Liberty, Identity, and Human Cloning

by John A. Robertson (continued)

More notes and references:

  .  See NBAC CLONING REPORT, supra note 3, at 28-29 (predicting that research on cell differentiation will lead to the development of treatments for human disease). 
     .  See id. at 29 (contending that animal models will reveal which techniques are widely applicable and which require further development before being applied to human cells). 
     .  The average cost of a stimulated cycle of IVF and retrieval is $8,000.  See Michael D. Lemonick, The New Revolution in Making Babies, TIME, Dec. 1, 1997, at 40, 45.  The process requires injection of hormones over several days and usually ultra-sound guided transvaginal aspiration of oocytes, under anesthesia.  Complications to the patient, though rare, are also possible.  Although nuclear transfer from embryos will require a supply of enucleated eggs, these might be obtained from a few donors with less overall intrusion or from sources that have not undergone stimulation and surgical retrieval. 
     .  For a discussion of the problems that might arise if more than two embryos implant, see John A. Robertson, The Question of Human Cloning, HASTINGS CTR. REP., Mar.-Apr. 1994, at 6, 10-11 (recounting the physical risks and ethical issues that the deliberate creation of multifetal pregnancies and later-born twins raise). 
     .  Using their own DNA would also minimize the risk of transmission of infectious or genetic disease from anonymous donors, which occasionally occurs.  In one recent case, a couple sued a California sperm bank for inadequately screening a sperm donor who had polycystic kidney disease in his family, later contracted the disease himself, and transmitted it to the child born to this couple.  See Julie Marquis, Gift of Life, Questions of Liability, L.A. TIMES, Aug. 9, 1997, at A1.  Cloning the DNA of the husband or wife would have avoided this problem. 
     .  The NBAC used this example as an arguably acceptable use of cloning because it avoided both donor gametes and selective abortion, but allowed the at-risk couple to maintain a genetic tie to the child.  See NBAC CLONING REPORT, supra note 3, at 80. 
     .  I am indebted to Gina Shishima for this example.  A similar need would arise if a child with a severe genetic disease, such as severe combined immune deficiency (SCID), were successfully treated with somatic cell gene therapy.  Rather than risk having another child with SCID who would have to be treated, the couple might choose to clone the successfully treated child. 
     .  See, e.g., Anita Manning, Pressing a “Right” to Clone Humans: Some Gays Forsee Reproduction Option, USA TODAY, Mar. 6, 1997, at D1 (quoting Ann Northrop, columnist for a New York gay newspaper, as opining that cloning has the potential of “giving women complete control over reproduction”).  This procedure, however, would not exclude males totally from reproduction because the clone source herself is the result of male reproduction.  Thus, her genetic father will also be the genetic father of the resulting child, although he might be treated socially as the child’s grandfather.  For further discussion of relations between the resulting child and the clone source’s genetic parents, see infra notes 191, 193, 277-278 and accompanying text. 
     .  See infra note 262. 
     .  See infra note 173 and accompanying text. 
     .  Although some persons will object to the creation of embryos to serve as a source of stem cells and then to be destroyed, obtaining tissue at the embryo level will be more widely acceptable than waiting until the fetal stage and aborting the fetus to obtain its tissue or organs for transplant.  See infra notes 215-226 and accompanying text. 
     .  See NBAC CLONING REPORT, supra note 3, at 31.  Progress here may be quicker than expected.  In July 1997, investigators reported that they “may have isolated for the first time human embryonic cells that have the potential to develop into muscle, blood, nerves, or any other tissue in the body.”  John Travis, Human Embryonic Stem Cells Found?, 152 SCI. NEWS 36, 36 (1997). 
     .  Such cloning might create unrealistic expectations and other psychologicial complexities for the cloned child that will need careful attention if the experience is to be positive for all participants.  See discussion infra section IV(B)(3). 
     .  See NBAC CLONING REPORT, supra note 3, at 80 (presenting this scenario as an arguably acceptable use of cloning). 
     .  This use of cloning was suggested by the Orthodox Rabbi Moshe Tendler in testimony to the National Bioethics Advisory Commission.  Rabbi Tendler’s example assumes that the person is not married and coitally fertile, for there would then be no need to resort to cloning to have genetic descendants.  If the couple were married and infertile, the husband’s survivor status would give an additional reason for engaging in self-cloning in lieu of gamete or embryo donation.  If the survivor were not married and did not intend to rear, he might still argue for the right to be cloned-for example, the right to serve as the DNA for a couple willing to gestate and rear his clone.  Because of the importance to the survivor of knowing that his genetic descendants exist in the future world, the Holocaust survivor example might be the rare case for a=20right of genetic reproduction tout court.  For further discussion of reproduction tout court, see infra note 119, and see also Michael Broyde, Cloning People: A Jewish Law Analysis of the Issues, 30 CONN. L. REV. 503, 532-33 (1998) (arguing that once the technical complexities of human cloning are resolved, human cloning will be another form of assisted reproduction, and is likely to be permitted by Jewish law). 
     .  See, e.g., NBAC CLONING REPORT, supra note 3, at 13 (noting that “the birth of Dolly was lauded as an amazing success”). 
     .  See Scientific Discoveries in Cloning: Challenges for Public Policy: Hearing Before the Subcomm. on Public Health and Safety of the Senate Comm. on Labor and Human Resources, 105th Cong. 20-21 (1997) [hereinafter Hearings] (statement of Dr. Ian Wilmut, embryologist, Roslin Institute) (testifying to the potential beneficial uses of cloning technology in animal breeding and the producion of transgenic livestock). 
     .  See Gina Kolata, Congress Is Cautioned Against Ban on Human-Cloning Work, N.Y. TIMES, Mar. 13, 1997, at B11 (reporting that animal cloning research could lead to the development of animal clones that serve as “miniature drug factories” and organ donors for humans). 
     .  See Hearings, supra note 59, at 22 (statement of Dr. Ian Wilmut). 
     .  Cf. President’s Remarks, supra note 5, at 844 (characterizing this repugnance to human cloning as reflecting a “national consensus”). 
     .  See supra notes 3-6 and accompanying text. 
     .  See supra notes 2, 5 and accompanying text.  The political nature of such reactions was captured in a New Yorker cartoon showing a couple in front of a television watching President Clinton speaking against cloning.  One of them comments, “Still, he might be remembered as the `no cloning’ President.”  Warren Miller, cartoon, NEW YORKER, July 7, 1997, at 60.  President Clinton included a call for a ban on human cloning in his 1998 State of the Union Address.  Transcript of the State of the Union Message from President Clinton, N.Y. TIMES, Jan. 28, 1998, at A19. 
     .  For the specific language of the bills submitted by Senators Feinstein and Kennedy, see Prohibition on Cloning of Human Beings Act of 1998, S. 1602, 105th Cong. (1997).  For examples of alternative legislation, see infra note 223 (discussing the bills introduced by Senators Bond and Frist and Representative Eilers). 
     .  See Act of Oct. 4, 1997, ch. 688, 1997 Cal. Legis. Serv. 3790 (West, WESTLAW through 1997 Sess.) (codified as amended in scattered sections of the CAL. BUS. & PROF. CODE and the CAL. HEALTH & SAFETY CODE).  For a problem with the language of the statute, see infra note 194. 
     .  Council of Europe: Draft Additional Protocol to the Convention on Human Rights and Biomedicine on the Prohibition of Cloning Human Beings with Explanatory Report and Parliamentary Assembly Opinion, Sept. 22, 1997, 36 I.L.M. 1415, 1419 (1997) [hereinafter Council of Europe]. 
     .  Sleeper, Woody Allen’s 1973 futuristic film about cloning, assumed that a complete replica of a person, with all of that individual’s characteristics, memories, and sense of identity, would result from cloning a person’s nose.  See SLEEPER (Metro-Goldwyn-Mayer 1973).  Multiplicity, a 1996 film starring Michael Keaton, conveyed the image that cloning could produce carbon copies of the person cloned by a surgical procedure under anesthesia.  In this case, the cloning was sought to enable the film’s hero, a construction manager, to gain more time to deal with the multiple demands on his time from work, family, and spouse.  The film recounts the comic situations that result from having two identical individuals attempting to play the role of one person, without others knowing of the trick.  See MULTIPLICITY (Sony 1996). 
     .  One cloning fantasy entailed five clones of Michael Jordan playing five other clones of Michael Jordan, to the sheer delight of basketball fans everywhere.  See Art Buchwald, The More the Scarier, WASH. POST, Mar. 6, 1997, at B1.  Or imagine ten Bill Gates clones duking it out for control of the computer software world.  Cf. Katharine Q. Seelye, Daydreams of Cloning, N.Y. TIMES, Mar. 9, 1997, at 2 (reporting the results of a poll in which 3.9% of those surveyed named Bill Gates as their clone of choice from a list of eight famous people). 
     .  Dr. Wilmut used a clone of Einstein who failed a math test as an example of how clones would be denied their own individuality.  See CNN Larry King Live (CNN television broadcast, June 24, 1997) (transcript at 9, on file with the Texas Law Review). 
     .  ALDOUS HUXLEY, BRAVE NEW WORLD 10-12 (Time Inc. Books 1963) (1932) (depicting a futuristic society in which a lower caste of citizens are genetically engineered and then decanted from bottles in laboratories). 
     .  Lesbian couples could have children asexually, thus not needing a man as a source of sperm (although there would be a sperm source somewhere in the lineage).  See supra note 50 and accompanying text. 
     .  An especially articulate version of the ethical objections to cloning is Leon R. Kass, The Wisdom of Repugnance, NEW REPUBLIC, June 2, 1997, at 17. 
     .  See Gina Kolata, Proposal for Human Cloning Draws Dismay and Disbelief, N.Y. TIMES, Jan. 8, 1998, at A22 (noting that some geneticists regard Seed’s announcement as “`an irresponsible and reprehensible act'” that “`frightens people as to what our intent might be and . . . undermines the benefits of this whole area of [cloning] research'”).=20 
     .  Ironically, publicity about Seed’s plans, coming at a time when the immediate threat of cloning had appeared to wane and voices in favor of cloning were being heard, served to revive the bills to outlaw human cloning that were languishing in Congress.  The eponymous Richard Seed thus might have succeeded in getting his own activities banned by the very act of publicizing them.  See Sheryl Gay Stolberg, A Small Spark Ignites Debate on Laws on Cloning Humans, N.Y. TIMES, Jan. 19, 1998, at A1. 
     .  See infra note 205 and accompanying text (discussing society’s revulsion at the American and Nazi sterilization practices in the early part of the twentieth century). 
     .  See, e.g., HANS JONAS, Biological Engineering-A Preview, in PHILOSOPHICAL ESSAYS: FROM ANCIENT CREED TO TECHNOLOGICAL MAN 141, 163, 153-63 (1974) (opposing cloning on the basis that it would deny the clone the “right to ignorance” in finding his own way in the world, free of a preconceived model); PAUL RAMSEY, FABRICATED MAN 96 (1972) (seeing within the “boundless freedom” of self-determination that cloning technology may provide the human species only “boundless destruction” and “unlimited subjugation of man to his own rational designs and designers”); Leon R. Kass, Making Babies-The New Biology and the “Old” Morality, 26 PUB. INTEREST 18, 55 (1972) (arguing that mankind lacks the wisdom to properly handle the power of human reproductive technology); Francis C. Pizzulli, Note, Asexual Reproduction and Genetic Engineering: A Constitutional Assessment of the Technology of Cloning, 47 S. CAL. L. REV. 476, 583 (1974) (concluding that a prohibition of human cloning “may well be a constitutionally permissible approach” serving state interests of protecting the nuclear family unit and preserving the sanctity of the individual). 
     .  See Manning, supra note 50. 
     .  Their main professional association, the American Society of Reproductive Medicine, was quick to oppose adult human cloning, although it adopted a statement that cloning by blastomere separation was acceptable.  Press Release from ASRM, Statement on Human Cloning Through Nuclear 
 Transplantation (Mar. 5, 1997) (on file with the Texas Law Review). 
     .  Many variations are possible here.  In some cases the wife will provide the egg into which DNA is inserted.  In other cases, an egg donor, as well as a DNA source, will be needed.  This will increase the demand for egg donors and will lead to some women undergoing those risks, usually for money, so that other couples may chose their child’s genome.  The use of donor eggs in cloning also means that female reproduction or parentage will be split into the source of the DNA, source of egg and mitochondria, gestation, and rearing.  See infra note 180 and accompanying text. 
     .  See HUXLEY, supra note 71. 
     .  See MULTIPLICITY, supra note 68. 
     .  However, one of the most popular cloning films, The Boys from Brazil, shows an awareness that genes only partially determine who we are and that nurture and environment are also powerful.  The events of the film turn on the need to kill the adoptive, rearing fathers of Hitler clones in order to recreate Adolf Hitler’s upbringing, in which his father died when he was 14.  See The Boys from Brazil (ITC Films 1978). 
     .  Given this desire, it is unlikely that legislation to ban cloning until it is shown to be safe and effective is necessary.  See discussion infra section V(A)(2). 
     .  The NBAC purported to speak only about cloning by adult somatic cell nuclear transfer, although a footnote occasionally says otherwise.  See NBAC CLONING REPORT, supra note 3, at iii.  The report simply addresses adult somatic cell cloning, without explaining why the same considerations do or do not apply to embryo splitting or to nuclear transfer from embryos and children. 
     .  The moral and legal arguments for procreative liberty are presented in JOHN A. ROBERTSON, CHILDREN OF CHOICE: FREEDOM AND THE NEW REPRODUCTIVE TECHNOLOGIES 22-42 (1994). 
     .  The abortion debate does not belie this.  Indeed, it gains much of its energy from a recognition of the importance to women of being able to avoid unwanted reproduction.  Abortion raises the issues of where the right not to reproduce ends, not whether it exists in the first place. 
     .  See infra notes 248-249 and accompanying text (asserting that the right to have children is a fundamental constitutional right). 
     .  See ROBERTSON, supra note 86, at 38-40 (arguing that the principles underlying a constitutional right to reproduce would apply equally to all couples, including the coitally infertile). 
     .  The use of gamete donors and surrogates to form a family are more controversial because they deviate from the standard unity of genes, gestation, and rearing in a married couple.  Thus, sperm donation replaces the paternal genetic tie with an anonymous donor, but the couple then proceeds to rear as if the non-related husband were the father.  Egg donation is actually closest to normal triunal family relations, in that the woman has a gestational, though not a genetic tie.  Gestational surrogacy preserves the usual genetic tie between parents and offspring, though gestation is done by another.  Embryo donation has a gestational biologic tie but no genetic connection between rearing parents and child.  Surrogacy with egg donation, on the other hand, has no female genetic tie, but it does contain the usual paternal genetic tie.  Adoption, however, involves no biologic tie between offspring and rearing parents, nor does the use of assisted techniques in connection with a commissioned adoption. 
     .  For an elaboration of this argument, see John A. Robertson, Genetic Selection of Offspring Characteristics, 76 B.U. L. REV. 421, 424-32 (1996). 
     .  See ROBERTSON, supra note 86, at 40-42 (describing the emerging delineation of the boundaries of procreative liberty in light of new reproductive technologies). 
     .  Not every reproductive innovation will automatically be protected.  Posthumous reproduction, for example, involves fewer of the interests that make reproduction so important for people, and thus might not deserve the same respect that is owed to other forms of assisted reproduction.  See John A. Robertson, Posthumous Reproduction, 69 IND. L.J. 1027, 1031-32 (1994) (pointing out that posthumous reproduction lacks many of the important and valued features associated with the core reproductive experience, including the individual’s ability to rear the child). 
     .  See Robertson, supra note 91, at 479 (concluding that “[p]rebirth selection of offspring characteristics is a basic right because it may determine whether reproduction will or will not occur, and in most instances does not harm the offspring or other important interests”). 
     .  This Article emphasizes the rights of married couples because they will be perceived as having a stronger claim to have children than unmarried persons.  If their rights to clone are recognized, then the claims of unmarried persons to clone might follow. 
     .  Genetic selection techniques now in wide use include maternal alpha-fetal protein screening, ultrasound, chorion villus sampling, and amniocentesis.  These techniques identify an affected fetus and give parents the chance to terminate the pregnancy prior to birth.  Preimplantation screening of embryos avoids the need for abortion, but does discard embryos.  Preconception carrier screening allows couples who are both carriers of a genetic defect to plan among these various options in advance. 
     .  Because only nuclear DNA is transferred in cloning, DNA contained in the egg’s cytoplasm in the form of mitochondria is not cloned or replicated (it is in the case of cloning by embryo-splitting).  The resulting child is thus not a true clone, for its mitochondrial DNA will have come from the egg source, which will not usually be providing the nucleus for transfer.  See supra note 16.  Mitochondria DNA represents only a small portion of total DNA, perhaps 5%.  However, malfunctions can still cause serious disease.  See Douglas C. Wallace, Mitochondrial DNA in Aging and Disease, SCI. AM., Aug. 1997, at 40, 46 (reporting that random accumulation of mitochondrial DNA mutations over time could contribute to the common effects of aging-such as loss of memory, hearing, vision, and stamina-as well as to more serious disorders that debilitate the elderly). 
     .  See Robertson, supra note 91, at 436-39 (discussing the procreative liberty interests implicated in using prebirth selection technologies to achieve nontherapeutic enhancement or even intentional diminishment of offspring); see also discussion infra Part VI (describing the implications of other forms of prebirth genetic alteration that will make possible the specific alteration of genes). 
     .  Cloning embryos might also be done to provide tissue or organs for transplant to an existing child. 
     .  Again, it might be used to create an embryo or child from whom tissue or organs might be obtained for transplant to an existing child. 
     .  See Hecht v. Superior Court, 20 Cal. Rptr. 2d 275, 290 (Ct. App. 1993) (holding that surviving children have no right to prevent artificial insemination of their deceased father’s companion with stored sperm to which he gave her legal rights). 
     .  For further discussion of these points, see infra note 264 and accompanying text. 
     .  I am grateful to a colleague for this suggestion.  Other colleagues inform me, however, that they would not clone an existing child because they would want to see how the next child would differ from the first. 
     .  See supra note 49. 
     .  An even stronger case arises when the wife who will gestate also will provide the egg into which, after denucleation, the nuclear transfer occurs.  In that case, she will be providing some genetic material through mitochondria in the cytoplasm of the egg as well.  However, this scenario is not feasible if the wife or couple are candidates for egg or embryo donation because the woman lacks viable eggs. 
     .  Dena Davis uses the terms “logistical” and “duplicative” instead of my terms “facilitative” and “eugenic” to distinguish different reasons for cloning.  Dena S. Davis, What’s Wrong With Cloning, 38 JURIMETRICS J. 83, 85 (1997). 
     .  Strictly speaking, this could occur without the initiating or rearing couple actually choosing the DNA they receive, although it is likely that they will want to participate in that choice. 
     .  See infra subsection IV(B)(6)(d) (discussing the possible psychological and social difficulties arising from the rearing of a genetic replica of one’s parent).
     .  See ROBERTSON, supra note 86, at 38-40 (arguing that because infertile couples are just as capable as fertile couples to raise children, they possess a moral right to use nonconventional techniques to reproduce). =20 
     .  See supra notes 89-90 and accompanying text (asserting an infertile couple’s fundamental right to have children). 
     .  See John A. Robertson, Ethical and Legal Issues in Human Embryo Donation, 64 FERTILITY & STERILITY 885, 891-94 (1995) (arguing that embryo donation should be the legal equivalent of sperm and egg donations because in both the recipient and donor intend for the recipient to be the sole rearing parent and the donor to have no rearing role). 
     .  See Robertson, supra note 91, at 426-28 (suggesting that if the right to decide whether or not to reproduce constitutes a fundamental right, then obtaining information relevant to that decision falls within that right). 
     .  Although the logic of this view should regard cloning as fully reproductive because it transmits all, not just half, of a person’s genes, its proponents would likely claim that all reproduction is sexual and requires the joining of genes from two individuals. 
     .  Cloning of one’s own existing children might also occur when the couple is coitally fertile.  See supra subsection III(B)(1)(b). 
     .  See supra notes 81-83 and accompanying text (discussing fictional accounts portraying cloning as horrific). 
     .  Otherwise commissioned adoptions, in which a woman who is hired to be impregnated and who agrees to relinquish the child at birth to the hiring couple, would receive special protection.  The right to acquire children for rearing might be important, but it is not reproductive when there is no genetic or gestational involvement; at present it has no moral or constitutional standing as reproductive activity.  See ROBERTSON, supra note 86, at 142-44 (emphasizing the current necessity of a biological link to establish reproductive rights but imagining a time when preconceptual rearing commitments will be afforded more substantial protection). 
     .  See infra subsection V(B)(2)(a) (arguing that in most cases the consent of the gene source should be required). 
     .  See the discussion of the selfish gene, infra note 124 and accompanying text. 
     .  Reproduction tout court (without more) refers to genetic transmission without any rearing rights or duties in the resulting child, and in some cases, without knowledge that a child has even been born.  The courts have not yet determined whether engaging in or avoiding reproduction tout court deserves the same protection that more robust or involved forms of reproduction have.  For further discussion of the concept, see ROBERTSON, supra note 86, at 108-09 (arguing that recognition of a fundamental right to avoid genetic reproduction tout court may invalidate laws that mandate donation of embryos left over from IVF programs). 
     .  Whether their consent is necessary, because a clone will necessarily be another genetic child of theirs, is discussed infra notes 191-193. 
     .  Whether they have a right to prevent their offspring from being cloned is discussed infra 
subsection V(B)(2)(b). 
     .  Of course, this means that the other partner will not have a DNA connection with the child she rears, unless she also provides the egg and mitochondria. 
     .  RICHARD DAWKINS, THE SELFISH GENE 3 (new ed. 1989) (arguing that humans are biologically selfish creatures and must be taught generosity and altruism). 
     .  In the long run, cloning might not be adaptive, because genetic diversity is needed for long-term survival.  However, if the alternative is no genetic continuation at all, say because no reproduction occurs or a gamete donor is chosen, then cloning increases the chance of long-term survival of the cloned DNA more than no cloning at all.  Richard Dawkins would clone himself out of pure curiosity: “I find it a personally riveting thought that I could watch a small copy of myself . . . nurtured through the early decades of the twenty-first century.”  Peter Steinfels, Beliefs, N.Y. TIMES, July 12, 1997, at A9 (quoting Richard Dawkins). 
     .  See supra notes 2-6 and accompanying text (discussing political proposals for banning human cloning). 
     .  Less drastic regulation of human cloning to protect against specific harmful abuses of cloning technology is discussed infra subpart V(B).  The following analysis here in Part IV explores whether the alleged harms are sufficiently compelling to permit the government to prohibit cloning entirely. 
     .  David Heyd, who argues that one cannot be benefitted or burdened by being born, would formulate the point differently.  He would argue that even though one is not benefitted or burdened by being born, once born, one’s interests would support, depending on the circumstances, either continued life or the cessation of life.  Thus, one should not speak of interests in being born or avoiding being born, but whether, once born, one has interests in continued life.  See DAVID HEYD, GENETHICS: MORAL ISSUES IN THE CREATION OF PERSONS 124 (1992).  Whether one accepts Heyd’s version or the version in the text, the text’s conclusion provides that the most likely uses of cloning or other reproductive technologies would not lead to a life so full of net suffering that a person’s interest, once born, would be to die. 
     .  Tort law in the United States has almost universally rejected claims of wrongful life based on the birth of a child who could not have existed but with the condition of concern.  See, e.g., Smith v. Cote, 513 A.2d 341, 351-55 (N.H. 1986); Becker v. Schwartz, 386 N.E.2d 807, 811-12 (N.Y. 1978); Nelson v. Krusen, 678 S.W.2d 918, 924-25 (Tex. 1984) (all refusing to recognize a cause of action for wrongful life because, to assess injury in such an action, the court would be compelled to engage in a subjective calculation of the relative value of the plaintiff’s impaired life versus the allegedly higher value of nonexistence).  However, the California, Washington, and New Jersey supreme courts have allowed children to recover special, but not general, damages on a claim of wrongful life in situations in which their parents were able to recover both special and general damages for the child’s birth.  See Turpin v. Sortini, 643 P.2d 954, 959-66 (Cal. 1982); Procanik v. Cillo, 478 A.2d 755, 760-63 (N.J. 1984); Harbeson v. Parke-Davis, 656 P.2d 483, 494-97 (Wash. 1983) (all finding a cause of action based largely on the desire to avoid the anomaly of permitting only the parents, and not the child, to recover for the cost of the child’s own medical care).  The results in these cases, however, do not show support generally for a tort of wrongful life because they do not allow the child to recover for general damages, which should be awarded if her life is truly wrongful.  The cases are best understood as a means to assure that the tortfeasor internalizes the full costs of the tort. 
     .  See, e.g., Cynthia B. Cohen, “Give Me Children or I Shall Die!”: New Reproductive Technologies and Harm To Children, HASTINGS CTR. REP., Mar.-Apr. 1996, at 19; Dena S. Davis, Genetic Dilemmas and the Child’s Right To an Open Future, HASTINGS CTR. REP., Mar.-Apr. 1997, at 7; Ronald M. Green, Parental Autonomy and the Obligation Not to Harm One’s Child Genetically, 25 J.L. MED. & HEALTH CARE 5, 7-8, 11-13 (1997) (each defending on various grounds the theory that children are harmed by technologies that allow them to be born, but only in a “disabled” state).  A more rigorous account of this opposing view is found in Bonnie Steinbock & Ron McClamrock, When is Birth Unfair To the Child?, HASTINGS CTR. REP., Nov.-Dec. 1994, at 15, but they are inconsistent in not recognizing that the child whose existence they claim is unfair would not otherwise be born if 
the circumstance or practice in question did not exist. 
     .  See DEREK PARFIT, REASONS AND PERSONS 396-401, 487-90 (1984) (both arguing that causing the birth of a disabled child can wrong children as a class even though it does not harm that particular child to be born); Dan W. Brock, The Non-Identity Problem and Genetic Harms-The Case of Wrongful Handicaps, 9 BIOETHICS 269, 271-75 (1995). 
     .  See PARFIT, supra note 130, at 366-71; Brock, supra note 130, at 271-75. 
     .  See PARFIT, supra note 130, at 366-71; Brock, supra note 130, at 271-75. 
     .  The case is strongest if the condition were correctable and the parents refused correction, claiming that they would not have brought the child into the world if correction were required.  Even in that case it is difficult to say that the child is actually harmed, just as when diminishment occurs and the parents claim that they would not have otherwise gone forward with pregnancy unless they could diminish the child.  See Robertson, supra note 91, at 438-39 (arguing that deciding to have a child with a disability, or even positively selecting diminished characteristics, does less harm to the child once it is born than denying it existence).  Whether such action would be viewed as a valid expression of parental prerogatives is a separate issue. 
     .  Yet even proponents of the view that offspring welfare is best advanced by preventing their birth altogether do not claim that resulting children would actually experience net suffering, thus making their continued existence itself a wrong, just that their life is less whole or healthy than that of a child produced coitally. 
     .  Strictly speaking, prevention of the birth of cloned children in order to protect them does not harm them because they have never been in existence and thus cannot be harmed.  At the same time, preventing their birth cannot benefit them because no one exists to be benefited. 
     .  Again, lesser restrictions in certain cloning scenarios are discussed infra subpart V(B). 
     .  See Hearings, supra note 59, at 43 (statement of George J. Annas, Professor of Health Law, Boston University) (claiming that “cloning” would radically alter the very definition of what a human being is by producing the world’s first human with a single genetic parent). 
     .  See Council of Europe, supra note 67, at 1419 (citing harm to human dignity as a reason for banning cloning). 
     .  For an incisive critique of the European reliance on dignity, see John Harris, “Goodbye Dolly?” The Ethics of Human Cloning, 23 J. MED. ETHICS 353, 354-55 (1997) (claiming that appeals to human dignity do not provide sufficient justification for outlawing human cloning). 
     .  See NBAC CLONING REPORT, supra note 3, at 65-66. 
     .  See Lee M. Silver, REMAKING EDEN: CLONING AND BEYOND IN A BRAVE NEW WORLD 103-04 (1997). 
     .  See NBAC CLONING REPORT, supra note 3, at 65-66 (claiming that the risk of genetic abnormalities in a cloned child warrants a ban on cloning until more extensive research is undertaken regarding its risks). 
     .  See, e.g., Sheryl Gay Stolberg, FDA Stand on Cloning Raises Even More Questions, N.Y. TIMES, Jan. 21, 1998, at A14 (citing leaders in science and industry who contend that the prohibition of cloning is unnecessary if it is adequately regulated).  Would a couple’s procreative liberty include the right to attempt somatic cell nuclear transfer before animal and laboratory research provides evidence of safety and efficacy?  Although resulting children would not be harmed, because they have 
no other way to be born, it is less plausible to think that a couple seeking to clone is validly involved in the reproductive endeavor of having biologically-related children to rear when the procedure has not been shown to be safe and effective. 
     .  See NBAC CLONING REPORT, supra note 3, at 66-68 (presenting the arguments of ethicists who believe cloning poses a threat to human individuality).  The concern about individuality could arise from embryo splitting, if transfer of an embryo occurs after the birth of the first twin, or by nuclear transfer from an existing person. 
     .  In explaining his opposition, Dr. Wilmut said: “I think that each child should be treated as an individual; and if you have chosen to make a child, who is a copy of someone who is already here, you can’t possibly treat that child as an individual.”  When then asked about producing two Einsteins, he denied that they would be copies, thereby contradicting his earlier statement about individuality: “And so it is a fact . . . a confident prediction, that if we were to have genetically identical people, born at different times, they would work really to be quite different individuals.” CNN Larry King Live (CNN television broadcast, June 24, 1997) (transcript at 5-6, on file with the Texas Law Review). 
     .  See President’s Remarks, supra note 5, at 845. 
     .  This sense of unity or nonseparateness, despite physically separate bodies, is well-stated in Arundhati Roy’s The God of Small Things, where she describes the early relationship between the dizygotic twins who are main characters in her novel: 
In those early amorphous years when memory had only just begun, when life was full of Beginnings and no Ends, and Everything was Forever, Esthappen and Rahel thought of themselves together as Me, and separately, individually, as We or Us.  As though they were a rare breed of Siamese twins, physically separate, but with joint identities. 
ARUNDHATI ROY, THE GOD OF SMALL THINGS 3 (1997). 
     .  See Nancy L. Segal, Behavorial Aspects of Intergenerational Human Cloning: What Twins Tell Us, JURIMETRICS, Fall 1997, at 57, 65-67. 
     .  We are back to the paradoxical or ambivalent nature of genes, which was noted at the beginning of this Article.  See supra notes 8-9 and accompanying text (noting that genes do not entirely determine one’s personality but that environment and experience also play a role). 
     .  As ethicist and NBAC member Thomas M. Murray put it, a clone of Mel Gibson “may look a great deal like Mel Gibson. . . . [but] Mel’s clone could be very different from the original.”  Biotechnology and the Ethics of Cloning: How Far Should We Go?: Hearing Before the Subcomm. on Technology of the House Comm. on Science, 105th Cong. 25 (1997) (statement of Thomas M. Murray, Chairman, Genetics Testing Subcomm., NBAC). 
     .  This is likely to be true even if they have used the DNA of a previous child as a way to maintain or continue it after its death.  It is also likely to be true if the motivation for the cloning is to obtain tissue for transplant.  In that case the second child’s difference is precisely the reason it was brought into the world; it does not have the illness its tissue is used to treat. 
     .  Genes may allow one to say that a cadaver or physical body is person X or Y, but they will not control all the experiences that go into making up one’s personal identity. 
     .  See infra subsection V(B)(2)(c) (arguing that couples considering cloning should be fully informed about the medical and psychological challenges inherent in the cloning process). 
     .  See Robertson, supra note 91, at 479 n.239 (quoting James G. Dwyer, Parents’ Religion and Children’s Welfare: Debunking the Doctrine of Parents’ Rights, 82 CAL. L. REV 1371, 1446 (1994), for the proposition that [n]o one should possess a right to control the life of another person” (emphasis in original)). 
     .  See Noam J. Zohar, Prospects for “Genetic Therapy”-Can A Person Benefit From Being Altered?, 5 BIOETHICS 275, 285 (1991) (arguing that life histories alone do not account for individuality by stating that “[s]trictly speaking, any change in genotype constitutes an alteration of the individual”). 
(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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