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Are Two Really Better Than One? A Critical Evaluation of the Law of Human Reproductive Cloning

In this article, Rachael Jane Ruth (Diploma in Professional Legal Practice), critically evaluates the strict governance surrounding Human Reproductive Cloning through analysis of its potential benefits and risks.

Are Two Really Better Than One? A Critical Evaluation of the Law of Human Reproductive Cloning

The law as we understand it today is rapidly evolving in response to societal norms and developments. Controversial topics often make for the most contentious and interesting discourse: so too, in the discussion of law and legal regulation. Cloning is a relatively new, novel, and expectedly controversial area of development in the technological and scientific industries. While Dolly the Sheep was famously successfully cloned in 1996,[1] human reproductive cloning, in particular, carries ethical consequences which reverberate through the legal world. The Centre for Bioethics and Public Policy approves the definition of human reproductive cloning as ‘the creation of an individual who has existing DNA to that of an existing human being’, the ‘clone’ as an embryo being implanted, carried to full-term and allowed to develop further.[2] Therefore, since the resulting ‘created’ individual is neither the sibling nor offspring in the traditional sense of the original human, their status as ‘clone’ is entirely unique and requires a rigorous legislative framework of governance. The uniqueness of the notion of human reproductive cloning requires a sensitive but appropriately robust level of regulation, and to understand whether our current laws and our potential regulation in the future meet this requirement we must look to the controversies surrounding the concept in further detail.

The Legislative Framework of Cloning in the UK

The successful cloning of Dolly the Sheep led to what Julian Savulescu has described as an ‘ill-informed wave of public, professional, and bureaucratic fear and rejection of the new technique’.[3] Human cloning was, immediately, widely opposed,[4], [5] and even today is viewed by many as the gateway to a ‘dystopian’ future where such ‘grotesque’ practices are reality.[6] The law surrounding the issue of cloning in the UK is currently governed by the Human Fertilisation and Embryology Act 1990. In brief, reproductive cloning is banned by the Act, while cloning for therapeutic and research purposes is permitted to an extremely limited extent within the legislation. The definition of an ‘embryo’ within the Act is broad enough to cover a cloned embryo, thereby giving the ‘clone’ the same embryonic status and rights as otherwise would be granted.[7] The Act does restrict the use of embryos – they must be used and kept only with a licence granted under the legislation, not kept for longer than 14 days and prohibited forms must not be implanted in a woman,[8] permitting in-vitro fertilisation but not cloned embryos. The legislation does demand that researchers jump through a number of hurdles, but with the appropriate justifications - such as increasing knowledge of and researching treatments of various diseases[9] - it seems relatively manageable to secure a licence for the creation and use of embryos for research and experimentation purposes. Indeed, Savulescu further justifies the practical use of human cloning to create stem cells for the treatment of disease.[10] It appears that the purpose of using cloning techniques – research, as opposed to reproduction – plays a large role in its degree of societal acceptance. Joshua May’s research has indicated that ‘disgust’ and ‘repugnance’ are more notably prominent reactions when participants were faced with the concept of reproductive, rather than therapeutic, cloning.[11] The law as it stands currently prohibits the use of embryonic cloning for reproductive purposes unequivocally, and is therefore ranked among those deeply-controversial and sensitive issues which face the strictest regulation. However, with time and technological advancement, our understanding of reproductive cloning will increase and undoubtedly the call to permit it will also grow. Our regulation in the future requires careful consideration in light of the benefits and fears surrounding reproductive cloning to ensure we are ready to implement new, adequate legal regulation when the desire for human reproductive cloning inevitably demands that the technology be permitted. 

In Defence of Human Reproductive Cloning

Human reproductive cloning, as a new concept, has numerous societal benefits - in theory. Cloning is yet another solution to the ever-prominent issue of infertility, for those families and individuals unable to produce and carry sustainable embryos.[12] From a pragmatic and scientific perspective, cloning has been suggested as a method to allow reproduction by individuals who may otherwise choose not to conceive children due to their potential to pass on mitochondrial DNA mutations.[13]  Cloning also has the potential to improve and increase reproductive options from a feminist familial perspective: as a form of assisted reproduction, human cloning offers another alternative for female couples or single women unwilling or unable to use donor sperm to produce a child. Cloning in its literal sense can be beneficial as it allows the exact genetic recreation of an existing human, so could result in the production of an identical child to compensate for the loss of a loved one, or indeed could duplicate a person to use their identical genetic makeup as the basis for donation or transplantation to save the life of the ‘original’. It can easily be argued on these bases that human reproductive cloning is a hugely beneficial tool for the use of society under controlled conditions. But why should we as humans believe we have the right to manipulate reproduction to such an extent as to duplicate people? Some argue that the fact of the mere existence of identical twins suggests that cloning has a natural place in reproduction and genetics, since twins originating from the same zygote have the same genetic composition. Research has demonstrated that neither identical nor non-identical twin siblings view human cloning as any more ‘unnatural’ than twinship,[14] and both clones and twins are perceived as being rare with the benefits and detriments arising only in rare circumstances. Some libertarians consider that if we have developed the technology to proceed with human reproductive cloning, then we have as a society earned the right to use it,[15] provided there is an appropriate safety and legislative framework to govern its use.

Objections to Human Reproductive Cloning

However, the ethical balance of human reproductive cloning at its core requires a measured approach to the potential detrimental effects to society as a whole and the individual. A number of objections to the idea of cloning come from a theological or philosophical stance: traditionalist Christianity, and indeed many other prominent religions worldwide, conceives of a child as being the product of a wholesome relationship of love between a man and a woman. A clone may therefore be perceived as an anomaly; an abomination against nature or against the will of a deity. From a less theological stance, human reproductive cloning diminishes the potential for every human being to make a different impact upon this world – essentially, if humans are no longer unique individuals, their contributions to society can no longer be predictably unique. This method of thinking also presents a risk to the human identity should cloning become an accepted method of reproduction. There is arguably a risk of mental harm posed both to the cloned human and the ‘original’ if they have the exact same genetic identity as each other in a world where the vast majority of humans are original and unique, and pride themselves on such. Society does indeed place a heavy emphasis on the promotion of uniqueness of individuals, after all: ‘be yourself’ is surely one of the most commonly given pieces of advice throughout a person’s life. How can one be himself if his DNA already exists as someone else?

 The potential practical harms to society of reproductive cloning are somewhat more obvious. One reason to consider cloning as a method of reproduction would be in the cases of infertile, homosexual or single-gender couples. However, the created child would have the same genetic makeup as one parent, and have no biological relation to the other whatsoever. This imbalance could conceivably result in a familial asymmetry of relationships and cause long-term problems for those involved. An alternative line of argument suggests that adding cloning to the solutions for couples who are unable to reproduce naturally diminishes the importance of adoption as an option. Introducing yet another method of assisted reproduction using some form of genetic information from the parent/s in question would appear to suggest that having a genetic link with your children is more important than the relationship developed through nurture. This ideology may prove to be a dangerous one to promote in our society where numerous children are already overlooked for adoption in favour of such methods as in-vitro fertilisation.

As previously mentioned, one of the main reasons for advocating human reproductive cloning is to create a new life to act as a ‘saviour sibling’ for another child requiring life-saving donation or transplantation. It would not be a stretch of the imagination to envisage the psychological damage caused to a child who is reared by their ‘parents’ for what they may feel is the sole purpose of saving the life of the older – and by the very nature of their creation, more important - child. They may feel as if their fate is sealed, and that they have no further purpose after donation is complete. Regardless of whether the method of their creation is accepted or not, the risk of psychological harm to a child appears to be enough reason to stop and consider human reproductive cloning as potentially risky. Fears of physical harm caused by cloning do still continue to exist alongside these mental harms. Evidence suggests that an extremely high percentage of mammalian cloning experiments result in miscarriage, stillbirth or grave birth defects,[16], [17] and at the current early stage of our understanding of human reproductive cloning it is a valid consideration that these complex genetic issues may well occur within the human species.

Finally, conceivably the most harmful reason for which people would hope to use reproductive cloning is to replace a lost loved one. Lost children or partners may leave such emotional scarring that their living relatives and friends may wish to recreate the person in their entirety, almost as if to heal the wound. An attempt to identically replicate an individual is emotionally dangerous, as this level of genetic determinism cannot be absolutely predicted.[18] The ‘clone’ may live out their life in the shadow of the deceased, expected to behave in the same way and form the same relationships. The relatives may be at risk of fear and disappointment when the cloned person inevitably grows into a different character from the ‘original’ due to differing environmental influences on their life. A serious concern when a mother has cloned her deceased partner is that the relationship with the child cloned from his DNA is neither explicitly parental nor that of lovers. How can society be certain that these relationships of apparent parent and child do not eventually become sexual? The law as it stands recognises a mother as the woman who gave birth to the child – but will it be appropriate to condemn such sexual relationships as incestuous, if the mother and the cloned individual have no genetic link? Should cloning become an accepted method of reproduction, particularly in circumstances such as the above, legislation will have to be added to with detailed regulation on the established legal and social status of a ‘clone’. A counter-argument suggests that we have no evidence to support the idea that families will struggle to differentiate between the identity of the ‘clone’ and of the original person, as humans have successfully adapted to non-traditional family arrangements throughout history.[19] The traditional family paradigm has, after all, already expanded to encompass a range of gender identities which may have been unthinkable in decades past; it would follow that the inclusion of cloned genetic identities may become a practical reality in the future. There are few conclusions of substance we can reach on the subject of balancing the benefits with the negative results of human reproductive cloning, as too many factors rest on the outcome of situations we have not yet encountered.

Solutions and Conclusions

 The law can be shaped to minimise the potentially damaging consequences of human reproductive cloning, such as the above-suggested regulation of the relationship between the ‘clone’ and its creators. However, it is not feasible to suggest that legal regulation should or even could prevent societal and psychological harms which might occur. A reasonable alternative, should human reproductive cloning become an accepted technological advancement, is to restrict its use to a very specific and tightly-regulated set of circumstances. Perhaps, for example, reproductive cloning might be permissible in situations where a person will certainly die without the donation of materials from someone with the precise same genetic makeup. Families who wish to proceed may be required to demonstrate the care with which the ‘clone’ will be raised and the safeguards put in place in the home environment to protect the child and the family from any foreseeable harms. However, one can only imagine the cost of a cloning procedure. IVF, as a much more general example, is widely-used but is still an expensive - although for many families, manageable - procedure. The very existence of the cloning technology for some may create potentially devastating inequalities. A rich family may be able to save their dying child by creating a ‘clone’, not only through being able to afford the procedure, but also in demonstrating to the relevant authority they can secure a comfortable and safe life for both children after donation. However, a less-affluent family may be unable to afford or may even be refused the life-saving procedure. Technology would need to advance in huge leaps before cloning became affordable and accessible to the point where this inequality did not require careful regulation. It does seem that human reproductive cloning is far from sufficiently understood that we can predict its outcomes in order to adequately regulate its use.

In summation, human reproductive cloning is so relatively poorly-understood an area of technology that we may not know what we need from the law until the situation is upon us. Leaving areas of law potentially unregulated in the face of unknown obstacles is, however, dangerous to both society and those involved personally in the cloning procedure. It seems appropriately strict that the current law should include a blanket ban on human reproductive cloning as at this point we do not fully understand the practical consequences of allowing the technology to be used. In the future, we will be required to carefully evaluate each situation in which the need or desire for reproductive cloning might arise in order to best predict the implications and legislate for them to provide the best protection for society and individuals.

 

 

[1] ‘The Life of Dolly’, Roslin Institute at the University of Edinburgh, http://dolly.roslin.ed.ac.uk/facts/the-life-of-dolly, accessed 9th February 2017

[2] Reproductive Cloning: Basic Science, Centre for Genetics & Society 2003

[3] Savulescu, J., Should we clone human beings? Cloning as a source of tissue for transplantation, Journal of Medical Ethics, 1999; 25:87-95

[4] World Health Organisation, Proposed international guidelines on ethical issues in medical genetics and genetics services, Geneva, WHO, 1998

[5] UNESCO, Declaration on the human genome and human rights, adopted 11th November 1997, Article 11, UNESCO, 1997

[6] Kass, L.R., Preventing a Brave New World: Why we should ban human cloning now, New Republic, 2001, 224: 30-9

[7] Human Fertilisation and Embryology Act 1990, s1

[8] HFEA 1990, s3

[9] HFEA 1990, Schedule 2 Paragraph 3A(2)

[10] Savulescu, J., Should we clone human beings?

[11] May, J., Emotional reactions to human reproductive cloning, Journal of Medical Ethics, 2016, Volume 42 - 1

[12] Reproductive Cloning Arguments, Centre for Genetics & Society, May 2006

[13] Richardson et al., Concise Reviews: Assisted Reproductive Technologies to Prevent Transmission of Mitochondrial DNA Disease, published 17th February 2015, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4359624/, accessed 9th February 2017

[14] Prainsack, B., The ‘conflict of conflicts’: Human Reproductive Cloning and the Creation of New Citizens, ECPR Joint Session of Workshops, 2006

[15] Savulescu, J., Should we clone human beings?

[16] The Ethics of Reproductive Cloning: Child, Family and Society, The President’s Council on Bioethics, Staff Working Paper, Feb 2002

[17] It took Ian Wilmut and his colleagues 276 attempts to successfully produce Dolly the Sheep.

Brock, D.W., Cloning Human Beings: An Assessment of the Ethical Issues Pro and Con, NBAC, Cloning Human Beings – Volume II, Commissioned Papers, 1997

[18] de Melo-Martin, I., On Cloning Human Beings, Bioethics 16: 246 - 65

[19] On Cloning Human Beings, above.

 

 
 

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