The meeting of the National Bioethics Advisory Commission on May 17, 1997, concerned a number of proposed recommendations to the President on human cloning. Among them was a call for a legislative ban. But the proposal, as worded at that time, was extremely mischievous.
The proposal was to ban “cloning” defined as “creation of a child by nuclear transfer from a somatic cell.” The problem in this definition arises over the question of when one has created a child. Some people consider a child to come into existence at birth or later, perhaps at age three; others think a child comes into existence at fertilization. As of May 17, it appeared that the position of the NBAC was that a child comes into existence at some point after fertilization, perhaps at implantation. So the definition of “cloning” referred to nuclear transfer followed by implantation. By that definition, a researcher or clinician who initiates a human embryo by nuclear transfer but does not implant the embryo is not violating a ban against cloning. The researcher violates the ban only when he implants the cloned embryo.
A critique of the proposal to ban cloning, as defined this way, follows.
1. The proposal protects a clone-and-kill option.
The ban on cloning as defined would permit a researcher in the United States to use the technique pioneered in Scotland (i.e., to transfer a nucleus from a somatic cell to an enucleated ovum) on humans, but with the proviso that any human embryo (any embryonic child) whose life began in this way must not be implanted (i.e., must be killed).
In the human embryo research battle three years ago, many people pointed out the evil of initiating human life not as a service to infertile couples but solely for research purposes. Members of the NBAC frequently stated their determination to avoid that fight. And yet, the proposal to ban cloning defined this way amounts to approval for human cloning solely for research purposes. With this language, it would be legal to clone as long as you kill.
2. The proposal would ban implantation, not cloning.
Ian Wilmut’s new technique is not implanting an embryo in a uterus; many researchers and many infertility clinics can do that. What Wilmut did that was new was to transfer a strand of DNA from a somatic cell to an enucleated ovum, and then keep the zygote alive. The proposed language would not ban using this new technique with humans; rather, it would ban the implantation of cloned embryos. It would be deceptive, therefore, to call this language a “cloning ban.”
3. The proposal would be, in effect, a two-step approval process for cloning adult humans.
It is hard to tell whether the proposal is designed to prevent or permit cloning adult humans. If it is designed to prevent cloning adults, it will fail. If it is designed to permit cloning human adults, it would be more intellectually honest to say so clearly.
The proposed definition of “cloning” lumps together two separate actions: (1) nuclear transfer and (2) implantation. Hence, a ban on “cloning” under this definition would permit the first step but not the second step. The first step is very complicated; the second step is routine in IVF clinics all over the country.
Most people who are discussing a ban on human cloning mean, quite simply, banning nuclear transfer, the Wilmut technique, for humans. This proposal permits nuclear transfer, but ban the combination of nuclear-transfer-and-implantation.
If you lump the two steps together and ban the combination, as proposed, then you have effectively permitted step one, which is the complicated and new technique. But if you permit the first step, you will be unable to prevent the second step. Pressure to approve implantation or to implant the embryo without approval, or to implant the embryo overseas will build steadily, and you will not be able to prevent it. If you approve the nuclear transfer technique, you will eventually approve implantation. And whether you approve of implantation or not is irrelevant; it will occur.
The proposal of May 17 included a sunset provision in the cloning legislation. It would be more honest to call the sunset provision a “step two” provision.
4. The arguments against implantation of a human embryo are hard to maintain.
Polls after the Scottish experiment showed that about 90% of Americans wanted a ban on human cloning. The proposed language separates that opposition into component pieces: some may oppose nuclear transfer, and some may oppose implantation, but perhaps it would be possible to oppose nuclear-transfer-and-implantation. But this is not an honest maneuver unless you can explain the reasons to oppose implantation of a cloned embryo.
Consider the shape of the argument after nuclear transfer has taken place (assuming it succeeds):
“Pro-lifers, who oppose cloning, would argue fiercely that once you have a living embryo, you have a grave obligation to protect his or her life. Pro-lifers, who oppose cloning, would argue fiercely that implantation is a moral obligation. Recall that when the British were approaching their time limit for frozen embryos and preparing to discard thousands in a single day, the Vatican worked to recruit prospective parents to adopt the abandoned kids.
Privacy advocates such as John Robertson would argue that the privacy rights of infertile couples include a right to this new technique, that implantation was the parents’ right. Pro-lifers and privacy advocates would be arguing for the same conclusion: permit implantation.
It is hard to imagine researchers arguing against implantation if pro-lifers and privacy advocates argue for it.
Eugenics may offer an argument against implantation: the child whose life began with cloning might be abnormal in some way, or have a low quality of life. The eugenics argument, however, would be an argument against implantation in somecircumstances, not against implantation of cloned embryos in general.
If the arguments against implantation are weak, then it is an error (at best) to permit nuclear-transfer-without-implantation, and to pretend that this is an effective barrier to cloning adult humans.
5. A ban on implantation is unenforceable.
If the United States were to ban cloning in this way, a team of researchers could carry out nuclear transfer in one place, and then ship the embryo to another clinic for implantation. It is not clear that either party would be violating the proposed ban on nuclear-transfer-and-implantation.
Even if you were to tighten the language in some way to make clear that nuclear transfer in alaboratory followed by implantation in a clinic somewhere else is illegal, it is still hard to imagine how you would check on the source of the embryos. During meetings of the NBAC, various people noted many times that in vitro fertilization clinics do not meet the standards of the rest of the medicalprofession.
6. The proposed ban is not compatible with international cooperation.
At the May 17 meeting, the NBAC discussed recommendations to be forwarded to the President, including one suggested by Alexander Capron, that the United States cooperate with other nations that also ban cloning, in order to prevent international or transnational abuses. But the proposed definition of cloning is very different from the definitions used elsewhere, and would make honest cooperation more difficult.
In fact, the proposed ban on implantation is an invitation to international abuse. If a team of researchers were to carry out nuclear transfer in this country, then ship the embryo to another country where nuclear transfer is problematic but implantation is not, they might be able to clone, implant, and bring the child to birth without violating any laws although both countries tried to ban cloning. This scam would not work everywhere, since Germany bans nuclear transfer and also bans implantation, and Spain bans importing embryos. But England might be a possibility.
It would be a scandal if the United States passed a “ban” on human cloning, only to become the most attractive location for human cloning research. If other nations hear that we have banned cloning, who will explain to them that we didn’t mean it, that our ban applies to implantation, although it says “cloning”? It would be a scandal to ban but not ban, to write a ban with a wink.
7. A ban on implantation amounts to forced abortion.
Many people (though not everyone) consider a human embryo to be a member of the human family, possessing all of the God-given rights that any human has. From that perspective, a requirement that some embryos (in this case, cloned embryos) be discarded is the same as forced abortion.
Obviously, discarding cloned embryos does not end a pregnancy, and is not abortion in that sense. But discarding embryos does end the life of human beings, and is abortion in that sense. To require such deaths by law would be new in this country, although the Chinese have had forced abortion for some years.
8. Two wrongs don’t make a right.
Many people argue that experimenting upon or killing embryos is gravely evil. It would be cynical to pretend to accommodate that position in any way by approving of one evil (nuclear transfer) on the condition that it is followed by another evil (discarding or killing the embryo). Two wrongs do not make a right.
9. The proposal would make education and communication harder, not easier.
One of the tasks of a national bioethics group, discussed at several meetings of the NBAC, is to facilitate the national dialogue about bioethical issues. But this proposal is centered on a quirky definition of “cloning” that would make it much harder to communicate. At NBAC meetings, members felt it was necessary to specify “cloning in the baby-making sense” when they were referring to nuclear-transfer-and-implantation. Speakers at their meetings used the word “cloning” to refer to: (1) the whole process of making genetically identical adults by asexual replication, or (2) more specifically to the critical technique that initiates life, “nuclear transfer.” (Of course, there are other unrelated meaning, referring to cloning cells and other entities). None of the experts who testified before the NBAC used the word “cloning” to refer to nuclear-transfer- and-implantation.
There is a great need for precise language, but this proposal would obfuscate the discussion. If this language were adopted, anyone who wished to refer to Wilmut’s new procedure would have to use some clumsy circumlocution. What Wilmut did that was new is generally called “cloning.” It is hard to understand why anyone would use the word in this novel way unless they intended to cause confusion.
10. The proposal invites cynicism.
A quirky definition of “cloning” would make it possible to appear to ban cloning even as you actually permitted it. Polls that showed 90% of Americans were in favor of a ban on cloning. On the other hand, none of the professional societies polled by the NBAC supported legislative restrictions of any kind. It seemed impossible to bridge these two radically opposed views. But if one were to redefine cloning, it would be possible to ban something, and assure the public that you were responding to their concerns, but still permit the researchers to move ahead without restraint. That would be a scam. It could work, because it would be very clever, but it would still be a scam.