Testimony before house government reform committee on human cloning May 15, 2002.

• Author: Bryant, Daniel J.

Mr. Chairman and Members of the Committee, thank you for this opportunity to submit this written statement about the feasibility of the criminal law provisions of the various human cloning legislative alternatives that have been proposed. The following observations are necessarily tentative, and may have to be reassessed with further study and further development of the relevant science.

The task of enforcing a general ban on human cloning for any purpose does not seem to pose insuperable challenges to law enforcement. Such a ban would clearly define the exact activity to be banned, which is the use of the procedure known as somatic cell nuclear transfer to produce human embryos. The activity involves certain visible steps and sophisticated equipment, and can be distinguished from the usual process of in vitro fertilization (IVF). The cloning procedure uses complete nuclei extracted from body cells, not sperm, and requires additional steps (e.g., extraction of the egg's existing nucleus, chemical or electrical stimulation of the egg after transfer of the nuclear material) to produce an embryo. The eggs used in the procedure would have to be donated by women for reasons other than lawful reproductive goals. We understand that any pursuit of clinical research based on cloning would require harvesting a great many eggs from these women. These visible human activities and interactions are not different in kind from those which law enforcement is ordinarily called upon to detect and address. Those participating in the activities could be questioned and, with sufficient evidence gleaned from such interviews and from the physical evidence involved, prosecuted as the legislation provides.

Enforcing a modified cloning ban would be problematic and pose certain law enforcement challenges that would be lessened with an outright ban on human cloning. For example, the Human Cloning Prohibition Act of 2002 (S.2439) is designed to "protect" certain cloning activities when they are conducted for the purpose of research. The Act seeks only to forbid "implanting or attempting to implant the product of nuclear transplantation into a uterus or the functional equivalent of a uterus."

As an initial matter, the prohibited activity "transfer of an embryo to a uterus" is an activity that is otherwise permitted now in all states and is performed thousands of times a year in fertility clinics. This legislation obviously is not intended to establish a broad prohibition...