Liberty, Identity, and Human Cloning

by John A. Robertson (continued)

VII. Conclusion

Cloning and assisted reproductive technology force us to think deeply about the meaning of genes, identity, reproduction, parenting, children, and our connection with family and nature.  Such issues come to us structured as problems of liberal decisionmaking.  Is fundamental reproductive liberty involved?  Do the harms justify intruding on those liberties?  Is regulation to minimize ill-effects consistent with the liberty rights at stake? 
  As we have seen with human cloning and will see again as other techniques of genetic selection and manipulation become available, the answers to these questions are only partially determined by our past practices and understandings.  Past practices will help form a bridge to the twenty-first century’s genetic practices, but we will have to construct most of that bridge as we proceed.  Cloning and genetic alteration will force us to define and constitute ourselves as we confront the genetic meanings of family and reproduction in these new technologic endeavors.

Notes and references: 
     *   Vinson & Elkins Chair in Law, University of Texas School of Law.  A.B. 1964, Dartmouth College; J.D. 1968, Harvard University. 
     1.  See, e.g., Johnson v. Calvert, 851 P.2d 776, 787 (Cal. 1993) (holding that a gestational surrogate who carries an implanted zygote containing none of her genetic material to term is not the “natural mother” of the resulting child under California law); Davis v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992) (awarding custody of frozen embryos to the ex-husband after a divorce). 
     2.  See Rick Weiss, Clinton Forbids Funding of Human Cloning Studies: Privately Financed Scientists Urged to Halt Work, WASH. POST, Mar. 5, 1997, at A10. 
     3.  See, e.g., Human Cloning Prohibition Act, H.R. 923, 105th Cong. =A7= 
 2 (1997) (providing that “[i]t shall be unlawful for any person to use a human somatic cell for the process of producing a human clone”); Human Cloning Prohibition Act, S. 1601, 105th Cong. =A7 3 (1997) (stating that “[i]t shall be unlawful for any person or entity, public or private, in or affecting interstate commerce, to use human somatic cell nuclear transfer technology”); see also NATIONAL BIOETHICS ADVISORY COMM’N, CLONING HUMAN BEINGS: REPORT AND RECOMMENDATIONS OF THE NATIONAL BIOETHICS ADVISORY COMMISSION 104 tbl.1 (1997) [hereinafter NBAC CLONING REPORT] (outlining bills introduced in 12 states and 3 competing federal bills restricting human cloning). 
     .  See NBAC CLONING REPORT, supra note 3, at 109. 
     .  President’s Remarks Announcing the Proposed “Cloning Prohibition Act of 1997,” 33 WEEKLY COMP. PRES. DOC. 844, 844-45 (June 9, 1997) [hereinafter President’s Remarks]. 
     .  See Opinion of the Group of Advisers on the Ethical Implications of Biotechnology to the European Commission, Ethical Aspects of Cloning Techniques, art. 2(6), (opinion requested by the European Commission on Feb. 28, 1997), May 28, 1997, at 6 (unpublished draft, on file with the Texas Law Review); see also Clinton Seeks to Ban Human Cloning But Not All Experiments, N.Y. TIMES, June 10, 1997, at C4 (reporting that Britain, Denmark, Germany, Australia, and Spain have banned human cloning).  The joint communique of the eight-nation economic summit meeting in Denver in June 1997 included an agreement by each country to prohibit human cloning for the creation of children.  See David S. Cloud, Achievements at Summit of 8 Often Less Than Meets the Eye, CHI. TRIB., June 23, 1997, at 4. 
     .  See infra note 248 and accompanying text (discussing the constitutional status of the right to have and rear children). 
     .  For example, a recent study of elderly identical twins found that 62% of general cognitive ability was attributable to genetic factors.  See Gerald E. McClearn et al., Substantial Genetic Influence on Cognitive Abilities in Twins 80 or More Years Old, 276 SCIENCE 1560, 1562 (1997). 
     .  An interesting thought experiment would be to ask what a clone of Jesus Christ would be like if born today, say from DNA recovered from Veronica’s sweaty veil or the bloody Shroud of Turin.  (I am indebted to Jim Magnuson for this example.)  See generally NORMAN MAILER, THE GOSPEL ACCORDING TO THE SON (1997) (speculating, in a narrative of historical fiction, as to the thoughts and feelings that Jesus may have had as he walked the earth). 
     .  FUNK AND WAGNALLS NEW STANDARD DICTIONARY OF THE ENGLISH LANGUAGE (1919).  A more contemporary dictionary has a similar definition: “An organism descended asexually from a single ancestor, such as a plant produced by layering or a polyp produced by budding.”  THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 359 (3d ed. 1992) [hereinafter AMERICAN HERITAGE DICTIONARY].  Alternative definitions include: “One that copies or closely resembles another, as in appearance or function: `filled with business-school clones in gray and blue suits.'”  Id. (emphasis in original). 
     .  AMERICAN HERITAGE DICTIONARY, supra note 10, at 359. 
     .  Id. 
     .  The starvation of differentiated cells in order to deprogram them was the conceptual innovation that made nuclear transfer cloning possible.  The Wilmut team had demonstrated this technique a year earlier when it had produced two lambs-Megan and Morad-from fetal fibroblastic cells that had their cell cycles reprogrammed in this way.  The nuclei had then been removed and inserted in sheep oocytes, activated, and placed in surrogate sheep.  Although the report of this study received none of the attention that the birth of Dolly did, it was the scientific breakthrough that made the birth of Dolly possible.  See GINA KOLATA, CLONE: THE ROAD TO DOLLY AND THE PATH AHEAD 204-08 (1998) [hereinafter KOLATA, CLONE]. 
     .  I. Wilmut et al., Viable Offspring Derived from Fetal and Adult Mammalian Cells, 385 NATURE 810, 813 (1997). 
     .  See NBAC CLONING REPORT, supra note 3, at 22. 
     .  See id. at 1, 22. 
     .  Early experiments on frogs had only generated tadpoles.  See id. at 22. 
     .  See Wilmut, supra note 14. 
     .  See Gina Kolata, Some Scientists Ask: How Do We Know Dolly Is a Clone?, N.Y. TIMES, July 
29, 1997, at C3 (reporting on a few skeptics who are demanding proof that only uncontaminated adult udder cells were used, but noting that the vast majority of the scientific community accepts Wilmut’s claim).  More recently, two noted scientists, in a letter to Science also have questioned whether the claim that an adult sheep has been cloned has been proven, pointing out that the cells cloned could have been stem or fetal cells, since the ewe that provided the nuclear DNA was pregnant at the time the mammary cells were taken.  See Vittorio Sgaramella & Norton D. Zinder, Letter, 279 SCIENCE 635, 635 (1998). 
     .  Many other species (including humans) have shorter gene activation periods than sheep, thus making it more difficult to permit the proper reprogramming of genes after nuclear transfer to allow for subsequent normal development.  See NBAC CLONING REPORT, supra note 3, at 23. 
     .  Culturing DNA before or after transplant may lead to instability of the imprint, thus limiting the efficiency of nuclear transfer from somatic cells or causing abnormalities in resulting children.  See id. at 23-24. 
     .  See id. at 24 (explaining that as somatic eggs age and divide, they experience a progressive shortening of the chromosome ends, a determination which may, or may not, be corrected when the adult cell is returned to the egg environment). 
     .  Gina Kolata, in her useful history of the development of cloning, discounts these arguments as serious objections.  See KOLATA, CLONE, supra note 13, at 239-42. 
     .  Elizabeth Pennisi, After Dolly, a Pharming Frenzy, 279 SCIENCE 646, 646 (1998). 
     .  See Robert Cooke, Monkeys, Too: Cloning Creates Identical Primates Helpful in Research, NEWSDAY, Mar. 3, 1997, at A5; Christine Gorman, Neti and Ditto: Two Cute New Clones Are Too Close for Comfort, TIME, Mar. 17, 1997, at 60. 
     .  See Gina Kolata, 10 Cloned Cows Soon to Be Born, Company Reports, Duplicating a Lamb Experiment, N.Y. TIMES, Aug. 8, 1997, at A10.  In this case, somatic cells whose growth had been stabilized were fused with enucleated eggs, producing embryos whose cells were then cloned to produce cow pregnancies at a claimed rate of 50% efficiency.  See id. 
     .  See Gina Kolata, Lab Yields Lamb With Human Gene, N.Y. TIMES, July 25, 1997, at A18. 
     .  See id. 
     .  See Carey Goldberg & Gina Kolata, Scientists Announce Births of Cows Cloned in New Way, N.Y. TIMES, Jan. 21, 1998, at A14.  The variation here involved waiting six hours between inserting the nucleus of the cell to be cloned into the enucleated egg and activating it as opposed to immediate activation.  With this method, 5-10% of the efforts to create embryos from cloned cells were successful, as compared to the less than 2% success rate in creating embryos in the Dolly experiment when immediate activation occurred. 
     .  See Kolata, supra note 27. 
     .  See NBAC CLONING REPORT, supra note 3, at 26 (reporting that some injected eggs never develop and those that do produce transgenic animals which fail to express the added gene). 
     .  The Roslin group has now reported the birth of a transgenic sheep through cloning fetal cells.  New genes, including a human gene, were added to laboratory cultures of fetal sheep skin cells.  The nuclei of fetal cells that had taken up the human gene were transferred to sheep oocytes and eventually led to the birth of a lamb, Polly.  Each of Polly’s cells contained the skin cell’s genes, including the human gene added in the laboratory.  See Kolata, supra note 27. 
     .  See KOLATA, CLONE, supra note 13, at 217-18; Pennisi, supra note 24, at 646. 
     .  See NBAC CLONING REPORT, supra note 3, at 26 (explaining that the increased efficiency of nuclear transfer technology was the reason for conducting the Dolly experiment). 
     .  See id. 
     .  See id. at 27-28 (discussing the potential use of cloning to improve targeted gene alteration). 
     .  See, e.g., Warren E. Leary, Gene-Altered Mice are Called First True Sickle Cell Model, N.Y. TIMES, Oct. 31, 1997, at A20 (announcing the development of transgenic mice carrying the human gene for sickle hemoglobin). 
     .  See NBAC CLONING REPORT, supra note 3, at 24-25 (describing the procedure through which cloning could produce “homozygous inbred lines” of animals, but noting that the usefulness of such a procedure for research would likely be “limited” due to its great cost). 
     .  Such a goal underlies the report from Oregon on the successful nuclear transfer of early embryonic nuclei in rhesus macaque monkeys.  See supra note 25 and accompanying text. 
     .  See NBAC CLONING REPORT, supra note 3, at 25 (contending that artificial insemination and embryo transfer can increase the effective output of elite animals in the livestock industry). 
     .  Such a goal is driving the research efforts of ABS Global, Inc., whose cloning of cattle from somatic cells was noted above.  See supra note 26 and accompanying text. 
     .  Cloning could also help save endangered species.  See Jon Cohen, Can Cloning Help Save Beleaguered Species?, 276 SCIENCE 1320, 1329-30 (1997) (observing that frozen cells banked at the San Diego Zoo could be used to clone a Przewalski’s horse, Sumatran rhinoceros, or other rare animals).  On the other hand, it could adversely affect investments in racehorses.  The Jockey Club, the official registrar of thoroughbred racing, is opposed to cloning of racehorses.  See Thomas Heath, Clone `Em If You Got `Em: Cigar’s Owner Seeing Double, WASH. POST, Mar. 14, 1997, at C1 (reporting that the Jockey Club interprets its rules of registration in such a way as to exclude cloning or other forms of assisted breeding). 
(continued, see below)

John Robertson 
School of Law 
University of Texas 
512-471-6988 (FAX)

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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