Maureen McBrien, Human Cloning: Beyond the Realm of the Constitutional Right to Procreative Liberty

Issues in Law & Medicine, Spring 2004 | Go to article overview

Maureen McBrien, Human Cloning: Beyond the Realm of the Constitutional Right to Procreative Liberty


Maureen McBrien, Human Cloning: Beyond the Realm of the Constitutional Right to Procreative Liberty, 21 BUFF. PUB. INTEREST L.J. 107 (2003).

Although the United States House of Representatives voted to ban human cloning in the summer of 2001 and attached penalties of up to ten years in prison and a one million dollar fine for those convicted of doing so, the United States Senate never addressed the issue; thus, it never became law. As a result, human cloning remains largely unregulated. In response to Clonaid's announcement of its intent to produce human clones, President George W. Bush is pushing Congress to ban human cloning. If human cloning is legally banned, opponents will undoubtedly challenge the ban on constitutional grounds as a violation of the right to procreative liberty.

The article addresses the constitutional, social, and moral issues associated with a society facing the use of human cloning as a reproductive option. Part II introduces the debate over human cloning and existing reproductive technologies, the parties involved, and the potential risks. Part III presents and categorizes various Supreme Court's "right to privacy" decisions that created and established a right to procreative liberty. Part IV analyzes the scope of the Court's declared "right of the individual ... [to decide] whether to bear or beget a child" and analyzes whether that right should extend to the use of human cloning as a reproductive option. The foundation of the argument lies in distinguishing the use of cloning as a reproductive option from existing reproductive technologies that have been granted constitutional protection, proving that human cloning extends beyond the realm of the constitutionally protected right to procreative liberty. Part V concludes that this argument may be used to combat the contention that a ban on human cloning is unconstitutional.

Although ten percent of Americans of reproductive age are considered infertile, only twenty percent of infertile couples successfully reproduce through existing reproductive technologies. Many infertile couples who successfully reproduce are compelled to use donated eggs or sperm. The lure of human cloning as a potentially superior and preferable method to alternative reproductive options stems from its prospective, unique ability to create a genetically related child without third party donor involvement. Completely infertile couples in which both partners are medically unable to produce viable sperm and eggs, and lesbian couples, for example, could utilize the cloning option to conceive a genetically related child without that child bearing any genetic relationship to a third party, as is the case with gamete donation. Eliminating a third party would prevent complications that frequently arise when a third party wishes to parent or otherwise get involved in the child's life. Cloning would represent a first for same-sex reproduction, as it would grant lesbian couples the ability to reproduce without male participation. A third group who would potentially elect human cloning are those otherwise fertile couples with serious genetic disorders who choose to forgo other available options such as embryo selection or gamete donation and elect human cloning to produce their own healthy genetically related child. The more apparent clone-seekers are the aggrieved who advocate cloning as a means of "replacing" a deceased loved one. The Raelians' project called Clonaid, for example, receives calls from parents of deceased children who have frozen their children's tissue in the hope that someday cloning of the dead will be possible.

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