The increasing likelihood that the US Congress will pass legislation outlawing human cloning immediately raises constitutional questions. Would such a ban withstand court challenges that it breaches the freedom of scientific enquiry, for example? And would it violate a right to reproductive freedom?
Constitutional scholars interviewed last week suggest that, if a cloning law were challenged and the case reached the US Supreme Court, arguments for neither procreative nor scientific liberty would hold sway.
According to Richard Fallon, a professor of constitutional law at the Harvard Law School, with human health so evidently at risk, the right to freedom of scientific enquiry, which has some basis in lower court decisions, would appear “frivolous”.
Neither would the more powerful argument ultimately triumph that couples should have a right to reproduce without government interference, say legal scholars.
“What the court would be likely to say is that there's a difference between reproduction and replication,” says Cass Sunstein, a professor of law at the University of Chicago.
Sunstein suggests that the court would probably rule that earlier decisions establishing some rights of reproductive freedom do “not extend to an unfettered right to reproduce by whatever technology science comes up with”.
Even if such a right were to be acknowledged, he and others suggest that the state would have sufficient ammunition to argue convincingly that that right should be outweighed by the need to protect developing fetuses and resulting babies from any undue physical harm.