1. Following the first successful cloning of a mammal
from adult somatic cells (ÒDollyÓ, the sheep, in 1997), President Clinton
created the National Bioethics Advisory Commission to study various aspects of
cloning technology, ethics and religious attitudes, and law. The commission
released its report and recommendations in June 1997. They concluded, inter
alia, that Òat this time it is
morally unacceptable for anyone in the public or private sector, whether in a
research or clinical setting, to attempt to create a child using somatic cell
nuclear transfer cloningÓ, and recommended that the moratorium on federal
funding for human cloning research instigated by President Clinton be
continued. The full report (125 pages) is provided at:
NATIONAL BIOETHICS ADVISORY COMMISSION, CLONING HUMAN
BEINGS, REPORT AND RECOMMENDATIONS OF THE NATIONAL BIOETHICS ADVISORY
COMMISSION, Rockville, Maryland (June 1997)
2. Five years later, the PresidentÕs Council on
Bioethics reconsidered the issues surrounding human cloning in the light of new
scientific developments, and concluded: ÒÉ the Council is in full
agreement that cloning-to-produce-children is not only unsafe but also morally
unacceptable, and ought not to be attempted.Ó Their report is available at:
THE PRESIDENTÕS COUNCIL ON BIOETHICS, HUMAN CLONING AND HUMAN DIGNITY: AN ETHICAL INQUIRY, Washington, D.C., (July 2002)
3. There is currently a moratorium on federal funding of human cloning research, implemented by Executive Order (President Clinton). There have been a number of attempts to permanently ban such funding, and to implement statutory prohibitions against human cloning.
The HUMAN CLONING PROHIBITION ACT OF 2001 would have banned both research as well as reproductive cloning of human embryos. It passed the House (263-162), but failed in the Senate due to the ban on research.
H.R. 2505, 107th Cong. 1st Sess.
(2001)
A similar
bill was introduced in 2003, that would permanently ban both reproductive and
research cloning. Under this bill, any person who performs or participates in
human cloning within the United States commits a federal crime punishable by
fines and ten years in prison. If
the violation involves a pecuniary gain, a civil penalty of one million dollars
or twice the gain also applies. The bill passed in the House (249-155), and is
currently pending in the Senate.
H.R. 534, 108th Cong. 1st Sess. ¤
2 (2003)
The
Senate has proposed an alternative bill that would ban reproductive but not
research cloning:
S. 303, 108th Cong. 1st Sess. ¤ 2
(2003)
No final
action has been taken on these bills (and none is expected before the end of
the 108th Congress).
4. The Federal Food
and Drug Administration (FDA) has declared that they have the authority to
regulate human cloning (under their authority to regulate Òbiological
productsÓ). In a ÒDear ColleagueÓ letter sent to firms and laboratories working
in the biologics field, they informed the industry: (1) that an IND (Investigational
New Drug) application would be required before any laboratory in the U.S. could
perform human reproductive cloning research, and; (2) that the FDA will NOT
approve any such application for safety reasons. While many believe that the
FDAÕs claimed authority in this area is not supported by law, their declaration
may put a serious damper on attempts to proceed with reproductive cloning
research. The FDA letter is available at:
Dr. Stuart Nightingale, Dear
Colleague Letter About Human Cloning (October 26, 1998)
1. The state of
California also created a committee to study and advise the legislature
regarding policy and actions to take with respect to human cloning. They
concluded: (1) Òthat California should ban human reproductive cloningÓ; (2)
Ò[that] most Committee members [would also prohibit] human reproductive cloning
even if it were proven physically safeÓ; and (3) ÒCalifornia should not
prohibit but should reasonably regulate human non-reproductive cloning.Ó Their
report is available at:
CALIFORNIA
ADVISORY COMMITTEE ON HUMAN CLONING, CLONING CALIFORNIANS?, REPORT OF THE
CALIFORNIA ADVISORY COMMITTEE ON HUMAN CLONING, Sacramento, California
(January 11, 2002)
2. A combination of California codes implement a five-year ban on human cloning (starting in 1997), and declare a violation of that ban to constitute Òunprofessional conductÓ, potentially triggering sanctions, loss of business or medical licenses, and penalties of up to $1 million.
Cal. Business & Professions Code ¤ 2260.5
(2004)
Cal. Business & Professions Code ¤ 16004 (2004)
Cal. Business & Professions Code ¤ 16105 (2004)
Cal. Health & Safety Code ¤ 24185 (2004)
Cal. Health & Safety Code ¤ 24187
(2004)
The five-year sunset provision was eliminated in 2002, making the California ban on human reproductive cloning permanent:
Cal. Sen. Bill 1230 (2001-2002 session)
However, it is the official policy of the state of California to permit research (as opposed to reproductive) cloning:
Cal. Health &
Safety Code ¤ 125115 (2003)
3. A number of other
states have also implemented bans on human cloning:
Ark.
Stat. Ann. ¤ 20-16-1001 through 1004 (2003)
Iowa Code ¤
707B.1 through B.4 (2003).
Mich.
Comp. Laws, Public Health Code, ¤¤ 333.16274, 333.16275, 333.20197 (2003)
Mich. Comp. Laws, Penal Code, ¤ 750.430a
(2002)
(Bans both reproductive and research cloning; human cloning is a felony that is
punishable by imprisonment for up to 10 years and/or a ten million dollar fine
N.D. Cent.
Code ¤ 12.1-39-02 (2003)
R.I.
Gen. Laws ¤¤ 23-16.4-1 through 23-16.4-4 (2003)
Va. Code Ann. ¤¤ 32.1-162.21 through
32.1-162.22 (Michie 2003)
1. In California, the
child of a wife cohabiting with a husband who is not impotent or sterile is
conclusively presumed to be a child of the marriage, per:
Cal. Family Code ¤ 7540 (2004)
This presumption
of legitimacy applies to incest prosecutions, i.e., a father who has
intercourse with his Òlegal childÓ to whom he is not biologically related can
be found guilty of incest nonetheless.
People v. Russell, 22 Cal. App. 3d 330, 99 Cal. Rptr. 277 (1971)
2. Both California and Louisiana make it a crime to use sperm or egg cells for assisted reproduction without the written consent of the donor:
3. Florida provides expedited affirmation of
parental status for the biological parents when a gestational surrogate is
used:
4. In Michigan, a child conceived by a married
woman with consent of her husband following the utilization of assisted
reproductive technology (ART) is considered to be the legitimate child of the
husband and wife for all purposes, including intestate succession. Note,
however, that the husbandÕs consent to the use of ART is required for legitimacy.
Mich. Comp. Laws ¤ 333.2824 (2003)
Mich. Comp. Laws ¤ 700.2114 (2003)
1. Sheils v. University of
Pa. Med. Ctr., 1998 U.S. Dist. LEXIS 3918 (E.D.
Pa., 1998)
An
infertile couple sued both the federal and state (Pennsylvania) governments,
citing various grounds for injunctive relief. The suit named the University,
Tom Ridge (governor of PA) and Janet Reno (representing the U.S.) as
defendants.
In
addition to their state law claims (related to screening procedures for IVF
candidates), they wanted to enjoin the current federal administrative ban on
human cloning (e.g., the FDA "Dear Colleague" letter) and all federal
policies aimed against the use of cloning on the grounds that (1) they
unlawfully discriminate against people with reproductive disabilities under the
Americans with Disabilities Act, and (2) such bans are an unconstitutional
intrusion into the right to make reproductive choices free of government
interference.
The
federal claims were dismissed due to lack of standing; since cloning is not
currently feasible, the plaintiffs suffered no actual injury by being denied
the right to clone. However, the judge expressly noted, "I do not reach
the issue of whether the federal ban on funding for embryo splitting and/or
human cloning
2. United States v. Arora, 860
F. Supp. 1091 (Md., 1994)
Holding a stem
cell line is a property interest, and
that destroying the stem cells constitutes a tort of conversion. However,
contrast with:
Moore v. Regents of Univ. of Cal., 51 Cal. 3d 120; 793 P.2d 479 (1990)
which held that cells taken from a patient were not a property interest. Removal and use of patient cells did
not constitute a tort of conversion.
3. Mid-South Ins. Co. v. Doe, 274 F. Supp. 2d 757 (S.C.,
2003)
The insurer of a surrogate mother
and her husband was not liable for the child's medical expenses but was liable
for the mother's expenses; the biological parents' insurer was liable for the
child's expenses.
4. Lamaritata v. Lucas, 823
So. 2d 316 (2d. Dist. Fla., 2002)
Upholding
a Florida statute that denies any parental rights to sperm donors.
5. Mitchell v. Banary, 203
Ill. 2d 526; 787 N.E.2d 144 (2003)
Illinois statute makes a husband
(including a boyfriend who becomes a common-law spouse) the legal father of a
child conceived through artificial insemination only if he gives written
consent to the procedure.
6. Culliton v. Beth Isr. Deaconess Med. Ctr., 435 Mass. 285; 756 N.E.2d 1133 (2001)
Genetic parents (sperm and egg
donor) can, immediately at the time of birth, be declared the legal parents of
child fertilized via IVF and implanted in surrogate womb; i.e., there is no
requirement to wait until the surrogate mother relinquishes any rights to the
child before recording the genetic parentsÕ names on the birth certificate.
However, contrast with:
A.H.W. v.
G.H.B., 339 N.J. Super. 495; 772 A.2d 948
(2000)
where the genetic parents could not be immediately
declared the legal parents in the identical situation as in Culliton. In New
Jersey, genetic parents have to wait until the surrogate releases her rights
after birth to be named as parents on the birth certificate.
7. A.Z.
v. B.Z., 725 N.E.2d 1051 (Mass., 2000)
Upheld an injunction preventing a former
wife from using preembryos frozen during the marriage. The husband's interest
in avoiding procreation outweighed his former wifeÕs interest in having
additional children, and public policy dictated that a husband not be forced
against his will to become a parent. Similarly,
J.B. v. M.B., 170 N.J. 9; 783
A.2d 707 (2001)
where an ex-husband was enjoined
from using frozen preembryos against the will of his former wife.
Kass v. Kass, 91 N.Y.2d 554;
696 N.E.2d 174 (1998)
Holding that pre-zygotes are not recognized as
persons for constitutional purposes. A contract stipulating that unimplanted
pre-zygotes be donated for research was enforceable.