Congress and Cloning: A brief lesson in how not to make policy

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Congress and Cloning: A brief lesson in how not to make policy

J. Burley, Exeter College, University of Oxford

Charles Darwin apparently once spent an entire week repeating to himself: "I will not draw back when the snake in the reptile house strikes at me from behind the glass." Darwin then visited the zoo, but his concerted attempt to control his actual response to the creature, failed. The snake struck, Darwin recoiled. In like spirit of investigation, I decided to wait before reading the recent USA Congressional debate on H.R. 2505 'Human Cloning Prohibition Act of 2001'. Although in this case, intellect not instinct would be the trigger to my reaction, it was bound to be a sharp one. One week passed. The inevitable transpired. Although I had repeatedly told myself that policy-making over genetic developments wasn't all that bad, the conclusion that it really is, ultimately proved inescapable.

The House of Representatives passed Bill 2505 by a vote of 265-162, on July 31st of this year. One disillusioned participant aptly described the debate as a "papal event" and, as such, he suspected it was "unconstitutional"(page H4922). There may be some truth to this, but what is truly striking about the passage of Bill 2505 is just how confused some policy-makers seemed to have been about what was at stake, and why. Perhaps the climate of confusion was strategically induced - often the default position of those who lack understanding is: 'Just say no!' Whatever the reason, the debate result is, at best unfortunate. At worst, it is irresponsible and has far-reaching moral implications.

Bill 2505 moved on to the US Senate, having been 'engrossed' in the House in the sweeping form that is was introduced - no significant amendments were made, and the 'Greenwood-Deutsch substitute', which distinguished between reproductive and therapeutic cloning, was rejected. Section 2 of the Bill makes it unlawful for anyone in the public or private sectors to: attempt or assist in an attempt to produce a human embryo using somatic cell nuclear transfer; ship or receive an embryo so made and/or products derived from it; and, import any cloned human embryo (page H4917).

Many arguments were advanced in the Congressional debate in favour of Bill 2505. The strongest one against human reproductive cloning concerned the predicted ill health of the cloned child. In cloning studies of non-human animals, there is a high incidence of both unique and severe abnormalities, some of which appear only late in fetal life and/or in infancy. Therefore, it was argued, it would be immoral to attempt human cloning. Is it morally correct to seek to prevent serious harm to future people? Maybe so, but, while the argument under scrutiny, premised on the prediction that cloned children will suffer horrible deformities, provides grounds for a moratorium on human cloning, it does not support a ban. What has been ignored by members of Congress, the pioneers of mammalian cloning, scientists involved in stem cell research, and the wider public, is that this very same argument, the weight of which rests on the notion of harm, would support human cloning were it ever demonstrable in animal models that a high rate of efficiency could be achieved. Indeed, according to the logic of their argument against human cloning, one day it could be thought immoral not to clone a child. This is because if cloning ever became highly efficient, it would have a distinct advantage over natural procreation: cloning could avoid the mental and physical defects that occur in 'natural' procreation because the impact of the particular genetic composition of the cloned individual can be predicted, to an extent, through knowledge of the life history of the adult cell donor. If our only objection to human cloning rests on the premise that cloned infants would have terrible health problems, and that premise ever proves false, not only does our objection to cloning disappear, the rationale for the objection - protecting the health of future children - could be applied to the case of natural procreation. We know that some children born through natural means are afflicted by disease and deformity. If human cloning was to circumvent these health defects, should it not become the method of choice? The problem with the line of reasoning employed by some of the USA policy-makers is that it suggests an affirmative answer here. Notwithstanding the fact that no one realised this to be the logical extension of their anti-cloning argument, it is regrettable that policy over cloning was arrived at in this way.

Moreover, most of the objectors to human cloning failed to recognise that if predicted abnormality is a strong enough reason to support a ban on human cloning now, it should also be a strong enough reason to support a current ban on some acts of natural procreation, i.e., whenever there is a high risk of a future child suffering dreadful deformity or disease. For if it is the physical and mental welfare of the cloned child that commands our moral attention, why shouldn't the well-being of children conceived through natural means also exercise us morally?

Thus the USA policy-makers have unwittingly deployed an argument against human cloning that might well support its practice in the future. In addition, if consistency is a reasonable expectation of the policy process, the logic behind Bill 2505 effectively condemns any person now who takes high risks with the health of any future child.

The Bill outlaws not only human reproductive cloning but also research on embryos produced by somatic cell nuclear transfer, thereby closing off one avenue of stem cell research, at least for the time being. The main anticipated benefit of therapeutic cloning would be the cultivation of immortal stem cell lines, immunologically compatible with the patient. However, since human stem cell research is still very much in its infancy, therapeutic cloning is not currently thought to offer any significant advantage to US stem cell researchers who legally already can make use of embryos derived from other sources (though not with public funding). Whilst clinical applications which might require histocompatible products are some way off, no robust arguments were advanced against therapeutic cloning in the debate over Bill 2505, just more sloppy thinking.

As in discussion over abortion, the moral status of the embryo was the chief preoccupation of some policy-makers. It was argued that all embryos are potential people from the moment of conception, and therefore merit legal protections. In the name of morality, the blastocyst was given a weightier moral status than that of existing human beings who suffer great hardship from injury or disease, and who might benefit from therapeutic cloning-related research. This defies common sense.

That observation aside, let us scrutinise the notion that embryos are potential people.

How can x be a potential y if the conditions required for the transition from x to y do not obtain? In the case of natural procreation, many embryos die owing to chromosomal abnormalities. We are told that a potential person becomes such at conception. But these embryos could never have become a person because they lacked the requisite genetic complement to survive. Similarly, if we never intend to plant an acorn, instead we will feed it to the birds, we cannot say sensibly that the acorn was a potential oak tree. It was nothing more (nor anything less) than an acorn. The point is that potentiality is necessarily a contingent concept. A blastocyst created, and then destroyed by a stem cell researcher would always have been intended for research and/or clinical uses. Thus, from the outset, there was no possibility of the blastocyst becoming, e.g., John Smith, because there was never any intention of providing it with the correct nurturing environment.

The potentiality argument advanced by some members of Congress - incorporating the view that life begins at conception - were it followed to its logical conclusions, denies the moral permissibility of women using intrauterine devices for birth control, in vitro fertilisation, and abortion. Perversely, it also implies that natural procreation is morally problematic! We now know that, on average, approximately three to four human conceptuses die before one survives to the fetal stage. When we make the choice to procreate naturally in the light of knowledge about this attrition rate, are we not guilty of the manslaughter of one or more potential people? I wonder how the American people would react were they to realise that what they do, as a matter of course, has, by implication, just been morally condemned by Congress, and that many sexually active citizens of reproductive age could be considered criminals of a kind. In short, it is a nonsense to talk of blastocysts intended for research as being potential people, just as it is a nonsense to speak of defective embryos - ones which lack the physical integrity to survive - as potential people. In both cases, the conditions required for the x to become a y are not satisfied.

In conclusion, let us revisit the anecdote offered by Charles Darwin, above. Darwin's modest experiment was designed to provide some evidence for the existence of the basic emotion of fear. No matter how hard he tried, Darwin could not suppress his innate reaction to the snake at the zoo - even the mediation of reason failed to help him. It is, I think, fair to say that opposition to human cloning has been of the knee-jerk kind. Unlike in Darwin's experiment, however, reason can mediate our reactions to cloning. What we want to escape is bad reasoning. If there is anything to be drawn by German policy-makers from the recent Congressional debate, it is the message that it does matter how legislation is argued for, and subsequently framed. In an age where science promises so much, it is embarrassing, to say the very least, that our thinking on matters moral, lacks sophistication. German policy-makers shoulder the burden of a distinctive recent past. For this reason alone, it is important that they do not unwittingly commit themselves to the anti-reproductive cloning and anti-therapeutic cloning positions embraced by their US counterparts.

To be sure, human reproductive cloning is not an attractive prospect at present. But the way in which we argue the case is of crucial importance. Therapeutic cloning, which should be sharply distinguished from attempts to 'copy' the genomes of people, offers only benefits to science and society. On this last point, the US Congress might find the United Kingdom's legislation instructive.

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