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Which Comes First?

Michael Drake

The House just passed a ban on human cloning last week. Under the proposed law, it would be a criminal violation knowingly to clone or attempt to clone a human, or to participate in such, or to ship, receive or otherwise import for any purpose a cloned human embryo. [Sec. 302(a), (b)]

The bill nonetheless leaves open to research those areas "not specifically prohibited by this section, including research in the use of nuclear transfer or other cloning techniques to produce . . . cells other than human embryos. . . . " [Sec. 302(d)]

For his part, President Bush has promised to veto any bill that did not ban all human cloning.

But don't make the mistake of thinking that 241 Representatives and the President are all out of step with the American public on this issue. A pew research poll recently found that most Americans oppose human cloning, by a 77-17 margin. The popular thinking seems to be that, as Rep. Joe Pitts (R Pennsylvania) put it on the House floor, "[i]f we allow the cloning of human embryos for systematic testing . . . we will have endorsed the idea that it's OK to treat human life as a commodity."

This thinking is, of course, as fallacious as it is popular. To those with a secular outlook, the errors will be for the most part self-evident. Still, articulating them should be useful--and might even change some minds.

The error begins with a bit of misleading rhetoric--the use of the term 'commodity.' Could opponents in flourishing this objection mean to say that they would be fine with human cloning if it were done for no profit? One should doubt it. The "commodity" argument must be standing in for something else.

But what could that something else be? Hmmm. Could the "commodity" concern merely be standing in for the religious scruple that embryos have (or should have) the full rights that we do? In a word, yes. The Pew poll mentioned above specifically found that those who voiced opposition were generally moved by religious sentiment.

To some extent, this is to be expected. More importantly, though, a stronger observation can be made by saying that such a religious scruple is really the only arguably relevant consideration that could have motivated this bill. Consider the possible alternative reasons someone might want to ban cloning. As far as I can see, there are only two such alternatives:

(1) A Dolly-like result. The fear might be that a clone would grow up to be a person wracked by pain, disease, disfigurement, and premature death, all due to imperfect cloning techniques. Okay, but the solution here would be a limited ban that prohibited enabling development of cloned human embryos.

(2) Boys From Brazil. The scenario here is that an evil scientist would clone an army of evil warriors; or would clone desirable genotypes (reconstituted Einstein or Michael Jordan DNA, say) then sell them off to greedy, parentally unfulfilled yuppies. But the solution here (assuming this is a problem) is the same as for (1), above.

Now, I think (1) and (2), above, capture real objections that anyone might naturally feel about cloning. They are not in any sense based on religion. But the bill is broader than the alternative, narrowly-tailored solutions I outlined; the bill therefore cannot be designed merely to address such narrow objections as these.

We are left to conclude that the bill must be motivated by the "problem" of society's failing to recognize certain classes of isolated bundles of human cells in the appropriate way, viz., the failure to construe embryos as "human life" thereby entitled to the full panoply of individual rights afforded American persons--er, I mean . . . nonembryonic persons.

With an appropriate substitution, then, we can recast Pitts' remarks to uncover the actual argument:

If we clone human embryos to use for systematic testing, we thereby endorse treating human embryos in a way that fails to recognize them as morally equivalent to nonembryonic humans.

Notice, however, that even with a charitable restatement like this, the reasoning deployed remains very unimpressive. The argument retains at least two flaws. First, it fails to state just what exactly would be so objectionable about treating embryos as morally distinct from more fully-developed forms of "human life."

Quick! What's morally worse: (1) boiling a fertilized chicken egg alive; or (2) boiling a newly hatched chick alive? Times up!

But then if chicken eggs aren't morally equivalent to baby chicks, why should human eggs and nonegg humans infants be thought to enjoy (or suffer) the same sort of equivalence?[1] As far as I can see, they should not. Thus, the burden of proof on this issue really does rest with the anticloning contingent.

Second, even if the equivalence supposedly endorsed is objectionable, Pitt's reconstructed argument still doesn't work--in other words, no such endorsement actually follows from the stated condition. Why?

In a word, science. As a matter of medical and biological science, we mark distinctive periods of embryonic development (e.g., fertilization, cleavage, formation of the blastocyst, implantation, gastrulation, etc.). In turn, each of these periods indicates some morally relevant distinction. For instance, the rate of spontaneous abortion before implantation is on the order of .5. This fact, linked with the universal lack of mourning evinced by these common passings of human life, should be ominously suggestive to those who want to suggest that "human life" is sacred--sacred either to nonembryonic persons or to a putatively benevolent creator.[2]

The upshot is that we can and do mourn with different depth depending on whether our lost offspring was one day old or one year old. In the same way, we can and in practice do limit testing to (a) certain class(es) of embryos. It is therefore not true to say that in treating a certain class of nonembryonic human beings differently than we do a certain class of embryos, we thereby treat nonembryonic human life, without qualification, as different from embryonic human life. Rather, we simply treat different classes of human life differently. This includes embryonic human life.

Loaded references to "human life" notwithstanding, I think the principle that guides our emotions, and the principle that should guide our research, is that the fewer features of personhood that are exhibited by a certain class of human beings, the fewer rights attending personhood that class should enjoy. In the starkest possible terms, the postpartum human takes moral precedence over the blastocyst.

This principle of course leaves us with nearly impossible moral quandaries to sort out. Nonetheless, we do not forestall our predicament by appealing to a fatuous ethical and metaphysical equivalence. If anything, that strategy only makes things worse.


1. It should go without saying that the concept of the "soul" is not a valid basis for making legal distinctions in the U.S., given the constitutional assumption of a religiously neutral legislature.

2. This leaves out of the discussion principled bases other than biology for making moral distinctions between different classes of human life. Few, for example, would doubt that sentience is a morally relevant consideration. With the advancement of cognitive science, during which we will discover and refine the necessary and sufficient conditions for sentient consciousness.

Note that sentience is a more conceptually-stable criterion for the passage into right-bearing personhood than the hoary and often (perhaps justly) criticized criterion of viability.

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