\\Server03\productn\N\NYL\4-1\NYL103.txt unknown Seq: 1 4-DEC-00 16:08 TO CLONE OR NOT TO CLONE E. Donald Shapiro,* Jennifer Long,** Rebecca Gideon*** In the last decade, science, especially the biomedical field, has been transforming what has heretofore been the realm of science fic- tion into reality.1 Science, medicine in particular, has been advancing at a pace that has far outstripped the ability of our legal and ethical system to cope with its new realities.2 The possibility of cloning is merely the latest discovery in this long line of scientific developments that has been thrust upon our legal and ethical system.3 Should the law encourage, regulate, or prohibit cloning? Should the law distinguish between human and non-human cloning? A skep- tical public has greeted cloning with disbelief and delighted amaze- ment, as well as repulsion, fear, and distrust.4 Many in the legal community have discouraged human cloning.5 Despite these reserva- * A.B., Dickinson College; J.D., Harvard Law School; L.L.D., New York Law School; L.L.D., Dickinson College; HLD, York College; M.A., Oxford University; Dean Emeritus & The Joseph Solomon Distinguished Professor of Law at New York Law School. ** B.A., Mills College; J.D., 1999, New York Law School. *** B.A., Smith College; Candidate for J.D. degree, 2002, New York University School of Law. 1. See generally GINA KOLATA, CLONE: THE ROAD TO DOLLY, AND THE PATH AHEAD 71 (1998). 2. See Joan Beck, Careless Intentions: Have We Fully Thought Out All of the Consequences of Reproductive Medicine, CHI. TRIB., Feb. 1, 1998, § 1, at 19. 3. See Charles Austin, Ethics of Gene Splicing Troubling Theologians, N.Y. TIMES, July 5, 1981, at A1. 4. Arlene Judith Klotzko, Science Fictions: Cloning is Bad and Septuplets are Good, WASH. POST, Dec. 14, 1997, at C3. 5. See, e.g., Lisa Sowle Cahill, No Human Cloning: A Social Ethics Perspective, 27 HOFSTRA L. REV. 487, 487 (1999) (addressing inter alia ªthe negative impact of human cloning on the familyº); Jennifer Cannon & Michelle Haas, The Human Clon- ing Prohibition Act: Did Congress Go Too Far?, 35 HARV. J. ON LEGIS. 637, 645 (1998) (discussing Congress's immediate reaction to cloning of sheep in Scotland by passing Human Cloning Prohibition Act, S. 1601, 105th Cong. (1998)); Vernon J. Ehlers, The Case Against Human Cloning, 27 HOFSTRA L. REV. 523, 523 (1999); Leon R. Kass, Why We Should Ban the Cloning of Human Beings,4 TEX. REV. L. & POL. 41 (ª[C]loning is a serious evil, both in itself and in what it leads to, and . we ought to try to stop it by legislative prohibition.º); Sophia Kolehmainen, Human Clon- 23 \\Server03\productn\N\NYL\4-1\NYL103.txt unknown Seq: 2 4-DEC-00 16:08 24 LEGISLATION AND PUBLIC POLICY [Vol. 4:23 tions, we must look at the actual process of cloning in light of the potential longterm benefits that can be derived from this technique.6 If the process of cloning can be properly harnessed, repulsion, fear, and distrust will be replaced by interest and optimism. But first we must thoroughly deal with the legal and ethical issues that cloning presents. Western culture is replete with myths and legends alluding to human cloning, most of which have stressed its dark side. This theme was probably most brilliant portrayed by Mary Shelley in her novel, Frankenstein; or The Modern Prometheus.7 This book, along with other literature in the field, is filled with warnings against human be- ings who tried to be godlike and create human life. Shelley's refer- ence to the Modern Prometheus relates to a ªfundamental goal of the Romantic poets and philosophers,º among them her husband Percy Shelley, who were attempting to ªperfect mankind, to transform mortals into godlike creatures, [and] to locate the divine in the human.º8 In particular, Frankenstein stresses the havoc that could be wrought if such efforts were attempted. In all such tales, when humans create clone-type human beings, horror results. Although first published in 1818, Frankenstein confronted anxie- ties that are relevant today, such as family conflict and society's mis- trust of science.9 It also addressed concerns regarding scientific thought and the psychology of the scientist by questioning its empha- sis on ªsearch[ing] for objective truth, whatever the consequences.º10 Not only did Frankenstein explore the nature of scientific enterprise, but it also addressed and recognized society's fear of the dangers in- volved in scientific experimentation.11 Its theme has been revisited in numerous movies and science fiction articles.12 Indeed, the Franken- ing: Brave New Mistake, 27 HOFSTRA L. REV. 557, 557 (arguing against use of clon- ing to create offspring). 6. See Ian Wilmut, Potential Benefits of Cloning and Nuclear Transfer, Roslin Institute Online (March 3, 1998), at http://www.ri.bbsrc.ac.uk/library/research/clon- ing/nt-benefits2.html [hereinafter Wilmut, Potential Benefits of Cloning]. 7. MARY SHELLEY, FRANKENSTEIN; OR THE MODERN PROMETHEUS (M.K. Joseph ed., Oxford Univ. Press 1969) (1831). 8. Anne K. Mellor, Introduction to MARY SHELLEY, FRANKENSTEIN; OR, THE MODERN PROMETHEUS xiv-xv (Anne K. Mellor & Theresa Reyes eds., Washington Square Press 1995) (1831). 9. Diane Johnson, Introduction to MARY SHELLEY, FRANKENSTEIN x (Bantam Books 1991) (1818). 10. Mellor, supra note 8, at xviii. R 11. Id. at xx. 12. See Christine Corcos et al., Double-Take: A Second Look at Cloning, Science Fiction and Law, 59 LA. L. REV. 1041, 1045 (1999). \\Server03\productn\N\NYL\4-1\NYL103.txt unknown Seq: 3 4-DEC-00 16:08 2000-2001] TO CLONE OR NOT TO CLONE 25 stein legend has been one of the most filmed works of literature in cinematic history.13 Religious cultures have frequently warned about the danger of cloning human beings by mortals. One example is found in ancient Jewish tradition, which stressed the double-edged sword that resulted from the creation of the golem,14 a superhuman clone. Like Mary Shelley, this tradition emphasized the clone's lack of a soul. The most well-known of the golem stories is the sixteenth century legend of the Golem of Prague and its creator, Rabbi Loeb.15 In this legend, which has been recounted numerous times in books, plays and films,16 Rabbi Loeb, a holy man, creates the golem out of clay, and is only able to bring it to life with divine help and for the purpose of saving lives. The legend stresses that a human is forbidden from creating life, and that the use of such a power could be turned against one who invoked God's name to create a living being.17 Indeed, the soulless creature takes terrible retribution upon humanity. Given these legends, it is no wonder the process of human cloning has suffered from such terrible public opinion. The very concept of human cloning has raised doubts, protests, and outright condemnation.18 In 1997, the National Bioethics Advi- sory Commission (NBAC) held a public hearing regarding cloning and heard from several religious leaders.19 At the hearing, Roman Catholic speakers and several conservative Protestant speakers voiced outright opposition to cloning,20 expressing the viewpoint that using cloning technology to create human life is ªintrinsically immoral; and 13. For instance, a search of the ªInternet Movie Databaseº for the term ªFranken- steinº yields eighty-nine matches in movies, television, and video. IMDb name and title search, at http://us.imdb.com (last visited Oct. 10, 2000). 14. 7 ENCYCLOPAEDIA JUDAICA 754-55 (1971). The only use of golem in the Old Testament describes Adam's soulless body. Id. at 754. 15. Ilil Arbel, Rabbi Loeb and the Golem of Prague,ENCYCLOPEDIA MYTHICA, at http://www.pantheon.org/cgi-bin/view.cgi?file=Rabbi_loeb.html (last visited Oct. 10, 2000). 16. Id. 17. Id. 18. See John A. Robertson, Liberty, Identity, and Human Cloning, 76 TEX L. REV. 1371, 1371-72 (1998) (describing immediate response to human cloning by U.S. gov- ernment); see also Klotzko, supra note 4, at C3. R 19. NAT'L BIOETHICS ADVISORY COMM'N, CLONING HUMAN BEINGS: REPORT AND RECOMMENDATIONS OF THE NATIONAL BIOETHICS ADVISORY COMMISSION 39-40 (1997) [hereinafter CLONING HUMAN BEINGS], available at http://www.bioethics.gov/ pubs.html. 20. See also KOLATA, supra note 1, at 39. R \\Server03\productn\N\NYL\4-1\NYL103.txt unknown Seq: 4 4-DEC-00 16:08 26 LEGISLATION AND PUBLIC POLICY [Vol. 4:23 thus [can] never be morally justifiedº and should be banned.21 In con- trast, some Protestant, Islamic, and Jewish presenters expressed sup- port for cloning research on a limited basis.22 Despite their support, they also conveyed deep moral reservations concerning the cloning of a human being, and encouraged further discussion and scientific re- search in the hope that cloning technology will eventually be medi- cally beneficial to society.23 They further suggested that regulations and strict controls could prevent the potential misuse and abuse of this technology.24 Religious opponents of cloning generally object to human beings ªplaying God.º25 For example, Islamic teaching holds that scientific knowledge is a sign of God's creation, and possible only because God allows the scientific discovery to occur.26 Even where there is a gen- eral acceptance of scientific knowledge in religious thought, the appli- cation of that knowledge is often a point of contention. The moral and religious objections to cloning are numerous. First, there is a taboo against human beings possessing God's power to create human life, demonstrated by the belief that finite human beings should not aspire to perform infinite activities because no human is as moral as the Divine.27 Second, there is a strong religious belief that cloning violates the sanctity of human life.28 Third, there is a fear that human cloning will be used for evil purposes, such as perceived supe- 21.