Linda Chavez

Clones, Courts, and Contradictions

A Chicago scientist has once again inflamed the debate on human cloning with his outrageous -- and improbable -- claim that he will soon begin attempts to clone a human embryo. Richard G. Seed, a 69-year-old entrepreneur with a Ph.D. in physics, is probably more publicity seeking crank than 1998 version of Dr. Frankenstein.

Nonetheless, Seed's announcement was enough to provoke President Clinton to push harder for five-year moratorium on human cloning and others to call for an all-out ban on the procedure. "Scientific advancement does not occur in a moral vacuum," Clinton said Saturday on his weekly radio address in which he announced he'll ask Congress to move quickly on proposed legislation when it returns later this month. He's right, but it may be too late to make that case when it comes to human fertility.

The president's problem, and Congress' if it decides to enact a human cloning ban, may well be a series of Supreme Court decisions granting constitutional protection to individuals when it comes to reproductive decisions. In 1964, the Supreme Court said in Griswold vs. Connecticut that states could not deny couples' access to contraception, thereby recognizing a couple's constitutional "right to privacy" over reproductive matters. In 1973, the court went even further, giving women a virtual carte blanche over abortion decisions, at least through the early stages of pregnancy.

Harvard Law professor Laurence Tribe argues that these decisions protect the rights of those who may want to clone themselves, thus limiting the right of the government to interfere with human cloning experiments. He may well be right on the law -- if not the morality -- of the issue.

It is hard to imagine a judicial decision consistent with current Supreme Court interpretations of abortion law that would uphold the right of the government to outlaw cloning. Congress could prohibit the use of federal money to fund such experiments, as it does now with respect to funding for both abortion and human fetal tissue experiments. But an outright ban on human cloning experiments no doubt would face tough opposition in the courts.

The chief arguments against human cloning are moral and religious ones, precisely the kind of arguments the courts have been loathe to recognize when it comes to human reproduction. Implicit in Griswold and subsequent decisions on birth control is a court- recognized "right" not only to prevent conception but to conceive -- a right that has been upheld for unmarried heterosexuals and homosexuals as well as married couples.

What's more, if Roe v. Wade gave a women the right to abort a fetus that is genetically distinct from herself, what legal prohibition consistent with that right could prevent a woman from having an embryo implanted in her body that is genetically identical to her?

President Clinton said that he believes human cloning "raises deep concerns, given our cherished concepts of faith and humanity." Indeed it does, but these concerns are hardly different from those raised in the abortion debate: What constitutes human life? When does human life begin? Does a woman have an absolute right to choose what to do with her own body? When does a woman's right interfere with the rights of the fetus? Similar questions could be asked with respect to cloning.

The president -- indeed, all who support abortion as a constitutional right -- want to protect the absolute prerogative of autonomous individuals (in this case, women only) to do with their bodies as they choose, at least throughout the early stages of pregnancy. But the logic applies equally to cloning. If the issue is reproductive freedom, why place sanctions against the methods to create a human life when we have so few against ending that life?

According to published reports, Richard Seed has rarely succeeded at any of his grandiose scientific or business schemes, and he's not likely to be able to carry out his plan for 200,000 human clones a year. But his "modest proposal" may just spark a serious debate on the current state of law and policy on reproductive freedom. And we can't tackle the cloning issue without taking a hard look at current abortion law.