WEB JOURNAL/EMERGING AREAS/SCIENCE AND LAW

E-mail this
Comments
Print Article

To Clone or Not To Clone*
by Rukhmini Bobde

Cite as : (2003) PL WebJour 4


The birth announcement of a lamb named "Dolly", by the Roslin Institute in Edinburgh, Scotland on 23-2-1997 was probably the greatest event in the world of science in the last century. The cloning of humans seemed possible sooner than expected. The question that immediately and inadvertently arose in everyone's minds and still continues to be debated is "should humans be cloned?" This paper examines the science behind cloning, the various legislations on the subject and then goes on to critically evaluate cloning in the light of its functions and implications.

The science: how is cloning achieved?

It is important to understand exactly what cloning is and how is it achieved. Almost all the hereditary material of a cell is contained within its nucleus encoded in the DNA (deoxyribonucleic acid) of the cell. A cloned organism is genetically identical to its progenitor i.e. it shares the same DNA code. The process behind the birth of Dolly is conceptually a simple one and is called somatic cell nuclear transfer. The nuclear material from the donor cell is inserted into an enucleated egg cell obtained from a female mammalian species (in this case, a female sheep). The DNA in the egg is then "reprogrammed" by the use of an electric current or chemicals so that it starts behaving like an undifferentiated cell and restarts the process of differentiation — development from embryonic cells into specialized cells like those that form the muscles, skin etc. and growth. This renucleated egg is then placed in the uterus of a female and the individual that it develops into is genetically identical to the donor of the nuclear material. Identical twins also share the same DNA code and can be seen as the nature's way of cloning. Thus, a clone is nevertheless an individual by himself/herself and would be as similar to its progenitor as identical twins are to each other. Thus, cloning is not "photo copying".

Types of cloning

Cloning can be divided into two types on the basis of what they ultimately seek to achieve — reproductive cloning and therapeutic cloning. The former is the process of cloning in order to produce a genetically identical individual, which is what was done in the case of Dolly. Therapeutic cloning has not yet been reportedly successfully performed on any animals and is still in the research stages. It would essentially be the same process, except that, the embryo that is produced through somatic cell nuclear transfer would not be implanted in a female uterus, instead, after the embryo reaches the blastocyst stage (i.e. when it is a cluster of cells) certain stem cells would be removed and encouraged to grow into an organ or body part. The early stage embryo would be destroyed in the process. This technology if perfected would be of great use in curing various degenerative diseases like heart diseases, Alzheimer's, Parkinson's disease etc. As the cells used in developing the organ would be genetically identical to the patient's cells, the organ could then be transplanted into the patient's body without fear of rejection by the donor's immune system. Thus a person suffering from bone marrow problem could merely have his bone marrow cloned and replaced! This would save the patient from the troubles and risks of using a mismatched donor.

The state of the art

The clone of a person would doubtless emerge into the world just like any other baby. However it has been found now that the age of Dolly's cells is 6 years older than her chronological age (the sheep whose DNA was used was 6 years old) and this probably means a shortened lifespan and premature ageing. Infact, she has already developed arthritis. On April 2000, Advanced Cell Technology, Inc. (ACT) of USA reportedly successfully cloned 6 cows in such a way that they reset the ages of the cells in them and these cows should have normal age expectancy2 We shall however have to wait and watch. In December 1998, researchers at Kyunghee University in South Korea claimed to have produced the world's first human embryo clone. The scientists involved said they destroyed the object soon after seeing it divide several times. Many researchers around the world doubt if the experiment ever took place3 In November 2001, ACT announced that they had cloned a human embryo, which had grown to a six-cell level stage. Dr Ian Wilmut, who led the team that produced Dolly the sheep commented "It's really only a preliminary first step because the furthest that the embryo developed was to have six cells at a time when it should have had more than 200 — and it had clearly already died."4

The law

Different countries and organizations have taken different legal standpoints with regard to both reproductive cloning and therapeutic cloning. Let us now briefly examine these.

The United States of America

In the USA, President Clinton responded to the news of the birth of Dolly by using his executive powers to ban federal funding of human cloning research in the United States (not that there was any) and asked the National Bioethics Advisory Commission (NBAC)5 to review the implications of this technology. This Committee was dissolved in October 2000 and President Bush replaced it with the President's Council on Bioethics (PCB)6 Both these Committees in their reports found cloning to be "morally unacceptable" and recommended legislation for prohibition of cloning.

Legislation

On the legislation front, as early as February 1997, a Bill was put up before the Senate which would criminalise human cloning. However, no action on this Bill is expected in the near future7

Thereafter, in July 2001, two competing Bills were introduced in the House and the Senate. The Human Cloning Prohibition Act of 2001 in the Senate would make reproductive cloning, therapeutic cloning as well as importation of a cloned human embryo as well as its product, a criminal offence, punishable by a ten-year jail sentence and 1 million dollar fine. This Bill was passed by the house. The other Bill, the Cloning Prohibition Act of 2001 would ban cloning with the intent of initiating a pregnancy. However, it would allow "therapeutic" cloning. This Bill was rejected by the House.8

Thereafter in May 2002, the Human Cloning Prohibition Act of 2002 was introduced in the Senate which would simply prohibit the implantation of cloned human embryos in a woman's uterus i.e. reproductive cloning but it would allow therapeutic cloning. On 14-5-2002, yet another Bill was introduced in the Senate that states: "It shall be unlawful for any person to engage in a human cloning procedure for the purpose of creating a cloned human being."9

Thus, in the USA, there are several Bills that have been introduced in the legislature on the subject of cloning10; none of them have been enacted into law. The balance at present however appears to be tilting in favour of banning cloning altogether.

The United Kingdom

In a case brought by a pro-life group, the High Court, on 15-11-2001, quashed the law allowing regulatory powers over cloning to the Human Fertilisation and Embryology Authority (HFEA). The pro-life group is against cloning in any form and brought the case before the High Court seeking to show the loopholes in the law relating to cloning in the country. The ruling was based on the contention that an embryo, as defined by the 1990 statute that created the HFEA, does not include an embryo produced by cloning and thus cloning cannot be regulated by the HFEA.11 The Government has gone to the Court of Appeal against this ruling of the High Court. Pursuant to this ruling of the High Court, the legislature made haste and passed the Human Reproductive Cloning Act, 200112 on 4-12-2001. Thus, the position as of now in the United Kingdom is that technically, therapeutic cloning is permitted, however reproductive cloning is banned under the aforesaid Act. This has put UK in a technologically more advantageous situation as compared to the US where the balance seems to be tilting against cloning even for therapeutic purposes.

International Organisations

The World Health Organisation has condemned human cloning as "ethically unacceptable and contrary to human dignity and integrity"13 UNESCO has adopted a declaration which states that: "Practices which are contrary to human dignity, such as reproductive cloning of human beings, shall not be permitted."14

Also, the Council of Europe adopted the Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings.15

The discussion

The majority response to the prospect of cloning humans in the world at large has been one of repugnance and this is reflected in the various legislations and conventions that have been enacted and adopted on the subject.

On therapeutic cloning

Therapeutic cloning could prove to be very beneficial and research on the same must be allowed to continue. There are several pro-life activists who feel that even therapeutic cloning is impermissible, as the early-stage embryo produced in this process would be destroyed as a result of the separation of the stem cells from the embryo. However, apprehensions about giving the green signal to therapeutic cloning do not rest on the theological debate about whether or not this early-stage embryo is a human being (for if we were to accept that reasoning, abortion would never have been permissible either), but more on practical lines. Once the production of cloned human embryos even if only for the purpose of stem cell research, is allowed, it would be necessary to adopt stringent regulations and monitoring to ensure that none of these cloned human embryos are transplanted into a woman's uterus to produce cloned individuals. The required infrastructure is necessary to enable strict measures to prevent anyone from attempting reproductive cloning. It is for this reason that an immediate moratorium on therapeutic cloning is required.

On reproductive cloning

As for reproductive cloning, the very thought of producing cloned human beings is a grotesque one. Repugnance is not an argument in itself. However, there are some practices that are simply opposed to the essence of humanity that no absence of rational and logical reasoning can allow us to waive their repugnance for instance, cannibalism, incest etc. Cloning-to-produce-children or reproductive cloning, referred to, henceforth, in this article as simply "cloning" is one of them.

Many bioethicists, scientists and people shudder at the prospect of cloning, not because they imagine mass production of cloned babies or the cloning of evil dictators or the formation of an army of the like envisaged in Huxley's Brave New World. They know that this is not what the advocates of cloning want either. Their objections to cloning are more down to earth. Cloning is something that strikes at the very roots of what it means to be human. With cloning "we see ourselves ... not only as self-made men but also manmade selves"16 It will allow us to "produce" children rather than "beget" them.

Implication of recent developments

Those in support of cloning contend that these fears are unreasonable and that we can rely on the human race to be cautious and conscientious in its approach towards this new technology. But recent developments since the announcement of Dolly seem to suggest otherwise. In spite of the fact that we are probably technologically still miles away from successfully cloning a human being, there is already in existence a company CLONAID™17 which calls itself "the first human cloning company!" It has a "services" section and even a "products" section on its website. All one can say is that this is loathsome. In April 2002 an Italian physician announced that a woman who had joined his programme for infertile couples was now eight weeks' pregnant with a foetus derived by human reproductive cloning. Although such cloning is banned in Italy he was allegedly able to go to another country to perform the experimental technique. This, in spite of the fact that there is a near consensus among scientists that reproductive cloning of humans at this stage, apart from being unethical, is entirely unsafe as cloning performed on animals has produced several genetic defects18 All of this just goes to show that the world is neither prepared nor capable of handling this technology with appropriate care and seriousness.

"Purposes" of reproductive cloning

Reproductive cloning apart from being repulsive, serves no pressing needs at all. Following are the various uses of reproductive cloning advocated by its proponents. It might allow infertile couples or others to have genetically related children; permit couples at risk of conceiving a child with a genetic disease to avoid having an afflicted child; enable a parent to "replace" by cloning, a dead or dying child or spouse, or even to try to "replicate" individuals of great talent or beauty.

Let us first deal with the first two uses of cloning. Infertile couples already have three existing options before them for begetting children — adoption, artificial insemination and in vitro fertilization. Cloning would allow the couple a fourth option of having a child — an option, which is wholly unnecessary, and one that in many ways differs radically from the available ones and an option which if examined closely goes against the very basis of nature's idea of reproduction. Cloning would not be the first method to have been developed by mankind that departs from the natural way of reproduction. Artificial insemination and in vitro fertilization, mentioned earlier, are two such methods too. The former involves inseminating a female with sperms, which, in successful cases, results in fertilization of the egg and a natural pregnancy follows. In vitro fertilization involves the fertilization of the egg and sperm in a petri dish (vitro is latin for glass) and the embryo formed as a result of this fertilization is then transplanted into a woman's uterus to develop into a human child. Each of these procedures, with varying degrees of closeness, enables the couple to have or rear children biologically related to at least one of them.

Cloning on the other hand, is not just about having a child but it is about producing a child with a particular set of genes. Yet, it is different from current prebirth selection techniques as the latter function negatively i.e. they can exclude undesirable genetic characteristics to prevent genetic diseases in the child. Cloning on the other hand involves selecting the entire nuclear genome of a child. This goes against nature's rule of lottery. Are we now to allow couples to produce "designer babies"?!

Another situation where a parent may want to clone is the situation where one would want to replace a dead or dying child or spouse. This once again, must be impermissible. The sorrow of losing someone in death and the joy and fascination of the birth of a new, unique individual are two basic aspects of life as we understand it and tampering with this is man attempting to play god. In October 2000, reportedly an unnamed American couple paid 3,00,000 to a religious group, the Raelians to clone their daughter who had died at the age of 10 due to a medical accident. Her parents had saved some cells from her body. They plan to set up the lab in a third-world country that has no laws against cloning. Now this is clearly wrong. Prof. Ian Wilmut, the creator of Dolly, very articulately put into words the objection against a practice of this kind. While commenting on this particular event he said:

"It sounds to me like a very misguided exercise. Clearly everybody feels very sorry for any couple who loses a child but you cannot get that child back. People should realize that as a biological truth. Quite apart from that, it is absolutely criminal to try this in a human."19

Another situation of cloning arises when a couple who is coitally fertile prefers instead to bear and rear a child who is the clone of another person i.e. in order to replicate a person on account of some desirable qualities like beauty, # genius brain etc. There is no justification for such a practice. We do not have the right to take into our hands the matter of selection of a to-be born child's genome on the basis of what we think are desirable traits.

The slippery slope reasoning

Both of the abovementioned methods of reproduction, particularly in vitro fertilization, caused a considerable uproar when they were introduced as they change our idea of "having babies". When in vitro fertilization was introduced its proponents said that it should be made permissible for all its various benefits and that the practice of this process would not in turn be used to justify other artificial methods of reproduction. But this is precisely what is happening now. It is wholly erroneous to use the prevalent practice of in vitro fertilization as a justification for allowing cloning20 This sort of reasoning is what is called the "slippery slope" reasoning. Gregory Stock in his article in support of cloning says we shall not slip into a "dehumanised nightmare" provided we "remain capable of making nuanced moral judgments"21 But that is precisely what one fears the advocates of cloning seem to lack. Stock goes on to state "And anyway, if this is a slippery slope, we are probably already on it."22 This is in essence the fallaciousness of the slippery slope reasoning. Simply because we've started to slip does not mean we continue to slip!

From sexual to asexual reproduction

Furthermore, let us not forget that reproductive cloning is very different from other artificial methods of reproduction existing today. Artificial insemination and in vitro fertilization are methods of sexual reproduction (which occurs as a result of the fertilization of the female egg by the male sperm); reproductive cloning on the other hand is a form of asexual reproduction. Asexual reproduction is naturally found to occur only in the much lower forms of life, like amoeba. It was never meant for human beings!

Cloning and the right to reproduce

Another interesting but untenable argument put forth by the proponents of cloning is with regard to the right to reproduce. They strongly believe that a ban against cloning infringes upon one's reproductive right. They go as far as to equate a ban on cloning to a "practical equivalent of forced sterilization"23 Reproductive right i.e. the right of an individual to decide whether or not to beget a child is rather an ambiguous right. Usually individuals hold rights. The question that arises is, in who does this reproductive right exist? Does it exist in the couple jointly as both male and female genes are required to make up a child (sexual reproduction), or does it exist in the female because she is the one who conceives the child? What is universally accepted about the right to reproduce is that it includes a negative right, for instance, individuals have the right to have non-interference by the State in their decision to beget or not beget a child. A forced sterilization campaign would thus be violative of such a right. It also includes the right of a couple or a woman to decide not to have a child. Thus, we as a society allow and accept abortion and the use of contraceptives. The question that now arises is "Does reproductive right also include a positive right to have a child even if one is naturally unable to do so?" The answer is "no". Let me draw an analogy to the right to practise one's trade, profession or business. This is a positive right conferred upon an individual. However, at the same time this does not give the individual the right to demand employment because he can't seem to be able or capable of finding a job on his own. Furthermore, even if one were to accept the argument that this right includes the positive right to beget, it certainly does not include the positive right to select the traits that the child will possess.

The conclusion

Human cloning violates the right to one's unique genetic identity and dignity, that of the clonee as well as the cloned. Advocates of cloning also justify it on the ground that since cloning apart from the formation of the human embryo by way of artificial reproduction, is otherwise similar to the natural process of birth i.e. the embryo is implanted in a woman's uterus and a child is born in the same way as any other child the mother will feel very strong maternal ties of affection towards the cloned child and he/she will be reared up by the parents just like any other child. Therefore, there is practically speaking, no fear of mass production of clones and oppression of clones by their progenitors. Now, this scenario, admittedly, is highly unlikely. The objection to childbirth through cloning is, however, on the grounds that it violates and undermines the traditional ideas of family, parenthood, kinship etc. It is a question of human integrity and individuality. Each natural person is unique. A cloned child would suffer from psychological problems arising out of confusion of identity and comparison to the cloned person would be inevitable, whether one likes to accept it or not. This is because the whole idea behind cloning — replicating a person — is wrong.

In spite of the majority worldwide opinion against cloning human beings, realistically speaking, like it or not, research in that direction cannot be avoided. Science is unstoppable. We may ban it, condemn it, criticize it, but we cannot prevent research on human cloning. History bears evidence of the fact that ethical reasoning and the possibility of unwanted consequences have never deterred scientific research (after all who really wanted the atom bomb either?). Thus, I would conclude by quoting Leslie A. Platt on cloning: "We are at the threshold of unlocking the mysteries of life. I believe that we have an obligation to proceed. Let us proceed wisely."24




* This article reflects the position of technology and law as on 18-10-2002. Return to Text

  1. "Scientists rewind aging clock in cells of cloned cows, study says," CNN.com, 2000-ARR-27, at: http://www.cnn.com/2000/HEALTH/04/27
    /cloning.aging/index.html
    Return to Text
  2. Human Embryo Has Been Cloned run by Dr S. Hill available athttp://www.reproductivecloning.net/hosting
    /news/news8.html
    Return to Text
  3. Id. Return to Text
  4. NBAC, Cloning Human Beings, (June 1997) available at http://www.georgetown.edu/research/nrcbl/nbac
    /pubs.html
    (accessed on 13-10-02) Return to Text
  5. PCB, Human Cloning and Human Dignity: An Ethical Inquiry, (July 2002) available at www.bioethics.gov/cloningreport. Return to Text
  6. HUMAN CLONING: Developments — 1997 to 2000 incl. available at http://www.religioustolerance.org/clo rece.htm (accessed on 13-10-02). Return to Text
  7. HUMAN CLONING: Developments — 2001 to the present time available at http://www.religioustolerance.org/clo rece.htm (accessed on 13-10-02) Return to Text
  8. Id. Return to Text
  9. Ban on Human Cloning Act (March 2001), Human Cloning Research Prohibition Act (April 2001), Human Cloning Prohibition Act of 2001 (July 2001), Cloning Prohibition Act of 2001 (July 2001), Human Cloning Prevention Act of 2001 (December 2001), Human Cloning Ban and Stem Cell Research Protection Act of 2002 (January 2002), Human Cloning Prohibition Act of 2002 (May 2002) available at http://thomas.loc.gov. Return to Text
  10. Roger Moorgate, Human Cloning Legal in United Kingdom, (November 2001) available at http://www.reproductivecloning.net/hosting
    /news/news7.html
    (accessed on 13-10-02); Return to Text
  11. Available at www.hmso.gov.uk/acts/acts2001/20010023.htm (accessed on 11-10-02). Return to Text
  12. 51st World Health Assembly, resolution WHA51.10 available at www.who.int. Return to Text
  13. Universal Declaration on the Human Genome and Human Rights, Article 11. Return to Text
  14. Available at http://conventions.coe.int/treaty
    /en/treaties/html/168.htm. Return to Text
  15. Leon R. Kass and James Q. Wilson, The Ethics of Human Cloning, p. 11 (1998) Return to Text
  16. www.clonaid.com Return to Text
  17. HUMAN CLONING: Developments — 2001 to the present time available at http://www.religioustolerance.org/clo rece.html (accessed on 13-10-02): "Reproductive Cloning: Just What The Doctor Ordered," Washington Update, Family Research Council, 2002-APR-5. Return to Text
  18. HUMAN CLONING: Developments — 1997 to 2000 incl. available at http://www.religioustolerance.org/clo rece.html (accessed on 13-10-02): Toby Moore & Michael Hanlon, "Cult in first bid to clone human," Daily Express, London, UK. 2000-OCT-11. Return to Text
  19. as also discussed by Leon R. Kass and James Q. Wilson, The Ethics of Human Cloning, p. 11 (1998). Return to Text
  20. Gregory Stock, Cloning Research Commentary available at http://www.reproductivecloning.net/open/stock.html. Return to Text
  21. Id. Return to Text
  22. Mark D. Eibert, Human Cloning, Infertility, and Reproductive Freedom available at http://reason.com/opeds/eibert.shtml. Return to Text
  23. Leslie A. Platt, Esq., President & Director, Foundation for Genetic Medicine, Inc., Cloning and Owning Biodiversity:Order and Chaos Drive Rational Design and Discovery of New Drugs available at http://www.geneticmedicine.org/paper1.htm Return to Text
Search On Page:


Enter Search Word:

  Search Archives
  Search Case-Law
  Search Bookstore
  Search All


Archives of SCC Articles
Archives
  Subjectwise Listing of Articles
  Chronological Listing of Articles
  Articles Exclusively on the Internet
  More Articles...

Most Accessed Articles
Recent Articles