92 Pages Posted: 3 Sep 2003
This article explores the moral, legal and practical justifications for a ban on human cloning. From a moral perspective, cloning bans are analyzed under the framework of two competing moral philosophies, utilitarianism and deontology. From a utilitarian perspective, the potential benefits and harms of human cloning are weighed to assess whether the technique would produce a balance of human happiness. The utilitarian analysis reveals the potential for human cloning to fulfill the unmet reproductive needs of many individuals, while causing minimal harm, may render a ban on the practice morally unjustifiable. Using a deontological construct, a cloning ban could likewise be seen as not morally justifiable because it would prevent human beings from fulfilling a moral duty to better understand the origins of human life.
The article's legal analysis of human cloning bans raises serious concerns about potential infringement of protected procreative liberties. If human cloning is viewed as a form of reproduction, it would warrant protection under long-established principles of reproductive autonomy. A state-sponsored ban could withstand judicial strict scrutiny only by supplying compelling reasons for depriving individuals this novel form of procreation. To date, perhaps only concerns over safety and efficacy supply this rationale for governmental infringement, but there seems far less justification for denying inroads in reasonably regulated research involving human cloning techniques. Moreover, current state anti-cloning statutes can be criticized for containing impermissibly vague language in violation of the 14th Amendment Due Process protections.
From a practical perspective, any current or future ban on human cloning is unlikely to halt ongoing progress in the field of somatic cell nuclear transfer. Reported progress in animal cloning and clandestine experimentation in human cloning reveal that cloning is a "genie out of the bottle" phenomenon deserving of responsible regulation rather than reactionary prohibition.
Keywords: cloning, reproductive autonomy
JEL Classification: I0, I1
Suggested Citation: Suggested Citation
Daar, Judith F., The Prospect of Human Cloning: Improving Nature or Dooming the Species?. Seton Hall Law Review, Vol. 33, pp. 511-572, 2003. Available at SSRN: https://ssrn.com/abstract=417561 or http://dx.doi.org/10.2139/ssrn.417561