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Moral and Legal Issues Concerning Golden Gate University School of Law GGU Law Digital Commons Theses and Dissertations Student Scholarship 3-12-2010 Moral and Legal Issues Concerning Contemporary Human Cloning Technology : Quest for Regulatory Consensus in the International Community to Safeguard Rights and Liberties Essential to the Future of Humanity Ching-Pou Shih Golden Gate University School of Law Follow this and additional works at: http://digitalcommons.law.ggu.edu/theses Part of the Medical Jurisprudence Commons, and the Science and Technology Law Commons Recommended Citation Shih, Ching-Pou, "Moral and Legal Issues Concerning Contemporary Human Cloning Technology : Quest for Regulatory Consensus in the International Community to Safeguard Rights and Liberties Essential to the Future of Humanity" (2010). Theses and Dissertations. Paper 6. This Dissertation is brought to you for free and open access by the Student Scholarship at GGU Law Digital Commons. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. GOLDEN GATE UNIVERSITY SCHOOL OF LAW MORAL AND LEGAL ISSUES CONCERNING CONTEMPORARY HUMAN CLONING TECHNOLOGY - QUEST FOR REGULATORY CONSENSUS IN THE INTERNATIONAL COMMUNITY To SAFEGUARD RIGHTS AND LIBERTIES ESSENTIAL To THE FUTURE OF HUMANITY CHING-POU SHIH, JD, LL.M, SJD CANDIDATE SUBMITTED TO THE GOLDEN GATE UNIVERSITY SCHOOL OF LAW, DEPARTMENT OF INTERNATIONAL LEGAL STUDIES, IN FULFILMENT OF THE REQUIREMENT FOR THE CONFERMENT OF THE DEGREE OF SCIENTIAE JURIDICAE DOCTOR (SJD). PROFESSOR DR. CHRISTIAN OKEKE PROFESSOR DR. SOMPONG SUCHARITKUL PROFESSOR DR. SOPHIE CLAVIER SAN FRANCISCO, CALIFORNIA 12 MARCH 2010 MORAL AND LEGAL ISSUES CONCERNING CONTEMPORARY HUMAN CLONING TECHNOLOGY - QUEST FOR REGULATORY CONSENSUS IN THE INTERNATIONAL COMMUNITY To SAFEGUARD RIGHTS AND LIBERTIES ESSENTIAL To THE FUTURE OF HUMANITY Table ofContents Introduction I. Background and Resources 1 II. Motive and Purpose 3 III. Methodology and Research Structure 12 Chapter 1 Human Cloning: A Breakthrough Technology with Great Hope but Less Faith I. Introduction 15 II. Cloning Technology: The Past, Present and Future 17 A. What is Cloning Technology? 19 1. Cloning Before 1950s 20 2. Cloning After 1950s 22 3. Cloning Follows Dolly 23 B. Leading-Edge Cloning Technologies 26 1. Embryo Splitting Cloning 27 2. Reproductive Cloning 27 3. Therapeutic Cloning 28 C. Human Cloning and Its Related Technologies 29 III. Stem Cell Research: Closely Linked to Cloning Technique 31 A. What are Stem Cells? 33 1. Stem Cells from Embryos 34 2. Stem Cells in Adults 35 B. Therapeutic Cloning and Stem Cell Research 36 1. Cell Culture 37 2. Medical Benefits ofStem Cells 38 IV. The Appropriateness ofHuman Cloning Technology 40 A. Important Justifications for Human Cloning Technology .43 1. Help Infertile Couples , .43 2. Recreate A Lost Child or Relative .44 3. Exercise Procreative Liberty .46 4. Have Offspring Free ofGenetic Defects .47 5. Provide Medical Cures .48 6. Take A Step towards Immorality .48 B. Critical Controversies over Human Cloning Technology .49 1. Disrespect for the Dignity ofthe Cloned Child 50 2. Demolish Familial Relationships 51 3. Consider the Cloned Child Commodities 52 4. Cause Medical Dangers 53 5. Cause Societal Dangers 56 C. Public Concerns about Human Cloning Technology 57 1. Safety ofthe Technology 57 2. Uncertainty ofScience 59 3. Imperative ofMorality 60 V. Conclusion 62 Chapter 2 Ethical and Religious Concerns on Human Cloning Technology I. Introduction 63 II. Ethical Concerns 65 A. Playing God the Creator 65 1. Utilitarian Objections 67 2. Consequentialist Objections 67 B. Instrumentation ofHuman Person 68 1. Instrumental Use by Other Human 68 2. Human Created As A Means 70 C. Disrespect for Human Life 72 1. What Is Matter? 73 2. Moral Value ofthe Human Embryo 75 D. Experimentation on Human Beings 76 11 1. Human As A Research Subject. 77 2. Experimental Use ofHuman Embryos 78 III. Religious Concerns 79 A. Dominion and Stewardship over Nature 79 1. Humans Disobey to God the Creator's Plan 80 2. Cloning Exceeds God the Creator's Intent. 81 B. Moral Status ofthe Human Embryo 82 1. Christianity 83 2. Judaism 86 3. Islamism 87 C. Dignity ofthe Cloned 88 1. Christian Views 89 2. Roman Catholic Perspectives 91 3. Buddhist Thoughts 92 D. Healing ofthe Sick 93 1. Who Is Matter? 94 2. Sacrificing One Life for Another. 95 IV. Conclusion 95 Chapter 3 Legal and Policy Aspects on Human Cloning Technology I. Introduction " 98 II. Legal Aspects 102 A. Violation ofHuman Dignity 102 1. Self-worth ofthe Cloned 102 2. Self-decision ofAn Individual 103 3. Equal Treatment to All 104 B. Exploitation ofPeople's Autonomy 105 1. Autonomous Choices 106 2. Thoughtful Evaluation ofAutonomy in Cloning 107 111 C. Commoditization ofHuman Organs 109 1. Human Eggs As Research Supplies 110 2. Market for Human Eggs .111 3. Clone As Organ Donors 113 D. Illegitimacy ofCloning Process 114 1. Wrongful Use ofCloning 115 2. Disproportionate Use ofHuman Embryonic Cell 116 III. Policy Aspects 118 A. Common Good 118 1. Scientific Inquiry 118 2. Social Justice 120 B. Legalization 121 1. Legislation 121 2. Regulation 123 3. Minimum Standard 124 C. Regulatory Frameworks 125 1. Centralized Oversight. 125 2. Decentralized Administration 127 D. Sponsorship 128 1. Public Funding 128 2. Private Venture 129 3. Patenting 131 IV. Conclusion 132 Chapter 4 Safeguard Rights and Liberties Essential to the future ofHumanity in the Cloning Age I. Introduction 135 II. Substantive Justice 138 IV A. Procreative Liberty 138 1. Liberal Perspective 138 2. Eugenics 140 B. Right to Privacy 142 1. Genetic Privacy 143 2. Confidentiality 144 C. Right to Health 146 1. Modem Concepts 147 2. Medical Promises 148 D. Right to an Open Future 150 1. Future ofthe Cloned .151 2. Genetic Choices 153 III. Procedural Justice 154 A. Right to Life 154 1. Pro-life Advocacy 155 2. Embryo's Right to Life 157 B. Autonomy for Self-Determination 160 1. Informed Consent " 161 2. Free Choices 163 C. Due Process 164 1. Substantive Safeguards 166 2. Procedural Safeguards 168 D. Equal Protection 169 1. All Reproductions Treated Equal.. 170 2. All People Created Equal.. 170 3. All Health Cares Accessed Equal. 173 IV. Conclusion 174 v Chapter 5 Regulatory Consensus on Human Cloning Technology in the International Community 1. Introduction 176 II. Current Regulatory Regime towards Human Cloning Episode 178 A. National LeveL 178 1. European Nations 181 2. Asian Nations .194 3. American Nations 199 4. African Nations 203 5. Oceania Nations 204 B. Regional LeveL " 207 1. European Region 207 2. African Region 211 C. International Level 213 D. Other Infrastructural Level 220 III. Regulatory Consensus Regarding Human Cloning Technology 221 A. Human Dignity Approach .221 1. Imago Dei 221 2. Universal Declaration ofHuman Rights (UDHR) .223 B. Human Rights Approach 224 1. Natural Rights 224 2. International Covenant on Civil and Political Rights (ICCPR) 226 3. Int'l Covenant on Economic, Social and Cultural Rights (ICESCR) 227 4. Unl. Del. on the Human Genome and Human Rights (UDHGHR) 228 C. Fundamental Rights Approach 229 1. Historical Foundation and Longstanding Tradition 229 2. Strict Scrutiny 230 D. Humane Concerns Approach 231 VI 1. Humane Society 231 2. Sanctity ofHuman Life 233 IV. Conclusion 234 Conclusion and Recommendations 237 I. Fundamental NOTIns to Oversee Current Human Cloning Technology .237 II. Effective Instruments to Safeguard Humanity in the Age ofCloning 241 III. International Consensus to Sustain the Exploration ofCloning Science 250 Selected Bibliography 253 vii Introduction I. Background and Resources In 1997, veterinary researchers Drs. Ian Wilmut and Keith Campbell of the Roslin Institute in Scotland shocked the world by announcing the birth of the first cloned mammal, Dolly the sheep. With the introduction of Dolly, the international community has realized that the practice of human cloning will become real and possible. The idea of human cloning is moving from the realm of science fiction into the realm of real possibility. Dr. Lee Silver, a molecular biologist at Princeton University, is optimistic and stated in 1998 that "human cloning will occur," and that "it might take five years, ten years at the outermost."! Since Dolly, several other species of mammals, such as goats, mules, pigs, cows, cats, mice and rodents have also been successfully cloned around the world. With regard to the possibility ofthe realization ofany kind of cloning for any species of animals or plants and even for our human beings in the near future, the international community has inevitably raised many 1 See Wilmut I., Schnieke A.E., McWhir J., Kind A.J., Campbell KH.S., Viable Offspring Derived from Fetal and Adult Mammalian Cells, 385 NATURE 810-813 (1997) I debates concerning the benefit and impact of deeply-rooted human rights in our contemporary society ifthe development ofcurrent cloning technology is completely or partially acknowledged or opposed. Among others, these debates have tried to address many key issues such as the negative effect of religious belief, mishaps or lapses in quality control of cloning technology, the welfare of human beings, the individuality and dignity of lives, and the recommendation and enactment of conceivable legislation effectively guiding the framework and governing the development of technology ofhuman cloning. Of course, human cloning technology engages not only religious, cultural, social, and moral challenges,
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