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Why The Legal and Ethical Issues It Poses Are Likely to Be Relatively Limited

Monday, Dec. 30, 2002

A few days ago, Brigitte Boisselier - a leader of a religious sect called the Raelians - announced that the world's first cloned baby has been born. Many have scoffed at her claim. But whether or not a cloned baby exists now, it is likely that someday one will: Other scientists abroad have declared that they are working towards the same goal.

In response to Boisselier's announcement, U.S. regulators have voiced their worries and concerns. They have also expressed pride that the birth did not happen here (its location is secret, but the sect has made clear that it occurred outside the U.S.). And President Bush has expressed his strong support for legislation banning all human cloning in the U.S.

Cloning should certainly be regulated and, at least for now, banned - especially in this nascent stage, for it is likely to create heartbreaking birth defects, as it has in some attempts to clone animals. And the government's authority to ban unsafe medical procedures is well-established.

Later, however, cloning will pose more difficult legal and ethical issues, when (and if), as a result of experimentation abroad, it becomes a safe procedure. At that point, some may see cloning as just another reproductive choice, and a battle will likely be waged in the courts.

The truth, though, is that cloning is over-hyped. In the end, it is unlikely to have anything close to the historical significance of genetic screening - an innovation with which it is frequently paired, but one that is likely to have a far more profound influence.

The Argument For Banning Even A Perfected Form of Cloning

Parents who cannot - or do not want to - have a child naturally, may want to choose to clone one instead. They may want the source of the clone's DNA to be their own (Boisselier says the cloned baby has its mother's DNA), or that of a relative.

In particular, as Sherry Colb explained in a prior column on cloning for this site, parents may often resort to cloning because they hope to "replace" a child who has died too young. But that hope, as Colb notes, will always be disappointed: Clones will look as similar as an identical twin to the person from which their DNA is taken, but they will probably be very different in personality, for they will be raised in a different environment. Thus, the idea of "replacement" will always be an illusion.

The result is likely to be psychological trauma for everyone in the family: the disappointed parents, and the child who cannot live up to their hopes. This risk seems to suggest, as Colb argues, that cloning should be banned even assuming it is someday perfected. Like consensual incest, it may be a choice that society believes is simply too harmful to allow people to make.

The Argument Against Banning Cloning When (and If) It Is Perfected

There is also an argument to the contrary, however - in favor of allowing parents to make the decision to clone. It is this: Without a simple, clear rule (or, indeed, a constitutional right) that says parents may do as they like when it comes to reproduction, the government may interfere in reproduction and parenting in troubling ways - and that is something the courts have consistently refused to allow to happen.

After all, people make stupid reproductive choices all the time. They have children they do not want, cannot support, or abandon, and they bring children into psychologically traumatic situations that scar them forever. Yet so far, the government has only rarely appointed itself as the "reproduction censor," telling couples when and why they can (or cannot, or must) have children. And when it has, the courts have generally interfered to stop it from doing so.

Indeed, so far, the Supreme Court has supported broad reproductive rights. In Skinner v. Oklahoma, it declared a right to procreate when it barred a state from sterilizing a prisoner. In Griswold v. Connecticut, it struck down a ban on contraception. In Roe v. Wade and Planned Parenthood v. Casey, it held unconstitutional laws that unduly restrict abortion.

Roe and Casey are often discussed as decisions involving bodily privacy and a woman's right to choose. Yet Griswold involves not privacy, but a drugstore purchase. Moreover, its holding not only the right of a woman, but the right of a couple to choose when - and when not to - reproduce. And the right to choose implicated in Skinner was a man's right to choose, not a woman's.

Thus, taken together, these decisions arguably suggest a broad right of parental choice - one that applies to men and couples, as well as individual women, and to issues of reproductive choice, in the lab, the doctor's office, or the drugstore. Based on these precedents, if a state were, for example, to ban safe, perfected methods of in vitro fertilization (IVF), the Court would probably strike down the ban.

And once perfected, cloning may rank, to some, as just another reproductive choice, similar to IVF - though one that is likely, as Colb points out, to be far more traumatic for the family than IVF could ever be.

Thus, cloning will challenge us to set the limits of exactly how deeply we believe in parental control over reproduction - and challenge courts, similarly, to set the limit of exactly how far reproductive rights extend.

In the End, The Issue of Cloning Will Be Less Significant Than It May Seem

Fortunately, though, the pages devoted to the debate over whether there is a "right to clone" will probably dwarf the number of parents who actually choose to do so.

Methods to address infertility are constantly improving. In addition, more wealthy women - the same women who would have the money to clone - may choose instead to freeze their eggs for later use. The method now works: Just this year, a British infertility specialist reported that a woman whose eggs had been frozen; thawed; and then subjected to IVF, had delivered a healthy baby.

Another reason cloning is likely to continue to have only extremely limited popularity is that it suffers - and is likely to continue to suffer - a strong social stigma. Having a child who so closely resembles yourself, your deceased child, or another relative, is likely to be thought to be weird for a long time to come. (The involvement of the Raelians - who reportedly believe that humankind was created by extraterrestrials - is hardly likely to help matters.)

As with adultery, while the stigma against cloning may diminish, it will probably never wholly disappear. As a result, clones will hardly take over the earth - regardless of how many countries do, or do not, ban cloning. And even if they did, were cloning to be perfected, the result will likely be no more troubling than if the world were to see the advent of a host of identical twins, and a host of dysfunctional families.

Why Genetic Screening, In Contrast to Cloning, May Be Highly Significant

Genetic screening, in contrast, might indeed take over the earth - or at least, those developed countries wealthy enough to use it. Cloning and genetic screening are often discussed together. But in fact, the latter is likely to be far more influential.

Even now, genetic screening has the potential to alter the genetic composition of the population. Through IVF, numerous fertilized eggs produced by a couple can be tested for a particular undesirable (or desirable) gene. Then, those with the gene can be discarded (or chosen). The result is a "designer baby" - with traits chosen not by luck alone, but by the couple itself.

Granted, cloning designed to only select "superior" people might have a similar effect. But people generally seem to seek to clone for sentimental reasons - because the person who is the DNA source was especially beloved.

In addition, couples are far more likely to take advantage of genetic screening than cloning. Thus genetic screening is likely to have an effect on society that is, at the same time, more widespread and more subtle than the effect of cloning.

Unlike cloning, genetic screening can be done in secret, obviating any stigma. And in any case, there may be no stigma on genetic screening in the first place: Unlike with cloning, there will be no eerie resemblance to the person who was the source of the cloned DNA

Hysterical headlines about cloning nevertheless abound - while headlines about genetic screening are sober and rare. But don't let the headlines fool you: The real issue isn't cloning, and the weirdness of the Raelians is just a sideshow.

Genetic screening is the central issue: the far deeper risk, the far greater possibility. But as long as our capacity to genetically screen proceeds incrementally, its consequences may stay under the radar until it is too late for us to consider and effectively implement regulation.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Her 1998 memoir, The Bad Daughter, deals with genetic disease and genetic risk. Her first novel, Three, will be published in the U.S. in summer 2003 by Plume; in the U.K. by Bantam; and in French translation by Actes Sud.

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