There are a variety of federal laws and regulations covering biotechnology. Biotechnology is primarily regulated by three government agencies: The Food and Drug Administration (FDA), the Environment Protection Agency (EPA), and the U.S. Department of Agriculture (USDA). There are no rules that specifically regulate the cloning of human beings, or that ban the cloning of human beings. But is it possible for the government to ban human cloning? Or do we have the right to clone? “ A right protected under the Fourteenth Amendment of the United States Constitution? Could a person, take his or her cries for justice and reproductive freedom all the way to the Supreme Court, unearth enough legal precedent to obtain a legal right to use cloning?” () There are arguments and evidence for and against a ban on cloning. There will be discussed in the following sections.
Arguments and evidence against a ban on cloning (the right to clone)
The strongest argument for cloning can be made by couples that want to clone to overcome reproductive failure. There are two types of couples that this would pertain to; couples who are both sterile and couples wherein both partners are carriers of autosomal recessive genetic disease. It seems that cloning may be the only way that these couples could produce genetically related offspring of any sort.
According to John Robertson in his paper Two Models of Human Cloning (27 Hofstra L Rev 609, 617 et seq. 1999) the right to clone “should only be denied them if substantial harm from cloning to have genetically-related children for rearing could be shown.” Robertson goes on to say that one of the main objections to human cloning include possible harm to the child in the form of denying them “autonomy and a unique identity” and setting “unrealistic expectations that the child will have difficulty meeting.”
Robertson feels that this is not relevant in the cases of parents that are gametically infertile because they “will have resorted to cloning as the only way of establishing a genetic or biologic relation with their children, they are less interested in having the child be a genetic copy of the husband than that the child be genetically related to him.” These parents could indeed fall prey to the concerns of those that support a ban on cloning due to loss of unique identity but Robertson states that “there is good reason to think that these couples, who after counseling and preparation for these problems decide to proceed with cloning, will be competent, loving parents who are devoted to their child’s unique identity and welfare, despite its cloned origin.”
The argument for human cloning to be allowed for the reason of a couple’s reproductive failure is important because it ensures that these couples are allowed to explore all possible avenues to have a child with a genetic link to themselves, the same way that other reproductive couples do. But is raises the question; do we have the right to procreate? According to Justice Douglas’ comments striking down the law for the mandatory sterilization for habitual criminals in Skinner v. Oklahoma. (316 U.S. 535 1942) the court noted that the law interfered with marriage and procreation, which it considered to be among the “basic civil rights of man.”
The petitioner (Skinner) was convicted in1926 of stealing chickens and again in 1929 and 1934 for armed robbery both times. Oklahoma law at that time required mandatory sterilization for habitual criminals as long as it was not detrimental to their health. The petitioner challenged the Act as unconstitutional under the Fourteenth Amendment and a jury agreed that a vasectomy should be performed. When the case was appealed and heard before the Supreme Court Justice Douglas aid in his reversal of the
decision that “ We are dealing here with legislation which involves one of basic rights of man. Marriage and procreation are fundamental to the very existence and survival of the race…He is forever deprived of a basic liberty.” (Skinner v. Oklahoma)
We must also take into account the fact that we have the right to avoid procreation by means of contraceptives and abortion. If we have this right, should we not also have the right to avoid procreation?
In determining an individual’s right to be cloned one must consider the same “penumbras and emanations surrounding the Ninth and Fourteenth Amendments, first described by the Court in Griswold v. Connecticut that recognize a zone of individual privacy including marriage, the use of contraceptives and abortion.” (www.princeton.edu/lawjourn) Can this zone of privacy be stretched to include noncoital reproduction (not involving sexual intercourse through cloning? If it is the case that a married couple is infertile or at risk for a child with a genetic disorder then could cloning be seen as the only option to produce genetically related offspring? According to Justice Douglas in his reversal of the Connecticut law to ban the use of contraceptives marriage is a special case where privacy should be protected.
“The Ninth Amendment provides; The enumeration in the Constitution, of certain rights, shall not be constructed to deny or disparage others retained by the people…The fourth and fifth amendments were described…as protection against all government invasions of the sanctity of a man’s home and the privacies of life.” (Griswold v. Connecticut 381 U.S. 479,1965)
The Supreme Court on several occasions has recognized a married couple’s right to procreate in language broad enough to include coital and most noncoital forms of reproduction. In Meyer v Nebraska, for example the Court stated that constitutional liberty included the rights of an individual to “marry, establish a home and bring up children.”(Meyer v. Nebraska262 U.S. 390,399,1923) In Stanley v Illinois the court observed that “the rights to conceive and raise one’s children have been deemed ‘essential,’ ‘basic civil rights of man,’ rights far more precious… that property rights.” (Stanley v. Illinois 405 U.S. 645,651,1972)
According to The Cleveland Board of Education v. LaFleur (414 U.S. 632, 1973). The court has noted that “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Further support for an individuals right to procreate can be found in Justice Brennan’s opinion in Eisentadt v Baird (404 U.S. 438, 453, 1972):
“If the right to privacy means anything, it is the right of an individual, married or single, to be free of unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
If it is possible for a couple to exercise their right to procreate by using contraceptives and it is possible for a woman to terminate her pregnancy through abortion, is it unreasonable to ask whether we can choose to have the type of child we want? Roe v. Wade held that the interest in protecting fetal life is not sufficient to override the right of privacy. If cloning were allowed, many of the early deaths would involve fetuses, not viable human beings. After the decision in Roe v. Wade it could be possible that the interest in protecting fetal life cannot be overridden by the right to choose.
In the case of Planned Parenthood of Southeastern Pennsylvania v. Casey, the justices gave the following opinion, “Constitutional protection of the woman’s decision to terminate her pregnancy derives from the due process clause of the Fourteenth Amendment…Our law affords constitutional protection to certain personal decisions relating to marriage, procreation, conception, family relationships, childrearing and education…These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence…and the mystery of human life.
“…If a person would choose not to reproduce if she knew that the child would have a disability or some other undesired characteristic, then she should be entitle to have that information and to act on it. Her right to avoid reproduction for any reason would entitle her to avoid reproduction for a particular reason. Similarly, her right to have offspring only if she thinks that offspring will have particular characteristics.” (John A Robertson, Genetic Selection of Offspring Characteristics)
Then there is the case of the couples and single people that desire to clone when there is no reproductive failure. The case here is not as strong as for those who cannot conceive. The first type of couple would be one that wanted to clone a child that had died. The other type of couple would be a homosexual couple.
In the case of homosexual couples and more specifically lesbian couples, it can be argued that they have the right to clone because they desire to clone without any male involvement and therefore are equivalent of reproductive failure because sexual reproduction is not an option. As far as a homosexual male couple is concerned, their claim to clone may be viewed as less valid because while one male can donate the DNA to clone neither of them can carry the child and a woman’s services would be necessary to carry the child to term. “Of course if heterosexuals are permitted to clone where there is no reproductive failure, then homosexuals should be free to do it as well...” (John Robertson. Two Models of Human Cloning)