Liberty, Identity, and Human Cloning

by John A. Robertson  (continued)

Oddly, proponents of this view do not view identical twins as lacking individuality even though they have the same genome (including mitochondrial DNA).  In fact, some twins have a sense of unity or nonseparateness that does not resolve itself into separate identities until later in childhood.  Usually, however, we think of identical twins as having a special closeness and intimacy that other siblings do not share.

Rather than suffer from a loss of individuality, identical twins created by cloning, even if born years apart, may have a special closeness that outweighs the risk of being confused with, or judged by, or expected to conform to the earlier twin’s phenotype.

Couples who choose the DNA of another embryo or person for their child will face issues of their child’s identity and individuality.  If they use cloning as a legitimate way to solve a problem of family formation, they will be interested in having their child profit from the chosen genes while also experiencing its own individuality.  One can choose a particular genome for one’s child without regarding the child as a mere copy or replica of the DNA source.  One can grant genes importance without granting them total importance, for nurture and environment also matter significantly in creating personal identity.

The DNA source and the resulting child may have the same nuclear DNA, but they are clearly separate persons who are born at different times and who occupy separate bodies.  Their uterine, early childhood, and overall rearing environment and experiences will be different, and they ordinarily will not have the same mitochondrial DNA.  While sharing many features, identical twins born at the same time are clearly separate persons.  Identical twins born at different times are likely to be even more different.  Thus using the DNA of another to make a child will not result in a mere copy or replica of the DNA source, much less make its life so full of suffering or reduced individuality that its life is not worth living.

A more sophisticated criticism based on individuality asserts not that the clone and the clone source are not physically separate or legally different persons, but rather that they will not be viewed or will not view themselves as truly separate.  Because they have X’s DNA, the danger is that their rearing parents, they themselves, and perhaps others will treat or perceive them as being X.

But several conditions would have to coalesce to create this effect.  First, the rearing parents would have to know the clone source’s phenotype and believe that its genotype will control the child’s personal identity, despite the temporal and environmental differences that will occur in the child’s rearing.  Second, the concern about individuality would be magnified if other people also knew that the child is the clone of another person.  But most people will have no idea or information about the origin of a person’s DNA.  Even if they did, they may still regard the later born child as an individual in his own right.  Finally, and most importantly, the child would have to be informed of its status as a clone and believe that genes are all or largely determinative of who an individual is, while also ignoring the importance of being born and reared at a later time and in a different environment.

It is highly unlikely that all these conditions would manifest themselves in the most likely cloning scenarios.  Take the case where parents, either through embryo splitting, nuclear transfer from embryos, or cloning of an existing child, produce a child with the same DNA as an existing or previously existing child.  Because parents of identical twins view them as separate, and indeed often go to some trouble to treat them as different, no reason exists why they would not do so with later born identical twins, even though they have an earlier child with whom the later born twin may be compared.  If they want the best possible life for their child, one would expect them to do everything possible to give the child its own sense of individuality and avoid viewing her merely as a copy of the existing child.

Consider also situations in which cloning is sought as a substitute for embryo or gamete donation.  In the case of embryo donation, the DNA of a third party is chosen because that DNA has some special characteristic or meaning.  The couple hopes that the clone will have at least some of the characteristics of the clone source, for example, her looks, intelligence, health, or merely her family connection.  But it does not follow that they will view the child as identical to that source or that the child will be loved only to the extent that she emulates or resembles that source.  They too will know that genes, while important, are not all-determinative of identity or personality.  They will also know that rearing the child in a different setting at a later time is also likely to make her different from the DNA source.  Although there will be some physical similarity, it is hard to think that parents interested in having a healthy child will not rear her as an individual in her own right.

Consider also cases in which a couple agrees to use the DNA of one of them in lieu of gamete donation from a stranger to produce the child whom they will gestate and rear.  The rearing parent and child may share many physical characteristics, but it will be very difficult to view an infant and child as identical to its much older genetic twin who is also functioning as its rearing father.  Even the rearing father will be hard-pressed to view the child as identical to himself, even though he might view it as part of or derived from himself, or have a very special parental relationship because of the genetic similarity.

In sum, the claim that human cloning necessarily violates a person’s individuality because one does not have a unique genome is not convincing given the widespread existence of twins and the intent of a couple to gestate and rear the resulting child.  Similarity in genotype does not mean that there will be similarity in phenotype, particularly when the rearing occurs in a different environment at a later time.  If cloning occurs as part of a couple’s efforts to have and rear offspring, we can expect that the rearing parents will attempt to inculcate difference rather than similarity and make strenuous efforts to ensure the child’s sense that she is a special individual.  To be sure, issues about the child’s individuality are important matters to be addressed in the consent and counseling process of a couple contemplating the use of cloning to form a family.  They do not, however, constitute the tangible harm needed to justify infringements on procreative rights to use cloning for the purpose of family formation.

4.  Cloning as a Violation of Autonomy.-Many fears about human cloning involve the freedom or autonomy of the resulting child.  A major limitation of freedom would occur if the resulting clone were the property, subject, or slave of the clone source or initiator of the cloning.  But the decision to use another’s DNA in bringing a child into the world gives neither the clone source nor the initiator of the cloning absolute or despotic power over that child.  Any child born as a result of cloning would legally be a person with all the moral and legal rights of persons, and would no more be the property or subject of the person who commissions or carries out the cloning than any other child.  Murder, assault, child abuse, and other laws protective of children would apply to all children, whether they are the product of cloning or coital conception.  The power to determine whether another person will be born, and even what genes she carries, does not give one any additional power over that person once she does exist.

A second sense in which cloning might be thought to violate the resulting child’s autonomy rests on a crude form of genetic determinism.  It assumes that in picking one set of genes for the person, one is depriving her of the autonomy that she would have had if she possessed a different set of genes.  This view assumes that genes control a person’s actions and that in selecting genes, one is controlling or determining who or what the person is.  It also overlooks the key fact that at a certain point, if given different genes, the resulting child would be a different person.

The position as stated claims too much.  If it is true that the clone source’s genes determine who the clone is and leave him no freedom to be otherwise, then no person has autonomy because we are all controlled by our genes.  Of course, a prior phenotypic expression of one’s genome is not available to constrain us in advance as it may be in the case of cloning, but the phenotype of the parents is close enough to impose similar constraints.  Yet none of us think that we are totally determined by our parental genes, and we often engage in actions, particularly in adolescence, to distinguish ourselves from them.  There is no good reason to think that a child given the DNA of a sibling, a parent, or a third party would not also engage in that separation or would lack the ability to do so, particularly if the parents were interested in having the child develop its own sense of identity.

A third sense in which cloning could affect autonomy is through parental expectations based on the chosen genome.  The fear is that because the genes chosen have special meaning for the parents, the couple will demand or expect the child to emulate or copy the life of the gene source.  They will guide or mold the child to fit those expectations, thus depriving it of the ability to make its own choices.  Given the power of parental influence, the child might come to view herself as having no freedom to act other than as she thinks her DNA source would have acted.  Yet this fear also founders on the more likely possibility that parents, while hoping that their child will follow certain paths and even guiding or encouraging them to do so, will in the end have to accept the cloned child as a separate individual with his or her own preferences and path in life.

The concern about excessive parental expectations shares features with a fourth sense in which the resulting child may lack autonomy-denial of an “open future” because of phenotypic knowledge of the clone source.  The philosopher Hans Jonas has articulated this point: 
  The simple and unprecedented fact is that the clone knows (or believes to know) altogether too much about himself and is known (or is believed to be known) altogether too well to others.  Both facts are paralyzing for the spontaneity of becoming himself . . . .  It is the known donor archetype that will dictate all expectations, predictions, hopes and fears, goal settings, comparisons, standards of success and failure, of fulfillment and disappointment, for all “in the know”-clone and witnesses alike; and this putative knowledge must stifle in the pre-charted subject all immediacy of the groping quest and eventual finding “himself” with which a toiling life surprises itself for good and for ill.

Jonas notes further that this effect is independent of the actual effects of genotype on a person’s life.  According to Jonas, genotype “is made his fate by the very assumptions in cloning him, which by their imposition on all concerned become a force themselves.”  Jonas concludes that the clone is “antecedently robbed of the freedom which only under the protection of ignorance can thrive; and to rob a human-to-be of that freedom deliberately is an inexpiable crime that must not be committed even once.”

Jonas’s eloquently stated concerns do not, of course, apply to every case involving human cloning. (Indeed, they were addressed to the situation of improving the quality or performance of the human race generally, and not to the procreative uses of cloning described above).  They would not, for example, apply to cloning embryos or children who have not lived very long, for little will be known about them.  Nor would they apply to a third party DNA source about whom little is known.  Finally, this effect requires that the resulting child be informed of the origin of its DNA.  Denial of an open future would not be a great danger if the child does not learn that he is cloned, does not know details of the clone source’s life, or does not think that he is bound to copy or emulate that model.

Jonas’s concerns, however, are theoretically applicable in the many cases in which parents are likely to have some information about the clone source’s phenotype and have chosen its DNA for the value or meaning that phenotype carries for them.  The danger exists, but it exists in noncloning situations as well.  Based on what we know now about parental wishes in having and rearing offspring, the separate moral and legal status that children have, and how cloning is most likely to be used, parents will have a great interest in the well-being and autonomy of their child.  Rearing a child with the DNA of another will present special challenges, but there is no basis for thinking that well-meaning parents cannot master them and allow the child the necessary room and freedom to become herself, regardless of what is known about the clone source.

No doubt parents interested in their child’s well-being will strive to avoid constricting the child’s future with overly rigid expectations.  Indeed, no couple should embark upon cloning without considering the dangers of overly identifying the child with the clone source.  No reputable program should provide cloning services without counseling couples about those dangers and screening out those couples who do not appear able to deal with the psychological challenges presented, as many assisted reproduction programs now do with couples seeking gamete donation or surrogacy.  A major rearing task of parents will be to support the child’s development toward being her own person, independent of the clone source’s characteristics.

One may thus recognize the challenge of assuring the child an open future without concluding that all cloning will inevitably lead to perceptions of the child as a “clone” or copy of the clone source without the freedom to develop her own identity.  In such circumstances, the chance that cloning will so harm the child’s autonomy or sense of identity that it is preferable for her not to have been born at all is highly unlikely.  Threats to autonomy thus do not constitute a compelling ground for denying couples the right to use cloning to form families.

5.  Objectification and Instrumentalization.-A commonly asserted danger of human cloning is that it will lead to children being treated as means to parental ends and not as ends in themselves, thus violating the Kantian maxim to treat people as ends and not merely as means.  Such a risk would be great if, as in Brave New World, cloning were used to produce a worker class or many copies of a particular genome to serve societal or individual utilitarian goals without regard for the welfare of the resulting individual.  But such scenarios do not recognize that cloning requires gestation and rearing of a child, much less that cloning may be part of a married couple’s efforts to have and rear children.

The danger of objectification and instrumentalization might still exist, although to a lesser extent, with married couples who gestate and rear the children whose DNA they have chosen.  After all, they are choosing to give the child a particular genome for a reason.  Even if they do not view genes as all-determinative, they are expecting something because of the genome chosen for the child.  The danger is that they will view the child primarily as a means to fulfill the goals that motivate the choice of that genome, thus rendering the child’s life full of expectations and consequent suffering that make it preferable that it not be born at all.

In evaluating this claim, however, we cannot ignore the reasons that ordinarily motivate persons to have children.  These reasons may range from continuing one’s genetic line to connecting with nature after death, making provisions for a caretaker in one’s old age, saving the marriage or relationship, demonstrating virility, obeying God’s commandments, or simply experiencing the joy and pleasure of children.  Many of these motives or purposes may continue to exist once the child is born, and indeed, may exist simultaneously with love for the child herself.  Ordinarily, the existence of ulterior or mixed motives for wanting children does not cast doubt on the ethical acceptability of reproduction, for they do not prevent parents from loving children for themselves or respecting them as persons in their own right.

Similarly, parents may choose to have a child with a particular genome because they want the child to be tied to a certain lineage, to be healthy, to have certain other genetic attributes, to be like another child or person, to avoid the use of unknown tissue or embryo donors, or to be a source of organs or tissue.  While some parents could end up viewing the child as a mere means to other agendas and ignore the child’s own needs, it is more realistic to think that they will love and respect resulting children for themselves, even as the children serve these other goals, for they will have embarked on intrusive medical proceedures, gestation, and childrearing in order to have the child.

As we have seen in other contexts, the child’s genes could matter enormously for the parents without also causing the parents to deny or negate the child’s own uniqueness, freedom, or worth as a person.  This is clear when parents choose to have a later-born twin of an existing child or use the DNA of a third party or one of the spouses in lieu of gamete or embryo donation.  It is also true when the motivating reason for cloning is to produce organs or tissue for transplant to an existing child.  In the latter case, the child’s own good and status as an end in herself can coexist with the parents’ desire to help an existing child.

An instructive parallel to the use of cloning to obtain tissue or organs for transplant for an existing child arose in the Ayala case.  The Ayala’s eighteen-year-old daughter Anissa suffered from leukemia.  Although in remission, there was a chance that the disease would recur and that eventually a bone marrow transplant would be necessary.  Because neither her siblings nor her parents were a suitable tissue match, her parents decided to have another child so that it might serve as a donor if necessary.  After Mr. Ayala underwent a reversal of a previous vasectomy, the couple conceived coitally and gave birth to a child who turned out to be an excellent tissue match for Anissa when the need for a bone marrow donation arose.  Although a few ethicists raised concerns about conceiving a child to be a donor for another, it was clear that the Ayalas loved the new child as much as their other children and would continue to love her, whether or not she was able to save their older daughter’s life.

If the Ayalas acted ethically because they were prepared to love the child whose conception was motivated by another child’s potential need for bone marrow, then using an existing child’s DNA in order to have another child as a source of organs or tissue should also be acceptable.  Indeed, the ability to replicate existing DNA eliminates the risk that the resulting child will not be a proper match, thus lessening the chance that the child will be aborted in utero or rejected after birth because it is not an ideal donor.  If the need for donation arises, the rights of the child with the chosen DNA still have to be respected.  Its organs or tissue cannot be used without its consent, or if incompetent to consent, without a showing that the benefits it receives from the donation outweigh the harms.

The example of cloning to obtain tissue or organs for an existing child shows that the threat of objectification or instrumentalization is not significantly greater with cloning than it is with coital reproduction.  In either case, usually only couples seriously interested in rearing the resulting child would have a child for an ulterior purpose in addition to the interests of that child herself.  In either case the genes matter, but the child matters as well.  The fact that the child was also desired to serve as a source of tissue or organ does not negate the love that parents will have for that child.

The question of objectification is somewhat different if cell biology advances to the point that tissue or organs for transplant can be obtained from embryonic stem cells or early abortions.  In that case cloning another to obtain tissue or organs for transplant need only produce cloned embryos or fetuses, and not live-born children, thus avoiding the problem of instrumentalizing a child created in part to serve as an organ source. In addition, a wider range of transplants becomes possible because obtaining organs from a living donor is limited to donations that do not unduly harm it (e.g., blood, bone marrow, and possibly kidney).

Creating cloned embryos and fetuses to obtain tissue, while avoiding the problem of harm to resulting children, must confront the equally divisive issue of whether it is ethically acceptable to create and destroy embryos, or to conceive and abort fetuses, in order to obtain tissue and organs for transplant.  Previous debates over the use of fetal tissue transplants to treat Parkinson’s disease and the creation of embryos solely for research purposes demonstrate the ethical issues that thereby arise.  An important distinction in those debates was whether a person believed that embryos or fetuses had rights in themselves as persons or subjects with independent moral status, or whether persons found such practices offensive even if they did not believe that embryos or fetuses had independent moral status.  Persons who hold the latter view are best viewed as opposing those practices for symbolic, as opposed to rights-based reasons, because they acknowledge that embryos and fetuses do not independently have rights not to be discarded or aborted.  If so, the issue will be resolved by a policy judgment about whether the transplant benefits of such sources outweigh the symbolic harm to respect for life that such practices would entail.  In either case, however, the debate is not directly relevant to the ethical issues that arise from creating children by nuclear transfer cloning, but it concerns the different problem of creating and then destroying prenatal life in order to serve the health interests of others.

In sum, there is no reasonable basis for thinking that choosing particular DNA for a child is more likely to instrumentalize or objectify that child than choosing to have children born for any of the myriad reasons that drive persons in coital reproduction.  Surely the risk that children with chosen DNA will have a life full of suffering because of the reasons motivating the choice of DNA does not appear great.  That risk is not sufficient to prevent couples from cloning another when that choice is a reasonable way for the couple to achieve their goals of having and rearing biologically-related offspring.

6.  Kinship, Lineage, and Family Relations.-A major source of concern with human cloning is the confusion that it could create in family lineage and kinship.  As with other objections to cloning, the argument takes the following form: (1) some forms of cloning could give rise to problems in identifying the lineage and kinship of resulting children; (2) these problems make the child’s life much less happy than it would otherwise be; (3) therefore, all cloning should be prohibited.

The following discussion will focus on the kinship effects of the transfer of nuclear material and not on the effects arising from an egg donor’s contribution to the enterprise, even though human cloning will raise family and kinship issues for the egg source as well.  Because some of a person’s DNA is in the mitochondria found in the egg’s cytoplasm, a woman providing the egg into which the source DNA is transferred will also be contributing bits of DNA to the resulting child.  This fact creates the novel possibility of separating the female genetic contribution in reproduction into two parts-nuclear DNA and mitochondrial DNA in the egg into which the nucleus of the source cell is placed.  In sexual reproduction the same female provides both sources of female DNA.  Nuclear transfer cloning permits DNA derived from the female to be provided by different women, or by the same woman at different points in time.  Cloning thus further partializes biologic motherhood by presenting the novel possibility of a third biologic mother, in addition to the separate gestational and genetic mothers that IVF technology now makes possible.

An important issue in coming to terms with human cloning will be how to regard the contribution of an egg donor who neither gestates nor provides nuclear DNA.  Is her effort in providing eggs sufficient to give her a kinship role?  If effort alone does not qualify her as kin, does the contribution of cytoplasm and mitochondrial DNA give her a biologic or genetic status that deserves treatment like other biological contributors to a child’s birth?  We do not know the answer because the question has never previously arisen.  It would certainly be plausible to continue the cultural emphasis on nuclear DNA and ignore the role that the donor of enucleated eggs provides, viewing her as more kin than nanny or wetnurse but less than the person who provides the nuclear DNA.  The question of what meanings to construct for this relationship is another example of how human cloning and other forms of genetic selection require us to define reproductive meanings in the very process of using the technologies. 
(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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