Stem Cell Research and Cloning for Human Reproduction: an Analysis of the Laws, the Direction in Which They May Be Heading in Light of Recent Developments, and Potential Constitutional Issues - Catherine D. Payne

• Citation: Vol. 61 No. 3
• Publication year: 2010

Comment

Stem Cell Research and Cloning for Human Reproduction: An Analysis of the Laws, the Direction in Which They May be Heading in Light of Recent Developments, and Potential Constitutional Issues

I. Introduction

The world is continuously changing before our eyes. New scientific and technological developments are constantly being made. Not surprisingly, these changes usually occur well before the law is ready to respond and accommodate them. One of the most recent developments that will soon be pushing the limits of the law is in the world of science.

Researchers around the world have been independently working to see if they can unlock the secrets to the development of reproductive cells. Ultimately, the research teams are hoping to learn what causes stem cells to differentiate into sperm and egg cells. One way this is significant to the legal world is that it may affect the configuration of reproductive rights. By learning what causes stem cells to differentiate into reproductive cells, scientists can help people have genetically related children. This could ultimately mean that, in the not-too-distant future, people who were previously unable to have genetically related children may be able to do so.

These developments are somewhat controversial because they involve embryonic stem cell research. Additionally, some of these developments involve cloning techniques through nuclear transfer. Because of the employment of these potentially controversial techniques, their use for reproductive purposes may be prohibited in the United States. This Comment will briefly discuss the various methods being studied and how they relate to cloning and stem cell research, followed by a discussion of how the legal arena in the United States may be affected. This discussion will include current laws and policies of the United States as well as some possible arguments that may be raised for or against the constitutionality of laws prohibiting the use of these techniques for human reproductive purposes. For example, the laws of various jurisdictions throughout the United States and the policies behind many institutional guidelines oppose the use of embryonic stem cell research and cloning methods for human reproductive purposes. However, one must ask if a law prohibiting the use of these methods to enable people to have children infringes upon their reproductive rights, particularly upon the rights of those who are unable to have genetically related children without reproductive assistance. For instance, these techniques could be particularly important for same-sex couples who would otherwise be unable to have children that are genetically related to both partners. Infertile couples might also benefit from these developments because, unless they use one of these methods to create a genetically related sperm or egg cell, they would be unable to have genetically related children. Another potential argument is that prohibitive laws on cloning and stem cell research may infringe on one's right to freedom of expression. Yet another issue is whether the federal government is constitutionally allowed to govern this area or if it should be left to the states.

An appropriate structure of laws and policies addressing embryonic stem cell research and cloning must consider the various ethical implications involved. However, this Comment does not discuss those ethical issues, and it is not meant to take or support an ethical stance on either side of the debate. While some ethical positions may be briefly mentioned because they affect some of the arguments this Comment discusses, those issues are largely beyond the scope of this Comment. This Comment is meant to objectively discuss some of the potential legal questions that could arise should Congress or state legislatures pass laws to prevent the use of these recent developments for purposes of human reproduction.

II. The Basics: Stem Cells, Stem Cell Research, and Cloning

Before discussing some possible legal implications of stem cell research, or even the research developments themselves, it is important to understand some of the basics. All of these scientific methods involve stem cells and stem cell research; accordingly, the discussion will begin by explaining what a stem cell is. Next, the discussion will continue with a brief explanation of stem cell research and cloning. While these next few sections may seem a bit technical and scientific, these discussions are necessary to better understand the legal arguments this Comment later discusses.

A. What is a Stem Cell?

Stated simply, a stem cell is an unspecialized cell that can either replicate itself or differentiate into another type of cell.¹ When a stem cell turns into another type of cell, it is considered a specialized cell.² Specialized cells form organs or other parts of the body.³ Stem cells also have regenerative capabilities, which can be used to regenerate and repair damage done to other cells in the body.⁴ Studying stem cells' ability to differentiate can help scientists learn about medical treatments that can be used to treat diseases.⁵ Scientists hope to use stem cells in the future to help treat many disorders and conditions, including cancer, diabetes, and cardiovascular disease.⁶ Thus, stem cells are significant for many reasons.

Stem cells first appear in the human life cycle in an embryo.⁷ Before implantation, an embryo is called a "blastocyst."⁸ At the center of the blastocyst is a mass of pluripotent cells.⁹ These pluripotent cells can either replicate themselves or differentiate into specialized cells.¹⁰ When scientists perform research on embryonic stem cells, they remove the pluripotent cells from the blastocyst and store the cells for future research.¹¹ Once the pluripotent cells are removed from the blastocyst, the embryo can no longer develop into a human being.¹² This is part of the reason for the debates regarding the ethicalities of stem cell research.¹³

As the embryo develops, the stem cells therein divide to create either more stem cells or one of over two hundred different types of specialized cells.¹⁴ This is the differentiation process mentioned above. Scientists are very interested in how this differentiation process occurs.¹⁵ Stem cells do not have the potential to differentiate on their own.¹⁶ Rather, they differentiate into specialized cells when they receive certain signals from the body.¹⁷ Scientists have learned what some of these signals are and how to use them to cause the stem cells to differentiate into specialized cells when scientists introduce them to certain substances.¹⁸ Some of the research teams discussed below are learning how to cause stem cells to differentiate into reproductive cells. They can identify the specialized cells as reproductive cells by examining the unique protein types on the cells' surfaces.¹⁹

B. Stem Cell Research and Cloning

The cloning technique used for reproductive cloning is not necessarily the type of cloning seen in science fiction movies. In reality, cloning involves a process called "nuclear transfer," which is sometimes referred to as "somatic cell nuclear transfer."²⁰ During this process, scientists transplant the nucleus of a specialized cell into a denucleated egg.²¹ The egg is then stimulated to form a blastocyst—the source of the stem cells.²² This method of creating stem cells is disfavored by many because it is a form of cloning.²³ The stem cell is a clone of the adult cell from which the nucleus was taken because the genetic makeup of the stem cell nucleus matches that of the adult cell.²⁴

There are several different types of cloning:²⁵ research cloning is the use of nuclear transfer to develop disease-specific stem cells; therapeutic cloning involves the use of nuclear transfer for transplanting tissues containing the genetic makeup of a particular patient; and reproductive cloning is the process by which nuclear transfer is used to create a cloned embryo, which is then implanted into a female and allowed to continue developing.²⁶

The topics of stem cell research and reproductive cloning are often discussed together because they both typically start with the use of the nuclear transfer technique.²⁷ However, they differ with regard to their purposes and ultimate goals. When using nuclear transfer for purposes of stem cell research, the pluripotent cells are removed from an embryo to create a stem cell line, which is used to create more stem cells for further studies.²⁸ By contrast, in reproductive cloning the blastocyst created from nuclear transfer is allowed to remain intact and continue developing into a human being.²⁹ Thus, both the process and biological content used are the same; the only difference is the choice to destroy the clone for further research or to implant it to allow continued development.³⁰ Many argue that there is a fine line between the different types of cloning because of the similarities among them.³¹ The critics pose a slippery slope argument that once therapeutic and research cloning are freely accepted, reproductive cloning will soon follow.³²

In addition to ethical issues regarding cloning, reproductive cloning has been particularly disfavored for safety reasons.³³ One basis for this is that studies involving reproductive cloning in animals have yielded a low live-birth success rate.³⁴ As a result, there is currently a worldwide consensus that the nuclear transfer technique should not be used to create a human being.³⁵

III. New Developments in the Study of Sperm and Egg Cells

Scientists are making exciting new developments in the study of sperm and egg cells. This Comment will first discuss these new developments and then briefly discuss the potential medical benefits.

A. Creating Sperm and Egg Cells from Embryonic Stem Cells

Several research teams around the world are working to create egg and sperm cells. While there are more groups than those discussed below, this Comment focuses on some of the most...