Second Thoughts on Cloning

Laurence H. Tribe

Some years ago, long before human cloning became a near-term prospect, I was among those who urged that human cloning be assessed not simply in terms of concrete costs and benefits, but in terms of what the technology might do to the very meaning of human reproduction, child rearing and individuality. I leaned toward prohibition as the safest course.

Today, with the prospect of a renewed push for sweeping prohibition rather than mere regulation. I am inclined to say. "Not so fast."

When scientists announced in February that they had created a clone of an adult sheep—a genetically identical copy named Dolly, created in the laboratory from a single cell of the "parent"—fierce debate arose over the pros and cons of trying to clone a human being.

People spoke of the plight of infertile couples; the grief of someone who has lost a child whose biological "rebirth" might offer comfort; the prospect of using cloning to generate donors for tissues and organs; the possibility of creating genetically enhanced clones with a particular talent or a resistance to some dread disease.

But others saw a night marish and decidedly unnatural interference with human reproduction. California enacted a ban on human cloning, and the President's National Bioethics Advisory Commission recommended making the ban nationwide.

That initial debate has cooled, however, and many in the scientific field now seem to be wondering what all the fuss was about.

They are asking whether human cloning isn't just a small step beyond what we are already doing with artificial insemination, in vitro fertilization, fertility enhancing drugs and genetic manipulation. That casual attitude is sure to give way before long to yet another wave of prohibitionist outrage—a wave that I no longer feel comfortable riding.

I certainly don't subscribe to the view that whatever technology permits us to do we ought to do. Nor do I subscribe to the view that the Con-stitution necessarily guarantees every individual the right to reproduce through whatever means become technically possible.

Rather, my concern is that the very decision to use the law to condemn, and then outlaw, patterns of human reproduction—especially by appealing to vague notions of what is "natural"—is at least as dangerous as the technologies such a decision might be used to control.

Human cloning has been condemned by some of its most articulate opponents as the ultimate embodiment of the sexual revolution, separating sex from the creation of babies and treating gender and sexuality as socially constructed.

But to ban cloning as furthering what some see as culturally distressing trends may, in the end, lend support to strikingly similar objections to surro- gate motherhood.

Equally scary, when appeals to the natural, or to religious laws, lead to the criminalization of some method for creating human babies, we must come to terms with the inevitable: the prohibition will not be airtight.

Just as was true of bans on abortion and on sex outside marriage, bans on human cloning are bound to be hard to enforce. And that, in turn, requires us to think in terms of a class of potential outcasts—people whose very existence society will have chosen to label as a misfortune and, in essence, to condemn.

One need only think of the long struggle to overcome the stigma of "illegitimacy" for the children of unmarried parents. (3) How much worse might be the plight of being judged morally incomplete by virtue of one's man-made origin?

There are some black markets (in drugs, for instance) that may be worth risking when the evils of legalization would be even worse. But when what we prohibit takes the form of human beings, the stakes become enormous.

There are few evils as grave as that of creating a caste system, one in which an entire category of persons, while perhaps not labeled untouchable, is treated as not fully human.

And even if one could enforce a ban on cloning, or at least insure that clones would not be a mistreated caste, the social costs of prohibition could still be high. For the arguments supporting a rigid prohibition of cloning are most likely to rest on, and reinforce, the notion that it is unnatural and wrong to cut the conventional links between marriage and the creation and upbringing of new life.

Moreover, a society that bans acts of human creation for no better reason than that their particular form defies nature and tradition is a society that risks cutting itself off from vital experimentation, thus losing a significant part of its capacity to grow. (4) If human cloning is to be banned, then, the reasons had better be far more compelling than any thus far advanced.