Human Cloning And The US Constitution
In order to prevent abuses of power by the government, the Constitution outlines and guarantees that certain fundamental rights be granted to the people. These rights and freedoms, such as voting rights, reproductive rights, and freedom of communication, are either explicitly defined in the Constitution or have been addressed by the Supreme Court. Others, such as the right to clone, have yet to be addressed explicitly by either an amendment to the Constitution or by the Courts. In this paper, I will interpret whether the Constitution protects a fundamental right to human cloning by analyzing key sections and amendments of the Constitution, as well as various court cases central to the right of choice as related to reproduction.
Human cloning is defined as the manipulation of a human cell in such a way that the cell develops into a human with identical nucleic DNA. In 1996, Dolly the Sheep became the first mammal to be cloned from an adult somatic cell. Other mammals, including humans, can theoretically be cloned via similar methods: by fusing a quiescent adult somatic cell with an enucleated egg cell and activating cell division via an electric current. This process of mammalian cloning produces similar results to naturally occurring twins — except the twin is later-born and possesses the mitochondrial DNA of the enucleated donor egg.
As is evident from the case of Dolly the Sheep, who suffered from disease and a shorter life span, at present, animal cloning technology still poses appreciable physical risks. These involve the reactivation of genes, limited scientific knowledge — especially in the realm of cellular aging — and odious results of historical cloning experiments on embryonic and fetal cells and other animals. However, there is no reason to believe that should the scientific community be given enough time and resources, they could not resolve any technical issues and perfect the process so as to minimize physical risk to the cloner and clonee. Therefore, I will analyze this issue under the assumption that human cloning has become at least as safe as natural reproduction and look to other methods for evaluating constitutionality.
The Supreme Court rules on cases after considering pre-existing cases, society, and the Constitution. Some justices share an originalist view of the Constitution; others, a pragmatic or modernist view. Originalist interpretations try to understand the intent of the law or text at the time it was written, while modernist interpretations use the Constitution as a fluid guide to a modern and changing society. For the purposes of this paper, I will be analyzing the constitutionality of human cloning through a modernist lens — many of the cases I will look at were analyzed through the same perspective. Additionally, human cloning, being a relatively new scientific development, would be automatically unconstitutional if looked at through a strictly originalist lens as the founding fathers would not have thought of human cloning when writing the Constitution.
Developments in scientific technology have already progressed our society in the direction of “unnatural procreation. ” In vitro fertilization (IVF) is the process of fertilization by extracting eggs, retrieving a sperm sample, manually combining the egg and sperm in a laboratory dish, and then transferring the embryo in a woman to carry to term. This process has allowed many individuals who would have otherwise been incapable of reproduction to bear children by bypassing fundamental evolutionary barriers to reproduction. Using IVF, sexual intercourse is no longer necessary for reproduction; a woman can become pregnant with the assistance of laboratory techniques.
Human cloning is similarly a different form of human reproduction: asexual as opposed to the accepted sexual. When Dolly the Sheep was cloned, she had three mothers: one provided the egg and mitochondrial DNA, another the nucleic DNA, and a third carried the cloned embryo to term. She was not brought to term in a lab or a test tube: following the transfer of nucleic DNA from the quiescent cell to the enucleated egg, the procedure greatly resembled that of IVF, including embryonic transfer into the surrogate mother’s womb. In this way, it can be argued that genetic cloning is qualitatively similar enough to current accepted methods of conception as to fall under the same constitutional definitions of reproduction.
Because genetic cloning may provide an alternative method of human reproduction, analyzing significant court cases involving reproductive rights is key in determining the legal status and constitutionality of human cloning. While reproductive rights are not explicitly stated in the Constitution, various court cases have established reproductive and parental rights in the Constitution via interpretation of the Fourth and Fourteenth Amendments.
Supreme Court cases involving reproductive rights have usually centered their opinions and rulings around the interpreted right to privacy within the Constitution. In 1972, the Supreme Court addressed individual access to birth control in Eisenstadt v. Baird, ruling that a Massachusetts law restricting birth control access to married couples was unconstitutional. Under the Supreme Court’s decision in Griswold v. Connecticut, married couples were already entitled to contraception, but the state’s restriction of birth control only to married couples failed to satisfy the “rational basis test” of the Fourteenth Amendment’s Equal Protection Clause. Writing for the majority, Justice William J. Brennan, Jr. justified the decision: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. ”
A landmark legal decision, Roe v. Wade came one year later, effectively legalizing abortion across the United States. The Due Process Clause of the Fourteenth Amendment provides a fundamental right to privacy, and this right extends to a pregnant woman’s choice whether to elect to abort a fetus. Justice Harry A. Blackman wrote in the majority opinion that “the right of personal privacy includes the abortion decision, but this right is not unqualified and must be considered against important state interests in regulation. ” Because this right to privacy is fundamental, a state law that broadly prohibited abortion would violate that right — but compelling state interests, such as the protection of pregnant women’s health and the “potentiality of human life” can provide states with the ability to impose certain restrictions on abortions.
In Casey v. Planned Parenthood, the Supreme Court affirmed the essential ruling of Roe v. Wade — protecting a woman’s right to an abortion — but broadened states’ abilities to regulate it. Compelling state interests, such as safeguarding a woman’s health, could be used to limit a woman’s access to abortions, but any regulation that would impose a “substantial obstacle” would constitute an “undue burden” and would therefore violate a woman’s constitutional rights to an abortion.
The Lifchez v. Hartigan case, decided in a US District Court, held that a statute banning the selling of and experimentation on human fetuses except in cases in which such experimentation would be therapeutic to the fetus. Many procedures performed by the plaintiff, including chorionic villi sampling, a prenatal test used to detect birth defects, and embryonic transfer, the final step in in vitro fertilization, could have fallen under this law due to the law’s vagueness and lack of definition for “experimental” and “therapeutic. ” Relevant to the subject of human cloning is the Court’s conclusion that this statute violates a women’s right of reproductive freedom, previously established in Roe v. Wade. The Court argued that “it takes no great leap of logic to see that within the cluster of constitutionally protected choices that includes the right to have access to contraceptives, there must be included within that cluster the right to submit to a medical procedure that may bring about, rather than prevent, pregnancy. ” Therefore, in vitro fertilization, an experimental procedure that facilitates a fertility therapy for a woman trying to get pregnant, explicitly became included under a woman’s right to privacy.
These cases evidence the Court’s historic tendency to defend a wide array of women’s reproductive rights, encompassing procedures that both bring about and prevent pregnancy, as well as permit states a degree of control over regulation, so long as they do not impose an undue burden. So, should human cloning fall under these same protections? As delved into earlier, human cloning is qualitatively similar enough to natural reproduction so that it should be constitutionally protected as a fundamental right along with other reproductive issues like abortion, birth control, and in vitro fertilization.
Most literature on the right to privacy emphasizes the defense of individual rights; however, even the fundamental rights of reproduction can be regulated by states so long as the states can claim a compelling interest. It is important to assess whether the significant psychological and societal implications posed by human cloning can and should provide states with a compelling enough interest to justify regulation of this fundamental right.
There are several levels of tests of government scrutiny that the Supreme Court applies under different circumstances. In relation to reproductive rights, the Supreme Court applies strict scrutiny as opposed to intermediate scrutiny or rational basis review. This test, applies in Roe v. Wade, holds that “whether certain ‘fundamental rights’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest,’ … and that legislative enactments must be narrowly drawn to express only the legitimate state interests at state”. The Court has not defined what a compelling state interest is exactly, so differentiating between a simply “legitimate” or “important” government interest, as opposed to a compelling one, can be difficult. The strictest definition would encompass the necessity of the regulation.
