Liberty, Identity, and Human Cloning

by John A. Robertson (continued)

a.  Cloning one’s child.-The kinship problem is not salient in all cloning situations.  A couple’s use of their embryo’s or an existing child’s DNA to have another child raises no issue of kinship between rearing parents and child, for the child is clearly their genetic child.  If the wife provides the egg into which the child’s DNA is inserted, she will be the provider of both kinds of DNA, while also serving as gestational mother.  If she does not provide the egg, she is nevertheless the major source of DNA (albeit at an earlier point in time) and will gestate.  In that situation, role or lineage confusion from the existence of an egg source is unlikely.

The only relational oddity is that the child will have an older sibling with an identical nuclear genome.  But this does not confuse kinship as such, although it does raise the novel question of the relation between an earlier and later born identical twin because the earlier born twin is the DNA source for the later.  Unlike most twins, they will not share the same uterine or rearing environment.  Indeed, given the differences in time and environment, they may consider themselves more as non-twin siblings than twins.  The problems of individuality, autonomy, and objectification that cloning an existing child presents are not usefully understood as problems of kinship, for the kinship relationship between the two twins individually and between each of them and their rearing parents is not in question.

b.  Cloning an unrelated third party.-The lineage problem is more relevant when another person’s DNA is used in lieu of an anonymous embryo donation.  In this case the couple will gestate and rear a child with whom they have no genetic tie.  The party who consents to be cloned will have a later born identical twin with whom it has no rearing or social relation.  The genetic parents of the clone source will also have no assigned rearing or social relation with the clone of their genetic offspring.  While this situation is a deviation from the kinship relations that exist in coitally-created families, it does preserve a rearing relation with the woman who gestated and with her marriage or life partner.

The resulting kinship relations are similar but not identical to the splits among genetic, gestational, and social parentage that occur in certain kinds of assisted reproduction.  Some forms of assistance (sperm and egg donation and gestational surrogacy) involve a genetic connection with at least one of the rearing partners – a connection that is missing here.  With cloning, however, as with embryo donation, there is still a gestational relation.  Embryo donation, to the extent it is now practiced, is socially and ethically accepted because of the gestational relationship and the recipient’s commitment to rear.  A similar situation exists with the cloning of a third party in lieu of embryo donation.  In both cases the gestating mother and her partner will rear a child with whom they have no genetic connection.

Because it is unlikely in this scenario that the woman gestating and rearing the cloned embryo will provide the eggs that receive the nuclear transfer, a donor egg cycle will have to be initiated in another woman to provide the needed eggs.  If donor eggs are used, the lineage becomes slightly more complicated because another woman will be providing the egg that receives the transfer of nuclear DNA.  The resulting child will then have two different genetic mothers, as well as a gestating mother (who also will rear).  A genetic purist might find this significant, but it is reasonable to expect that for the foreseeable future most people will view nuclear DNA rather than mitochondrial DNA as the primary carrier of kinship relations.  In either case, however, as in embryo donation, the gestational and rearing relationship will be more significant.

An important kinship aspect of using the DNA of an individual unrelated to the couple is that the genetic parents of the clone source will be the resulting child’s genetic parents.  Without having done anything, they will have new genetic progeny – a later born identical twin of their offspring.  Just as an embryo donor’s parents will have no say in the genetic replication of their child, they may have no say over whether their child chooses to be cloned.  This is likely to be true even though embryo donation results in genetic grandchildren, while cloning of their child leads to genetic reproduction.  If they are aware of the cloning, they probably will have no rearing role with the resulting child.  Nor will the child in many cases have any knowledge of or relation with either his elder identical twin or his genetic parents, just as the children of gamete or embryo donation seldom have social relations with genetic kin.

The concerns about kinship and lineage raised by cloning third-party DNA thus affect the parent-and-child rearing relation less than they affect the relation between the child and the DNA source, and the child and the DNA source’s genetic parents.  Its difference from embryo donation is again not substantial.  Embryo donation also assumes that genetic parents will have no relation with genetic offspring.  In that case, however, the genetic parents (the donors of the embryos) have consented to the possibility of genetic offspring.  In cloning, it will often be the case that only the first born identical twin and not the genetic parents must give consent.  If the genetic parents acquire no rearing rights or duties from their genetic relation alone, one can question whether the creation of additional genetic progeny without more is a significant burden that requires their consent.

c.  Rearing a clone of self.-A major challenge to understandings of kinship arises if the DNA of one of the rearing partners is used to create the child whom they gestate and rear.  Given that twenty percent of a couple’s infertility is due to male factors, and that thirty thousand to forty thousand children are born each year through the use of donor sperm, some demand for this form of cloning is likely.

The kinship problem is that the social parent is genetically a sibling of the child – indeed, is an older identical twin – thus changing the traditional generational relation between parent and child.  The danger of kinship confusion occurs on several levels.  The rearing parent could forget that this child is a person in his own right and view him as merely an earlier version of himself.  Such over identification or attachment could make the child’s efforts to detach from the parent more difficult.  Alternatively, the parent could project fantasies on the child of what the parent wishes he had done when younger, again confusing the psychological boundaries between the two.  The problem in the latter case, however, is less a problem of kinship or lineage than of the effects of the social parent’s identification and expectations on the child’s welfare.  If those problems are successfully negotiated, then no problem of kinship as such arises.

The situation involving self-cloning and rearing also affects the kinship relations between the clone source’s own parents and the resulting child.  The decision to clone and rear oneself means that one’s parents have new genetic progeny through no effort, or even decision, of their own. Socially, the clone source will be rearing his own clone, thus putting his parents in the position of social grandparents when they are also genetic parents.  In fact, they may not have consented to have another genetic child or even know of its existence.  Whether or not they have consented to the cloning, the intention of the offspring who is cloned to rear the resulting child should define kinship relations, with the clone source and his spouse recognized as rearing parents.  Although the clone source’s parents may experience a strong emotional attachment to the new child, they have not undertaken to have and rear an additional child, and they should not be assigned rearing rights or duties beyond those of grandparents.  This result seems fair because their adult child’s decision to clone and rear fits more closely with the next generation’s project of having children.

In situations in which the husband rather than the wife is the source of the child’s nuclear DNA, several different relations are possible between the wife and the child.  In the most appealing case, she will also provide the eggs which are enucleated to receive the husband’s DNA, and then gestate the child.  This procedure will require egg retrieval and probably stimulation of the ovaries as well.  In this scenario, the child’s nuclear genetic mother and gestational mother are different, even though the wife will have provided small bits of mitochondrial DNA and the egg into which the transferred nuclear DNA is inserted.  If she gestates without providing the egg or nuclear DNA, the child will have the same gestating and rearing mother, and a different major and minor genetic mother.  If the couple uses a gestational surrogate as well, then a fourth female aspect of motherhood will be realized.

Does this further fragmentation of motherhood into two genetic parts adversely affect the child or kinship relations among the various parties?  It will depend on the social and psychological importance of the mitochondrial DNA in the enucleated egg that makes a resulting child possible and the relation between clones and clone sources.  At the present time no cultural meanings attend those relationships because they have not previously existed.  In terms of effort alone, the role of the egg donor should be significant.  Yet she contributes so little mitochondrial DNA relative to the nuclear DNA that her genetic role may well be marginalized.  If only to simplify matters, she should not be regarded as socially significant kin at all.

In the end, it is hard to see that kinship confusion for any of the parties is so great that it is likely to clash with reasonable judgments about forming families through nuclear transfer cloning.  True, a couple will be rearing a smaller physical version of one of them, and a danger exists that pathological projections or identifications will occur.  With advance counseling and a desire for the child’s well-being, however, the novelty of the situation may be successfully managed.  After all, the couple’s goal is a normal family rearing situation, which they typically cannot achieve coitally.  The danger to kinship relations from rearing one’s clone is not so great that bans on self-cloning or other forms of cloning are justified.

d.  Cloning and rearing one’s parent.-Cloning raises more serious problems of family and kinship confusion when the DNA source is one’s parent.  Using the DNA of a cousin, uncle, or aunt should raise no kinship problems in and of itself.  Using the DNA of a sibling should also pose no major problems.  In that case, one of the rearing partners will be rearing a younger, identical twin of an existing sibling.  The practice of older siblings raising younger ones is not unknown in our culture and should be manageable even when those relations result from cloning.

The situation, however, is more problematic if a couple uses the DNA of one of their parents to create the embryo, which the wife gestates and which the husband and wife then rear.  In that case, one would be carrying and then rearing a genetic replica of one’s mother or father, or one’s spouse’s mother or father.  A split between the gestating woman and the egg source only complicates what will, in any event, be a highly complicated matter.

Here, through cloning the resulting child would be the genetic parent of the person who is serving as its rearing parent.  The danger is that the traditional lines between social and genetic parent and child might be blurred or confused, even beyond that which arises with self-cloning, leading to psychological and social complications for all the parties.  Without more experience, one cannot tell how problematic such a situation would be.  Given the great differences in age and development between genetic child and parent, special or severe developmental problems may not arise.  If the couple has a good reason for using this source of DNA and has been fully counseled about the risks of psychological projection or conflict, then perhaps the risks are not appreciably greater than in rearing one’s own clone or other situations of donors and surrogates.

On the other hand, the situation is sufficiently novel that a couple requesting it may be hard-pressed to convince doctors and other gatekeepers to the technology of the validity of their choice.  Although not necessarily leading to a situation of such psychological suffering that the life of either child or parent becomes wrongful, insistence on cloning one’s parent indeed seems distant from the usual parental or family project.  Precisely because it is so problematic and strange, requests for it are likely to be rare.  A key question will be whether a couple requesting parental cloning is plausibly exercising procreative liberty.  If they are not, the risk of confusing kinship and family relations would be a sufficiently rational basis for banning this form of cloning.  In any event, the risks of cloning one’s parent would not justify a ban on the use of other familial sources of DNA, much less on all cloning.

e.  Summary of kinship issues.-In sum, concerns about kinship and lineage provide no compelling basis for overriding a married couple’s or an individual’s wishes to use different forms of cloning to form a family.  Kinship issues are only marginally relevant when the DNA of one’s embryo or existing children is used.  They are more relevant when the DNA of a third party is used, but that situation is similar to the kinship problems that arise with embryo donation.  Cloning oneself or one’s parent poses the greatest problems.  In either case, the expected psychological harm or conflict would not amount to a wrongful life for the resulting child, but the question of whether either is so deviant from ordinary reproductive arrangements as to be perceived as beyond the pale of procreative liberty remains to be seen.  Determining whether an exercise of procreative liberty is involved is another example of the constitutive value choices required by human cloning and other genetic selection techniques.

7.  Eugenics.-Another feared harm of human cloning is that it will lead to wide-scale positive or negative eugenics, in which reproduction – whether by cloning or other methods – will occur only if socially approved genes are used.  Although this objection is highly speculative, it grows out of revulsion at the American and Nazi eugenic sterilization practices in the early part of the twentieth century.  As a ground for banning human cloning, the argument assumes a slippery slope between any use of human cloning and large-scale eugenics.  To forestall an inevitable slide to eugenics, it concludes that a ban on all or most human cloning is justified.

a.  Public eugenics.-The deepest fears generated by cloning are that it will lead to government-imposed or -conducted reproduction involving genetic selection and engineering, akin to the heavily regimented system portrayed in Huxley’s Brave New World or in Margaret Atwood’s The Handmaid’s Tale.  Given our current democratic system, it seems highly implausible that the government could require people to clone as a way of improving the gene pool or assuring the most fit offspring.  Nor does it seem likely that the government will identify desirable genomes, hire women to gestate the clones, and then rear them.  Nor would the government be likely to produce children through extra-uterine, mechanical gestation if that became possible.  Even if such practices did not violate anyone’s rights, they are well outside our understandings of the role of government.  The possibility of public eugenic policies in the future is too tenuous and speculative a basis to justify limiting or infringing personal choice in matters central to the family now.

Other government policies could encourage or cause widespread eugenics, but they are not directly related to human cloning.  The government, for example, could require that people know their genomes or the genome of their embryos or fetuses, so that they could make appropriate planning decisions.  It could even require that they avoid prenatal actions that harm offspring who could be born without the harm.  The goals of such policies exist independently of cloning and might be sought regardless of whether human cloning ever becomes a common practice.  The possibility of somatic cell nuclear transfer cloning does raise public awareness about genes, but it is unlikely in itself to increase mandatory government programs for genetic selection of offspring.  As with slippery slope arguments generally, even if the feared state of affairs at the bottom of the slope is the unmitigated horrible it is alleged to be, it is that sheer speculation that such eugenic policies would inevitably result from a step in that direction now through cloning.

Nor is human cloning to form or maintain families likely to lead to a government-imposed negative eugenics program, in which persons with certain characteristics or traits are prohibited from reproducing.  Both cloning and genetic restraints on reproduction involve aspects of genetic selection of offspring characteristics.  But the goal of restricting the incidence of certain genes is a far cry from the use of cloning to choose the genome of children.  Given past abuses with compulsory sterilization, the absence of a strong need for such programs, and the lack of any group lobbying for a negative eugenics program, the adoption of such policies is highly unlikely.  In addition, the intrusion on reproductive rights and bodily integrity makes such policies constitutionally dubious.  It is highly implausible to think that cloning for the family-related reasons discussed above would lead directly to publicly-imposed negative eugenics.

b.  Private eugenics.-The concern about eugenics may actually reflect fears about the growing spread of private eugenics.  The ability to choose the genome of children through embryonic or somatic cell nuclear transfer may legitimate and therefore encourage increased use of all forms of genetic selection.  As commercial firms enter the field and choice replaces chance, the fear is that parents will increasingly try to engineer offspring traits and characteristics, thus creating a regime of private eugenics.

But this fear is not a sufficient basis for restricting cloning or other genetic selection techniques.  It is arbitrary to hold cloning responsible for such a future state.  Indeed, people have been very interested in their children’s genes before cloning appeared likely, though they have been largely limited to techniques of selection and exclusion, rather than positive engineering.  Current practices of screening most pregnancies for genetic anomalies and projects for mapping and sequencing the entire human genome play a much greater role in creating the growing genetic consciousness that pervades society.  The willingness to use cloning in forming families will reflect the increasing geneticization of society.  It is implausible, however, to think that the relatively small number of cases in which embryo splitting or nuclear transfer cloning would be used to form families would greatly affect the willingness to use other forms of genetic selection.

Increased emphasis on the genes of offspring is likely regardless of whether human cloning is available to couples seeking to have and rear biologically related offspring.  Other selection techniques will grow in power and specificity, regardless of the fate of human cloning.  The fear that a regime of private eugenics will soon dominate human reproduction is too general and speculative a fear to justify stopping family-centered uses of human cloning.

V. Public Policy 
 

Having discussed the scientific questions and social controversies surrounding cloning, the likely demand for it once it is shown to be safe and effective, and the potential harms that it poses, we are now in a position to discuss public policy for regulating human cloning.  In formulating policy, however, we must take account of the state of the cloning art.  One set of policy options applies when human applications are still in the research and development or experimental stage.  Another set exists when research shows that human cloning is safe and effective.

A. What Policy Now? 
 

The birth of a sheep clone after 277 tries at somatic cell nuclear transfer has shown that much more research is needed before this procedure will be routinely available in sheep and other species, much less in humans.  The most immediate policy question is whether to support or permit cloning research in animals and then in humans.

1.  Animal and Human Cloning Research.-A wide consensus exists that nuclear transfer from somatic cells would provide an important array of therapeutic and scientific benefits, and that research into cloning animals should proceed without restrictions beyond those that exist for animal research generally.

More controversy surrounds the question of human cloning research.  Some persons go further and demand that private sector cloning research also be banned, either because they can foresee no valid human applications of such research or because they object to the destruction of embryos that would inevitably occur in the process of research.  If the procedure remains as inefficient as the process involved in the production of Dolly, many oocytes and embryos will have to be produced before the cloned ones implant successfully and come to term.  This will lead to a sacrifice of oocytes, embryos, and even fetuses that will be problematic for some individuals for reasons independent of the uses to which cloning is put.

The NBAC report on human cloning finessed the issue of embryo research by citing the 1994 recommendations of the National Institutes of Health Human Embryo Research Panel.  That panel had thoroughly reviewed the ethical issues raised by different kinds of embryo research.  It recommended federal funding for certain types of embryo research, including the creation of embryos for research that could not be conducted in other ways, and rejected funding for other types, including nuclear transfer research.  President Clinton accepted most of their recommendations but issued an executive order against the use of any federal funds to support the creation of embryos for research.  Congress then enacted a ban on any embryo research with federal funds.  Given this record, the NBAC took the position that it need not address the question of human cloning embryo research at all.

Right-to-life advocates protested this omission.  By failing to condemn human cloning embryo research generally, they viewed the NBAC Cloning Report as implicitly approving it in the private sector.  They argued in congressional hearings that if human cloning is unacceptable and should now be banned in the public and private sectors, then research that could make human cloning possible should be banned in both sectors as well, especially when that research involved the creation and destruction of embryos.  Two bills now pending before Congress to ban human cloning also include bans on cloning research in the private sector.

Unless one is adamantly opposed to all forms of research with human embryos, a national policy against any research into human cloning involving human embryos is difficult to justify and is arguably unconstitutional.  Such research might lead to important discoveries unconnected to cloning itself.  In addition, it is a necessary precondition to clinical applications of human cloning.  Although such research could eventually lead to children being born with the DNA of others, our investigation of the likely uses and harms of nuclear transfer cloning does not suggest that such uses would be so immoral or harmful that all research that might lead to it, including research that might generate other useful knowledge, should be banned.  Given the controversies surrounding cloning, Congress and the President have good reason not to use federal funds to support human cloning embryo research, but they should not ban all private sector human cloning research as well.  On the other hand, once nuclear transfer cloning is established as safe and effective, it could be viewed as not manipulating embryos at all, and thus not implicating objections based on the creation and destruction of embryos.

2.  Should Human Cloning Itself Be Banned?.-Given the still rudimentary knowledge of somatic cell cloning techniques, few persons interested in cloning as a legitimate means of family formation would proceed with cloning unless they had a reasonable basis for thinking that it would lead to the birth of physically healthy children.  Of course, it is always possible that rogue scientists or individuals would attempt to clone humans outside of established channels, but that risk is no greater with cloning than with any other experimental technique.

In this situation, the need for a federal criminal law against all human cloning might not seem pressing.  Yet, within weeks of Dolly’s birth announcement, bills to ban nuclear transfer human cloning were introduced in Congress and in eight states.  After ninety days of study, the NBAC recommended that a federal criminal law against human cloning be enacted for a period of up to five years, with its continuation dependent upon reassessment at that point.  President Clinton agreed and submitted legislation to that effect.  By late 1997 no federal law had been enacted, though California had passed a ban and publicity about a would-be entrepreneur’s wishes to clone may have revived the chance of federal legislation.

Most striking about the NBAC and the administration’s position is the lengths to which they are willing to go to draw a firm line against somatic cell cloning at the present time.  According to the NBAC, the harm of premature use or experimentation is so great, and the likelihood that scientists and couples would seek to clone prematurely so strong, that the usual safeguards that regulate research and first uses of a technique – bans on federal funding, the IRB review system, professional ethics, and malpractice remedies – would be inadequate.  In their view, only a federal criminal law is sufficient to prevent the overwhelming temptation confronting couples and physicians to clone before cloning is safe.

The NBAC’s call for a federal criminal ban on a new medical technique has few precedents.  A federal law does make it a felony to buy or sell organs for transplant.  Another law makes abortion with the intent to provide fetal tissue for transplant a crime.  But the federal regulation of bioethical issues, if it exists at all, occurs overwhelmingly through the federal funding power, and it does not include criminal sanctions.  Indeed, many harmful and dangerous practices now occur in medicine without federal criminal sanctions.  Physician-assisted suicide and active euthanasia, which both doubtlessly occur to some extent, directly harm patients, but Congress has enacted no federal criminal law against them.  Many surgical procedures are performed on patients without adequate review of safety, yet no law makes those surgeries a federal crime.

  Of course, the fact that federal criminal law has rarely been used in the bioethical area is not a persuasive argument if there is a strong case for doing so.  But such a strong case is lacking.  The NBAC failed to explain how children who would not be born other than by cloning are helped by not being born at all, nor why it thought there was a real danger that doctors and couples would seek to clone before evidence of safety and efficacy existed.  It assumed that doctors and patients would be so driven by the desire to clone and to profit from doing so that they would ignore the lack of evidence showing safety and efficacy.  At the very least, the call for a federal ban was an exercise in symbolic legislation.  It allowed the NBAC and other officials to stand up for important human values-the welfare of children-while permitting research to continue.

The costs of such a stance, however, could well be higher than the NBAC imagined.  If cloning quickly turns out to be a safe, effective, and attractive way for some couples to have biologically related children, a time-limited ban will exact a price from those couples who have legitimate reasons for using it.  In addition, there is the danger that Congress will attach no time limit to the ban or otherwise place the burden of removing it on proponents of cloning, whose numbers are likely to be too small to be politically effective.  A federal ban on human cloning could also emerge from the legislative process to include a ban on using embryos in human cloning research in the private sector, as well.  This legislation could prevent the development not only of cloning and other genetic selection techniques, but also of other kinds of medically important knowledge.  Of special concern would be its chilling effect on primordial stem cell research, a fertile area for research into human replacement of tissue and organs.

Finally, the recommended ban sets an unwise precedent for invoking federal criminal law to settle a bioethics issue.  If a federal law is justified at this early stage for human cloning, then it is justified for many other reproductive and genetic situations.  For example, the concerns with physical safety cited by the NBAC could be invoked to make it a federal crime for couples not to undergo genetic screening prior to conception or to refuse prenatal testing after conception.  Such a precedent could also lead to a federalization of rules for assisted reproduction and other forms of genetic selection.  Given the lack of pressing need for a law and the difficulties of drafting one that does not also inhibit beneficial biomedical research, the wisest course of action would be to rely on existing regulatory mechanisms and forego a federal criminal ban.

B. Public Policy When Cloning Is Safe and Effective 
 

 An important set of policy issues will arise if animal and laboratory research shows that cloning is safe and effective in humans.  Should all cloning then be permitted?  Should some types of cloning be prohibited?  What regulations will minimize the harms that cloning could cause?  What body or entities should enact such regulations?  Considering these questions is instructive for coming to terms both with human cloning and genetic selection generally.

1.  Restrictions on Who May Clone and Rear.-If human cloning is shown to be safe and effective, an important set of policy issues will concern whether it should be banned totally or whether only certain uses of it should be permitted.

a.  Total ban.-The NBAC relied on considerations of physical safety in calling for a complete ban on human cloning, although it also intimated that any human cloning is morally unacceptable even if physically safe.  Once adult cell nuclear transfer cloning proves to be safe and effective in humans, its utility for couples faced with infertility or other needs will have to be squarely faced with the possibility that it will cause substantial harm if practiced.

Based on the analysis in this Article, a total ban on all human cloning is not justified.  Focusing only on married couples intent on gestating and rearing their own children, several valid uses consistent with prevailing reproductive and family formation practices have been identified: cloning of embryos might be the sole means through which the couple is able to rear biologically related children; embryonic or somatic nuclear cell transfer might help a couple obtain tissue for an existing child; and cloning might enable a couple to continue the genes of a dead or dying child or spouse.

Other important uses of cloning exist for couples with gametic infertility or couples who are carriers of genes containing severe genetic disease.  If both partners lack gametes, they might want to use the DNA of an unrelated third party in lieu of embryo donations from unknown infertile couples.  If one of them lacks gametes, use of that partner’s own nuclear DNA might be preferable to sperm from an unknown stranger or eggs purchased from an egg donor.  Although some differences in method exist, the goals sought through cloning are similar to those sought in current assisted reproductive practices and raise similar issues.  The choice to accept the special challenges of cloning by nuclear transfer in forming a family falls well within the range of discretion ordinarily granted to couples.

The analysis of purported countervailing harm does not undermine this conclusion.  Safety concerns are not relevant because we are assuming safety and efficacy.  Eugenics is a larger concern that arises with most genetic selection technologies.  Objectification concerns ignore the complex ways in which children are ends in themselves while serving other purposes as well.  Individuality, autonomy, and lineage are important concerns, but cloning is consistent with respecting and nurturing the individuality and autonomy of cloned children.  Indeed, most parents would endeavor to promote their child’s individuality and uniqueness even if they have reasons for wanting the child to have a particular genome.  Nor does the risk of confusing kinship relations justify a ban on all cloning.  Significant kinship issues arise only when an unrelated third party, one of the partners, or a parent of one of the partners provides the DNA.  The first scenario is typical of embryo donation-an accepted practice.  The second is more novel, but responsible parents probably could deal with the special challenges that intergenerational genetic identity might pose.  The most troublesome case – cloning and rearing one’s own genetic parent – is likely to be both so rare and so divorced from the usual reproductive context that it might not be an exercise of procreative liberty at all.

When carefully analyzed, the alleged harms of cloning tend to be highly speculative, moralistic, or subjective judgments about the meaning of family and how reproduction should occur.  Such choices are ordinarily reserved to individuals, free of governmental coercion or definition of what provides reproductive meaning.  One need not accept human cloning as a morally acceptable way of family formation.  But personal moral opposition alone is not an adequate basis for laws that prohibit others from using a technique that enables them to achieve legitimate goals of having and rearing biologically related children.  Given the general presumption in favor of reproductive freedom, a ban on safe and effective human cloning in all circumstances is not justified.

One can make the same points in constitutional terms.  The right to have children and rear them has been recognized as a fundamental right.  Despite the lack of textual specification, the idea is widely accepted that coital reproduction, at least between married couples, is protected against state restriction unless compelling reasons for interference are shown.  It should follow that infertile couples also have rights to have offspring, for they have the same interests in having and rearing offspring as the coitally fertile.  Thus, laws that interfere with their ability to use noncoital techniques involving their own gametes, such as IVF or artificial insemination with the husband’s sperm, should have to meet the compelling interest standard to be valid.  If a right of infertile couples to use noncoital means of reproduction is recognized, then that right might be plausibly extended to the use of donor eggs, sperm, and embryos (without necessarily extending to full surrogacy).

A necessary implication is that some degree of genetic selection is also protected because the ability to select will often determine whether or not reproduction occurs.  The right to know one’s status as a genetic carrier and act on it either before or after conception, implantation, or pregnancy would follow.  If some right to negative selection is presumptively protected, then some forms of positive selection should be as well, for that too will determine whether reproduction occurs.  Thus, embryo splitting and nuclear transfer cloning fall into the presumptively protected category because their availability may well determine whether or not a couple has and rears biologically related children.  If so, restrictions on cloning would be valid only if necessary to prevent tangible harm to others.  As we have seen, however, most of the objections to cloning do not meet that standard.  They are either too speculative or too moralistic to justify governmental interference with quintessentially private choices about family.

Although a cogent argument for a constitutional right to form biologically-related families, including the use of cloning when necessary, can be articulated, it may be naive to expect all courts to accept such reasoning at the present time.  The right to procreate as an aspect of procreative liberty has rarely been litigated as such.  Important distinctions about types and ways of fulfilling procreative desires have not fully entered public discourse.  The Supreme Court is increasingly reluctant to recognize new fundamental rights as part of Fourteenth Amendment substantive due process.  However, even if courts do not recognize a constitutional right to clone, policymakers and professionals should nevertheless acknowledge that the concepts and principles underlying procreative liberty provide a strong normative basis for recognizing a right to use assisted reproductive and genetic selection techniques, including cloning, when necessary to form families and treat persons seeking to use these techniques accordingly.

This argument, however, only shows that a ban on all cloning, including the family-centered uses described above, is overbroad.  We must also ask if some uses of cloning should be forbidden and whether some regulation of permitted uses is desirable once human cloning becomes clinically safe and feasible.

b.  No cloning without rearing.-A ban on human cloning unless the parties requesting the cloning will also rear the child is a much better policy than a ban on all cloning.  The requirement of having to rear the clone addresses the worst abuses of cloning.  It prevents a person from creating clones to be used as subjects or workers without regard for their own interests.  For example, situations like those in The Boys from Brazil or Brave New World, in which the initiator does not rear, would be prohibited.  This rule will assure the child a two parent rearing situation-a prime determinant of a child’s welfare.  Furthermore, the rule would not violate the initiator’s procreative liberty because merely producing children for others to rear is not an exercise of that liberty.

Ensuring that the initiating couple rears the child given the DNA of another prevents some risks to the child, but it still leaves open the threats to individuality, autonomy, and kinship that many persons think cloning presents.  I have argued that parents who intend to have and rear a healthy child might not be as prey to those concerns as feared, yet some cloning situations, because of the novelty of choosing a genome, might still produce social or psychological problems.

Those risks should be addressed in terms of the situations most likely to generate them and the regulations, short of prohibition, that might minimize their occurrence.  It hardly follows that all cloning should be banned because some undesirable cloning situations might occur.  Like other slippery slope arguments, there is no showing that the bad uses are so likely to occur, or that if they did, their bad effects would so clearly outweigh the good that one is justified in imposing the loss of the good in order to prevent the bad.

c.  Ban on rearing a clone of self.-An important policy question that the safety of human cloning will present is whether self-cloning-using the DNA of one of the rearing partners to create the child whom they rear-should be permitted.  The concern centers on the confusion in kinship and rearing roles that cloning and rearing a clone of oneself might produce (as well as the confusion it causes for the clone source’s genetic parents).  On this view, cloning of one’s own children or an unrelated third party is acceptable, at least when the initiator also rears, but cloning oneself is not.

The wisdom of this policy depends on an assessment of the need or benefit cloning and rearing one’s own clone serves and the harm it poses.  The reasons for self-cloning and rearing have been discussed.  It is a plausible response to the need for gamete or embryo donation due to infertility or genetic disease and, depending on how one views the importance of genes in defining reproduction, it is also highly reproductive.  Of course, such a situation is likely to be highly fraught psychologically, but there is no reason to think that it will invariably lead to bad outcomes.  As long as the rearing couple is aware of the dangers and is committed to giving the child a separate identity, the risks of harm may be minimal.  Certainly, these potential problems would be within the range of comparable risks assumed by parents in having children or in exercising (or failing to exercise) genetic selection in other circumstances.

Given the close connection with coital reproduction, one could also plausibly argue that a constitutional right to engage in genetic selection, as an aspect of the right to reproduce, should include the right to create and rear a child with one’s own nuclear DNA.  The mere prospect of harm or the novelty of the situation is not a sufficient basis for interfering with personal decisions about how one acquires genetically related children for rearing.  In the strongest case, the couple will have no alternative way to rear a child genetically related to the spouse with gamete problems.  If a couple is well-informed of these risks, is stable, and is interested in the well-being of the resulting child, the choice to rear a clone of one of the partners will be hard to distinguish from protected reproductive experiences and should be treated accordingly.

d.  Ban on cloning and rearing one’s parent.-The situation of gestating and rearing a child formed by nuclear transfer of one of the spouse’s parents presents a less compelling case.  Such cases are likely to be rare, but they may occasionally arise.  As discussed above, this situation presents the maximum threat to traditional notions of kinship, for it completely reverses the intergenerational meaning of parent and child.  The resulting child may not be intrinsically harmed because it has no other way to be born.  The rearing parents may also adapt smoothly to the psychological novelty of the situation and minimize their identification of the child with the spouse’s parent.

Still, the situation is so different from other cloning situations that the couple seeking a parental source of DNA should have the burden of establishing its bona fides as a method of family formation.  Of course, the couple may be able to carry this burden.  After all, daughter-to-mother oocyte donation, and father-to-son sperm donation have occurred without apparent damage.  Nevertheless, a ban on such cloning would not greatly interfere with the use of cloning in other situations.  Unless the couple could show how parental cloning relates to a valid reproductive project, the use of parental DNA might not fit within prevailing understandings of procreative liberty and therefore need not be protected.

e.  Ban on single women or men cloning.-Some persons have suggested that cloning should be permitted only if it occurs in a two-partner married setting.  Such a position would affect gay and lesbian couples and single men and women, who might choose to clone and rear themselves or another.  A strong reproductive interest exists in at least some of those situations, which such a restriction would infringe.  If that interest is to be respected, the policy should be modified to allow cloning in unmarried situations involving a two-partner committed relationship, as might presently occur with a lesbian couple considering to have a child by donor sperm or adoption.

This proposed modification would still ban a single woman from rearing a clone of another or herself, and it would prevent a single man from commissioning the cloning of himself or another to produce a child that he intends to rear alone.  One could argue that such a ban interferes with the reproductive or family formation rights of unmarried persons.  The resolution of this issue should depend upon whether single persons have rights or access to other forms of assisted reproduction and genetic selection.  If single persons are granted access to those other techniques, the question then posed is whether cloning presents such additional rearing problems that it should be treated differently.

2.  Regulation.-If human cloning proves to be safe and effective and is permitted for some or all of the indications discussed, it is essential that it be done in ways that minimize the special risks that it poses.  Some form of regulation seems desirable, if only the specification of guidelines for how cloning should optimally occur.  As long as such regulations do not unduly burden access to the technology, they would not interfere with the right of couples or individuals to use cloning to form families.

a.  Consent of the clone source.-A key regulatory issue is whether the clone source-the source of the nuclear DNA-must consent to the cloning.  This issue does not arise when embryos are cloned, although it is relevant when an existing child is cloned (or a previously cloned embryo is placed in the uterus and a later identical twin to an existing child is born).  The existing child’s consent to the use of its DNA, however, may not be necessary.  Children do not ordinarily have the right to determine whether their parents have additional offspring.  The fact that the new offspring will be an identical twin does not create such a right, for that fact alone does not create additional burdens or problems for the existing child.  As long as the DNA is obtained noninvasively from the first child, the parents should be free to use the DNA without the child’s consent.

Somatic cell nuclear transfer with DNA from any other existing person, on the other hand, should require the consent of the person whose DNA is used.  The correctness of this rule is clearest when the DNA is obtained from the source directly, because an unconsented touching or battery might otherwise be involved.  However, techniques for recovering DNA from a person may involve such minimal touching that tort doctrines of battery would not apply.

The consent of the clone source should also be required where the DNA is shed involuntarily in the course of living and recovered from benches, chairs, doorknobs, utensils, clothes, saliva from postage stamps, and other objects that a person has touched.  Although a person has no physical connection with her DNA once it is shed and implicitly abandons it by moving through the world, good reasons exist for assigning individuals a limited property or privacy right to control whether their DNA is used to create another person.  Even if clone sources have no direct legal rights or duties toward their later born twin, the relationship is a novel one with potential psychological complications that persons should be free not to incur.  A legal remedy in damages should be available for those whose DNA is used without their consent.  The DNA source, however, should not thereby automatically qualify for rearing rights and duties in the resulting child.

The requirement of obtaining consent from the clone source raises two further questions.  One is the question of whether clone sources may sell the right to use their DNA.  Celebrities may try to reap additional income from the sale of their DNA to ardent fans or others.  Because the demand for their DNA is a result of investment in their own human capital, one could argue that compensation is appropriate as an incentive to develop that capital fully.  Payment could also be justified as advance compensation for any social or psychological complications that arise from having a later-born identical twin.  The idea of selling DNA for cloning, however, is likely to be met with widespread repugnance, the same type of antipathy associated with selling embryos or organs for transplant.  If adult somatic cell nuclear transfer becomes an accepted technique, one might expect laws to be passed that protect the clone source’s right to consent to cloning but which prohibit payment or a market in DNA.

Another question concerns the use of DNA of persons who are deceased, if such DNA proves viable for cloning.  Ordinarily, privacy rights expire with one’s life, although certain interests in name and personality may survive death.  It may be that DNA, like the rest of the body and its parts, will be subject to the wishes of the person while alive or next of kin upon death.  Under this approach, the next of kin would have to consent to the use of the deceased’s DNA as a source of nuclear transfer.  Such a rule may not be unreasonable, given that a child born of the deceased’s DNA will be an identical twin of the deceased and will have kinship relations with her survivors.

b.  Consent of the clone source’s genetic parents.-Should the consent of the clone source’s genetic parents also be required for cloning to occur?  The argument that it should is based on its reproductive implications for them.  Cloning creates a later-born identical twin for the clone source, but an additional genetic offspring for the clone source’s genetic parents.  Even if no rearing rights or duties in the resulting child attach, the social and cultural meanings that attend gene transmission may still stir up strong psychological and social feelings in the clone source’s parents.

Because it is so like reproduction, a cautious societal policy toward cloning would give the clone source’s genetic parents, as well as the clone source, the right to veto the use of the clone source’s DNA for reproductive cloning.  Such a policy, however, could lead to conflicts between the clone source and her parents over whether her DNA may be used to create another person.  Ordinarily parents do not have a right to determine whether their offspring reproduce and thus make them grandparents.  Genetically, however, cloning of their offspring makes them genetic parents, even though they may occupy the social role of grandparents.

If human cloning becomes an accepted technique, such conflicts will need resolution.  At bottom, the question is whether reproduction tout court through cloning is such an imposition on persons that their consent should be required, even if withholding consent will prevent their own offspring from transmitting their DNA to others.  The answer will ultimately depend upon our assessment of the psychological burdens or meanings that attach to being cloned and to reproduction tout court.  One could reasonably view the interest of the clone source’s parents as too intangible or tenuous to justify overriding their adult offspring’s wishes to donate her DNA to others, just as the consent of both identical twins is not necessary for one of them to reproduce, even though the resulting child will be the genetic child of the nonconsenting twin as well.  But then no rearing duties, such as child support or even contact, should be imposed on them as a result of the genetic connection of parenthood that will result.

c.  Informed consent and psychological screening.-Human cloning, although continuous with other assisted reproductive and genetic selection techniques, does pose special medical, psychologic, and social challenges that persons considering it should clearly understand.  Regulations to ensure that couples considering cloning are fully aware of the medical risks of the DNA transfer procedure itself, including likely success rates, are clearly desirable and justified.  In addition, physicians or others providing DNA transfer procedures should inform couples contemplating such procedures of the special social and psychologic challenges posed so that the problems of individuality, autonomy, and lineage that could arise are minimized.

Wise policy would also require couples requesting cloning, particularly of themselves or their children, to undergo psychological screening and counseling prior to the procedure.  This policy will ensure that couples are fully informed of those risks and will enable doctors to screen out those who seem unstable or not able to handle the special challenges posed.  Such counseling should address the basis of the parents’ desire to choose particular DNA for their expected child and the issues and problems which that selection poses, including the importance of respecting the child’s individuality and autonomy in her own right and the dangers of parental expectations of the child based on the chosen genome.

d.  Rearing rights and duties in resulting children.-An important regulatory issue that will arise with human cloning is the need to clarify parental rights and duties in resulting offspring.  Defining relationships from the outset will minimize detrimental legal battles over child custody and visitation and will help reduce any confusion over kinship.  Clarification and certainty can be achieved either by legislative specification of those relations or by legislative or judicial recognition of the precloning agreements of the affected parties.

The cloning of embryos or children does not pose this problem because the clone initiator and rearing parents are also the genetic parents.  The relations of parent and child, grandparent and child, and child and sibling are clear because the child has the same kinship relations with those parties as if she had been coitally conceived.  Still, the novelty of being the identical twin of an older sibling may affect sibling relations, and to some extent, how family members, if they are aware of a child’s cloned origins, perceive them.  Legislation specifying rearing relationships is least needed in this situation.

Clarification of kinship relations is most needed when DNA from an unrelated third party or from one of the rearing partners or a member of their family is used.  In the case of an unrelated third party, the standard case will pose the same kinship issues that arise with human embryo donation.  The intention of the parties is for the recipients of embryo donations to gestate and rear a child who is genetically the offspring of others.  Legislation in several states has legally recognized this arrangement and courts in other states are likely to reach the same result if ever presented with a dispute.

A similar solution should apply to a child born after DNA transfer from a third party.  One who provides the DNA for a child to be reared by another should be viewed as voluntarily relinquishing any rearing rights or duties in resulting children, as would the donor of the enucleated eggs into which the cloned DNA is placed.  Law and regulation should give effect to this arrangement, so that ensuing kinship relations are clear and certain.  The law should also bar the clone source’s genetic parents from any rearing role, even though the resulting child is their genetic offspring.

Kinship and rearing relations in the likely situation of individuals using their own DNA in lieu of gamete donation should also be specified.  The person consenting to be cloned is undertaking to rear the resulting child.  This commitment to function as the legal father or mother, together with gestation, should be given binding legal effect just as it is with donor gametes.  The social situation makes the clone source the parent of the clone, who is the social parent’s own later-born twin.  The source’s parents, who are the clone’s genetic parents, should also be clearly recognized as social grandparents and not assigned any rearing rights or duties.

Of course, the child, if informed of her cloned origins, will still have to deal with the fact that she has an identical twin in the world.  Clarifying the legal status of the participants will help normalize the relationship.  The importance of the genetic choice that made the child should recede as the child’s individuality emerges.  Questions of whether the child should be told of his origins and allowed to meet his DNA source-his earlier born twin-and that twin’s genetic parents will also have to be addressed.  Overall, however, specification of resulting kinship relations and the consequent childrearing rights and duties will minimize the social and relational problems that human cloning presents.

e.  Limit on number of clones.-Any practice of human cloning should have clear legal limits on the number of children who may be born with the same DNA, whether at the same or different times.  Such a policy will minimize the problems of individuality that cloning appears to present for resulting children and will help ensure that any resulting child is fully regarded as a worthy individual in her own right.

A limit of no more than three clones born from DNA is a reasonable line, although other numbers might also reasonably be chosen as well.  A three-child limit is consistent with most reproductive needs and would even permit a couple to have simultaneously born identical twins by cloning.  At the same time it would prevent the birth of many individuals with the same DNA, thus diminishing the popular perception of cloning as a way to produce multiple copies of a single person.  Problems of assuring individuality and separateness will remain, but they will be lessened if the couple and child know that only one or two others possess the same DNA.

Of course, the fourth, fifth, or nth clone of a particular DNA would not itself be harmed, not having any alternative way to be born.  Nor would it hurt the children previously born with that DNA to have another twin because they gain no rights or duties as a result and may never even learn of the later cloning.  The interest in having and rearing children is not involved in simply providing DNA for others to use in having offspring.  On the other hand, couples seeking DNA who have already produced three additional children can argue that they will not gestate and rear children unless they can use the particular DNA that has already produced three children.  Whether this claim deserves respect will depend on the importance assigned to having yet another child with the same DNA when several persons with that DNA already exist.

Professional guidelines for gamete donation now limit the number of children that can be born from a single sperm donor to ten.  The same number has been suggested as a limit for children born from a single egg donor.  The reason for these limits is to protect the donors and to minimize the risks of consanguineous marriages occurring unwittingly between people who are half-siblings.  With cloning, the rationale for a limit is to minimize the risks to the individuality of the resulting children.  A limit on the number-whether two, three, or n-will help, even though it will not eliminate all issues of separateness and uniqueness that using the DNA of others to have children poses.

f.  Professional discretion or a regulatory agency.-An important issue in any regulatory approach is whether the professionals directly involved can be trusted to provide cloning or other reproductive services in a safe and ethical way, or whether a governmental agency is needed to oversee their practice.  Some countries, such as Great Britain, have chosen the latter course and created a Human Fertilisation and Embryology Authority to regulate both the safety and efficacy of assisted reproduction and the introduction of new techniques.

The United States, on the other hand, has a much more decentralized system that leaves considerable discretion to the professionals and consumers directly involved and the institutions where services are provided.  Some federal regulation exists through the institutional review board system of monitoring research with human subjects, and FDA approval of the safety and efficacy of drugs, devices, and biologics.  Voluntary moratoria have, from time to time, been respected by geneticists, and national commissions, such as the NBAC, have provided guidance to policymakers.  However, many persons think that a permanent federal commission or agency to oversee new reproductive and genetic technologies, such as cloning, is necessary.  A major issue for future policymakers is whether the current decentralized system, in which much discretion rests with the professionals and consumers directly involved, will continue when cloning and other genetic alteration techniques become available.  Based on past experience, considerable reliance on professional discretion is likely to remain, though it is possible that the special concerns that arise with cloning could lead to a more permanent governmental body overseeing new reproductive and genetic techniques.

g.  Other regulatory issues.-If human cloning becomes available to couples who need it, other regulatory issues will arise.  A pressing one is whether a national registry of children created through DNA transfer should be created to enable the incidence and effects of nuclear transfer cloning to be studied.  Still another would be the extent of limitations placed on the use of third-party DNA, for example, because of the possible effects on children or others from having particular DNA.  As the technology of extra-uterine gestation develops, the possibility of total gestation outside a uterus will also have to be addressed.  Funding and access issues will also be important.  The law of wills and estates will have to be altered.  An additional set of regulations to assure health and safety will arise if cloning becomes a viable technique for producing tissue and organs for transplant from embryonic stem cells or early abortuses.

VI. The Lessons of Cloning for Genetic Alteration 
 

Our investigation has focused on human cloning as a potential technique for forming families.  Issues of genetic selection and family autonomy, however, arise in many other contexts.  Genetic selection through preconception carrier screening, preimplantation genetic diagnosis, or prenatal screening of fetuses now occurs in most pregnancies.  Germline gene therapy and other forms of positive intervention, such as nonmedical enhancement and intentional diminishment, loom on the horizon.  Although these procedures do not replicate the entire genome, they will make specific alterations of genes possible.

The current focus of such efforts is on gene therapy-inserting or deleting genes in order to cure or treat disease.  A major obstacle has been developing a vector that can target genetic changes without causing other effects.  Once such vectors are developed for somatic cells, attempts to cure the disease at the embryo level will occur.  If successful, the genetic alteration will pass on to that person’s progeny.

The development of germline gene therapy will open the door to other attempts to insert, delete, or alter genes in early embryos or in cells that are then used as the source of DNA to create embryos.  Genetic alteration might be feasible if single genes are associated with particular characteristics, a highly unlikely but not impossible occurrence.  If so, some parents will want to insert genes that enhance or increase intelligence, memory, beauty, strength, or other desirable traits in offspring.  In rare cases, parents may even request prebirth genetic elimination of characteristics, such as deaf parents who wish the child they rear also to be deaf.  If these techniques become available, the scope of parental rights to select genetic characteristics of offspring will also arise.

The ultimate handling of issues of prebirth genetic alteration will depend on the precise alteration at issue, its benefits and risks, and how it fits into family and reproductive life generally.  The discussion of cloning foreshadows many of those issues and shows where the ethical, legal, and policy fault lines are.  As with cloning, distinguishing good and valid uses from abusive or harmful ones will be key.  A crucial issue will be whether the alteration is being used in a family-centered positive way, or whether it is being used to objectify or customize children without concern for the interests of the resulting child.  In resolving these issues, we will necessarily be defining the values at stake.

The question of altering genes to enhance (or diminish) offspring traits does differ from cloning in several important ways.  First, most instances of genetic alteration will involve a couple that is reproducing genetically, if not also gestationally and socially, thus eliminating the need for another’s consent, as is necessary in cloning a third party.  Second, issues of uniqueness and individuality will not be as salient because no replication of the DNA of another will be occurring.  Third, concerns about kinship are also likely to be absent here, for alteration is most likely to occur using the DNA of an embryo or child formed from the couple’s gametes (unless the DNA of another is being altered).  Fourth, couples will usually choose to clone because of difficulties in having children in other ways.  Those using alteration may be able to reproduce coitally, but they have chosen to go through IVF in order to alter genes.

Common to both cloning and gene alteration, however, is the issue of instrumentalization and objectification of the child.  A pervasive concern about cloning is the risk that choosing the child’s DNA will turn the child into a mere instrument or object to satisfy parental agendas that conflict with treating the child as an end in herself.  Although responsible families can successfully negotiate those dangers, the danger is a recurring one and is likely to exist in situations of genetic enhancement and diminishment as well.

A couple who seeks to alter the genes of an embryo to enhance an otherwise normal child’s capabilities is in danger of being more interested in genes than in the child for her own sake.  Instead of conceiving coitally, they will undergo one or more expensive cycles of ovarian stimulation, egg retrieval, and in vitro fertilization in order to gain access to embryos and their genes.  It may be that few parents would be motivated to take such steps except out of love and concern for their expected child.  On the other hand, it is also possible that few parents would go to such trouble unless they were fixated on the child as an object to serve their own needs.  Given these possibilities, couples seeking to alter genes will have to convince gatekeepers and policymakers that the alteration is justified as part of their liberty interest in having or rearing offspring.  Justifying intentional diminishment will be even more difficult.

Resolving these questions will pose many of the same constitutive questions that arise in determining the response to human cloning.  Decisions about prohibiting all or certain types of genetic alteration will have to be made and the effects of maldistribution of the technology considered.  The extent of procreative liberty will also have to be defined, as will the notion of harm when children would not otherwise have been born but for use of the technique in question.  Where cloning forces us to confront the meaning of identity and family, gene alteration will force us to confront the limits of instrumentality in seeking the good of offspring.  As with cloning, the answers to these questions will constitute or define the very values and rights at issue. 
(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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