Human cloning and the right to reproduce.

• Author: Foley, Elizabeth Price

INTRODUCTION

Since the birth of "Dolly the sheep" in July 1996, (1) cloning via the nuclear transfer of differentiated cells (2) has been successfully expanded to numerous and varied animal species, (3) including pigs, (4) mice, (5) goats, (6) and cows. (7) Applying cloning techniques to humans, it seems, is only a matter of time. (8) Indeed, in late November 2001, researchers at Massachusetts-based Advanced Cell Technology announced that they had used somatic cell nuclear transfer to create three human embryos. (9) Specifically, the researchers harvested human eggs from seven volunteers, removed the nucleus from each egg, and re-nucleated the eggs with cells taken from an adult human donor. (10) In all, nineteen human eggs were successfully re-nucleated using the nuclear transfer technique. (11) Eleven of the nineteen eggs were re-nucleated with cells taken from the skin of a human donor the other eight eggs were re-nucleated with cumulus cells taken from a human donor. (12) None of the eggs that were re-nucleated with the skin cells were able to begin the process of cell division, but three of the eight eggs that were re-nucleated with cumulus cells did begin dividing, with one surviving to the two-cell stage, one surviving to the four-cell stage, and the third surviving to the six-cell stage before dying. (13) Although some in the scientific community have downplayed the significance of these experiments because the embryos did not survive to the blastocyst stage, (14) it is clear that the use of nuclear transfer cloning techniques on humans has begun.

Recognizing the inevitability of successful human cloning, numerous states (15) and countries (16) have enacted prophylactic bans on the technique. The United States Congress, although threatening on numerous occasions to enact a federal ban, (17) has not yet followed suit. Laws prohibiting cloning that have been enacted thus far by the states have raised an important legal question: namely, whether the constitutional right to reproduce protects an individual's right to produce a child using cloning techniques and, if so, under what circumstances may this right be exercised?

1. IS THERE A POSITIVE RIGHT TO REPRODUCE?

   In order to assess whether or to what extent reproductive human cloning is constitutionally protected, one must first delineate the contours of the constitutional right to reproduce. The United States Supreme Court has clearly indicated that humans have the right not to reproduce, as evidenced by contraceptive cases such as Griswold v. Connecticut (18) and abortion cases such as Roe v. Wade (19) and Planned Parenthood of Southeastern Pennsylvania v. Casey. (20) Whether the Constitution also provides an affirmative, or positive, right to reproduce is less clear because the government has rarely acted to prevent individuals from procreating; hence, there has not been much litigation directly on point. Nonetheless, the vast majority of academic writing in this area acknowledges that a positive right to reproduce may be implied from extant case law.

   One of the earliest cases from which a positive right of reproduction may be inferred is the Supreme Court's 1923 decision in Meyer v. Nebraska. (21) In Meyer, the Court invalidated a Nebraska law prohibiting the teaching of any language other than English to children prior to the eighth grade, stating in dicta, "[w]ithout doubt, [the liberty interest of the Due Process Clause of the Fourteenth Amendment] denotes not merely freedom from bodily restraint but also the right of the individual ... to marry, establish a home and bring up children." (22) An affirmative right to reproduce was more specifically addressed by the Court's 1942 decision in Skinner v. Oklahoma, (23) which struck down an Oklahoma statute mandating sterilization for repeat felons convicted of crimes involving moral turpitude. (24) In invalidating the law, the Court invoked strict scrutiny (25) and concluded that, because "[m]arriage and procreation are fundamental to the very existence and survival of the [human] race," (26) the mandatory sterilization law violated "one of the basic civil rights of man." (27) Thus, Skinner not only suggests that a positive right of procreation exists, but also that it is a fundamental right entitled to the highest level of judicial scrutiny (i.e., strict scrutiny). (28)

   This interpretation of Skinner appears to have been confirmed by the Court's 1972 decision in Eisenstadt v. Baird. (29) In Eisenstadt, the Court invalidated a Massachusetts statute that criminalized the dispensing of contraceptives to single persons who wished to use them for the prevention of pregnancy. (30) The statute violated equal protection because the law was not rationally related to the purposes it was supposedly designed to serve-namely, deterring fornication and protecting public health. (31) Although Eisenstadt is an equal protection--rather than a substantive due process case--it is nevertheless instructive in determining the contours of the right to reproduce because the Court made it clear that, pursuant to Griswold, reproductive rights "must be the same for the unmarried and the married alike" (32) and that, "[i]f 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." (33)

   Although a good deal of early case law in this area suggested that the emerging right to reproduce was grounded in the penumbral right to privacy, (34) more recent Court pronouncements suggest that the right is grounded instead in the liberty interest of the Fourteenth Amendment's Due Process Clause. In Planned Parenthood of Southeastern Pennsylvania v. Casey, (35) for example, the Supreme Court stated:

   Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing.... These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. (36) More recently, in its 1997 decision Washington v. Glucksberg, (37) the Court rejected an argument that the liberty interest of the Due Process Clause includes the right to receive a physician's assistance with suicide, but acknowledged that "[i]n a long line of cases, we have held that ... the `liberty' specially protected by the Due Process Clause includes the right to marry; to have children; to direct the education and upbringing of one's children; to marital privacy; to use contraception; to bodily integrity; and to abortion." (38)

   At a minimum, Skinner and its progeny thus appear to establish a positive right to reproduce via old-fashioned sexual intercourse. (39) Whether this positive right, however, also extends to non-coital forms of procreation--including widely used technologies such as in vitro fertilization (IVF) (40) and artificial insemination (41)--is a matter of conjecture to which one can only make an educated guess.

2. DOES THE RIGHT TO REPRODUCE EXTEND TO NON-COITAL REPRODUCTION?

   As mentioned earlier, there is a paucity of case law on the question of the extension of reproduction rights to non-coital forms of reproduction because, prior to the enactment of bans on human cloning, neither the states nor the federal government had attempted to ban antecedent types of non-coital reproduction. In vitro fertilization and artificial insemination, for example, have not been banned in the U.S., despite initially widespread and vociferous objections to their use. (42)

   The federal government has, however, enacted laws regulating certain limited aspects of non-coital reproduction. For example, the Fertility Clinic Success Rate and Certification Act of 1992 (43) mandates those facilities performing IVF, (44) GIFT, (45) and ZIFT (46) report their annual live birth rates (the so-called "take home baby" rate) to the federal government, which then publishes this material and makes it available to consumers. (47)

   Recently, the U.S. Food and Drug Administration (FDA) has taken steps to regulate fertility clinics and cloning research. In January 2001, the FDA issued a final regulation, which requires establishments that use human cells, tissues, and cellular and tissue-based products (HCT/Ps) to register their facilities and list their products with the FDA. (48) Notably, the final rule explicitly includes establishments, such as fertility clinics, that use reproductive tissues and cells. (49) The FDA has also proposed two additional regulations that will, if finalized, require HCT/P establishments to abide by rules for donor suitability (50) and good tissue practices. (51) The FDA has also expressed its belief that it has existing statutory authority to regulate human cloning. (52) As such, the FDA's position is that those wishing to conduct human cloning research in the United States must obtain an investigational new drug (IND) application approval from the FDA prior to conducting such research--approval, which the FDA has indicated, will not be forthcoming due to "major unresolved safety questions." (53) Many food and drug law scholars, however, disagree with the FDA's interpretation of its statutory authority in this area. (54)

   Even assuming for the moment that the constitutional right to reproduce includes the right to use assisted reproductive techniques in certain situations, governmental regulations of the sort just mentioned would appear to satisfy even the most rigorous level of judicial scrutiny. Who would doubt, for...