Cloning

The right to reproduce is generally deemed to be a fundamental right inAmerican law.Reproductive Cloning is an extension of that right. The scientific and then legal construct of reproductive Cloning will be explored. (Therapeutic Cloning is no different from any other medical treatment and is dealt with elsewhere.)

Cloning: The Scientific Background

Cloning, until now the subject of the fictional analysis of the type found in the novel The Boys from Brazil (1976), has become a medical reality with the recent Cloning of a sheep, a horse, a cat, and a dog. Indeed, there is no doubt that in a very short number of years, it will be medically possible to clone human beings, and there is already extensive discussion about whether such conduct should be permissible.

To discuss Cloning, one must understand exactly what Cloning is. Every human being currently in the world is the product of a genetic mixture: One’s father provides half of one’s nucleic genetic material, and one’s mother contributes the other half; this genetic material is united in the process that we call fertilization, which normally happens after intercourse but can also happen in a petri dish after in vitro fertilization (IVF). A child bears a genetic similarity to his mother and father but cannot be genetically identical to either one of them, because each has only contributed half of their genetic materials. Every person has, along with his or her nucleic DNA, mitochondrial DNA that is not located in the nucleus of the cell but in the cytoplasm. This mitochondrial DNA is inherited solely from one’s mother through the egg that she provides and is identical to hers; mitochondrial DNA creates certain proteins needed to function (particularly for respiration—energy metabolism on the cellular level). A father contributes no mitochondrial DNA to his children. As noted in an editorial in Nature, a woman with a mitochondrial disease might be able to produce children free of the disease by having the nucleus of her egg implanted in a donor’s oocyte, thus providing the same chromosomal genetic code, but with disease-free mitochondrial DNA.

Siblings who are not identical twins share some of the genetic materials of their parents; however, since each sperm and each egg take a different (sub)set of material from the parents, each sibling has a unique genetic makeup based on a combination of portions of their parents’ genes different from that found in their siblings. Identical twins, though, are the product of a single fertilized egg of a unique genetic makeup that splits in half after fertilization, leaving two fully formed zygotes that develop into two fully formed— but genetically identical—siblings. (Both the nucleic and the non-nucleic DNA are the same.) These two children share an absolutely identical genetic makeup and until recently represented the only case in which two people could have an identical genetic makeup.

In the current state of Cloning technology, genetic material is isolated from cells taken from a donor. This genetic material is then introduced into the nucleus of an egg/ovum whose own nucleic genetic material has been destroyed, so as to produce an egg/ ovum that contains a full set of genetic material identical to the nucleic genetic material of the donor. If the genetic material is taken from one person, and the egg is taken from another, the non-nucleic genetic material of the clone will be that of the egg donor, and not the gene donor, whereas the nucleic genetic material will be from the gene donor. A woman could avoid this ‘‘problem’’ and produce a ‘‘full clone’’ by using her own genetic material and one of her own eggs/ova in the Cloning process; that clone will have the exact same DNA makeup as its clonor.

Through stimulation, the egg/ovum with transplanted nucleic genetic material is induced to behave like a fertilized egg, and it then starts the process of cellular division and development as if it is a newly fertilized diploid with genetic materials from a mother and a father. It divides and reproduces, and when implanted into the uterus of a gestational mother, the zygote will grow and develop into a fully formed fetus that will eventually be born from the uterus of its gestational mother. In the current state of technology, all fertilized eggs—including cloned ones—are implanted in a uterus and are carried to term like all normal pregnancies.

The child who is born from this gestational mother is genetically identical to the donor(s) of the genetic material and bears no genetic relationship to the gestational mother. It is not a combination of the genetic material of two people (the mother and father). It is, instead, genetically identical to the one who donated the DNA (or perhaps the two women who donated the nuclear DNA and mitochondrial DNA). It is as if, on a genetic level, this person produced an identical twin, many years after the first person was born. It is impossible to genetically distinguish cells of the clone from cells of the clonor, because their genetic makeup remains absolutely identical. Indeed, there is no reason why this process could not be done from the cells of a person who is deceased.

American Law

To date, there is no case law addressing Cloning and no statutes prohibiting Cloning. As a general proposition, the guiding principles found in American law governing assisted reproduction are predicated on two concepts: The first is that reproduction is a protected right in American Law, and the second is the desire of American law to assign ‘‘parenthood’’— both maternal and paternal identity—to the individuals who are expected to function in loco parentis of the child when it is born. Thus, contractual regulation of the terms of surrogacy is permitted so as to ensure that the one who ‘‘wants’’ the child is the parent. Sperm donors can ‘‘waive’’ their paternal rights, and adoption can end the parental rights of natural parents. Generally speaking, unlike the common law tradition, modern American law views status issues (such as parenthood) as something that law determines, rather than something that law discovers. Law can change the natural order of relationships in this view.

Cloning will undoubtedly be yet another such area. While there is a popular sentiment and considerable scholarship to categorically prohibit such activity, one suspects that, in reality, there is no likelihood that human Cloning will be banned in all fifty states. Statutes will be passed that regulate Cloning and regulate the ‘‘market’’ to ensure that the wishes of the parties—as to status, paternity, and a host of other issues—are met. Indeed, one can already see such a consensus developing. Professor Laurence Tribe, a well-known constitutional law scholar, endorsed the free market approach to Cloning. A recent New York Times article accurately captures the spirit of modern medical ethics in America in the reproductive area by noting:

In the hubbub that ensued [after the first sheep, ‘Dolly’ was cloned], scientist after scientist and ethicist after ethicist declared that Dolly should not conjure up fears of a Brave New World. There would be no interest in using the technology to clone people, they said. They are already being proved wrong. There has been an enormous change in attitudes in just a few months; scientists have become sanguine about the notion of Cloning and, in particular, Cloning a human being . . . . The fact is that, in America, Cloning may be bad but telling people how they should reproduce is worse . . . .

In America, freedom to choose one’s own reproductive method, and market forces that make such choices profitable, will determine who the parent is and what the law should permit. America is not ruled by ethics. It is ruled by law. While there well might be restrictions on embryo research, legal restrictions on reproductive Cloning are fraught with constitutional issues, because they impact on the basic right to reproduce.

MICHAEL J. BROYDE

References and Further Reading

• Amer, Mona S., Breaking the Mold: Human Embryo Cloning and its Implications for a Right to Individuality, UCLA L. Rev. 1659 (1996): 43.
• Broyde, Michael, Cloning People: A Jewish View, Connecticut Law Review 30 (1998): 2503–2535.
• Katz, Sanford N., Re-writing the Adoption Story, Fam. Advoc. 5 (1982): 9.
• Kolata, Gina. ‘‘Human Cloning: Yesterday’s Never Is Today’s Why Not?’’ N.Y. Times, Dec. 2, 1997.
• Stumpf, Andrea, Redefining Mother: A Legal Matrix for New Reproductive Technologies, Yale L. J . 96 (1986): 187.
• The Science of Cloning: Sheep: see I. Wilmut et al. ‘‘Viable Offspring Derived from Fetal and Adult Mammalian Cells.’’ (Letters) 385 Nature (27 February 1997) at page 810; Horse: see Cesare Galli et al. ‘‘Pregnancy: A Cloned Horse Born to its Dam Twin.’’ (Brief Communications) 424 Nature (07 August 2003) at page 635; Cat: see Taeyoung Shin et al. ‘‘A Cat Cloned by Nuclear Transplantation.’’ (Brief Communications) 415 Nature (21 February 2002) at page 859; Dog: see Byeong Chun Lee et al. ‘‘Dogs Cloned from Adult Somatic Cells.’’ (Brief communications) 436 Nature (04 August 2005), at page 641.
• Tribe, Laurence. ‘‘Second Thoughts on Cloning.’’ N.Y. Times, Dec. 5, 1997.

Cases and Statutes Cited

• Johnson v. Calvert, 851 P.2d 776 (Cal. 1993)
• Zablocki v. Redhail, 434 U.S. 374 (1978)

See also Reproductive Freedom