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CLONING HUMAN BEINGS The Current and Future Legal Status of Cloning Commissioned Paper by Lori B. Andrews, J.D. Chicago-Kent College of Law CONTENTS Preface F-3 Executive Summary F-4 A. Potential State Restrictions on Cloning F-4 B. Constitutional Concerns F-5 1. Reach of the Commerce Clause F-5 2. Right to Scientific Inquiry F-6 3. Right to Make Reproductive Decisions F-6 C. Parenthood Issues F-7 The Goals of Cloning Research F-8 A. How Is Cloning Performed? F-8 B. What Are the Uses for Cloning Technology in Animals? F-9 C. What Are the Proposed Uses for Cloning Research in Humans? F-10 1. Disease Research and Treatment F-10 2. Reproductive Technology F-11 3. Organ and Tissue Reserve F-12 The Potential Impacts of Cloning F-13 A. Problems in Application to Humans F-13 B. Potential Psychological Impacts of Cloning Whole Individuals F-15 C. Potential Social Impacts of Cloning F-16 Existing Laws that Could Restrict Cloning F-18 A. State Statutes Governing Research on Embryos F-18 B. The Reach of Laws Governing In Vitro Fertilization and Assisted Reproductive Technology F-22 Proposed Federal and State Statutes Regarding Cloning F-23 A. Federal Action F-24 B. Alabama F-24 C. California F-25 D. Florida F-25 E. Illinois F-25 F. Maryland F-25 G. Missouri F-26 H. New Jersey F-26 I. New York F-26 J. Oregon F-27 K. South Carolina F-27 L. West Virginia F-27 The Federal Role in Regulating Cloning F-27 Is There a Right of Scientific Inquiry? F-36 The Right to Make Reproductive Decisions F-37 F-1 Constitutional Limits to Cloning F-40 A. Thirteenth Amendment Concerns F-40 B. Nobility Clause F-40 Who Is the Parent in Cloning? F-41 Human Research Implications F-50 Potential Tort Claims Based on Cloning F-53 Policy Options F-54 Acknowledgments F-55 Appendix A: Potential Parental Configurations in Human Cloning F-56 Endnotes F-58 F-2 PREFACE “Perhaps in recognition of the surrealistic circumstances they should have spelled it D-A-L-I, instead of D-O-L-L-Y.”1 This response is quite representative of how most people reacted to the news that a team of Scottish scientists succeeded in cloning a mammal. On July 5, 1996, a sheep named Dolly was born in Scotland, the result of the transfer of the nucleus of an adult mammary tissue cell to the enucleated egg cell of an unrelated sheep, and gestation in a third, surrogate mother sheep.2 Although for the past ten years scientists have routinely cloned sheep and cows from embryo cells,3 this was the first cloning experiment which has succeeded using the nucleus of an adult cell.4 Shortly after the report of the sheep cloning was published, President Clinton instituted a ban on federal funding for human cloning.5 This moratorium provides the opportunity for an analysis of the potential risks and benefits of human cloning, the current legal status of cloning, and the potential constitutional challenges that might be raised if new legislation is put into place to restrict cloning. With the recent success in cloning an adult mammal, it is reasonable to start thinking about the feasibility and impact of human cloning. Many reproductive and genetic procedures, such as artificial insemination by donor, embryo transfer, in vitro fertilization, and preimplantation screening of embryos, were applied first in animals and then in humans. Animal husbandry is a precursor to clinical reality for humans, with the time of technology transfer to humans ever decreasing. If W. Bruce Currie, biologist at Cornell University, is correct, “[c]loning humans from adults’ tissues is likely to be achievable any time from one to ten years from now,”6 an estimate which was repeated by the journal Nature, which published the article about Dolly. Immediately after Dr. Wilmut announced to the world how Dolly was “conceived,” Dr. Harold Varmus, the director of the National Institutes of Health, testified before a House subcommittee that the technology involved was “fairly simple.”7 Currie estimates that at least ten fertilization clinics in the United States have the technology which will allow such a feat; he did not, however, name these ten clinics.8 The executive summary briefly surveys the current and future legal status of cloning; the rest of this document develops this analysis. The paper then addresses the potential uses that could be made of cloning. The procedures to be used and their purposes are relevant to an analysis of whether human cloning falls within the reach of existing law. Discussion of the potential impact of cloning, which is relevant in determining the need for a legal policy and whether such a policy can be justified as a proper exercise of governmental power, is followed by that of the impact of existing laws on cloning, particularly state bans on embryo research. The next sections describe proposed federal and state laws regarding cloning; analyze whether federal legislation restricting or banning cloning can be challenged as not justified by the federal spending power or the federal power to regulate interstate commerce; analyze whether a ban on human F-3 cloning might be subject to attack as violating scientists’ alleged First Amendment right to scientific inquiry; and assess whether a ban on human cloning of complete individuals would violate an individual’s or couple’s constitutional right to privacy or liberty to make reproductive decisions. The paper then examines constitutional concerns, such as the Thirteenth Amendment prohibition on slavery and the nobility clause, that could restrict certain forms of cloning; analyzes who would be considered to be the legal parent(s) of the resulting child if an individual were cloned; addresses the human research constraints applicable to a child created through cloning; and addresses potential tort claims based on cloning. The final section addresses policy options in this area. Throughout this paper, two types of cloning research are addressed. The first is research at the genetic, cellular, and tissue level which is not intended to create a cloned individual. Most of the scientists addressing human cloning research focus on this first type of research. The second type is research which is intended to create an individual. The latter type of research might be considered by some to be too remote and speculative to be worthy of serious policy analysis at this time. However, given the fact that much of the public and media discussion has focused on the cloning of whole individuals, a legal policy analysis would be deficient if it did not analyze whether existing and proposed laws would cover the cloning of whole individuals as well. EXECUTIVE SUMMARY This section—the executive summary—summarizes the analysis with respect to the most important legal issues that have been raised: Do existing laws ban the procedure? If human cloning were regulated or banned, could that policy be challenged as unconstitutional? If the cloning of a whole individual were allowed, who would be the legal parents?9 A. Potential State Restrictions on Cloning Ten states have laws regulating research and/or experimentation on conceptuses, embryos, fetuses, or unborn children that use broad enough language to include early stage conceptuses.10 However, several arguments could be made to suggest that most of the statutes should be construed narrowly so as not to apply to cloning. First, an argument can be made that since the experimental procedure is being done on an egg, not an embryo, fetus, or unborn child, the laws should not apply. By the time the embryo is created, the experimental procedure is completed. Second, two of the ten states define the object of protection—the conceptus (Minnesota) or unborn child (Pennsylvania)—as the product of fertilization. If transfer of nucleic material is not considered fertilization, these laws would not apply. Third, the laws of at least eight of the states banning embryo research are sufficiently general that they might be struck down as unconstitutionally vague.11 Two statutes have provisions that are particularly likely to be applied to cloning. In New Hampshire, a preembryo may not be allowed to develop beyond 14 days post-fertilization,12 so cloning research may be permissible within the first 14 days of development. However, “no F-4 preembryo that has been donated for use in research shall be transferred to a uterine cavity.”13 Thus, if a renucleated oocyte is considered to be a preembryo, it would be impermissible in New Hampshire to implant the resulting conceptus to create a child. In Louisiana, the statute applies to an “in vitro fertilized human ovum . composed of one or more living human cells and human genetic material so unified and organized that it will develop in utero into an unborn child.”14 An entity meeting the definition cannot be cultured and farmed solely for research purposes,15 which would prohibit cloning research to study gene function, cellular development, and so forth. Another provision specifically states that such an entity may be used “solely for the support and contribution of the complete development of human in utero implantation.”16 This creates the anomalous result that researchers could clone a whole individual in Louisiana, but could not do research ex utero on cloned cells. B. Constitutional Concerns If the federal government chooses to regulate or even ban cloning, that action might be challenged on a number of constitutional grounds—as not being justified under the commerce clause, as violating scientists’ First Amendment freedom of inquiry, or as violating a couple’s or individual’s constitutional right of privacy or liberty to make reproductive decisions.

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