Liberty, Identity, and Human Cloning

More notes and references:

  .  See HEYD, supra note 127, at 160-62, 168-77 (characterizing the formation of identity as a dynamic process crucially tied to both biological and social factors). 
     .  JONAS, supra note 77, at 161 (emphasis added). 
     .  Id. 
     .  Id. at 162 (emphasis in original).  Note that Joel Feinberg uses the term “open future” in a different way.  See Joel Feinberg, The Child’s Right To an Open Future, in WHOSE CHILD? CHILDREN’S RIGHTS, PARENTAL AUTHORITY, AND STATE POWER (William Aiken & Hugh LaFollette eds., 1980), reprinted in FREEDOM AND FULFILLMENT: PHILOSOPHICAL ESSAYS 76 (1992) (examining a subclass of rights generally characteristic of children, termed “rights-in-trust”).  To Feinberg, the denial of an open future refers to the withholding of the capacity or tools necessary to make autonomous choices, and not to the imposition of expectations or models that act to dictate or restrain future choice.  See id. at 76-77.  Using the Amish children in Wisconsin v. Yoder, 406 U.S. 205 (1972) as an example, he calls the failure to give a child the rudiments of knowledge needed to function in contemporary society a denial of the child’s right to an open future.  See id. at 85.  Another example would be genital mutilation or clitorectomy of girls at puberty, which denies them the ability to make later decisions about sexual pleasure.  See generally Catherine L. Annas, Irreversible Error: The Power and Prejudice of Female Genital Mutilation, 12 J. CONTEMP. HEALTH L. & POL’Y 325 (1996) (evaluating the legal theories and policy recommendations regarding the act of female genital mutilation); Colloquy, Bridging Society, Culture, and Law: The Issue of Female Circumcision, 47 CASE W. RES. L. REV. 263 (1997) (examining the tension between universal rights and the cultural practice of female genital mutilation). 
     .  Except that they have died or were never born, which could, in some cases, be significant. 
     .  The phrase “chip off the old block” refers to both physical and nonbiologic similarities between parent and child.  Our traditions of parental and family autonomy give parents wide discretion in rearing children that allows them to mold their children to their own ideas.  Abuses can occur, as exemplified by the image of the Little League father, who expects his son to be a baseball star, or the stage mother, who forces her child into an acting or theatrical career, when the children in both cases would simply like to do something else. 
     .  Of course, not every use of cloning will reflect the model of responsibility suggested in the text.  But the possibility of abuse in a few cases is not a compelling reason to ban cloning in all cases, for fundamental procreative liberties are involved.  More limited regulation can guard against the abuses.  See infra subpart V(B) (addressing the policy issues implicated if cloning is determined to be safe and effective for humans). 
     .  See NBAC CLONING REPORT, supra note 3, at 72-74 (discussing the concern that cloning may amount to objectifying cloned children, rather than treating them as full persons). 
     .  See HUXLEY, supra note 71. 
     .  Although it would not follow that such individuals would be harmed, given that they have no alternative way to be born, the choice to do so would not easily be viewed as a legitimate exercise of procreative liberty or good parenting.  See supra notes 134-135. 
     .  Even if the clones in these situations would not themselves be harmed because they would have no other way to exist, it is clear that producing them would not be an exercise of anyone’s procreative freedom, and thus cloning for such purposes might rationally be banned to symbolize respect for persons or other ideals. 
     .  For further discussion of this case, see ROBERTSON, supra note 86, at 214-17. 
     .  Id. at 214. 
     .  Id. 
     .  Id. 
     .  Id. 
     .  For accounts of other cases, see Warren Kearney & Arthur L. Caplan, Parity for the Donation of Bone Marrow: Ethical and Policy Considerations, in 1 EMERGING ISSUES IN BIOMEDICAL POLICY 262, 263 (Robert H. Blank & Andrea L. Bonnicksen eds., 1992) (reporting that at least forty known cases of couples conceiving a child in the hope of creating a marrow donor preceded the much publicized Ayala conception). 
     .  See Strunk v. Strunk, 445 S.W.2d 145, 148-49 (Ky. 1969) (holding that a retarded person could serve as a kidney donor for his brother when the donation would benefit the incompetent donor).  The required benefit need not be a physical one.  Allowing the transplant may be appropriate when proof establishes that the psychological benefits that will flow to the incompetent donor as a result of the operation would outweigh the possible physical harm.  For example, the court in Strunk authorized the transplant largely because of the overwhelming psychiatric evidence that the death of the donee in the absence of the transplant would have an extremely traumatic effect on the incompetent donor.  See id. at 146-47; see also Charles H. Baron et al., Live Organ and Tissue Transplants from Minor Donors in Massachusetts, 55 B.U. L. REV. 159, 170-71, 178-81 (1975) (discussing Massachusetts’s use of the “best interests test,” which attempts to balance the psychological benefit to the incompetent donor against the physical harm he suffers in donating an organ or tissue to determine whether the operation is in his best interest).  Thus, in our scenario, the resulting child cannot automatically be used as a tissue donor for some other person when it will not be benefitted, as it may be by tissue donation to an ill sibling or family member. 
     .  See supra notes 53-54 (contending that for transplantation purposes the use of embryonic stem cells ultimately will become more acceptable than the use of fetal tissue or organs). 
     .  A variation on this issue would be the creation of headless or brainless embryos, fetuses, or bodies to serve as tissue or organ sources.  Without a brain or head, no rights-bearing entity or person 
would exist, making clear that the harm done by harvesting organs from such creatures would be a symbolic one.  Another variation would be the use of cow eggs to create the cloned embryos or fetuses from which tissue or organs are ultimately derived.  See Goldberg & Kolata, supra note 29, at . 
     .  See ROBERTSON, supra note 86, at 198-202, 207-14 (discussing the controversies surrounding embryo research and the use of fetal tissue that comes from abortions for transplants). 
     .  Enabling an existing child to live through tissue transplanted from a later born twin promotes the ability to continue to rear that child.  Note also that the concerns about objectification would not suffice to ban the production of embryos or fetuses from whom tissue is harvested before they are born.  Although the right to reproduce may not be directly applicable because no child is ever born, “farming the uterus” does involve use of the couple’s reproductive capacity and should be protected in its own right.  See Robertson, supra note 86, at 197, 207-14, 217-19 (discussing the ethical issues involved in using aborted fetal tissue for a transplant); see also ROBERTSON, infra note 235 (positing that a restriction on designated donation of fetal tissue would violate fundamental procreative rights). 
     .  See NBAC CLONING REPORT, supra note 3, at 70 (describing several examples in which cloning potentially could threaten family stability). 
     .  The argument against cloning based on confusion of kinship has taken this extreme form, even though regulations that do not require prohibition of all forms or instances of cloning are also possible.  See infra subpart V(B). 
     .  In coital reproduction, the genetic and gestational mother is necessarily the same.  In egg donation, the genetic and gestational mothers are different, but one woman provides all the DNA.  In nuclear transfer cloning, there is the possibility of two different women providing DNA, with the source of the nuclear DNA providing more, and either of the DNA sources or another gestating.  If we add rearing, a fourth maternal role is created. 
     .  The person providing nuclear DNA could be male or female.  In either case, the genetic mother of the nuclear DNA donor would be the genetic mother of the resulting clone. 
     .  The genetic mother’s role is nevertheless novel in that her contribution of chromosomes that are then expressed in her child occurs prior to her contribution of cytoplasm and mitochondria.  It is unclear whether this distinction is important, although it does require that the egg source have eggs retrieved from her. 
     .  In this situation it is highly unlikely that the wife would provide the egg into which the transferred nucleus is placed, for a female ovarian or genetic factor is likely to have led to the need for an embryo donation in the first place. 
     .  I am ignoring for the moment the egg source who provides cytoplasm and mitochondria.  That role is discussed infra in text accompanying note 186. 
     .  There will be, however, a question of lineage or kinship between the child and the clone source and the clone source’s parents.  But that question is no more charged, and in some cases may be less charged, than the relation of the child of donor gametes or embryos to its genetic parent(s). 
     .  The ability to mature oocytes in vitro would obviate the need for another woman to undergo an IVF cycle to provide the eggs needed to receive the transferred nucleus. 
     .  There might be situations in which a woman’s egg cannot be used, not because of a lack of viability, but because she is a carrier of genetic disease.  She might be able to provide a viable egg for insertion of the DNA of an unrelated third party, thus eliminating the need for donor eggs to accomplish the cloning. 
     .  The question of the clone source’s parents’ right to object to cloning of their child is discussed infra notes 275-277. 
     .  Many variations are possible here, with varying degrees of kin involvement.  Most involvement would occur if the gamete or clone source were an openly acknowledged family member. 
     .  This will depend upon whether the consent of the clone source is sufficient to authorize cloning.  See infra subsection V(B)(2)(b). 
     .  One could foresee a conflict between the clone source and her parents on this issue.  The question would be whether the clone source’s interest in replicating herself through donating her DNA should take priority over her parents’ wishes not to have another genetic child. 
     .  A person’s willingness to use their own cells as a clone source will depend on many factors, including their assessment of their own health status.  For example, a person who suffers from depression, breast cancer, or some other ailment might be hesitant to clone themselves, even if they have no other way to have a biologic tie with the children whom they rear.  (I am indebted to Margot Wellner for this point). 
     .  This result should follow even if they have consented to the cloning of their offspring.  Grandparents are not, however, without rights in situations where rearing relations have already existed.  See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 504-06 (1977) (recognizing that constitutional protection of the sanctity of the family can extend to the rearing grandmother). 
     .  The situation of the wife providing the source DNA presents additional variations, including whether she also provides the egg and gestation or only one or the other. 
     .  The child’s nuclear genetic mother is his rearing father’s mother.  In this case, she might function socially as the child’s grandmother. 
     .  See supra note 180 (identifying the four female aspects of motherhood as the major genetic 
mother, the minor genetic mother, the gestating mother, and the rearing mother). 
     .  Other complexities would arise if the couple divorces, and the non-cloned partner (i.e., wife) cannot view the child as truly distinct from the cloning-and divorcing-partner (husband). 
     .  In one respect it would be less problematic: the couple will not have had experience with their parent as a child, and thus would not have as direct a point of comparison as they would if they had cloned an existing or dead child. 
     .  To avoid overcomplicating the analysis, I will not address it. 
     .  A common cause of family pathology arises when young children are asked to “parent” their parents, as might arise with illness, alcoholism, or disability.  The social and psychological reality of parenting a baby or young child who has one’s parents’ genes, but who in every other respect is an infant and not one’s parent, seems quite different, if only in the much greater capacity of the child (social parent) to nurture and rear his parent (child). 
     .  Similar issues occasionally confront physicians providing assisted reproduction.  Patients needing donor sperm or eggs have on rare occasions requested that their father or mother be the gamete donor.  In the case of the father being the donor, the man’s wife would be inseminated with her husband’s father’s sperm.  The resulting child would be the half-sibling of the husband, and the genetic child of the social grandfather.  Most clinics would probably reject the request, although they might accept a mother’s willingness to gestate the embryo of an infertile couple needing a gestational surrogate.  Cf. Lorna A. Marshall, Intergenerational Gamete Donation: Ethical and Societal Implications, 178 AMER. J. OBSTET. & GYN. (forthcoming June 1998) (manuscript at 14-15, on file with the Texas Law Review) (analyzing the ethical issues surrounding intrafamilial gamete donation); Frank Bruni, The Gods of Fertility: For Reproduction Doctors, the Science Is the Easy Part, N.Y. TIMES, July 8, 1997, at B1 (reporting that clinics establish their own ethical parameters for the patients they accept and that at least one clinic will not impregnate a woman with the sperm of her father-in-law). 
     .  As noted earlier, one does not have a right to use any means of acquiring children for rearing.  See supra note 116 and accompanying text (stating that “we have not yet recognized a right 
to obtain a child for rearing when there is no gestation or other biological connection involved”). 
     .  See Robertson, supra note 93, at 1028-30 (surveying the unsettled areas of procreative rights jurisprudence). 
     .  See NBAC CLONING REPORT, supra note 3, at 74-75 (pointing out that determining which human traits and characteristics are to be favored requires an assumption that is based on selective superiority, which has long been linked to racist thinking). 
     .  Between 1907 and 1963, more than 60,000 persons were sterilized under state involuntary sterilization laws.  See PHILIP R. REILLY, THE SURGICAL SOLUTION: A HISTORY OF INVOLUNTARY STERILIZATION IN THE UNITED STATES 94 (1991).  Consciously modeled on the United States’s program, the Nazi sterilization program soon eclipsed similar American activities.  From 1933 to 1945, the Nazis sterilized an estimated 3,500,000 people.  See id. at 105-10. 
     .  See HUXLEY, supra note 71. 
     .  See MARGARET ATWOOD, THE HANDMAID’S TALE (1986) (depicting a future dystopia in which society enslaves women as institutionalized surrogates). 
     .  Indeed, if practiced on a wide scale, it would reduce the overall genetic fitness of the population that is the purported goal of such a policy. 
     .  It could not require, however, that persons then act on that information, for that would violate reproductive rights or rights of bodily integrity.  See Robertson, supra note 91, at 468-74 (arguing that procreative liberty should protect against government efforts that force individuals to take into account genetic information when making reproductive decisions). 
     .  For a discussion of issues that such policies would raise, see ROBERTSON, supra note 86, at 173-94 (concluding that ultimately the state’s role in encouraging proper prenatal care should be in providing education, counseling, and treatment services rather than imposing coercive sanctions, except in the most egregious cases). 
     .  At the time of the eugenic sterilization movement, reproductive rights and bodily integrity were not considered to be constitutionally protected.  See Buck v. Bell, 274 U.S. 200, 207 (1927) (upholding a state compulsory sterilization statute rationalized by a eugenic policy: “Three generations of imbeciles are enough.”).  Today, courts recognize these interests as within the constitutionally protected realm of privacy.  See, e.g., In re Moe, 432 N.E.2d 712, 719-20 (Mass. 1982); In re Grady, 426 A.2d 467, 473-75 (N.J. 1981); In re Guardianship of Hayes, 608 P.2d 635, 639-41 (Wash. 1980); In re Guardianship of Eberhardy, 307 N.W.2d 881, 891-94 (Wis. 1981) (all recognizing that an incompetent individual could only be sterilized for therapeutic contraceptive purposes, not eugenic ones, and then only if it were clearly shown to be in the incompetent’s best interest-that is, she would choose the procedure herself if she were competent to do so). 
     .  A related set of issues would arise if the government required that only DNA certified as meeting a standard of genetic acceptability could be cloned. 
     .  See Rochelle Cooper Dreyfuss & Dorothy Nelkin, The Jurisprudence of Genetics, 45 VAND. L. REV. 313, 313-14 (1992) (summarizing several developments in diagnostic technology that have heightened public interest in genetics). 
     .  See discussion supra notes 58-60 and accompanying text (discussing the potential benefits associated with cloning research on animals). 
     .  See, e.g., Ethics and Theology: A Continuation of the National Discussion on Human 
Cloning: Hearing Before the Subcomm. on Public Health and Safety of the Senate Comm. on Labor and Human Resources, 105th Cong. 43-44 (1997) [hereinafter Ethics and Theology] (statement of Edmund D. Pellegrino, M.D.) (premising his moral objections to human cloning research on the deliberate manufacture, manipulation, and destruction of human embryos that would occur). 
     .  The NBAC, for example, cited a high rate of expected damage to oocytes, embryos, and fetuses, in addition to children, as a reason for finding the use of somatic cell nuclear transfer cloning to be morally unacceptable at this time.  See NBAC CLONING REPORT, supra note 3, at 65. 
     .  See NBAC CLONING REPORT, supra note 3, at 64. 
     .  See id. (discussing the Report of the Human Embryo Research Panel, published by the National Institutes of Health in 1994). 
     .  See id. 
     .  See Eliot Marshall, Varmus Grilled over Breach of Embryo Research Ban, 276 SCIENCE 1963, 1963 (1997) (summarizing the NIH findings, executive order, and legislative ban on research endangering human embryos).  That Congress was serious about this ban became clear when it was discovered that Mark Hughes, a leading researcher in the field of preimplantation genetic diagnosis who had moved to NIH and member of the NIH Embryo Research Panel, was using government equipment and time to conduct genetic studies on cells removed from embryos.  See id.  A congressional committee held hearings on this violation of the ban on any embryo research, and Mr. Hughes was forced to resign.  See id. 
     .  See NBAC CLONING REPORT, supra note 3, at 64. 
     .  See Ethics and Theology, supra note 215, at 17-20 (statement of John M. Haas, Ph.D., S.T.L.), 43-44 (statement of Edmund D. Pellegrino, M.D.) (both objecting to human cloning on moral grounds and urging a federal ban on research to develop technology that will necessarily involve the destruction of embryonic life). 
     .  The bills are those of Congressman Vernon Ehlers (R-Mich.) and Senator Christopher Bond (R-Mo.).  See Stolberg, supra note 75; see also Nicholas Wade, Senate Plans to Weigh Ban on Cloning, N.Y. TIMES, Feb. 10, 1998, at A16 (noting the Senate’s intention to consider legislation that would ban human cloning). 
     .  A strong argument against the constitutionality of such a ban would exist if its purpose is to prevent the development of knowledge about human cloning because of fears about the uses to which that knowledge would lead.  See John A. Robertson, The Scientist’s Right to Research: A Constitutional Analysis, 51 S. CAL. L. REV. 1203, 1281 (1978) (asserting First Amendment protection on DNA research and advocating against onerous legislative restrictions on such research). 
     .  A physician or couple would want to know if embryos formed by nuclear transfer cleave and grow properly before making a decision to place them in the uterus. 
     .  An additional reason to avoid a ban on private-sector cloning research is the difficulty in drafting a precise statute that would not also deter other beneficial biomedical research.  See The Prohibition of Federal Government Funding of Human Cloning Research: Hearings Before the Subcomm. on Technology of the House Comm. on Science, 105th Cong. (July 22, 1997) available in= 
 <http://commdocs.house.gov/committees/science/hsy203170.000/hsy203170_0f.htm> (1998) [hereinafter Legislative Proposals] (statement of Alison Taunton-Rigby, Ph.D., Biotechnology Industry Organization) (recounting ambiguities and inconsistencies in Clinton, Ehlers, and Bond bills banning human cloning). 
     .  An egg will be enucleated, and DNA inserted into it and then activated.  This will produce a preimplantation human embryo, which will be placed in the uterus at the four-to-eight cell stage.  Strictly speaking, no manipulation or alteration of embryos has occurred because only eggs and somatic cells have been altered.  Because embryos created by somatic cell nuclear transfer cloning result from manipulation of genes and cells but not of embryos themselves, this form of cloning does not violate the Human Fertilisation and Embryology Act in Great Britain, which prohibits “cloning of an embryo.”=20 
Even though a zygote or embryo results, the procedure has produced a clone of a somatic cell, not a clone of an embryo.  Nuclear transfer cloning of embryos, however, would be a different matter.  Although not prohibited, such cloning would still fall within the jurisdiction of the Human Fertilisation and Embryology Authority (HFEA) because it involves the creation of embryos outside the body, and thus requires a license from the HFEA to be lawfully performed.  See Human Fertilisation and Embryology Act of 1990, ch. 37, =A7 11(1) (United Kingdom) (1990); see also Pat Walsh & Andrew Grubb, I Want to Be Alone, DISPATCHES, Spring 1997, at 1-6.  In any event, creation of embryos or fetuses to serve as a source of organs or tissue for transplant does raises issues of respect for prenatal life.  See discussion supra at Part II(A)(2)(b) (discussing issues related to medical use of embryonic cells). 
     .  See NBAC CLONING REPORT, supra note 3, at 104 tbl.1. 
     .  See id. at 109.  The NBAC’s argument for a ban on human cloning was based on the “virtually universal concern regarding the current safety of attempting to use this technique in human beings.”  Id. at 65.  It concluded that “[a]t this time, the significant risks to the fetus and physical well being of a child created by somatic cell nuclear transplantation cloning outweigh arguably beneficial uses of the technique.”  Id. 
     .  The President’s message calling for a five-year legislative ban noted, in addition to safety concerns, that human cloning could “threaten the sacred family bonds at the very core of our ideals and our society. . . .  [a]nd it could lead to misguided and malevolent attempts to select certain traits . . . to make our children objects rather than cherished individuals.”  President’s Remarks, supra note 5, at 845. 
     .  See Stolberg, supra note 75.  One bill now pending in Congress calls for a ten-year criminal ban.  Other bills call for a permanent ban.  See supra note 65. 
     .  See NBAC CLONING REPORT, supra note 3, at 95-102 (surveying the various policy options before settling on their recommendation for a federal criminal law against human cloning). 
     .  New drugs or devices, however, are regulated by the Food and Drug Administration.  See id. at 99. 
     .  See National Organ Transplant Act of 1984 =A7 301, 42 U.S.C. =A7 274e (1994). 
     .  See National Institutes of Health Revitalization Act of 1993 =A7 112, 42 U.S.C. =A7 289g-2 (1994).  This provision was added as part of a legislative compromise to enable federal funding of fetal tissue transplantation research to occur, and it is arguably unconstitutional.  See John A. Robertson, Abortion to Obtain Fetal Tissue for Transplant, 27 SUFFOLK U. L. REV. 1359, 1379-85 (1993) (arguing that the state does not have a compellng interest in preventing designated donations of fetal tissue sufficient to justify the ban’s infringement upon a woman’s fundamental right to terminate a pregnancy for any motive whatsoever). 
     .  For example, federal regulation of human-subjects research has historically occurred through the conditional spending power.  See John A. Robertson, The Law of Institutional Review Boards, 26 U.C.L.A. L. REV. 484, 498-502 (1979) (describing how Congress uses the conditional spending power to review nonfederally funded research activities involving human subjects by conditioning the receipt of federal grant money for any activity on across-the-board compliance with federal institutional review board standards).  More recent innovations include conditioning the receipt of Medicare funds upon hospitals’ compliance with notification regulations that require them to actively inform patients of their state-law rights to make advance directives concerning health care decisions (e.g., living wills).  See 42 U.S.C. =A7=A7 1395cc(f), 1396a(w) (1994). 
     .  On April 30, 1997, however, President Clinton signed the Assisted Suicide Funding Restriction Act of 1997, which prohibits the use of federal funds in support of physician-assisted suicide.  See Assisted Suicide Funding Restriction Act of 1997, Pub. L. 105-12, 111 Stat. 23 (codified in relevant part at 42 U.S.C. =A7=A7 14401-14408 (West Supp. 1997)). 
     .  Rather than find existence preferable to nonexistence as those who reject the wrongful life argument do, the NBAC report makes the opposite judgment: nonexistence is preferable to existence.  See NBAC CLONING REPORT, supra note 3, at 65-66 (refusing to accept the “metaphysical argument” that it is “beneficial” for the child to be brought into this world from nonexistence and finding that the physical risks to the fetus and child outweigh the “arguably beneficial uses” of human cloning).  Indeed, in concluding that it is in children’s interest not to be born, the NBAC accepted, without realizing, the very possibility of comparing life with nonlife that it went to great pains to reject.  See id. 
     .  Richard Seed’s proposal to offer human cloning notwithstanding, the overwhelming reaction of scientists and doctors was to call for a moratorium on human cloning until safety and efficacy is established.  See Wade, supra note 223; supra notes 74-75. 
     .  As NBAC member and biotechnology executive Dr. Steven H. Holtzman put it, “[T]here’s a very human tendency to know what you want to do but not be clear necessarily about why.”  Gina Kolata, Commission on Cloning: Ready-Made Controversy, N.Y. TIMES, June 9, 1997, at A12. 
     .  For example, Congressman Ehler’s bill to ban cloning has no time limit.  See Stolberg, supra note 65 (noting that Ehler’s two proposed bills would permanently bar federal and private sector funding for cloning studies). 
     .  There is also the danger that the enacted language will apply to non-cloning practices that involve nuclear or cytoplasmic transplant.  For example, the California ban on cloning bans all “nuclear transfer,” thus making it a crime to transfer the nucleus of an older woman’s egg into an enucleated younger donor egg, which would then be fertilized, as a treatment for cytoplasmic inadequacy or mitochondrial disease.  Although not “cloning,” nuclear transfer treatments for female infertility are thus prohibited by the California law.  See Act of Oct. 4, 1997, ch. 688, 1997 Legis. Serv. 3790 (codified as amended in scattered sections of the CAL. BUS. & PROF. CODE and the CAL. HEALTH & SAFETY CODE). 
     .  This point was strongly made in hearings before the Subcommittee on Health and Environment of the House Commerce Committee.  See Legislative Proposals, supra note 226 (testimony of Michael D. West). 
     .  There is also a question of federalism.  Even if criminal sanctions for cloning were warranted, it does not follow that the federal government should enact them.  Matters of family, procreation, and children are generally left to the states unless the states are incapable of handling a problem or national uniformity of law is needed.  Even then, out of respect for state discretion, federal action usually occurs as an exercise of the conditional spending power and not through federal criminal law directly preempting state action.  See, e.g., Child Abuse Amendments of 1984 =A7 307, 42 U.S.C. =A7 10406 (1994) (requiring states, as a condition of receiving federal child abuse prevention funds, to comply with federal standards for ensuring that handicapped newborns are not denied life-sustaining medical treatment); Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program, 42 U.S.C. =A7 14071 (1994) (requiring states to give communities notice of the release of sex offenders in order to receive certain kinds of federal funding).  But see Civil Rights Remedies for Gender-Motivated Violence Act of 1994, 42 U.S.C. =A7 13981 (1994) (providing federal civil rights remedies for crimes of violence against women that involve interstate commerce).  A federal ban on cloning would also have to comply with recent Supreme Court decisions striking down federal legislation because of an insufficient commerce clause connection.  See United States v. Lopez, 514 U.S. 549, 567-68 (1995) (invalidating the Gun-Free School Zones Act). 
     .  See NBAC CLONING REPORT, supra note 3, at 81, 79-81 (“It may be that a policy which prohibited the creation of children [through] somatic cell nuclear transfer cloning would ban a handful of scenarios for which some people feel sympathy.  Nonetheless, it may be necessary to forbid the practice overall to protect other crucial societal values.”). 
     .  An egg donor, however, might still be needed to provide the enucleated egg into which the cloned DNA would be placed.  See supra text accompanying note 186 (noting the need to induce a donor egg cycle in another woman if the gestating woman does not provide the egg). 
     .  One is reminded of the statement in Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992): “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.  Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the State.” 
     .  See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (characterizing procreation as “one of the basic civil rights of man”).  As Justice Brennan noted in Eisenstadt v. Baird, 405 U.S. 438, 453 (1972): “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” (emphasis in original). 
     .  See, e.g., Washington v. Glucksberg, 117 S. Ct. 2258, 2267 (1997) (citing Skinner, 316 U.S. at 535, for the proposition that the “liberty” interest protected by the Due Process Clause includes the right “to have children”). 
     .  ROBERTSON, supra note 86, at 35-40 (discussing the history and breadth of the legal right to reproduce and arguing that such a right includes unconventional means). 
     .  See Robertson, supra note 91, at 424-29 (arguing that prebirth selection represents part of the basic liberty to make decisions about reproduction). 
     .  See, e.g., Glucksberg, 117 S. Ct. at 2271 (refusing to find a fundamental liberty interest to assisted suicide); Bowers v. Hardwick, 478 U.S. 186, 194-95 (1986) (refusing to recognize consensual homosexual sodomy as a fundamental right). 
     .  See THE BOYS FROM BRAZIL, supra note 83. 
     .  See HUXLEY, supra note 71. 
     .  See James Q. Wilson, The Paradox of Cloning, WKLY. STANDARD, May 26, 1997, at 23-27. 
     .  First, if the initiator is arranging for the clone of a third party, as in The Boys From Brazil, and is not cloning himself, he is not reproducing.  Second, the interest in helping others rear or choose the genome of whom they rear is not a fundamental interest or right.  The situation is different if the initiator is acting as the agent of a couple who will rear; but then it is the couple’s liberty interest which is at stake and not that of the initiator as such.  See supra subsection III(B)(1)(c)(1)(b). 
     .  See supra subsection III(B)(1)(d) (arguing for the right to clone oneself absent harm to the child or others so long as rearing is intended and rationalizing this as a variation on existing practices such as gamete donation and existing beliefs such as general reproductive freedom). 
     .  For example, persons are presently not obliged to submit to preconception genetic screening, nor are pregnant women required to have fetuses screened for genetic disease, even though both of these actions could prevent the birth of a disabled or diseased child. 
     .  See supra subsection IV(B)(6)(d) (suggesting that the psychological confusion that might result could be surmountable with proper counseling, but noting the extreme novelty of the situation and advising that if not genuinely an exercise of procreative liberty, cloning might rationally be banned). 
     .  See Marshall, supra note 201 (manuscript at 14). 
     .  See Wilson, supra note 255, at 24. 
     .  Cloning would enable one partner to provide egg and mitochondrial DNA, and the other, nuclear DNA, with either partner gestating.  The resulting biologic relations will make each partner a “parent” for purposes of determining child-rearing rights and duties in the event of separation.  See ROBERTSON, supra note 86, at 134-35. 
     .  It could be an issue when the cloned embryo is transferred to the uterus, because that could create a later born identical twin for the existing child. 
     .  This situation may be contrasted with the testing of children for late-onset genetic diseases, such as Huntington’s disease or the BRCA1 gene for breast cancer.  Ethical standards now require that no testing of minors occur without their consent, because of the heavy impact that such knowledge could have on them later in life.  See Dorothy Wertz et al., Genetic Testing for Children and Adolescents, 272 JAMA 875, 879 (1994) (stating that a physcian must reject a request for genetic testing if he or she believes it would serve no useful purpose and may cause injury); see also Benjamin S. Wilford et al., American Soc’y of Human Genetics and Am. College of Med. Genetics, Points to Consider: Ethical, Legal, and Psychological Implications of Genetic Testing in Children and Adolescents, 57 AM. J. HUMAN GENETICS 1233, 1233 (1995) (arguing that genetic testing should be deferred in cases involving adult-onset disease).  Having a later born identical twin does not pose the same risks of harm to the existing child. 
     .  Even a slight brush might be sufficient to dislodge cells from skin or hair from which somatic cell nuclei could be recovered. 
     .  Cf. Malcolm Ritter, People Trail DNA Behind Them, Researchers Say, AUSTIN AM. STATESMAN, June 19, 1997, at A17 (describing how DNA can be transferred to the surfaces of objects touched during the course of ordinary activities). 
     .  Fourth Amendment law, however, allows the government to search garbage and trash cans on the street prior to pick-up on the theory that there is no reasonable expectation of privacy in one’s trash.  See California v. Greenwood, 486 U.S. 35, 39-40 (1988).  This precedent would allow the state to recover DNA from garbage or other sources for law enforcement purposes. 
     .  The leading case on rights in one’s cells,  Moore v. Regents of the University of California, 793 P.2d 479 (Cal. 1990), denies a property right in spleen cells but recognizes a right of informed consent to the taking of the cells when the doctor has a fiduciary interest in their use.  See id. at 485, 491-92.  That case could accommodate damages for unconsented cloning tout court on either a property, privacy, or informed consent theory. 
     .  Note that the argument concerning the right of consent of the DNA source is not a constitutional one.  At most reproduction tout court is occurring, and the interests implicated may not warrant independent constitutional protection.  See supra notes 119-121 and accompanying text (arguing that because such reproduction involved genetic transmission without rearing duties or rights, the source of the DNA may not have a right to permit the cloning to occur except as it derives from the initiator’s right to make the clone). 
     .  I am indebted to an unpublished paper by Neil Netanel on the right of publicity for elucidation of this issue. 
     .  However, the purchaser of the celebrity’s DNA for cloning should remember that the source’s investment in developing his talents may be more responsible for his success than his DNA. 
     .  See, e.g., National Organ Transplant Act of 1984 =A7 301, 42 U.S.C. =A7 274e (1994) (making it a federal felony to buy and sell human organs). 
     .  Unless the person is only recently deceased, their DNA may no longer be living and will thus not be able to serve as the source of DNA for nuclear transfer cloning. 
     .  See Kenneth E. Spahn, The Right of Publicity: A Matter of Privacy, Property, or Public Domain?, 19 NOVA L. REV. 1013, 1036-38 (1995) (observing that whether a person’s rights in his likeness or identity are descendible depends upon whether the court interprets such interests as privacy rights, which terminate at death, or property rights, which pass to the estate). 
     .  A similar issue arises in disputes between divorcing couples over the disposition of frozen embryos.  See Davis v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992) (holding that when a dispute arises over custody of pre-embryos, competing interests will be weighed and the party who wishes to avoid procreation, while not having an automatic veto power, should prevail unless the other party has no other reasonable means of achieving parenthood). 
     .  The nonconsenting twin will have a genetic heir of the same degree as if he had chosen to reproduce himself.  (I am indebted to Einer Kluge for this example.) 
     .  A right of confidentiality should also apply.  The information is personal, part of medical records, and should be kept private. 
     .  If comprehensive cloning legislation is being considered, then clarifying this point might be worthwhile.  In addition, if the egg source is a donor, legislation that bars her from any rearing rights or duties would also be desirable. 
     .  See TEX. FAM. CODE ANN. =A7 151.103 (West 1997) (stating that the resulting child from embryo implantation is the child of the birth couple and not the child of the donor or donors of the preimplantation embryo); see also Robertson, supra note 111, at 891 (stating that Texas and Florida, currently the only states to explicitly recognize embryo donation, both designate the recipient woman and her spouse as the parents, but they do not address the enforceability of arrangements whereby donors and recipients share in raising the offspring). 
     .  In sperm donation, the consenting husband is the legal father for all purposes and the sperm donor none.  See ROBERTSON, supra note 86, at 127-28 (noting that this rule is established by statutes and court holdings in more than thirty states). 
     .  Cf. id. at 123-25 (surveying the policy issues confronted when regarding the question of secrecy versus disclosure of gamete sources in the related practice of sperm or egg donation). 
     .  It would also reduce the risk that cloning could affect diversity or cause other problems that could arise with too many individuals with the same genome, for example a town or community consisting of multiple clones of the same nuclear DNA.  See JONATHAN GLOVER,WHAT SORT OF PEOPLE SHOULD THERE BE? 36-37 (1984). 
     .  One assumes that the fact of somatic cell nuclear transfer as the source of a child’s DNA will be kept confidential.  Even if the child is eventually told, there is no reason why later uses of the same DNA will be revealed to children or their parents.  Of course, they may meet other children born with the same DNA in the normal course of life, and thus might learn in that way. 
     .  See supra subsection III(B)(1)(c)(2) (arguing that a right to be cloned tout court will not be legally or morally protected but seen only as derivative of the right of the initiator to choose a DNA source). 
     .  American Fertility Soc’y, Guidelines for Gamete Donation, 59 FERTILITY AND STERILITY 1S, 4S-9S (1993).  It is unknown how this guideline is enforced.  Presumably it would be admissible as proof of the standard of care in a malpractice action against a clinic that so overused a particular donor that offspring inadvertently married their half-siblings. 
     .  Human Fertilisation and Embryology Act of 1990, ch. 37, =A7 3(1)(a) (United Kingdom) (1990) (prohibiting the creation of an embryo through cloning).  Under the authorizing legislation, cloning of an “embryo” is not permitted.  See id.; Walsh & Grubb, supra note 227, at 2.=20 
     .  See NBAC CLONING REPORT, supra note 3, at 96-100 (suggesting that a private moratorium on human cloning would most likely result in high levels of compliance and would provide more adequate guidance to the courts). 
     .  Duties of confidentiality to children and families might prevent such research from occurring. 
     .  Estimates indicate that over 60% of all pregnancies in the United States are now screened for some kind of genetic malformation.  See ROBERTSON, supra note 86, at 149. 
     .  Other potential techniques, such as chimerization, fetal mating, testicular transplant, and transgenic humans, are discussed in Silver, supra note 141, at 165, 171, 195. 
     .  See W. French Anderson, Prospects for Human Gene Therapy, 226 SCIENCE 401, 407 (1984) (discussing vectors for gene therapy and problems of genes rearranging their own structure or exchanging sequences with other retroviruses). 
     .  The report by the Wilmut team of the successful creation of a sheep with a human gene from insertion of the human gene into fetal skin cells followed by somatic nuclear transfer cloning indicates that similar genetic alteration prior to transfer of nuclear DNA may eventually be feasible in humans.  Cf. Kolata, supra note 27 (announcing the birth of the transgenic sheep). 
     .  A variation on this intentional dimishment of offspring characteristics would be the selection of a genome with defective genes or genes that are not associated with prior traits.  Although strictly speaking not a case of diminishing what would otherwise have been a normal birth, this would be an example of not choosing a reasonable or good or best-possible genome for someone.  Such an action would implicate a possible duty to make the child as reasonably well-off as possible.  Cf. ROBERTSON, supra note 86, at 171, 170-71 (discussing the genetic fabrication of “lesser engineered” persons and 
distinguishing such actions from legitimate genetic selection falling within the scope of procreative liberty). 
     .  Although even customized children may not be harmed in being born if there were no other way for them to have come into being, the willingness of a couple to do so will be relevant to an assessment of whether they are validly exercising procreative liberty.  See the discussion of wrongful life supra subpart IV(A). 
     .  That is unless they are seeking to alter the DNA of another in the process of nuclear transfer cloning. 
     .  However, autonomy and expectation issues would still arise, because altering genes assumes that they are influential, if not also determinative of a person’s characteristics. 
     .  Cloning to produce tissue for transplant is an exception. 
     .  Sought after traits might include height, memory, intelligence, skin color, or certain behavioral traits.  See LEROY WALTERS & JULIE GAGE PALMER, THE ETHICS OF HUMAN GENE THERAPY 108-24 (1997) (discussing the desirability and ethical problems of physical, intellectual, and moral enhancements). 
102 Texas Law Review [Vol. 73:000, 1995]

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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