Assisted reproduction takes place within the privacy of the doctor-patient relationship, making outside scrutiny extremely difficult. Many infertility experts probably would obey the law, but others could and would defy it with impunity, their doings covered by the veil of secrecy that is the principle of medical confidentiality. Moreover, the transfer of embryos to begin a pregnancy is a simple procedure (especially compared with manufacturing the embryo in the first place), simple enough that its final steps could be self-administered by the woman, who would thus absolve the doctor of blame for having "caused" the illegal transfer. (I have in mind something analogous to Kevorkian's suicide machine, which was designed to enable the patient to push the plunger and the good "doctor" to evade criminal liability.)
Even should the deed become known, governmental attempts to enforce the reproductive ban would run into a swarm of moral and legal challenges, both to efforts aimed at preventing transfer to a woman and--even worse--to efforts seeking to prevent birth after transfer has occurred. A woman who wished to receive the embryo clone would no doubt seek a judicial restraining order, suing to have the law overturned in the name of a constitutionally protected interest in her own reproductive choice to clone. (The cloned child would be born before the legal proceedings were complete.) And should an "illicit clonal pregnancy" be discovered, no governmental agency would compel a woman to abort the clone, and there would be an understandable storm of protest should she be fined or jailed after she gives birth. Once the baby is born, there would even be sentimental opposition to punishing the doctor for violating the law--unless, of course, the clone turned out to be severely abnormal.
For all these reasons, the only practically effective and legally sound approach is to block human cloning at the start, at the production of the embryo clone. Such a ban can be rightly characterized not as interference with reproductive freedom, nor even as interference with scientific inquiry, but as an attempt to prevent the unhealthy, unsavory, and unwelcome manufacture of and traffic in human clones.
Some scientists, pharmaceutical companies, and bio-entrepreneurs may balk at such a comprehensive restriction. They want to get their hands on those embryos, especially for their stem cells, those pluripotent cells that can in principle be turned into any cells and any tissues in the body, potentially useful for transplantation to repair somatic damage. Embryonic stem cells need not come from cloned embryos, of course; but the scientists say that stem cells obtained from clones could be therapeutically injected into the embryo's adult "twin" without any risk of immunological rejection. It is the promise of rejection-free tissues for transplantation that so far has been the most successful argument in favor of experimental cloning. Yet new discoveries have shown that we can probably obtain the same benefits without embryo cloning. The facts are much different than they were three years ago, and the weight in the debate about cloning for research should shift to reflect the facts.
Numerous recent studies have shown that it is possible to obtain highly potent stem cells from the bodies of children and adults--from the blood, bone marrow, brain, pancreas, and, most recently, fat. Beyond all expectations, these non-embryonic stem cells have been shown to have the capacity to turn into a wide variety of specialized cells and tissues. (At the same time, early human therapeutic efforts with stem cells derived from embryos have produced some horrible results, the cells going wild in their new hosts and producing other tissues in addition to those in need of replacement. If an in vitro embryo is undetectably abnormal--as so often they are--the cells derived from it may also be abnormal.) Since cells derived from our own bodies are more easily and cheaply available than cells harvested from specially manufactured clones, we will almost surely be able to obtain from ourselves any needed homologous transplantable cells and tissues, without the need for egg donors or cloned embryonic copies of ourselves. By pouring our resources into adult stem cell research (or, more accurately, "non-embryonic" stem cell research), we can also avoid the morally and legally vexing issues in embryo research. And more to our present subject, by eschewing the cloning of embryos, we make the cloning of human beings much less likely.
A few weeks ago an excellent federal anti-cloning bill was introduced in Congress, sponsored by Senator Sam Brownback and Representative David Weldon. This carefully drafted legislation seeks to prevent the cloning of human beings at the very first step, by prohibiting somatic cell nuclear transfer to produce embryonic clones, and provides substantial criminal and monetary penalties for violating the law. The bill makes very clear that there is to be no interference with the scientific and medically useful practices of cloning DNA fragments (molecular cloning), with the duplication of somatic cells (or stem cells) in tissue culture (cell cloning), or with whole-organism or embryo cloning of non-human animals. If enacted, this law would bring the United States into line with the current or soon-to-be-enacted practices of many other nations. Most important, it offers us the best chance--the only realistic chance--that we have to keep human cloning from happening, or from happening much.
Getting this bill passed will not be easy. The pharmaceutical and biotech companies and some scientific and patient-advocacy associations may claim that the bill is the work of bio-Luddites: anti-science, a threat to free inquiry, an obstacle to obtaining urgently needed therapies for disease. Some feminists and pro-choice groups will claim that this legislation is really only a sneaky device for fighting Roe v. Wade, and they will resist anything that might be taken even to hint that a human embryo has any moral worth. On the other side, some right-to-life purists, who care not how babies are made as long as life will not be destroyed, will withhold their support because the bill does not take a position against embryo twinning or embryo research in general.
All of these arguments are wrong, and all of them must be resisted. This is not an issue of pro-life versus pro-choice. It is not about death and destruction, or about a woman's right to choose. It is only and emphatically about baby design and manufacture: the opening skirmish of a long battle against eugenics and against a post-human future. As such, it is an issue that should not divide "the left" and "the right"; and there are people across the political spectrum who are coalescing in the efforts to stop human cloning. (The prime sponsor of Michigan's comprehensive anti-cloning law is a pro-choice Democratic legislator.) Everyone needs to understand that, whatever we may think about the moral status of embryos, once embryonic clones are produced in the laboratories the eugenic revolution will have begun. And we shall have lost our best chance to do anything about it.
As we argue in the coming weeks about this legislation, let us be clear about the urgency of our situation and the meaning of our action or inaction. Scientists and doctors whose names we know, and probably many others whose names we do not know, are today working to clone human beings. They are aware of the immediate hazards, but they are undeterred. They are prepared to screen and to destroy anything that looks abnormal. They do not care that they will not be able to detect most of the possible defects. So confident are they in their rectitude that they are willing to ignore all future consequences of the power to clone human beings. They are prepared to gamble with the well-being of any live-born clones, and, if I am right, with a great deal more, all for the glory of being the first to replicate a human being. They are, in short, daring the community to defy them. In these circumstances, our silence can only mean acquiescence. To do nothing now is to accept the responsibility for the deed and for all that follows predictably in its wake.
I appreciate that a federal legislative ban on human cloning is without American precedent, at least in matters technological. Perhaps such a ban will prove ineffective; perhaps it will eventually be shown to have been a mistake. (If so, it could later be reversed.) If enacted, however, it will have achieved one overwhelmingly important result, in addition to its contribution to thwarting cloning: it will place the burden of practical proof where it belongs. It will require the proponents to show very clearly what great social or medical good can be had only by the cloning of human beings. Surely it is only for such a compelling case, yet to be made or even imagined, that we should wish to risk this major departure--or any other major departure--in human procreation.
Americans have lived by and prospered under a rosy optimism about scientific and technological progress. The technological imperative has probably served us well, though we should admit that there is no accurate method for weighing benefits and harms. And even when we recognize the unwelcome outcomes of technological advance, we remain confident in our ability to fix all the "bad" consequences--by regulation or by means of still newer and better technologies. Yet there is very good reason for shifting the American paradigm, at least regarding those technological interventions into the human body and mind that would surely effect fundamental (and likely irreversible) changes in human nature, basic human relationships, and what it means to be a human being. Here we should not be willing to risk everything in the naive hope that, should things go wrong, we can later set them right again.
Some have argued that cloning is almost certainly going to remain a marginal practice, and that we should therefore permit people to practice it. Such a view is shortsighted. Even if cloning is rarely undertaken, a society in which it is tolerated is no longer the same society--any more than is a society that permits (even small-scale) incest or cannibalism or slavery. A society that allows cloning, whether it knows it or not, has tacitly assented to the conversion of procreation into manufacture and to the treatment of children as purely the projects of our will. Willy-nilly, it has acquiesced in the eugenic re-design of future generations. The humanitarian superhighway to a Brave New World lies open before this society.
But the present danger posed by human cloning is, paradoxically, also a golden opportunity. In a truly unprecedented way, we can strike a blow for the human control of the technological project, for wisdom, for prudence, for human dignity. The prospect of human cloning, so repulsive to contemplate, is the occasion for deciding whether we shall be slaves of unregulated innovation, and ultimately its artifacts, or whether we shall remain free human beings who guide our powers toward the enhancement of human dignity. The humanity of the human future is now in our hands.
LEON R. KASS is Addie Clark Harding Professor at the Committee on Social Thought and the College at the University of Chicago, and the author (with James Q. Wilson) of The Ethics of Human Cloning.