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Footnotes to "Cloning Human Beings"

1 The Commission also observes that the use of any other technique to create a child genetically identical to an existing (or previously existing) individual would raise many, if not all, of the same non- safety-related ethical concerns raised by the creation of a child by somatic cell nuclear transfer.

2 A somatic cell is any cell of the embryo, fetus, child, or adult which contains a full complement of two sets of chromosomes; in contrast with a germ cell, i.e., an egg or a sperm, which contains only one set of chromosomes.

3 With respect to interesting fiction consider Aldous Huxley's Brave New World (1932), David Rorvik's unsubstantiated claim of successful human cloning in In His Image (1978), and popular films such as The Boys from Brazil (1978) and Jurassic Park (1993) in which cloning leads to dire, doomsday consequences.

4 Much of this chapter is derived from the material contained in two commissioned papers provided by Janet Rossant, Samuel Lunenfeld Research Institute, Mount Sinai Hospital, Toronto; and by Stuart Orkin, Children's Hospital and Dana Farber Cancer Institute, Boston.

5 Much of the material in this chapter is derived from a commissioned paper prepared for the National Bioethics Advisory Commission by Courtney S. Campbell, Department of Philosophy, Oregon State University, titled "Religious Perspectives on Human Cloning."

Chapter Four - Ethical Considerations

1 In support of its analysis, NBAC commissioned a paper written by Dan Brock, Brown University, titled "Cloning Human Beings: An Assessment of the Ethical Issues Pro and Con." Some of the material in this chapter is derived from that paper.

2 There is one argument that has been used by several commentators to undermine the apparent significance of potential harms to a child created through somatic cell nuclear transfer (Chadwick 1982; Robertson 1994, 1997; Macklin 1994). The point derives from a general problem, called the non-identity problem, posed by the philosopher Derek Parfit and not originally directed to human cloning (Parfit 1984). This view argues that all the problems of having been born via such cloning are not net harms to the resulting child because they are not worse than no life at all. Parfit does not accept the above argument as sound. Instead, he believes that if one could have a different child without these burdens (for example, by using a different method of reproduction) there is as strong a moral reason to do so (Brock 1995).

3 Moral philosophers think about personhood when they construct and deploy their views of human choice and moral agency. For Kantians, personhood is about free will and reason. From the point of view of Kantian moral personality, all of us are identical as persons. Philosophers of mind think about personhood when they try to figure out what constitutes personal identity. For many of these philosophers, personal identity means having a continuous life story that incorporates a past and a future for oneself. From the point of view of personal identity, all of us are different, unique, as persons. Psychoanalysts think about personhood when they relate the constants of human life and development to broad personality structures. From the psychoanalytic point of view, each of us manifests the same dynamic personality structures, yet no two of us do so in exactly the same way; we are all the same and also all different. Welfare rights activists and human rights activists may think about personhood: what is the minimum of necessary resources for a fully human life? Some medical ethicists think about personhood while trying to decide at what point does life cease to be a human life worth living? Political theorists at times think about personhood in the context of trying to understand what are the basics of individuality that the state should recognize or underwrite? Parents think about personhood: what part do I play in making possible the fullest kind of human-ness for my children?" (Radin, 1995).

4 "Kantian ethical thought," writes Radin, "distinguishes morally between persons and objects. Rational beings possessing free will (persons) are autonomous; the moral law requires that persons be treated as ends, not means. Objects in the natural world that are not rational beings possessing free will are not persons, and may appropriately be used as means by persons. Kant's view requires that persons, moral agents, not be treated as objects, manipulated at the will of persons. Kant presented his basic principles of ethics in Immanuel Kant, Groundwork of The Metaphysics of Morals (1785), translated by H. J. Paton in The Moral Law (1948)." [Margaret Radin, "Reflections on Objectification," 65 Southern California Law Review 341 (November 1991), at footnote 4]

5 Branzburg v. Hayes, 408 U.S. 665, 705 (1972). Similarly, the Supreme Court stated in Meyer v. Nebraska that the right to liberty guaranteed by the Fourteenth Amendment encompassed freedom to "acquire useful knowledge . . . and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."

6 Henley v. Wise, 303 F.Supp. 62 (N.D. Ind. 1969).

Chapter Five - Legal & Policy Considerations

1 To support the Commission's review, a commissioned paper, "The Current and Future Legal Status of Cloning," was prepared by Lori Andrews, Chicago-Kent College of Law. In addition, NBAC commissioned a review of research moratoria, "Do Research Moratoria Work?" prepared by Robert M. Cook-Deegan, and a review of international responses, "Cloning: An International Comparative Perspective," prepared by Bartha Knoppers, University of Montreal.

2 42 U.S.C.A. Sec. 263a-1 et seq

3 45 C.F.R. Part 46

4 "Statement of the President on NIH Recommendations Regarding Human Embryo Research," U.S. Newswire (Dec. 2, 1994).

5 P.L. 104-91 and P.L. 104-208.

6 Ten states have laws regulating research and/or experimentation on conceptuses, embryos, fetuses or unborn children that use broad enough language to include early stage conceptuses.Fla. Stat. Ann. 390.001(6) (West 1993); La. Rev. Stat. Ann. 9:121 et seq. (West 1991); Me. Rev. Stat. Ann. tit. 22, 1593 (West 1992); Mass. Gen. Laws Ann. ch. 112, 12J (West 1996); Mich. Comp. Laws Ann. 333.2685 et seq. (West Supp. 1997); Minn. Stat. Ann. 145.421 (West 1989); N.D. Cent. Code 14-02.2-01 (1991); N.H. Rev. Stat. Ann. 168-B:15 (Supp. 1996); Pa. Cons. Stat. 3216 (West Supp. 1996); R.I. Gen. Laws 11-54-1 (1994).

7 If cloning is considered to be a form of fertilization, questions arise regarding whether state laws setting standards for who may perform in vitro fertilization will cover the practice. Certain laws governing reporting, the qualifications of personnel, and so forth, will be applicable to researchers. A New Hampshire law, for example, requires counseling in advance of in vitro fertilization and limits the procedure to participants over age 21 (which, if applied to cloning, might prohibit the use of DNA from a minor child). Pennsylvania has a reporting requirement which mandates that anyone performing in vitro fertilization file quarterly reports with the Department of Health describing such facts as the number of embryos destroyed and discarded and the number of women in whom embryos are implanted. Louisiana's law requires that in vitro fertilization shall only be undertaken by practitioners and facilities meeting the standards of the American College of Obstetricians and Gynecologists (ACOG) and the American Fertility Society (AFS) (currently, the American Society for Reproductive Medicine). La. Rev. Stat. Ann. 9:128 (West 1991).

8 In many states, the woman who gives birth is considered to be the legal mother and her husband the legal father of any resulting child. Under statutes in Arizona and Utah, this holds true even when the surrogate is gestating an embryo with no genetic relationship to her. Only in Florida, New Hampshire, North Dakota and Virginia do court-approved gestational surrogacy arrangements result in the intended rearing parents-not the surrogate- being viewed as the legal parents.

9 The latter often will have rights (even though he has no biological connection to the child) based on the common law presumption that if a woman gives birth within marriage, her husband is the child's legal father, or in some states, based on specific statutes holding that the surrogate and her husband are the legal parents of a child she has gestated regardless of their genetic contribution. See, e.g., Ariz. Rev. Stat. 25-218 (1996).

10 See, e.g., Los Angeles Times, February 25, 1997, page 6, "Next, Really Prolific Cows: Scientists Clone a Sheep, but We Needn't Fret the Doomsday Scenarios"; The New York Times, February 25, 1997, Section A; page 26; "Cloning for Good or Evil"; The Houston Chronicle, February 25, 1997, Outlook; page 19, "Dolly's birth is father to some worrying musings," Otis Pike; The Record, February 25, 1997, page L10, "Of Sheep and Men; Before Building a Better Beast, Think Twice; The San Diego Union-Tribune, February 25, 1997, page B-6, "Amazing breakthrough: Cloning of sheep has remarkable implications"; Wall Street Journal, February 25, 1997, Section A; page 22, "Review & Outlook: Listening to the Lamb"; The Arizona Republic, February 26, 1997, page B4, "Cloning Question; The Mysteries of Life"; The Florida Times-Union, February 26, 1997, page A10, "No need for panic"; Miami Herald, February 26, 1997, Section A; page 16, "God's Work; Man's Hands"; The Morning Call, February 26, 1997, page A16, "'Dolly' Opens New Vistas For Mankind"; St. Petersburg Times, February 26, 1997, page 14A, "Rules for cloning needed"; The Buffalo News, February 27, 1997, page 2B, "Ready or Not, Cloning Has Arrived; Don't Lose Time Banning it in Humans; Dayton Daily News, February 27, 1997, page 1a, "Animal Cloning Calls for Human Restraint"; Philadelphia Inquirer, February 27, 1997, page 19, "Don't Be Too Hasty With Laws on Cloning," by James K Glassman; The San Francisco Examiner, February 27, 1997, page A20, "Hello Dolly: The cloning of a lamb from a sheep cell opens up a new era of nervous jokes, profound questions and athletic opportunity"; The Augusta (Ga.) Chronicle, February 28, 1997, page A4, "Ban Human Cloning"; The State Journal-Register (Springfield, IL), March 2, 1997, page 16, "Cloning of sheep holds remarkable implications"; The Baltimore Sun, March 3, 1997, page 8A, "More of you and me?; Hello, Dolly: Replicating a sheep raises concerns about cloning humans"; The Indianapolis News, March 4, 1997, page A6, "Wolves in sheep's cloning"; The Spokesman-Review (Spokane, WA), March 7, 1997, page B6, "Cloning Tempts Our Darker Sides; Ban Research; We Won't Resist the Urge to Turn Humans into Instruments," D.F. Oliveria; The Spokesman-Review (Spokane, WA), March 7, 1997, page B6, "Cloning Offers Hope, Not Evil; Don't Be Afraid; Cloning Research Offers Hope to Solve Genetic Mysteries," Rebecca Nappi; The Times-Picayune, March 10, 1997, page B6, "Cloning Begets Questions"; Dayton Daily News, March 10, 1997, page 6A, "Fear of Clones Itself a Threat;" The Orange County Register, March 10, 1997, page B06, "Vital questions"; Los Angeles Times, March 13, 1997, page 8, "Don't Rush Anti-cloning Laws; Concerns Are Real, but Legislation Needs Expert Input;" The Nashville Banner, March 19, 1997, page A8, "Frist's note of caution; Don't be too hasty, he says, to pass law on cloning"; The Nation, March 24, 1997, No. 11, Vol. 264; Pg. 4; ISSN, "Irreplaceable ewe; cloning of a sheep;" Editorial, Hubbard, Ruth; The New York Times, April 1, 1997, page 22, "Cloning as an Anticlimax," Philip M. Boffey; Information Bank Abstracts, Wall Street Journal, May 2, 1997, page 14, "Will Cloning Beget Disaster?"

11 See, e.g., Curlender v. Bio-Science Laboratories, 165 Cal. Rptr. 477 (Ct. App. 1980).

12 "[I]n order to be legitimate, the State's interest ... must be secular; consistent with the First Amendment the State may not promote a theological or sectarian interest. Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S. Ct. 2791, 120 L.Ed 2d 674, 739 (1992) (Stevens, J. concurring in part and dissenting in part). See also Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 778 (1986) (Stevens, J. concurring); see generally Webster v. Reproductive Health Services, 492 U.S. 490, 563-572 (1989) (Stevens, J., concurring in part and dissenting in part). When applied to ethical decision making, one philosopher notes: "Morality's ambition is, or at least ought to be, to provide a system of conduct under which everyone can live with a sense of mutual justifiability. This follows from the conditions of political legitimacy. We do not live in a theocracy, where some people are thought to have a privileged and direct line to moral truth." (Nagel 1995)

13 See, e.g., Griswold v. Connecticut, 381 U.S. 379 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972).
Early decisions protected the married couples' right to privacy to make procreative decisions, but later decisions focused on individuals' rights as well. The U.S. Supreme Court, in Eisenstadt v. Baird, stated, "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).

14 Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 2810 (1992).

15 Lifchez v. Hartigan, 735 F.Supp. 1361 (N.D. Ill.), aff'd without opinion, sub nom., Scholberg v. Lifchez, 914 F.2d 260 (7th Cir. 1990), cert. denied, 111 S.Ct. 787 (1991).

16 The applicability of Medicare (which generally pays for the care of persons aged 65 or older) may not be apparent, but with the advent of post-menopausal pregnancy via hormonal maintenance, Medicare unexpectedly became a public insurer with at least theoretical obligations to pay for pregnancy care. Furthermore, even if the female partner is not covered by Medicare, the male partner, from whom the somatic cell nucleus might be obtained, could be old enough to be a Medicare beneficiary.

17 To receive input on scientific and professional society views about cloning of human beings, NBAC commissioned the Critical Technologies Institute of RAND to request informal input from relevant organizations, of which 32 responded. "Views of Scientific Societies and Professional Associations on Human Nuclear Transfer Cloning Research," by Elisa Eiseman, May 1997.

18 "Global Group Urges a Voluntary Ban on Human Cloning," Chicago Tribune, May 12, 1997, p. 16.

19 See transcripts of NBAC Human Subjects Subcommittee meeting, December 16, 1996.

20 Emma Thompson, "Germans and French Press for Worldwide Ban on Human Cloning," The Herald (Glasgow), April 30, 1997, p. 14.

21 Gile Tremlett, "Twenty European Countries Sign International Convention," The Times (U.K.), April 5, 1997.

22 "Health Agency Says Cloning of Humans Unacceptable," Chicago Tribune, May 15, 1997.

23 Many of the definitions were excerpted from the National Institutes of Health Report of The Human Embryo Research Panel (Washington, DC: U.S. Government Printing Office, 1994).