Illegal Beings: Human Clones and the Law

  • Kerry Lynn Macintosh
Cambridge University Press, 2005 288 pp. hardcover, $28 ISBN 0-521-85328-1 | ISBN: 0-521-85328-1

For many years now, politicians have been busy banning or trying to ban the cloning of human beings. Within weeks after the creation of Dolly, the world's first cloned mammal, then-US President Bill Clinton called for a ban on human cloning, and George W. Bush has made it clear that he absolutely opposes any research involving human cloning. In the absence of a national ban in the US, many states have passed their own laws prohibiting human cloning.

The cloning of people, termed 'reproductive cloning,' as opposed to 'therapeutic cloning' for treating and curing diseases, has been viewed with alarm throughout the rest of the world as well. More than 40 countries have enacted laws banning human cloning, the Vatican has weighed in about its evils and the United Nations General Assembly passed a resolution in March 2005 calling on the rest of its member states to prohibit human cloning.

But despite being one of the most widely outlawed activities on the planet, human cloning, as Kerry Lynn Macintosh skillfully and persuasively argues in Illegal Beings, is not obviously a procedure that should be prohibited. So how did it come to be that world consensus would criminalize anyone attempting the cloning of a human being? In some ways, the answer to this question is the least satisfying aspect of what is otherwise a courageous and important book.

Macintosh targets for vigorous criticism four US reports published between 1997 and 2002 that are the foundation for outlawing human cloning—two authored by presidential advisory panels on bioethical issues, one by a California commission and one by the National Academies of Science. She takes on their key claims and knocks many of them around soundly.

She rightly dismisses a concern much in evidence in the presidential advisory reports that children are better off begotten and not made, maintaining that the worldwide experience with in vitro fertilization does little to support such a claim. In an age of neonatal intensive care units, embryo adoption and sperm banks, Macintosh will have none of the argument that sexual intercourse and natural pregnancy ought to be the only way to make babies. She also correctly zeros in on worries about the threat clones pose to third parties. If clones were really inherently dangerous, then should we not be locking up twins and triplets before they move into our neighborhoods and raise havoc?

Nor does she see much force behind the commonly made objection that clones will lack individuality. Although it may be emotionally difficult to be made in the physical image of another person, Macintosh notes that there is no evidence in studies of twins, including conjoined twins, that the genetic identity of persons poses a knockdown argument against the permissibility of cloning. And she argues that worrying about the stigmatized lives that clones will live—what she wittily terms “existential segregation”—is more or less a self-fulfilling prophecy. If you want to make it hard to be a clone, then prohibit the practice and watch the result on anyone made that way.

Where Macintosh is not as successful is in explaining why, if these arguments do not hold up, so many nations, politicians, theologians and ethicists have roundly condemned human cloning. The answer, unfortunately not found in the book, is complicated.

Human cloning has come to serve as a political football in the debate over abortion, especially in the US and the Vatican. For some, any embryo—including a cloned embryo—is a person from the moment of creation. Those who wish to see the human embryo afforded full legal rights and protections from conception have used public worries and fears about reproductive cloning of the sort that Macintosh carefully undercuts to generate opposition to all forms of human cloning, including therapeutic cloning. What proponents of the view that embryos are persons have not been able to achieve through the front door of legislation, they have partly achieved through the back door by pushing for laws that treat the cloned embryo as a person. Abortion politics is part of the reason bans on making people by cloning have gotten as far as they have, since there is much more willingness to ban the creation of cloned human embryos than there is to treat all embryos as full-fledged persons.

Another reason bans on cloning have gotten so much traction is that since Dolly, reproductive human cloning has been associated with kooks and crackpots. Macintosh does not spend much time reviewing this aspect of the debate, but from the fabulously monikered Richard Seed to the notoriously nutty cult of the Raelians, human cloning has been the province of those so weird that they have frightened the world just by their association with cloning.

Finally, and most importantly, it is widely recognized that human cloning simply is not safe. Animal cloning has produced many stillborn and deformed animals. Macintosh argues that claims of problems are overblown, but she is not persuasive. Although there are various problems associated with children born by means of sexual intercourse, the track record on animal cloning must give pause to any legislator or regulator considering allowing such a procedure to be done.

This is not to say that a permanent ban is the correct response to the risks of human cloning, but those who would at least put a temporary hold on the procedure have a valid point in lieu of more animal data and a more sophisticated theoretical understanding of what is happening biologically when DNA from body cells is used to reprogram an egg. Despite these gaps, Macintosh has done a real service. She has made as strong a case as can be made that the world may have acted in fear, ignorance, confusion or haste in banning all forms of human cloning.