have and rear healthy, biologically-related children in a committed family setting. A couple who, due to infertility or other needs, chooses to have and rear a cloned child would be manifesting the character that is ordinarily expected in parents committed to their child’s well-being. We might properly question their character if they fail to show plausible reasons for choosing to clone or if they fail to show proper regard for the well-being of the resulting child. Here we could distinguish couples who are interested in having a healthy, genetically-related child whom they will rear, from couples who are interested in changing or altering genes to serve an agenda that seems divorced from the child’s well-being once it exists. Ultimately, the questions here will concern norms and understandings of good parenting and reasonable parent-child relations.

The fact that the family and child will face a novel psychological situation does not necessarily mean that parents act wrongfully or violate prevailing conceptions of good parenting in choosing this route to form a family. As with procreative liberty, we construct and constitute the normative underpinnings of parental and child-rearing relations as we confront them in novel situations such as cloning.

B. Potential Harms from Human Cloning

I examine seven harms alleged to follow from human cloning and consider whether they are sufficient to justify prohibition of a couple’s use of cloning techniques to form a family.

  1. Violation of Human Dignity and Identity. – The initial reaction to human cloning, particularly in Europe, was that it was a violation of human dignity and identity. In the United States, Professor George Annas expressed one aspect of this view when he told the United States Senate
    that it was unacceptably inhuman to create a clone because a person’s essential humanness requires being born from the combination of two separate sets of chromosomes, not one set, as would occur in cloning. Yet whether an individual has one or two genetic parents is but one particular view of what constitutes our humanity, and has no greater, indeed, arguably a lesser, claim to define humanity than rationality, consciousness, language, or some other factor. In any event, persons created through nuclear transfer cloning do have two genetic parents-the same genetic parents as the clone source.

In Europe, the emphasis on human dignity, without further efforts to specify its content, has been effective at the national and regional political levels. But appeals to human dignity, without further specification of the content of that dignity, so that it can be evaluated and compared to other conceptions and practices, will hardly do as a compelling justification for overriding procreative liberty. As the following discussion shows, a more specific content can be given to “human dignity” by focusing on issues of safety, individuality, autonomy, objectification, and kinship, and asking whether those risks are sufficient to justify a ban on human cloning undertaken for family or reproductive purposes.

  1. Physical Safety. – Issues about physical safety arise with any new medical procedure. The danger that physicians who have an interest in developing and using innovative procedures will mislead patients about the prospect of success is always present. In some cases patients may demand procedures when the risks and likelihood of success are unknown. A variety of formal and informal regulatory procedures, from institutional review board assessments of research to clinical practice standards, exist to assure the safety and efficacy of new procedures.

The risk of premature use leading to physically damaged children exists with human cloning as it does with other medical and reproductive procedures. The risk is greatest when the procedure is new and not yet established. With cloning, the risks are: that eggs and DNA will be donated, embryos created, and then placed in the uterus without a realistic chance of success; that implantation will occur, but a high rate of miscarriage will result; and that resulting children will be deformed, will prematurely age, or will have a higher rate of cancer or other disease. On the other hand, cloning will assure that chromosomal aneuploidies or other defects, which are always a risk with coital reproduction, will not occur, for it is unlikely that DNA with such anomalies will have been cloned.

Considerable animal and laboratory research will be necessary to establish human cloning as a safe and effective procedure. The NBAC cited the need for more research establishing the physical safety of cloning as a reason for enacting a federal criminal ban, even though there was little risk that anyone would begin cloning before safety and efficacy had first been established in animals. Although reasonable people might differ in their willingness to accept risks to have a biologically-related family, few couples and doctors would be willing to use cloning techniques to form families if there were a significant risk of physical damage to offspring, or even high rates of miscarriage. With Food and Drug Administration or other regulatory control to assure safety of the technique, concerns about physical safety will rarely provide a sound basis for prohibiting cloning by couples seeking to have biologically-related children for rearing.

  1. Cloning and Threats to Individuality. – Much opposition to human cloning has been based on concerns about a diminished sense of uniqueness and individuality in persons who are created with the DNA of other persons. Dr. Ian Wilmut, in supporting his claim that human cloning would be repugnant, pointed to a denial of individuality, as did President Clinton in calling for Congress to ban human cloning for five years. Their underlying theory is that a unique genome is essential to individuality and that if one has the same DNA as another, she will inevitably be viewed as a copy of the person from whom the DNA came. This will produce such a reduced sense of individuality that it is in the child’s best interests not to be born at all.
    (continued, see below)

John Robertson
School of Law
University of Texas
512-471-3524
512-471-6988 (FAX)
jrobertson@mail.law.utexas.edu

Liberty, Identity, and Human Clonin, part 1
Liberty, Identity, and Human Cloning, part 2
Liberty, Identity, and Human Cloning, part 3
Liberty, Identity, and Human Cloning, part 4
Liberty, Identity, and Human Cloning, part 5
Liberty, Identity, and Human Cloning, part 6
Liberty, Identity, and Human Cloning, part 7

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