On November 23, Boyalife Group, a Chinese genetic engineering company, announced plans to construct the world’s largest animal cloning facility. Based in the northern Chinese port city of Tianjin, the factory intends to address China’s growing beef shortage by eventually cloning a million cattle embryos a year.
But it wasn’t the bovine plan that caught the attention of international media. Rather, it was CEO Xu Xiaochun’s acknowledgment during an AFP interview that Boyalife is poised to embrace human cloning when the time comes:
Unfortunately, currently, the only way to have a child is to have it be half its mum, half its dad. Maybe in the future you have three choices instead of one. You either have fifty-fifty, or you have a choice of having the genetics 100 percent from Daddy or 100 percent from Mummy … The technology is already there. If this is allowed, I don’t think there are other companies better than Boyalife that make better technology.
The seeming inevitability of human cloning raises enormous legal questions. Is human cloning legal? And assuming that human clones are created—legally or illegally—how would they be treated under the law?
Human cloning laws today
Current human cloning laws distinguish between therapeutic cloning and reproductive cloning. The first concerns the production of embryos for research, with the intent of producing human embryonic stem cells to treat various diseases and disorders. Reproductive cloning, by contrast, aims to create a living child, one whose DNA will be a carbon copy of its genome parent.
Internationally, there is little consensus on the regulation of human cloning. Italy, Brazil, and Austria have completely banned human cloning in all its forms, but many other nations have opened the door to therapeutic cloning while banning reproductive cloning. Still others, including the United States, Canada, Mexico, and China, have no national bans on any form of cloning whatsoever (though on the US state level, cloning laws are all over the map).
A tsunami of legal conflicts
With different countries taking divergent policy stances on the issue, it’s only a matter of time before human cloning becomes reality. When that day comes, how will the human clones fare from a legal standpoint? Here’s a sampling of the legal dilemmas on the horizon.
- What’s the status of illegally cloned babies?
Let’s suppose that the technology to clone and deliver a human baby is against the law, as it is in many nations and states. But just as abortion and in-vitro fertilization take place in countries where they are outlawed, so will reproductive cloning. What, then, will be the legal status of the illegally cloned children?
Laurence Tribe, professor of constitutional law at Harvard Law School, argues that the result will be a caste system, in which cloned humans are treated as less human than traditionally conceived babies–similar, but perhaps far worse, than the way illegitimate children have been treated.
- What defines a family?
In a world shared by cloned human beings, family law would become more complicated. For instance, the surrogate parent—that is, the mother who delivers the child–might be different from the genome parent (the source of the clone’s DNA). Moreover, the genome parent could be considered both the sibling and the parent of a child.
- Who is responsible when the cloned baby has birth defects?
Does the brunt of the blame fall on the surrogate mother, or on the agency or lab responsible for managing the DNA samples and providing the fertilization? Or maybe even the doctor who does the delivering? The process of assigning responsibility just got a lot more complicated.
- Can a deceased person be cloned without having given prior consent? Can a loved one in a coma be cloned without having given prior consent?
Establishing the cloning rights of individuals before and after death may be the first task in writing cloning legislation. Imagine a recently deceased professional athlete, whose cells contain a gold mine of desirable DNA. The family might find their desire for financial gain at odds with the religious beliefs of the deceased. How would the law deal with such conflicts? (Think this is farfetched? Then take a look at the family feud over the disposition of the remains of baseball great Ted Williams.)
- Can an individual patent, or sell the patent, to their own desirable genetic traits?
And what about the cloned embryos, do they share in the ownership of their own genetic material? Just as human ova have been commodified, it seems inevitable that embryonic cloned DNA will also become a commodity. While the Supreme Court has ruled against the patenting of human DNA, defining it as a natural product “without an inventive step,” human beings are permitted to patent their own bodies as “intellectual property.”
After decades of bioethics debates and inquiries, eventually no laws will be able to shelter us from confronting the inevitability of human cloning.
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