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Book review: Kerry Lynn Macintosh, 'Illegal beings: Human clones and the law'

Article Navigation. Close mobile search navigation Article Navigation. Volume 7. Mary Ford. Oxford Academic. Google Scholar. While encouraging, this represents less than a quarter of all countries. International organizations have also been working towards prohibitions on reproductive cloning. The Additional Protocol to the Convention on the Prohibition of Cloning Human Beings prohibits "any intervention seeking to create a human being genetically identical to another human being, whether living or dead.

Advocates of human reproductive cloning hope to make it happen before a global ban is in place, in the expectation that opposition will weaken in the face of a fait accompli. Estimates as to when a human clone might be born, if no action is taken to prevent it, range from immediately to five or ten years. Some countries, notably France, Germany, and Canada, explicitly ban the creation of clonal embryos. These countries have done so without infringing upon reproductive rights or jeopardizing a woman's right to an abortion.

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Many feminists, political progressives, and supporters of social justice in those countries support these bans on cloning. In January the United Kingdom authorized the creation of clonal embryos for medical research. By contrast, anti-cloning laws ban asexual reproduction outright. To the extent they can be enforced, the laws will reduce the number of human clones who are conceived, gestated, and born.

Thus, it is important to identify the burdens that anti-cloning laws will impose on them from the moment of their birth. Due to space constraints, I describe only two of these burdens here. Whenever parents are imprisoned for the crime of cloning, their cloned babies and children will suffer.

Torn away from those who loved and wanted them the most, and cut off from financial support, the innocent will be forced to depend on the not so tender mercies of the foster care system. This is a cost that is seldom mentioned or recognized in the cloning debate. Some parents will evade detection and conviction.

However, anti-cloning laws will impose a second burden on cloned children that is just as harmful as parental loss: legal stigma. Laws have an expressive function; that is, through their various prescriptions and prohibitions, laws articulate the values of the democratic society that enacts them. To identify the values that anti-cloning laws express, we must look to the policy arguments used to justify their enactment. When closely examined, many of these arguments turn out to have little to do with cloning qua cloning.

Instead, the arguments focus on human clones, claiming that this class of human being must not be allowed to exist because its members have bad traits that endanger their own happiness and the happiness of others. Chief among these bigoted arguments is the identity fallacy and its claim that human clones are copies. Variations on the fallacy stereotype human clones as lacking in individuality, autonomy, and emotional balance.

Fear of eugenic cloning further stereotypes human clones as superior, arrogant, and dangerous.

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Anti-cloning laws based on identity arguments reinforce these ugly stereotypes. Moreover, since individuality is an essential human trait, the laws also stigmatize human clones as less than human. Exaggerated safety arguments against cloning are no less problematic. Anti-cloning laws based on such safety arguments stigmatize human clones as sick and deformed. Finally, the structure of anti-cloning laws is stigmatizing, in and of itself. Most laws are written as flat bans with no sunset clause, no provision for periodic legislative review, and no exceptions.

Criminal and civil penalties are severe. Legal stigma is not a trivial burden. Because laws reflect the will of the electorate, the ideas they express are particularly powerful. Once the laws mark them as duplicative, dangerous, and deformed, human clones will be at increased risk of emotional distress, ostracism, discrimination in housing and employment, and victimization at the hands of vigilantes.

Anti-cloning laws reflect not only a discriminatory effect, but also a discriminatory purpose. As the identity and safety arguments reveal, many people have prejudged human clones as duplicative, dangerous, and deformed. But those who want to stop human clones have limited options. As explained above in section 6, once human clones come into existence, they will be entitled to the same human rights as other human beings. No democratic government could openly conduct a pogrom against them without generating a strong international protest. Granted, this is not traditional apartheid—no human clones are being excluded from schools, transportation, or other public facilities.

Nevertheless, existential segregation is discrimination, repackaged in a clever new form. It eliminates the need for apartheid by attempting to stop the unpopular class at its inception. Some readers might disagree with my argument that anti-cloning laws deliberately discriminate against human clones. They might argue that lawmakers intend only to exclude human clones from life, and not to harm them once they are born.

This objection rings hollow, however.

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Human clones will suffer legal burdens that flow directly from the laws that target them for non-existence prior to birth. If lawmakers are willing to inflict such burdens as part of their program of existential segregation, it is appropriate to ascribe those burdens to their original discriminatory intent.

Other readers might assert that lawmakers want to stop cloning for reasons that have nothing to do with the traits of human clones. All of these same arguments have been raised against in vitro fertilization. Opponents on the right and left have complained for decades that in vitro fertilization is an act of hubris that offends God, objectifies children and endangers egg donors and gestational mothers.

Yet, in vitro fertilization is uncontroversial and remains legal. To discover why lawmakers treat cloning so differently, one must subtract out the arguments that the two technologies have in common, and look for a factor that is unique to cloning. What remains is the identity fallacy. Any law based on the identity fallacy is based on false and prejudiced beliefs about human clones and is discriminatory.

Although article 26 of the ICCPR prohibits discriminatory laws, the Human Rights Committee has explained that this does not require the elimination of all legal distinctions:. There are few, if any, legitimate reasons for the frantic drive to legislate human clones into nonexistence. As explained in section 3 above, human clones can never be copies of anyone, good or bad. This single scientific fact holds the power to invalidate each and every argument that is traceable to the identity fallacy.

This includes the fear that cloning might be used for eugenic purposes, thereby condemning us all to relive the horrors of the Nazi era. The argument that cloning is a form of manufacturing human life fails to the extent that it is rooted in the identity fallacy. What about safety concerns? States have a legitimate interest in protecting the health of mothers and children.

Illegal Beings: Human Clones and the Law by Kerry Lynn Macintosh

In sexual reproduction, 75 percent of all conceptions fail to implant or spontaneously abort. By contrast, cloning uses genomes that already have proven their ability to create healthy babies. Coupled with scientific advances, this fact suggests that outcomes could one day move into the same range that is tolerated for sexual reproduction. Yet, most anti-cloning laws are flat bans that do not provide for periodic legislative review so that safety improvements can be taken into account. Given the prospects for improvement, such laws are a disproportionate means to the end of safety. Moreover, when there are legitimate concerns about the safety of new medical technologies, governments usually respond with temporary regulations, and not with blanket prohibitions.

The fact that cloning has been treated so differently indicates that something other than safety lies at the heart of opposition to cloning. A leading culprit is the identity fallacy and the instinctive revulsion it inspires toward human clones. We must not allow safety to be used as an excuse for discrimination against the members of an unpopular class in violation of article To summarize this section, anti-cloning laws are inconsistent with the fundamental principle of non-discrimination enshrined in the international bill of rights.

Far from being necessary to protect human dignity, the laws are a greater affront to human dignity than is cloning itself, for they discriminate against human clones based on their genetic characteristics. During the 20th century, many states enacted laws that relegated racial minorities and other unpopular groups to separate public facilities, or worse, concentration camps. Toward that end, the international bill of rights has enshrined the principle of non-discrimination. The 21st century presents new challenges. Researchers are working to perfect embryo cloning, and there are people who need cloning to reproduce.

Taken together, these facts suggest that human clones will be born in the near future. If the non-discrimination principle is to retain its vitality in the new millennium, it must be interpreted to prohibit laws that attempt to exclude the members of an unpopular class from existence—at least, whenever scientific and social realities indicate that some members of the class are bound to be born despite the laws. Laws that seek to implement existential segregation are profoundly stigmatizing and impair the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.

Their expertise in the field of international human rights has helped me enormously. Twenty-two other U. See U. GAOR, 59th Sess. Sixty-one other members of the U. See id.

Assembly, Sixth Comm. GAOR, 53d Sess. Press Release]. Press Release, supra note 9. Unfortunately, documents leading up to the approval of the Declaration are not particularly illuminating. Committee reports during the abortive effort to produce an international convention reflect a consensus that reproductive cloning raises moral, religious, ethical and scientific concerns, and has far-reaching implications for human dignity.

However, the reports do not lay out arguments or specific facts in support of this consensus. GAOR, 57th Sess. Perhaps U. See , e. Cole eds. The Commission reasoned that the drafters had rejected language that would have explicitly extended the right to life to the unborn. See White v. United States, Case , Inter-Am. See G. Texaco Overseas Petroleum Co. Subsequent tests showed this claim was false. Cibelli et al.

Public Act Co-op. This language is also broad enough to condemn research cloning, which involves the deliberate creation and destruction of human embryos. ON SCI. Keith Killian et al. Rhind et al. In this essay, I use the term to refer to any person who uses cloning to produce a child, so long as he or she plans to raise the child as his or her own. This broad usage is appropriate for two reasons. First, a person who decides to have and raise a child is playing the social role of parent. Second, as I explain in section 5 below, cloning is likely to emerge as an assisted reproductive technology that helps the infertile and others have genetic offspring.

At least one and often both members of a marriage or partnership are likely to qualify as biological and legal parents of their cloned offspring. Mitochondria have their own DNA, which is inherited down the maternal line. As the baby developed in the womb, each cell would randomly switch off one of her two X chromosomes. This X inactivation would not be influenced by whatever happened to the DNA donor when she was a developing embryo. Even if a superior genome could be replicated in the bodies of human clones, these individuals would be vastly outnumbered by the teeming hordes of ordinary people born through sexual reproduction.

Regression to the mean would be inevitable — defeating the eugenic program — unless governments across the globe enacted coercive laws requiring asexual reproduction in preference to sexual reproduction. That is the stuff of science fiction novels, not serious public policy debate.

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State, , Brown, , La. Sharp, Nearly 20 years later, the U. Supreme Court held that anti-miscegenation laws violated the equal protection and due process rights of interracial couples. See Loving v. Virginia, ; Robertson, Liberty, Identity, and Human Cloning , , The House of Representatives passed a nearly identical bill in by a strong vote of to See H. A companion bill failed to clear the Senate, due to opposition from senators who support research cloning.