The Great Indiana Cloning Debate<br>and Other Tales for Children

The Great Indiana Cloning Debate
and Other Tales for Children

Indianapolis Star reports that well-intentioned Senator Pat Miller is pushing a ban on human cloning. She puts it simply:

"If you know what has happened in the past, there have been multiple, multiple failures in animal cloning, and some devastating things have happened with animals," said Miller, R-Indianapolis, referring to birth defects, premature aging and high death rates. "I just don't think that ought to happen with human beings."

Yup. Sure. Human cloning is an unsafe proposition. But the problem with this state debate, like so many others, is that the sponsors of this state legislation put so little energy into questions of the constitutionality of their proposed legislation that even if the law passes, which it might, it is stillborn at best and dangerous at worst. Safety for the first clone isn't the only issue. And it isn't easy to protect. But in the face of abject terror about cloning, little pragmatic problems melt away:

State Sen. Miller isn't sure whether human-cloning research is going on in Indiana. But the consequences are so potentially disastrous that the General Assembly must act, she said. "If you clone a human being, and they have an artificial aging process so that by the time a child is a year old they have the body and age of an 80-year-old, there is a number of issues that are ethical and moral there," Miller said.

But apart from the obvious question about why Miller would include cloning of embryos in her bill if there's no risk that process would make it more likely that a little clone would be born in Indiana, there is that nagging, bigger question: where is the discussion among state policymakers about how to regulate cloning, rather than whether to do so. Isn't it obvious that cloning cases are going to go to the state and even local courts, immediately, no matter who clones what or why?

Someone will file charges against the very first nutty Indiana cloning scientist, charges that will immediately be challenged on grounds of constitutionality. The first nuclear transfer-based stem cell company that doesn't move to California will have to file suit to challenge the definitions of embryo, cloning, etc. proposed by the legislature. A scientist will say that it is within her 1st Amendment rights to do science that includes cloning. A family will argue that its right to make a clone in Indiana, or to bring one over from another state, is protected by at least three amendments. On, and on, and on it will go. You have to feel sorry for the local judge, appeals judge, and, yes, even Supreme Court judge who gets the first one of these cases. The legislature should not be able to treat cloning like a simple political football and turf out the details to the courts.

The U.S. state cloning laws are not clear, none of them, and they particularly fail when it comes to empowering courts (or taking away their jurisdiction, where appropriate). Someone will no doubt eventually seek to have a child through cloning in Indianapolis. But what guidance is Sen. Miller's law? It says nothing about the dozens of questions that go right to the heart of cloning and parenthood. So when those cases hit the family courts in Indiana, judges who adjudicate divorce and adoption will find themselves struggling for rules to allow them to make sense of laws that are even worse than the laws for divorce and adoption!

I will admit that since making this argument with my collaborator Ian Wilmut I have had few takers. But several states are being slightly more careful than others (including California, who actually considered our proposal), and what distinguishes smart from dopey law about cloning is a simple process - asking how to regulate cloning, not whether to do so. But the rush to ban cloning is on again, and I'm not looking for a whole lot of that subtlety from the kind of state legislatures Americans have elected this time around. - Glenn McGee

posted Jan 15, 2005 | link | jump to the comments (13)

comments

But several states, Michigan, Arkansas, North and South Dakota, among others, have already outlawed all human SCNT within their borders and there haven't been any lawsuits yet. You are suggesting that there is no right to regulate this technology. What bases are there for such a radical notion? If we can regulate animal use in research, surely we can regulate cloning.

- by Wesley J. Smith on Jan 16, 2005 at 2:29 AM | link

Mr. Smith, Dr. McGee is proposing no such thing. His post brings up important constitutional issues that have consequences for state-by-state regulatory differences regarding SCNT. States that ban this practice altogether will eventually need some legal conception of the products of SCNT that are created in other states. Banning SCNT in Michigan doesn't make SCNT go away in California.
McGee isn't suggesting such things can't or shouldn't be regulated. He is instead suggesting that when a state bans SCNT, it can't be the end of the matter. The moral/legal status of products of SCNT (whatever they happen to be) remain open questions left unaddressed by states that simply impose a ban. Hence his point: The question before state legislatures should be how, now when, to regulate SCNT.

- by Hobbes on Jan 16, 2005 at 11:14 AM | link

Yes Hobbes that pretty much sums it up. I am not arguing that states should not ban cloning. I am arguing that to do so requires more than a poorly thought-out and unfunded legislative mandate.

- by Glenn McGee on Jan 16, 2005 at 4:30 PM | link

Well, the "products of SCNT" are human organisms, embryos, fetuses, babies, depending on their state of development. They should be treated like all other similarly situated human lives.
The answer to this non problem, of course, is a nation-wide ban, as has occurred in Canada, France, Noraway, Australia, and others. WJS

- by Wesley J. Smith on Jan 17, 2005 at 3:33 AM | link

Mr. Smith: Suppose, just for the sake of conversation, and just for the momnet, we bracket the moral im/propriety of SCNT. Suppose I grant you a nationwide ban here in the United States (California notwithstanding). Would you grant that somewhere in the world there will be countries with the wherewithal to do so that will legally permit SCNT? This is purely a facutal premise, not a moral one. One can be morally opposed to SCNT and still admit this possibility.
So, suppose this facutal premise is true. Doesn't it make sense for states (or nations) to address the legal status of products of SCNT? Moral opposition, even legal prohibition, won't change the fact that embryos/fetuses/babies might be created in other countries through SCNT, and those e/f/b can and presumably will cross geographic/political boundaries one way or another. Is it a "non-problem" to wonder what the legal status of these e/f/b are, even in states which prohibit the means of their creation? I think it is a problem, notwithstanding one's position on the moral licitness of SCNT in general, and it should be a point of concern for someone like you as well.
BTW, I wasn't using the word "products" lightly here. I was searching for a more general term to encompass the range of possibilities you refer to as "states of development." If you've got a better phrase that accomplishes this, I'd be pleased to use it instead.

- by Hobbes on Jan 17, 2005 at 3:09 PM | link

If we follow simple biology, we know that these so-called "products" are fully human organisms. They are not Martians, after all. Dolly was fully a sheep. They would be fully human. And the fact that they came into being as a consequence of SCNT does not change that simple biological fact, and hence, would not require, in my view, creating special laws for their treatment. Indeed, the very act of doing so would make them something other.
Banning SCNT would prevent a procedure, it should not affect the status of the lives created by the procedure. Analogize it to incest. We ban incest. But the "products" of incest are fully human.
Of course, we could always resort to post modernism in these matters. That is, when the definitions don't suit our desired narrative, we simply redefine our terms. A lot of that going around biotech these days.
WJS

- by Wesley J. Smith on Jan 17, 2005 at 8:46 PM | link

Hey, great. Let's run with this. Products of SCNT are humans in various stages of development, with all the moral status thereof, just as you say.
Suppose, then that a child is conceived through SCNT in California, or New Jersey, or South Korea (where really doesn't matter). Here are a few questions:
1) Would the persons who were the source of the biological material required for the SCNT in question have custodial rights or obligations to the human being thus formed? Or, is it more like incest, in which the illicitness of the act in question might reasonably foreclose on such rights?
Seems to me, there might be disagreement on the issue. For example, in _Culture of Death_ (I'm looking at pp. 229-30) you endorse George Annas's proposal for an international bioethics tribunal to prosecute bioethical crimes against humanity. I'm assuming that you believe that the SCNT in question would count as one of these legal entities. So, if SCNT is morally illicit in the same way that (for example) incest is illicit, do you think it preferable that the State shoudld have custody of the human being that is a product of a SCNT, instead of his/her (ostensibly criminal) parents?
It is examples such as this one that leads me to respectfully disagree vis a vis the need for special laws in these instances, especially if one cares about the human life created in the wake of SCNT. As with McGee, I dislike the idea of simply leaving issues like this up to the courts to legislate decisions without any guidance whatsoever.

- by Hobbes on Jan 17, 2005 at 9:16 PM | link

This is a rather odd post. If the complaint is that the legislatures of the various states haven't resolved some hypothetical constitutional issues, then it's a meaningless complaint. The legislatures in each state must weigh the constitutionality of any law they pass, but, in most cases, and certainly in this case, their judgment of the issue isn't considered dispositive. So the complaint is that they haven't done what they can't do.
If the complaint is that a ban on cloning doesn't answer the question of how to handle clones, then the complaint is just that the typical bans on cloning are incomplete. That may be true. But, then, it may be that the legislatures in the various states believe that clones should be treated like all other similar human organisms (as WJS suggests), and that the law already provides for such treatment. In which case the law isn't incomplete, and no legislation on point is needed.
To call a ban an "unfunded mandate" betrays an ignorance of public policy that is almost unfathomable.
Hobbes, is it true that courts deny custody to incestuous couples who produce children? Is that true of all such couplings (i.e., are sibling couplings and parent-child couplings treated the same)? Can you cite any law on the subject? (I'm asking in earnest--I'm truly surprised at the suggestion that they do, and a brief bit of research doesn't offer any insight.)
Finally, what do we make of Glenn's statement, on the linked page: "[F]amily courts are better equipped to handle the load than any national or local legislature."
It sounds like these states are taking Glenn's advice! So, what's the complaint?

- by Thomas on Jan 17, 2005 at 11:41 PM | link

Thomas, I'm not a lawyer, so asking me to cite case law will be a frustrating endeavor for you. (Actually, I think I was flat wrong on this point, and my brief research doesn't reassure me otherwise). But, as to your point about state legislatures, the fact that the judgment of a legislature is not dispositive doesn't absolve legislators of attempting to express intent on such matters. A ban on cloning simply drops the issue in the lap of the judiciary, without any guidance at all.
To trade quotes from McGee's post, "...judges who adjudicate divorce and adoption will find themselves struggling for rules to allow them to make sense of laws that are even worse than the laws for divorce and adoption!" Legislative action need not be *dispositive* in order to offer guidance on such matters, it simply needs to recognize that a ban on cloning is not the end of the discussion.
The complaint, to put a point on it, is that clones are different from the products of incest (or adoption, or any other example you wish to offer) not because they aren't human, but because their relationship to other humans is unique, and is simply not addressed by a mere ban on cloning. If clones are to be treated to 'similar' humans, I suppose my question is, silmilar to what, exactly? Do you really want to leave this question to a judge in family court? I don't. Perhaps we just disagree on this point.
As I indicated in my last post (and as your point clarifies) I don't think the courts are especially adept at answering questions such as these, at least without some sort of outside guidance. I think (and its hard to imagine you disagree) that when it comes to actual or theoretical humans under the age of consent, their specific relationships to other adults matters a great deal, morally and legally. It isn't immediately clear to me what the relationship is between a human clone and other humans, beyond what is afforded any other random human encountered in the street. Of course, if custodial/parental rights are being claimed on behalf of a human clone, that amounts to more than what one would attribute to just another human being. So, my question to WJS was whether or not those claimining parental rights over a clone b/c of a biological connection might forfeit those rights b/c the conception of the clone was a criminal act.
If the parents didn't forfeit those rights, then cloning tourism, since legal culpability would simply be a matter of geography; a mere matter of paying airfare. If one can simply go to California (or New Jersey) to circumvent state laws banning cloning, what difference does a state-wide ban on cloning really make? On the other hand, if the biological parents did forfeit those rights b/c of their criminal culpability in cloning (here presumed to be an illegal act) then we get into some tricky federalism problems.

- by Hobbes on Jan 18, 2005 at 12:46 AM | link

Hobbes--Perhaps I should have been more clear. I think the bare fact that a legislature passes a law means that the legislature believes the law to be constitutional, and that courts should interpret laws in that light.
I don't think that the facts of production make much difference to the analysis of the problems presented to cloning. I mean, the courts are quite accustomed to dealing with novel questions of reproduction--IVF and surrogacy are actually more complicated issues, it seems to me.
There are novel issues, to be sure, but I don't think there's a likely to be a lack of consensus. I mean, it's possible that a court could find that a clone doesn't have a "parent" in a legal sense, or has more than one parent (though the 'more than one problem' is likely resolved by the surrogacy and IVF precedents). But why would a court--absent unusual circumstances (nonconsensual cloning, for example)--find that a clone doesn't have a legal parent? We expect courts to act for reasons.
It may be that bans on reproductive cloning can be circumvented, though I think that's unlikely. The more liberal a state's views on cloning are, the more likely the state is to ban reproductive cloning. (For example, NJ and CA both ban reproductive cloning, while MO, for example, hasn't banned any kind of cloning.) In my opinion, bans on cloning in more conservative states are targeted more at cloning for biomedical research than at cloning for reproduction. (If you were to ask WJS whether a clone wrongfully produced and implanted should be destroyed before birth, what do you think his answer would be? That may tell you something about his priorities; he believes (I think--and please Wesley, speak up if I'm wrong!) that the destruction of the unborn is a more serious wrong than reproductive cloning.) Cloning for reproduction is seen as a wrong (a disordered means of reproduction, with undue risks presented for the cloned offspring), but cloning for biomedical research is seen as an almost unspeakable evil (the purest case of using another human being simply as a means--simply biological material for research--and not an end). The difference in emphasis suggests that cloning opponents could learn to live (though not entirely happily) with a world where reproductive cloning is circumvented as you describe but cloning for biological research is banned to the greatest extent possible.

- by Thomas on Jan 18, 2005 at 2:06 AM | link

The standard would be as it is in all child custody matters: What is the best interest of the child.

- by Wesley J. Smith on Jan 18, 2005 at 3:08 AM | link

New Jersey has legalized cloning, implantation, and gestation through the ninth month already. It only criminalizes cloning if the cloned fetus makes it to the light of day as a born baby.
Therapeutic cloning is seen by some as more wrong because you are creating a human life for the purpose of destroying it and harvesting it or experimenting upon it. Some don't see this as a problem, assuming that the experimenting will remain in the Petri dish. But it is quite clear to me that the NJ law and other similar legislation, and personhood theory itself, paves the way for what some call cloned fetal farming. Especially if artificial wombs are created allowing researchers to say that the fetus can't be born anyway so it is not an entity that has the right potential to be respected as a fully human life.

- by Wesley J. Smith on Jan 18, 2005 at 3:12 AM | link

Thomas, of course I agree that legislatures pass laws they believe to be constitutional. But to say that such laws should be interpreted in "light" of the constitution doesn't get one very far, vis a vis, consensus on these issues.
For example, if reproductive cloning is wrong in part because of the harm it does to the clone, then in what sense is awarding custody of the clone to the biological parents in 'the best interests of the child?" Wrongful life precedents, (which have previously only applied to physicians), might now be applied to biological parents as well. If reproductive cloning is viewed as a kind of abuse (a "bioethical crime against humanity" to use WJS's phrase) then identifying the legal parents of the clone might only be done in order to strip them of custodial rights. Others might view reproductive cloning as just another in a line of novel procreative techniques, to be dealt with just like surrogacy and IVF.
These are incompatible views. If the constitution resolves them, I'd like to know how. In the meantime, I'd rather not have such questions resolved by the judiciary without legislative guidance.
I am less sanguine than Thomas (and perhaps WJS) regarding the possibility of reproductive cloning in the near future, ban or no ban. Trafficking in human organs is illegal worldwide, but continues unabated. The global economy makes all sorts of things possible for those of means.
As to (Thomas's) last point regarding cloning opponents, that was precisely the distinction I was trying to draw out of WJS. If reproductive cloning is reprehensible but requires reluctance acceptance after the fact, then a ban on reproductive cloning is insufficient.
BTW, thanks both to Thomas and WJS for the excellent discussion!

- by Hobbes on Jan 18, 2005 at 10:00 AM | link