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13.3. Two Master Arguments in the Ethics of Human Cloning: The Procreative Right of Couples vs. Autonomy of the Future Clones

- Dong-Ryul Choo
Philosophy, Hallym University

I. Introduction

For the last six years or so, we have observed a tremendous amount of heated debates on the moral permissibility of human reproductive cloning. Now it is about time to settle down and see if any long-term, productive agenda has been set up for us. In this paper I would like to focus on two arguments, one for and one against human cloning. They are about the morality of human cloning in the future stage of technological development, in that it is discussed with the assumption that safety measures for and the disease-related information on the clones are in our hands. With this assumption, we can brush aside circumstantial considerations and investigate the real grounds of the abhorrence people now have of the prospect of human reproductive cloning and assess the ethical adequacy of this negative response.

I think the following two arguments will be crucial at that stage: the pro-cloning argument that relies on the notion of a right to reproduce, and the anti-cloning argument in which the autonomy of clones comes into question. I discuss the elements and structure of each of the arguments, and tentatively conclude that each remains in force for different types of cloning acts.

In the case of the reproductive right, we have to ask: Is there such a right and what are the grounds for it? If there is indeed such a well-grounded right to reproduce, can a right to clone be part of it? At this juncture we will need to know if there are any morally relevant differences between cloning and other accepted types of assisted reproductive technology, access to which should be guaranteed for the couples wanting to act on their (positive) reproductive right. The autonomy issue will take a fresh outlook when clones are presumed to be born without impaired physical and psychological capacities. If an act of cloning is immoral, I maintain, there must be something wrong with clones, and (in the presumed technological stage and without the false assumption of genetic determinism) we need to attend to the potential degree of vulnerability to manipulation or of compromise in clones' autonomy (not their sense of autonomy). The main message of this paper is that we should distinguish between different procreative act-types involving cloning, and that some of those acts whose primary success condition is to copy an adult person or his character traits will significantly compromise the autonomy of children. In those acts couples' claim to their reproductive right will be relatively weak, and may be outweighed by the loss of the autonomy of children. In cases where cloning is a last resort to having a genetically related healthy child, however, a couple's reproductive right will prevail.[1]

Let me add two caveats: First, my message is tentative in that not only does it presuppose the medical safety of cloning, but also it relies on the character of the interaction between genes and environment in formation of a child's personality, of which we might never get complete knowledge. Second, my discussion of cloning is primarily ethical. Although I occasionally point to some legal implications of my conclusion and I firmly believe that ethical considerations are among chief resources of legislative deliberation, I leave open the possibility that sometimes an act which is in itself morally unproblematic may be legally restricted. On the other hand, it seems obvious that the policy of legal ban on every instance of immoral acts is practically unwise and impossible, and normatively self-defeating.

II. The Right to Reproduce and Cloning

Reproductive right: grounds, components, limits

What I would like to examine in this section is, as I have just indicated, the notion of a reproductive right as a moral right, not as a right in the strictly legal sense. But 'right' itself is inherently a legal notion, since it presupposes the existence of a rule-system: natural (human) rights are what any human (qua a human) is entitled to according to presumed natural laws. Here I do not want to get involved in the issue of whether rights (moral or strictly legal) are all thereby conventional (since laws are all conventional) or there are basic laws in the scheme of the world such that they beget rights at the bottom of the normative order. I simply assume that people have fundamental interests in certain liberties, and some of those interests are so strong and urgent (in order for them to have opportunities to lead flourishing lives) that they need special protection. 'Rights' are what signify this status of the specially protected category of liberties. (And the status of legal rights are conferred upon some of them so that their violation shall be met with punitive sanctions.) Our interests in liberties of worship and speech are obvious examples.

Is reproduction one of the areas where the fundamental human interests need special protection in terms of rights? And if it is, how may cloning be related to this right? Recently we saw an explosion of right-claims from various (conflicting) interest groups: "... women against men, believers against non-believers, children against parents, gays against straights,... consumers against producers, students against teachers, cyclists against drivers..."(Sumner: 288). In order to control the inflation of right-claims, we need a theory or an explication of the ground(s) of fundamental human rights, into which any candidate must fit.[2] There have been many suggestions in this regard: aforementioned natural law theories, intuitionist views(pre-theoretical but considered judgments as a body of data for the criterion of right), consequentialist or goal-directed theories(e.g., human welfare promotion), and views based on the concept of personhood or agency(capacity to form, pursue and revise one's idea of a good life), etc. Here, again, I would not, and need not engage in searching for the best ground of the reproductive right, since on any plausible right-grounding-condition, our interests in reproductive freedom seem to satisfy it. Reproductive decisions are high on the list of the elements of an adult couple's well-being--it is vital part of the meaning and intimate relationship in their lives--, and certainly belong to the essential aspects of their self-determination and self-fulfillment. Moreover, in most legal traditions a couple's claim to reproductive liberty has been recognized and protected as one of basic rights (somewhat erroneously under the rubric of 'privacy'[3] ).

Suppose that the reproductive right is well-grounded.[4] This right represents the interest in becoming a parent. But this interest has many components, and their moral weights can vary with procreative circumstances and surrounding social conditions. The scope of the choices involved in reproductive liberty: (1) The choice of whether to procreate, with whom, and by what means; (2) The choice of when to procreate; (3) The choice of how many children to have; (4) The choice of what kind of children to have; (5) The choice of whether to have biologically related children(Buchanan et al.: 209-211). The right to abortion, and the right to use contraceptives, or assisted reproductive technologies(ARTs) target some of these choices(usually the first three). With regard to cloning, (4) and (5) are of great consequence, and we will see shortly how each of them sub-divides into more fine-grained procreative choices.

Is the right to reproduce a negative right or a positive right? When a couple's fertility is not damaged, most of the above choices seem to fall in the ball park of negative rights. (But only if we count contraceptives and means of abortion as readily available resources, and only if we understand (4) as the couple's intention and efforts to have a child with or without certain character traits.) If nobody blocks fertile couples, all of their reproductive decisions concerning the initiation, timing, frequency, interval and (at least early) termination of pregnancy will be at their discretion. But if we grant the infertile the same right to reproduce as the fertile have, ARTs must be provided for them, and the reproductive right will begin taking on a look of a positive right. Some would say that providing infertile couples with all the ARTs they need is not part of the duties generated by the reproductive right, for the latter is essentially the right to be free from reproductive interference. Others would point out that making ARTs available for the infertile to cater for all of their positive procreative choices is not only normatively gratuitous, but practically ineffective and counterproductive as well, from the viewpoint of cost-benefit analysis. It is undeniable, however, that in some cases not giving relevant ART to an infertile couple is tantamount to positively blocking their basic reproductive interests. If we look back upon the grounds of the right to reproduce(human well-being, self-determination, intimate relationship), we cannot help acknowledging that the infertile should be given the chance to fulfill their reproductive interests as far as possible.

Of course, ARTs incur costs; not only the expenses and resources to produce them, but also the possibility that their involvement can generate harm to children and other people. Thus, the amount and the pattern of distribution of ARTs must be decided cautiously and prudently. But from the moral point of view, I maintain, (fair) access to relevant and safe ARTs must be guaranteed as a part of the right to reproduce.

The right to reproduce is a fundamental right, but it is not absolute. Not only might a couple's reproductive right be (temporally) restricted in dire social and economic conditions,[5] but it must be balanced against (comparable) rights of other people. Since (normally) there are three concerned parties in an act of procreation, parents and a child, striking a right balance between their interests and rights claims is the most urgent matter, and the risk of the child's encountering bad condition should be one of the factors restricting the couple's procreative act. But how bad must it be? Here I just register two suggestions: First, we cannot require that a child be in optimal conditions in all cases, but to sustain the reproductive freedom of the couple "unless [the child's prospective conditions] are so severe as to make a life not worth living"(Burley: 292) seems to me too lax a view. When we explore a morally reasonable standard of the safety of children in cloning and other ARTs, "there is no reason to "justify down" to the very worst conditions under which society now tolerates humans being born"(Pence 1998a: 133). As far as physiological and biological health-related condition is concerned, Gregory Pence's proposal that the proper standard is "the normal range of risk that is accepted by ordinary people in sexual reproduction"(ibid.) seems to be adequate. Second, even if the health-related safety is secured, when using a certain type of ART substantially raises the potential degree of the child's vulnerability to manipulation or of curtailment of its autonomy, that type of ART brings about moral costs to the reproductive right. Yes, the real culprit is not the couple's (ART-using) procreative act as such, but the (subsequent) act of manipulation and intervention (probably done by the parents themselves). But if some of the features of the ART in question and combined procreative intentions of the couple jointly cause the subsequent negative outcomes--certain postnatal parental acts are necessary to fulfill those procreative intentions, and because of the features of the ART, child's autonomy is significantly compromised by these acts--, we have every reason to cast moral suspicion on the ART in this procreative act. And if the parents have other (sexual or different ART-employing) ways of meeting their basic reproductive interests, their claim to use that ART with that intention loses moral weight, and in any event, cannot be an essential part of their reproductive right. (And legal ban on using that ART in those cases may not seriously limit their reproductive freedom).

Cloning and reproductive choices

Before taking up the issue of whether or when cloning compromises the autonomy of clones, let us briefly survey how the unique character of cloning makes some procreative choices or intentions possible. Cloning is essentially related to the final two procreative choices mentioned above: (4) The choice of what kind of children to have; (5) The choice of whether to have biologically related children. Each of these categories divides into further procreative options.

First, the choice of the kind of children: (i) Parents may want to have a child without certain phenotypic traits, e.g., genetic diseases (the interest in treatment); or (ii) a child with certain traits which the parents deem to be desirable (the interest in enhancement); or (iii) a child with the whole character of another person (the interest in replication). Developments in genetic screening and therapy seem to promise parents ways to detect (and alleviate) symptoms of genetic diseases in embryos. As far as I know, however, gene selection technologies have not yet come to the level where (only) genetic bases of certain positive character traits are artificially implanted to embryos prenatally. Cloning in terms of nuclear somatic transfer has been thought of as a way to realize (iii), replication of the whole character of the genetic source person. We know that it is not: genetic identity does not entail identity in phenotypes. Nonetheless, some parents may want to achieve their interest in replication by cloning (perhaps with the help of environmental control and intervention). We can also conjecture that cloning may be considered as a (sure-fire) means of genetic treatment or enhancement. This will be the focus of the discussion below since cloning determines the whole of a child's genetic constitution, not just target components in it, even when (selective) enhancement is the goal.

Second, the choice concerning having biologically related children: (i) Cloning may be a couple's last resort to achieve the goal of having genetically related offspring. When one or both partners is 'gametically infertile', i.e., unable to produce ova and/or sperm, reproductive cloning is the only way for the couple to establish the otherwise unavailable genetic connection with offspring; (ii) A couple may opt for cloning one of the partners, even when sexual reproduction is an open possibility, for some reasons (e.g., for a strong interest in replication("narcissist motive") or because of their reluctance to coital procreation and to the third-party involvement); (iii) Fertile or not, a couple may forgo genetic connection with offspring, and want to clone a third person. In this case, especially in the case of the fertile couples, the main interest seems to be in selective enhancement or replication of a whole person. In the following, my discussion presupposes the view that the vindication of reproductive cloning based on the idea of reproductive right is strongest in the case of (i)("the last resort" case[6] ); now I am not prepared to argue that choices like (ii) and (iii) are never morally justified. But in the next section I will argue for the claim that all the cases of the third party replication choice, and some of the enhancement choices will end up with acts that severely infringe the autonomy of the resultant children, and to that extent, are morally wrong. (The parents' claim to reproductive freedom should accordingly retreat in these cases.)

From these two sets (4 and 5) of procreative choices many different combinations can emerge, and some of them will be discussed in what follows. What, then, is the unique or momentous feature of reproductive cloning from the moral point of view? I do not think that being a non-coital or an asexual way of procreation as such is the answer; rather, the fact that (together with environmental control) it can generate the motive for, and postnatal pursuits of holistic replication(of, say, Einstein) or selective enhancement by means of package replication--promoting Einstein-like intelligence by cloning the whole genetic constitution of Einstein-- should be the focus.

III. The Autonomy of Children in Reproductive Acts via Cloning

The idea of autonomy

The core idea of autonomy, 'self-rule' or 'self-governance', can have many levels and interpretations. The following three notions are recurrent themes in discussions of autonomy[7] : (i) An autonomous agent must be the one whose first-order motivational ground is his beliefs and desires. Anyone whose acts are motivated by environmental or third-party control is not autonomous to that extent; (ii) Autonomy is not merely matter of acting on "one's own" first-order beliefs and desires; those motivational states, in their turn, must reflect or be in harmony with the higher-order values the agent has or he would endorse if he were rational and had relevant options. A drug addict can satisfy "his own" strong desire for a quick fix, if nobody interferes with him. But he may have a second-order wish that his first-order desire for drug would not be efficacious. A woman in a patriarchal society might be able to carry out most of "her own" goals and desires, but then she has never been possessed of genuine opportunities to reflect upon what her idea of a good life might otherwise have been; (iii) An agent whose higher-order values inform and effectively guide his motivations and actions is autonomous; his autonomy, however, will be greater to the extent more aspects of his life exhibit integrity around these values; not only individual acts, but also his occupation, character, relationships and sensibilities.

This is already a pretty thick notion of autonomy, and I am certainly not of the opinion that a person is an autonomous agent only when he meets all of these conditions to the highest degree. I indicate some of the points often made about autonomy, which look plausible to me. First, autonomy comes in degrees. So, for example, other things being equal, one's autonomy will increase in proportion to how much one's life embodies each of these components. They are all pro tanto conditions of autonomy. Someone may make a good score in the first condition without proving successful in the second (and vice versa). Also, if central elements of a person's life are integrated around a value system of other people's choice, then the degree of integrity in his life will decrease, rather than increase, his autonomy.

Second, the above notion does not imply that in order to be autonomous, one's choices should be completely free from influences from outside or that one's values should be completely one's own making. In all the human affairs, especially those in the formative phase of a child, a continued interaction of external influences and the agent's choices is inevitable: "Always the self that contributes to the making of the new self is itself the product of both outside influences and an earlier self that was quite as fully formed"(Feinberg; 96). What is necessary for autonomy is not complete indetermination or self-creation, but the existence of reasonable amount of valuable options at every momentous turning point in the child's life and its ever-growing ability to reflect upon and choose between them. With the help of discerning and conscientious parents, if all goes well, the value system and character traits of his integrated adult life will not be the result of the choice of other people entirely.[8]

Third, autonomy understood this way is not reducible to the agent's feeling or sense of autonomy. As already pointed out, people (women in traditional societies, the Untouchable in a caste system) may feel that they are at the helms of their lives since they can satisfy most of their desires. But perhaps in reality their desires and dreams have been gradually modified for them by the external constraints and their own survival strategies in the dismal world they live in. (On the other hand, in a rare case, a person might falsely feel and believe that his choices are controlled and his values determined by others.[9] )

Finally, autonomy is an element of personal well-being. There certainly are many others: understanding, intimate and deep personal relations, aesthetic experience, etc. So often there can and must be balancing and trade-offs between these prudential ideals. An act is (pro tanto) morally wrong to the extent that it curtails someone of his autonomy unnecessarily or without (positively) affecting other prudential values. So, autonomy does not "trump" all the other values; however, the point is sometimes made that it occupies a special place in the list of prudential values, since autonomy is necessary for other values to have well-being-enhancing effects upon an individual--certain amount of autonomy is thereby a threshold condition of personal well-being--, and/or that the capacity for autonomy must be at the center of integrated life of a person in that how much weight each of prudential values(knowledge, relations, enjoyment) has in one's life plan must be determined by his own autonomous choice.

How are we to assess the prospect of human reproductive cloning from this standpoint of autonomy?

Three types of cloning acts

Single token activity of reproductive cloning can be an instance of many different act-types. I will discuss three of them and their moral status: (i) An act of Einstein-copying; (ii) An act of having a child with (Einstein-like) intelligence; (iii) An act of having a genetically related child. Some clarifications are in order: Here Einstein is an example of a person other than (prospective) parents, whose somatic cell nucleus they would like to have as a genetic source of "their" child. That he is an illustrious person might provide a (principal) part of the motive of the parents' cloning act, but in itself it is not an essential point in the following discussions. What is crucial is that (for some reasons) the parents want the child to have the whole character of this person. "Having" a child in these acts means begetting and rearing it. These three are not exhaustive of cloning acts--we will see more on this-- and a token of cloning activity may instantiate plural cloning act-types at the same time.

Why do I focus on cloning act-types, rather than individual cloning activities? Of course, objects of moral judgments are individual activities performed by particular persons at particular times. But in judging them ethically, we have to pay attention to the reasons why they are performed, and what effects they have on the agents and others. (More on this below.) One's reason for action can be repeatable. Often a certain reason makes it necessary for the agent to do something further after he performs particular activity in question. And these subsequent activities may bring in morally relevant outcomes. So, the idea of (cloning) act-type has to be understood as involving a certain (type of) reason, the performance of token activity for this reason, and subsequent activities which are necessary for materializing it and are internal part of the success conditions of the whole act. If those subsequent activities and necessary future interventions are not taken up by the agent (or others), the point of the act will be lost, and the reason involved, while not thereby disappearing, simply aborts. Or right after performing the target activity, the agent may give up the previous reason, and change their idea of the act and, accordingly, the subsequent course of activities, which then constitute a different act-type. Or the agent may try to perform required supplementary activities, but only unsuccessfully. Then somewhat different outcomes will follow, and we have to estimate the moral relevance of the alteration, and see if any notable covariance exists between the degree of the success of the act and that of its morality. (As suggested, there may be multiple reasons for a single activity: parents may regard their activity of cloning as an A-type act and a B-type act, and count it a success when their activity can satisfy the success conditions of both types(genetic-baby-having and enhancement). Or there may be a primary reason and a secondary/occasional/bonus reason for cloning activity. In what follows, I discuss three cloning reasons/act-types as the only or the primary reason/act-type in each case. If an A-type act is not morally permissible in this sense, neither is an A-cum-B act. Its presence only as a secondary or bonus reason/act-type will lessen its morally negative character.)

The case of an Einstein-copying-act and violation of the child' autonomy

This act looks morally problematic. We tend to believe that creating a replica of an existing (adult) person by giving birth to a child is an inherently wrong act. But why? What is morally wrong with the fact that someone just like Einstein exists? Furthermore, we all know that (even with much improved cloning technologies) this act can't go through in reality. All we can get is a child with Einstein's genetic make-up--here I ignore the mitochondrial DNA contributions from the egg cell--, and we know that in order for it to be another Einstein, this genetic identity is not enough. All of the contextual influences on Einstein must be exactly reconstructed; this feat, if not logically impossible, can't be done in any physically possible world. So aren't moral worries over copying by cloning a futility, a case of "much ado about nothing?"

There are three reasons why, despite its infeasibility, examining the moral implications of this act is a worthwhile exercise. First, it is, at the least, logically possible to reconstruct the environment in which Einstein grew up. (Dr. Mengele's act of Hitler-copying by cloning in Boys from Brazil failed or only half-succeeded (perhaps) partly because of incomplete environmental matches. But another fiction, The Truman Show seems to allude to the logical possibility I have in mind.) If we get at the moral problems of this act when it is (counter-factually) carried out, and the source of those problems, we can have a good grip of some moral aspects of child rearing: we will see what morally should and should not be intended for and done to the child (in actual cases). Second, even if copying by cloning can't be accomplished completely in reality, its partial success may still carry with it its own moral problems. And a procreative reason, morally innocuous by itself, may point to a problematic act when it is acted upon successfully, precisely because this act approximates the act of copying by cloning. Finally, suppose this act is inherently morally wrong, and yet practically impossible to be finished up. Suppose, also, that its actual pursuit (and partial success) either invites some activities themselves clearly morally wrong or produces results which are unpredictable, hence probably harmful to the child. Then it is obvious that initiating this act is pointless and/or irresponsible on the parents' part. And because an Einstein-copying by cloning is not a "last resort" case where procreative choice gets the strongest support from the idea of reproductive right, the basis for moral condemnation can obtain relatively with ease.[10]

Now, let us go back to the first question posed at the beginning of this section: What is morally wrong with the fact that someone just like Einstein exists? He had ups and downs in personal affairs, but altogether he was a truly remarkable figure in many aspects; a great physicist and natural philosopher who loved (and was a passable player of) Mozart and contributed to many social causes. Isn't it rather a good state of affairs that a child grows up into a person who, just like his (earlier) twin Big Albert, eventually makes epoch-making progress in physics and other related areas (modulo the development in these fields in the interval), filled with flair for classical music, and sensitivity and passion for advocating peace and justice? What is all this fuss about the harms and dangers of the acts of copying (a genius) by cloning?

I will divide possible outcomes of an Einstein-copying act into three categories and present moral problems in each of them: (i) Complete environmental control + complete success of a copying act: Suppose that with Einstein's somatic cell nucleus, one can create a complete copy of Einstein only when one can reconstruct the environment of his formative years. This may not be true. Although we can go with the assumption that an identical genetic make-up plus identical environment yields a person identical in phenotypes, some other sets of environmental stimuli may bring about the (relevantly) same result. In that case, reconstructing Einstein's own environment is not a necessary, but only a sufficient condition of an Einstein-copying act. Even if this possibility is allowed, however, we simply do not know what other settings can do the trick. We do not yet--presumably never will--get at the knowledge concerning the possible combinations of genes and environment, which can yield a person with a whole package of the characteristics of another existing person. Thus, the only safe bet is to simulate the past combination, the only successful case we know of. Suppose that this is done for the Einstein-copying purpose. (A failure of the entrance exam at the age of 16, subsequent somewhat slow schoolwork and employment, a sudden success in theoretical physics, the war-torn European situation, two marriages...; Remember, we are entertaining only a logical possibility of environmental simulation!) But here complete success spells flagrant infringement of the autonomy of the cloned child. Because this possibility presents a classic picture where someone's life is completely pre-designed by the choice of other people. The child's life and its central elements that make up the kind of person it becomes, its character traits, tastes, sensibility, sociability, value system, mental/physical powers, and the motivational and occupational capacities--let's call them collectively "a personality-package"--, are determined at once by someone other than the child, and without the accumulated inputs from it. As we have seen in the section called "the idea of autonomy" above, a determination of one's personality-package of this magnitude and depth is the worst-cast scenario in which one's autonomy is compromised. The child never has a part in his own shaping.

One may object: First, in this case the successful replication of the genetic source, Einstein, would be a great improvement over the average capacity of the population, hence the best thing parents could give to their child. (And aren't parents entitled to have the best children they can?) But who shall decide about what is the best for the children? Isn't it the case that the child's personality-package should gradually take its shape out of the continual interaction between external constraints and parental inducement, and the child's own reflective choices? But second, the objector may continue, the child would not feel that it is controlled, nor would it have a diminished sense of autonomy. Rather, it would feel and believe that its own desires and choices make up its future. This may be true, but as we have seen, the sense of autonomy does not guarantee the genuine presence of autonomy. Finally, even though parents mapped out the future of their child by means of drawing the blueprint from its genetic source, there is a chance that the child ends up endorsing some of the characteristics allotted to it, if not all of them. But is there really?

In this case of (imaginary) complete success of copying by cloning, the child has to be a passive recipient of the whole character of Einstein, his personality-package. The child, his later twin, has no freedom to choose only some of the elements of this package: He cannot but have Einstein's intelligence, his taste for classical music, socialist inclination and all the other elements in the package, since the child inherited Einstein's entire genetic constitution and has been grown up in the environment identical to Einstein's. I think that this inevitable wholesale character of the act of copying by cloning is the real source of the problem of cloning vs. child's autonomy, and the moral criticism of the reproductive cloning based on this fact can be thus called as the argument from package formation. This way of seeing the issue of cloning vs. autonomy strikes me as better attuned than other approaches (e.g.) based on the loss of genetic uniqueness, a diminished sense of autonomy or unrealistic expectations from others, instrumentalization, etc., to understand why so much horror and disturbance beset the prospect of human reproductive cloning. Now that the examination of the total success of an Einstein-copying act reveals the real source of the moral problem in the act of copying by cloning in general (or so it seems), discussions of other cases can be short.

(ii) Partial environmental control + partial success: Compared to the case of a complete success, in this case the execution of the predetermined setup is getting slack, and the child's genuine choices may have more shares in shaping his personality-package. But the effect of package-formation is still there, and to that extent the child's autonomy is reduced by the parents. Besides, there is always a chance that the parents will not be satisfied with the resultant only quasi-Einstein personality-package. Then they may want to have recourse to coercive measures, and then they are making matters worse for the child. Or (iii) they may give up Einstein-copying and adopt a different (possibly a more autonomy-respecting) attitude toward childrearing. But by then tolls have been already taken, and at any rate, their Einstein-copying act by cloning becomes a pointless experiment. Then in view of the fact that their flirting with the idea of Einstein-copying and subsequent coercive supplementation or abandonment of this idea only made the child a prop in their experiment, and the "last resort" vindication of their cloning act has not been available to them all along, there never was any morally sound reason for them to clone Einstein, for that matter, any third person.

A cloning act of having a child with (Einstein-like) intelligence and the argument from package formation, again.

This act corresponds with the interest in selective enhancement by cloning. Several pro-cloning writers tent to claim that this act should be recognized to be morally permissible, and their argument is aptly illustrated by the following quotation from Michael Tooley:

Some personality traits are desirable, and parents typically encourage their children to develop those traits. Some character traits are virtues, and others are vices, and both parents and society attempt to encourage the acquisition of the former, and to discourage the acquisition of the latter. Finally, many interests, such as music, art, mathematics, science, games, physical activities, can add greatly to the quality of one's life, and once again, parents typically expose their children to relevant activities, and help their children to achieve levels of proficiency that will enable them to enjoy those pursuits. The upshot is that, if cloning that aimed at producing people who would be more likely to possess various personality traits, or traits of character, or who would be morel likely to have certain interests, was wrong because it was a case of interfering with personal autonomy, then the childrearing practices of almost all parents would stand condemned on precisely the same grounds. But such a claim, surely, is deeply counterintuitive(Tooley: 97).

When genetic screening and therapy are used in service to reproductive choices, parents' interest in enhancement should be viewed with much more caution and vigilance than in the case of the treatment interest. There are two reasons for this: First, as seen in the case of the act of having "the best child" by cloning, the "better" or "enhanced" traits of parents' choice may not always correspond to those which make a child really better or enhance the genuine quality of its life. (In the treatment cases, there seems to be a nearly universal consensus on the (disease/health-related) traits any child is better off without.) Second, right now, our gene-manipulating skill does not arrive at the level of picking up the genes necessary for a particular trait and implanting them in a child without making any negative impact on its genetic and biological equilibrium. Nor do we know which environment must be installed around the child in order for those genes to be effective. Quite simply, the source of the problem is "the inability of biologists to predict how genes or their products interact with one another and with the organism's environment to give rise to biological traits"(Buchanan et al.: 193).[11]

Let's forget about genetic screening and its problems. We do know that a person displays a certain trait. And suppose that we have the (safe) cloning technique. Further, let's assume that the trait in question is one of the ("desirable" or life-enhancing) traits parents usually attempt to encourage their children to develop. Is an act of enhancement by cloning morally permissible, as Tooley suggests? His argument has two premises: First, parents' acts of enhancing their children in non-cloning context are morally permissible. Second, an act of enhancement by cloning is essentially the same as this normal childrearing practices. I think that the second premise is false, and the first one is acceptable only when parents' act keeps within certain bounds. Parental attempts to instill "desirable" traits into their children are usually made through enticing and inciting them to engage in activities conducive to such traits. Although this childrearing practices are indeed a pervasive phenomenon, we also think that when they go to far in pushing a child to do whatever necessary for the preordained trait, it is positively impairing the child' autonomy. The principal duty of the parents is not to decide upon the direction of the child's life and its personality or character traits; it is to give the child the relevant opportunities to discover its strongest talents, congenial tastes and character, and the aptitude for its own well-being, and to develop them. Even though in earlier stages parental instigations are needed to certain extent, judicious parents will always attend to the child's own capacity and choice at every turn of their upbringing.

What are the crucial differences between the normal parental enhancing practices within the proper bounds and an act of enhancement by cloning? First, the latter (just like the enhancement by genetic screening and therapy) is not motivated to discover the child's talent and what makes its life worthwhile; the direction is set to the talent and traits of the person who is the child's genetic source. Second, (this time unlike enhancements by other genetic interventions) an enhancement by cloning is done by replicating the whole genetic make-up of the target person. And if (as we have been assuming) the only or the most safe way of achieving reproduction of phenotypes of this person is to mimic his environment as far as possible, then the outcome is that a cloned child will get not only the "desirable" talent or trait its parents have in mind, but also the whole of his character traits, tastes, sensibility, values and powers, i.e., his personality-package. It is an internal feature of reproductive cloning (as we know of now) that, with the help of environmental simulation, it transmits certain traits of the source person to his clone always together with the other traits in his personality-package. One may think that a child's life is enhanced when it gets Einstein's scholarly intelligence by being successfully cloned from him. When Einstein's intelligence is picked up, however, as we have seen, his tastes for particular music and political view will also follow; not only that, the child will inherit Einstein's other not-so-desirable traits, including his idiosyncratic or trivial features. And I feel I do not need to rehearse why this package formation of traits presents, more likely than not, a serious damage to the autonomy of the child. (The case of (more realistic) quasi-success, and subsequent coercive backup raises the same problems as the Einstein-copying case. If the parents give up and do nothing about environmental control (and since there is no genetically-related-child-having reason for cloning side by side with the enhancement reason), then their cloning act becomes completely pointless.)

Someone might deny the necessity of simulating the genetic source's (entire) environment in order to instill some of his traits to his clone. Perhaps normal parental acts of nudging, motivating, inspiring and rewarding are enough. I think that this might be right, but not in all cases. There are some talents and traits whose function, scope, and necessary resources are relatively narrow and tangible; talents in musical performance and some physical, athletic abilities. If one had Heifetz's gene, all he needed in order to be good at violin playing might be just musical surroundings and some measure of early education, not the entire replication of a Russian town around the beginning of the last century. But most of personality traits and character traits(virtues and vices) Tooley mentioned are not in this category: we just do not have a grip of the particular environmental elements that are necessary and sufficient for each of these complicated traits. Thus, we are back to the only "safe bet" of simulating the overall environment of the source person as far as possible, and the argument from package formation is effectively rehabilitated.[12]

An act of having a genetically related child and related cases

Suppose that having a genetically related child is a couple's only or primary reason for cloning. In addition, suppose that reproductive cloning is the only way the couple can achieve this goal(a last resort case). The type of cloning acts with this reason does not include any environmental control as one of its success conditions. If the couple becomes the parents of a (healthy) child who is connected to one of them as its genetic source, their act is fully executed. So unless the parents change their (primary) reason for cloning and subsequent reactions, and thereby change the nature of their act, the autonomy of their child will not be compromised; or its autonomy will be on the same level as that of sexually reproduced children. Then there is no good reason to condemn this couple's cloning act morally. The child's autonomy remains intact, and the couple's claim to their reproductive liberty is strongest.

The parents might (be tempted to) be engaged in environmental control to some degree, perhaps in order to make the best of the ("desirable") traits of the genetic parent. (This might be their secondary reason for cloning one of them.) They must be advised to refrain from this attempt unless the target trait is the narrow and relatively simple one and their environmental control stays within the proper range. They may need to undergo some counseling concerning the moral costs of cloning in general, especially risks of the acts of replication and enhancement by cloning, and their effects on the autonomy of children.[13] (Why can't a couple performing an Einstein-copying or an enhancement cloning act receive the same counseling, and prevent themselves from incurring the moral costs of problematic cloning acts? Again, either this would make their act pointless without any compensating claim to reproductive freedom, or the child's autonomy has been already compromised.)

As I indicated above, the Einstein-copying, the enhancement, and the last resort cases do not exhaust the cloning act-types. They are most visible ones. In what follows I briefly comment on three more cloning acts. Full discussions of these cases will need to introduce moral issues other than cloning. (I still do not claim completeness.)

First, an act of having a genetically related child by cloning, which is not a last resort case: To the extent that there is a (strong) reason for cloning other than the genetic relationship with the child, for example, a replicative reason("narcissist motive") or an enhancement reason, the moral character of this act gets suspicious. If there is no such reasons, then this act reflects the couple's reluctance to coital reproduction. I do not have a well-defended view about the rightful relation between sex and reproduction. But my hunch is that sex does not have a privileged place in the morality of reproduction. (I have to admit that the jury is still out there about this issue, though.) So, unless the couples' reason to avoid sexual procreation is either utterly trivial or erroneous--in that case they need counseling of another kind--, I am inclined to propose that prima facie, this voluntary act of cloning to have a genetically related child be morally vindicated.[14]

Second, cloning by a particular couple might be an act of having a genetically related child and, at the same time, an act of having a child who could serve as a donor of bone marrow for their elder child dying of leukemia. This is of course a hypothetical variant of the well-publicized Ayala case(California, 1992). (If the second child is originated by nuclear somatic transfer from the first one, the degree of the tissue-match between the two children would increase greatly, compared to the case of coital conception.) That having another child as a possible donor for their leukemic child(a donor-seeking act) and valuing and loving the new child for itself(a child-respecting act) are two different, but compatible act-types--in the sense that single activity can instantiate both act-types-- has been recognized by many(Brock: 147, Robertson 1999: 8). Of course, if the couple's reason for having the second child is directed only to a donor-seeking act, then their reason and the resultant act deserve moral criticism; it is, however, not because a donor-seeking motive and act are inherently morally wrong, but, because the couple fails to perform a child-respecting act. Thus, if the Ayalas' (coital) conception and childrearing are morally permissible, I don't see any reason to condemn the act of a hypothetical couple who would like to achieve the analogous goal through cloning. (Notice that this is a conditional claim.)

Finally, a couple may want to replace their dying or already dead child by cloning its somatic cell nucleus. If the couple believes that cloning can produce "the same" child as the previous one, that is, a child with the whole personality identical to the latter, then they need to receive some education and counseling concerning the basic facts about the interaction between genes and environment in the formation of personality traits, and the conceptual clarification of 'personal identity'. They need to know that an act of replacing (in the strict sense) by cloning will be pointless and dooms to fail. But if the couple already has the knowledge that cloning cannot revive the dead child and that the new child will be a wholly different person from the previous one, and if their reason for cloning it is just to have a new child with some of its simple physical phenotypes (like the color of its eyes), then it seems to me that their cloning act is within the proper boundary of their reproductive right. Without any environmental control on the parents' part the autonomy of the new child will not be impaired, and if the child who was its genetic source died early, at any rate the argument from package formation doesn't apply here. (The last point also obtains in the previous, quasi-Ayala case.)

Some possible objections

In this section I survey and attempt to deflect three objections to my thesis. First, given that an agent's intention or reason for act can't be an appropriate object of moral judgments, my discussion of cloning act-types in terms of their reasons--replication, enhancement, having a genetically related child, donor-seeking, replacement, etc.--may seem to be inadequate to the search for the criteria of moral (and legal) permissibility of reproductive cloning. Yes, particular activities are morally obligatory, right, permissible, or impermissible, and according to prominent moral theories what makes them such is not (just) the agent's reason. We need to attend to activity itself and (some of) the types it belongs to--"Is it universalizable?", "Is it a case of free-riding?"-- and/or its consequences. But the idea of cloning act-types encompasses not just a couple's reason for cloning, but also general features of their cloning activity, and its impact on the child. Here a couple's reason is important, not because it alone determines the moral character of their act, but because it is indicative of the type the act belongs to, and because it makes some subsequent activities necessary. If the interest in replication lies behind particular cloning activity, then environmental control becomes necessary for its success as an act of replication. (an Einstein-copying act) And if its success or the couple's attempt at its success brings about significant reduction of the child's autonomy, then moral ban on this act can be upheld. The couple's reason or interest in replication should be thwarted.

Second, it is my contention that an act of replication by cloning is, if successful, ends up reducing the child's autonomy, and that even an act of enhancement by cloning(having a child with Einstein-like intelligence) tends to produce the same effect (if enhancement needs the simulation of the environment of the genetic source person), since the target trait comes with the package of other personality traits that belong to the genetic source person(the argument from package formation). Someone might concede that replication or enhancement acts of cloning is indeed autonomy-reducing, but argue that a child, though with reduced autonomy, can still lead a valuable life. The child itself might later endorse the personality traits of its parents' choice, and enjoy those traits and the good they might give rise to. If the child's life is not at the level of the so-called "wrongful life"--a life whose quality is so low that its termination can be considered a benefit to the person who undergoes that life--, the objection continues, its origination can't be criticized. I readily admit (as I had admitted above) that autonomy is only an element of human good. Still, my discussion supports a weak conclusion that acts of replication and enhancement by cloning are morally wrong to the extent/in the sense that they reduce the child's autonomy, which is a pro tanto condition of a good life. But, as I have indicated, one may ascribe to autonomy a central place in the set of prudential values: its presence is necessary for the other values to render effective service to one's life. What is more, in the absence of the knowledge of the exact share of relative contribution from genes and environment to the making of a particular phenotype, parents cannot control environment to instill into their child only those talents or personality traits that they consider desirable or the child itself might endorse. And in choosing the genetic source of their child, the couple certainly cannot expect or bet on the possibility that the child may accept the whole personality-package and the life of its source as its own ideas of "the best person" or "the best life".[15] So far as replication or enhancement by cloning is either autonomy-reducing or pointless(without environmental control), and these cloning acts do not aim at having a genetically related child at all(a third-person-copying) or primarily(a parent-copying), and since ways of conceiving a (genetically related) child other than cloning are open to them, in which the child's autonomy will not be diminished, their claim to reproductive liberty in these acts loses much of its appeal.

Finally, from the opposite direction, one may want to counter my claim that having a genetically related child by cloning is a morally permissible act, with two types of slippery slope argument. On the one hand, one may argue that if in the last resort cases and some other cases mentioned above a couple is allowed to originate a child by cloning, many other(most?) (fertile) couples will come to rely on cloning as their way of reproduction(one-to-many slippery slope). On the other hand, if an act of having a genetically related child by cloning is permitted, then the other types of act involving cloning will inevitably follow, which include not only those acts identified as morally problematic in this paper--replication, enhancement--, but also those hideous acts often depicted in anti-cloning writings--multiple cloning, experiments on unconsenting subjects, etc(right-to-wrong slippery slope). (Notice that these arguments, like any slippery slope argument, accept the moral acceptability of the act at the peak of each slope. Even if the arguments succeed, their success does not cancel this fact: it only points at some reasons why the starting act ought to be prohibited as a matter of law or public policy.) Suppose that the end results of both slopes indeed present unacceptable states of affairs. Then, the force of these arguments depends upon how slippery or steep the slopes are or whether there can be an effective obstacle or a safeguard against the progress to the end result in each case. I think that in the one-to-many case, the slope is not that slippery. In reality the number of those couples who have to rely on cloning as their last resort to have healthy genetically related children and who, for some weighty reasons, have to avoid sexual intercourse as their way of conceiving a child is relatively small. I don't think that when moral (and legal) permission is given to such couples, this ineluctably leads many other fertile couples to have children through cloning. I just don't see any reason to believe that this move is necessary or natural. Sexual reproduction has its own merits, and not many parents are so self-aggrandizing that they are motivated to see their own personalities (wholly or partly) replicated in their children. In any case, fixing the boundary of the legitimate cases of reproductive cloning must go hand in hand with moral and biological education concerning what is permissible and possible in each cases of cloning acts.

The second, right-to-wrong slippery slope is not essentially connected to the number of the cloning acts at the receiving end. If even one case of wrong cloning act is to be strongly expected from the permission of the by themselves unproblematic cloning acts, this argument remains in force. And, this time, it seems that when an act of having a genetically related child by cloning is a legitimate option for couples, there is no way to prevent at least some couples from being engaged in illegitimate cloning acts. What is needed, as in the case of physician-assisted suicide, is selective permission; a way of identifying legitimate and illegitimate cases and saving the former as much as possible, and suppressing the latter with enforceable measures. Here we simply cannot expect a water-tight compartment; we may have to satisfy with the best approximation, and (as a sound legal advice) may opt for making errors on the safe side. For example, in order to forestall the replication and enhancement cloning acts, prohibition of all the acts of third-person cloning might be considered. Further, a couple should be supposed to present preappointed evidence that their situation belongs to the last resort case, and this could be done with certain amount of medical examination and multiple checks. Again, couples who deliberate on reproductive cloning should be able to be helped by all the relevant information and instruction concerning biological facts and moral implications of having a child through cloning. Reproductive cloning is an area where professionals in various fields(medicine, biology, philosophy, and law) have to take part in, so the whole procedure of cloning must be incorporated into a social institution conducive to biologically knowledgeable, prudentially wise, and morally justifiable reproductive decisions.

IV. Concluding Remarks

The point just mentioned, that reproductive deliberations involving cloning must be based on couples' capacity for informed decision and discrimination among various cloning acts and their morally relevant differences, and institutional, collective efforts to promote that capacity should be the first priority in the ethics of human cloning, is one of the main messages in this paper. Given that acts of cloning can be widely different from each other, neither total ban nor libertarian nonintervention is the right attitude.

Among the cloning acts, having a genetically related healthy child is entitled to protection in terms of a couple's reproductive right--especially the last resort cases--, while the acts of replication and enhancement by cloning, if successful, compromise the child's autonomy or are pointless. Some acts of enhancement by cloning, where the designated valuable traits from the genetic source person are relatively simple and narrowly confined ones like violin playing or the capacity for geographical memory, may require only normal encouragement and upbringing. But even here, and much more in broad personality traits like character or emotional, intellectual and moral capacities, short of the (near) complete simulation of the environment of the genetic source person, the success is not ensured. Once we try the simulation of environment, however, the whole personality of the genetic source comes in company with the target trait, and there is a chance that the higher-order mental faculties of the child's life gets determined by the parents' choice to a significant extent.

Reproductive cloning can be directed toward different aims and outcomes just in the way genetic screening for sex selection can end up being different acts: (part of) preparation for childrearing, avoiding some sex-linked genetic diseases, or having a male child. The last two cases require selective abortion, but for different reasons and with different moral implications. In each case, we should heed to relevant differences and seek for the way to put a curb on (only) illegitimate acts without committing the fallacy of throwing the baby with bathwater.[16]

According to Ronald Dworkin, "the questions raised by the specter of cloning and dramatic genetic engineering are morally instructive even if these techniques are not genuine possibilities. Once the techniques are in the air, they provide fresh and valuable tests for the coherence and adequacy of established and conventional assumptions"(Dworkin: 447). Reflections upon the consequences of the hypothetical state of affairs where safe reproductive cloning is accomplished can contribute to our understanding of the idea of reproductive right and that of personal autonomy, especially the meaning and importance of children's open future. As always, with improved understanding of such ideas, we have to embark on the search for the right balance between them, to cope with the difficult problems involving reproductive cloning.


Andrews, Lori: "Mom, Dad, Clone: Implications for Reproductive Privacy,"(1998) rep. in A. J. Klotzko, ed. The Cloning Sourcebook. Oxford Univ. Press, 2001.
Brock, Dan: "Cloning Human Beings: An Assessment of the Ethical Issue Pro and Con," in M. C. Nussbaum & C. R. Sunstein, eds. Clones and Clones: Facts and Fantasies about Human Cloning. Norton, 1998.
Buchanan, Allen, Dan W. Brock, Norman Daniels, & Daniel Wikler: From Chance to Choice: Genetics and Justice. Cambridge Univ. Press, 2000.
Burley, Justine: "The Ethics of Therapeutic and Reproductive Human Cloning," Cell & Development Biology 10, 1999.
Chambers, Jean E.: "May a Woman Clone Herself?" Cambridge Quarterly of Healthcare Ethics 10, 2001. _____: "Equal Access to Cloning?" Cambridge Quarterly of Healthcare Ethics 11, 2002.
Christman, John: "Constructing the Inner Citadel: Recent Work on the Concept of Autonomy," Ethics 99, 1988.
Dworkin, Ronald: "Playing God: Genes, Clones, and Luck,"(1998) rep. in his Sovereign Virtue: The Theory and Practice of Equality. Harvard Univ. Press, 2000.
Feinberg, Joel: "The Child's Right to an Open Future,"(1980) rep. in his Freedom & Fulfillment: Philosophical Essays. Princeton Univ. Press, 1992.
Gillon, Raanan: "Human Reproductive Cloning: A Look at the Arguments against It and a Rejection of Most of Them,"(1998) rep. in A. J. Klotzko, ed. The Cloning Sourcebook. Oxford Univ. Press, 2001.
Griffin, James: "First Steps in an Account of Human Rights," European Journal of Philosophy 9, 2001.
Harris, John: "Clones, Genes, and Reproductive Autonomy: The Ethics of Human Cloning," Annals of the New York Academy of Sciences 913, 2000.
May, Thomas: "The Concept of Autonomy," American Philosophical Quarterly 31, 1994.
Mill, John Stuart: On Liberty(1859). S. Collini, ed. Cambridge Univ. Press, 1989.
Murphy, Timothy F.: "Entitlement to Cloning," Cambridge Quarterly of Healthcare Ethics 8, 1999.
_____: "Are There Limits to the Use of Reproductive Cloning?" Cambridge Quarterly of Healthcare Ethics 11, 2002.
Pence, Gregory: Who's Afraid of Human Cloning? Rowman & Littlefield, 1998a.
_____: "Parental Expectations and Cloning," The American Philosophical Association Newsletter 98, 1998b.
Robertson, John A.: "Two Models of Human Cloning," Hofstra Law Review 27, 1999. (
_____: "Reproductive Liberty and the Right to Clone Human Beings," Annals of the New York Academy of Sciences 913, 2000.
Rose, Andre P.: "Reproductive Misconception: Why Cloning is Not Just Another Assisted Reproductive Technology," Duke Law Journal 48, 1999.
Sober, Elliott: "The Meaning of Genetic Causation," in A. Buchanan et al., From Chance to Choice: Genetics and Justice. Cambridge Univ. Press, 2000
Strong, Carson: "Cloning and Infertility," Cambridge Quarterly of Healthcare Ethics 7, 1998.
_____: "Clone Alone," Cambridge Quarterly of Healthcare Ethics 11, 2002.
Sumner, L. W.: "Rights," in H. LaFollette, ed. The Blackwell Guide to Ethical Theory. Blackwell, 2000.
Sunstein, Cass R.: "Is There a Constitutional Right to Clone?" Public Law and Legal Theory Working Paper No. 22(Chicago). (
Tooley, Michael: "The Moral Status of the Cloning of Humans," in J. M. Humber & R. F. Almeder, eds. Human Cloning. Humana Press, 1998.

[1] For some balanced discussions of main arguments for and against reproductive cloning, see writings by Brock, Gillon, Harris, Pence, Robertson, Strong (and the debates between Strong, Murphy, and Chambers, ensuing from Strong's 1998 article). My view on reproductive cloning is akin to that of Strong and Robertson (although the latter is defended from the legal standpoint). But see fn. 13 below . Examples of the failure to discriminate among various acts of cloning and their relevant moral differences, and thereby ending up with a wholesale prohibitive or a permissive view include Andrews, Rose(prohibitionist view), Burley, Murphy, Tooley(libertarian view).

[2] For recent samples of the attempts to provide the ground of human rights in order to hold the proliferation of rights claims in check, see Sumner(goal-based view) and Griffin(personhood).

[3] Why "erroneously"? Because reproduction is not, strictly speaking, a private or "self-regarding" area where consenting adults can do as they like without there being any third persons whose well-being is negatively affected by their act. According to Mill, the fact itself, "of causing the existence of a human being, is one of the most responsible actions in the range of human life"(108). Therefore moral obligations should be recognized, and legal obligations imposed on the part of parents concerning how they deal with their children. Ignoring these obligations and thinking that a parent's children "were supposed to be, literally, and not metaphorically, a part of himself" are a case of "misapplied" or "misplaced notions of liberty"(105, 108). See fn. 5 below.

[4] For surveys of discussions of the grounds and some limits of the reproductive right or liberty, from the moral standpoint, see Buchanan et al.(204-22), and from the legal standpoint, see Sunstein.

[5] To undertake the responsibility of childbearing and rearing, when the child does not have at least "the ordinary chances of a desirable existence", Mill maintains, is "a crime against [the child]"(108). When a country undergoes extreme overpopulation, and is on the verge of economic bankruptcy, Mill continues, the state may legitimately restrict even marriage.

[6] The last resort cases include the cases of couples who are not infertile, but have to take the considerable risk of genetic disease on the part of the prospective child when it is conceived through coitus. Reproductive cloning is their last resort for a genetically related healthy child.

[7] For this see Christman and May. In what follows, the distinctively Kantian idea of autonomy--an autonomous agent is a person who (against his own contrary inclinations) can listen to and follow the voice of reason, which is the moral law--is left out.

[8] Nor is autonomy the matter of how many options one has at any moment. It is very difficult to attribute any inherent value to mere increase of options as such. Perhaps all one needs, in order to maintain his autonomy, is a fair number of options sufficient to express one's personality and values, without having to spend too much time and energy in information processing.

[9] When a child was originated by cloning and later became aware of this fact, it would feel or believe that its future is "closed" or determined by the choice of other people and by the life its genetic source person had already lived. But in the absence of environmental control, this belief of the child is false. Of course this feeling and belief may negatively affect his well-being (not his autonomy), and we need to help him out and give him an assurance by providing him with relevant biological, moral, and conceptual facts surrounding reproductive cloning and the parents' reason for cloning.

[10] In legal terms, when one's claim to certain liberty is not covered by fundamental rights, as a matter of substantive due process--the state's burden of proof in restricting personal liberties-- only "rationality" review is required; whereas fundamental right-claims cannot be restricted by the state when the state's proof does not bear "constitutional strict scrutiny", that is, when the state fails to show that government's interference is necessary to protect a "compelling state interest". On this see Sunstein and Robertson(2000).

[11] Buchanan et al. advance two reasons for being cautious in permitting the parents' pursuit of having "the best" children through genetic interventions (other than the problem of "who decides what is best?" and that of uncertainty and the risks involved in selective genetic interventions): First, if everyone attempts to get genetic screening/therapy and eventually gets a desirable trait, then seeking competitive advantage through enhancements will be "collectively self-defeating"; second, on the contrary, if allotment of genetic resources and the competitive advantage from them is entrusted to the hands of market, then some will lose the opportunity to enhance their traits "unfairly"(Buchanan et al.: 181-91).

[12] Even in the cases of Heifetz and violin-playing, and of Einstein and scientific intelligence, matters may not be so simple. How much encouragement, training and exposure (to relevant models) does a child need in order for its (cloned) genes to effectively (and selectively) develop the target trait? Perhaps some events in the lives of the source person, by sheer accident, triggered him to act in certain ways that led to the possession of the trait. Even if we could identify them, do we have to repeat those ("accidental") events? Where do we stop, short of simulating his whole life? If Heifetz's musical achievements came from, for their central parts, his environment and training, an attempt at enhancement by cloning is pointless; on the contrary, if their real source was in Heifetz's genes, then "the parents" of his later twin are better advised to mimic his life, and the argument from package formation stands up. I do not think that we can competently identify the right intermediate point between two extremes for each "desirable" trait. For a lucid explication of the complex ways genes and environment can jointly contribute to formation of phenotypes, see Sober.

[13] For the possible need and utility of counseling vis- -vis the parents who aspire to engage in cloning, see Pence(1998b: 104), Strong(1998: 288).

[14] Why only prima facie? Here it is meant to have only an epistemological sense. That is, when it is not a last resort, the nature of a couple's act of reproductive cloning cannot be known easily: Is it a narcissist or an enhancement act? Or do they just have considerable reasons to avoid sex or sexual procreation? I think that a fertile couple's choice of cloning one of them does not show that their reason for cloning is narcissist-replicative or pro-enhancement. And yes, prohibiting the fertile from using cloning does not deprive them of the opportunity to have (genetically related) children and rearing experiences. But then we are forcing them to have sex to do this. This fact must be taken account of when we reflect upon the relation between sex and reproduction. On these matters my view parts company with Robertson(1999: 18) and Strong(1998: 291, 2002: 78)..

[15] "If a person possesses any tolerable amount of common sense and experience, his own mode of laying out his existence is the best, not because it is the best in itself, but because it is his own mode"(Mill: 67).

[16] Very recently(Nov. 3, 2002), the Korean Supreme Court upheld a judicial decision of a lower court in which a doctor lost his medical licence since he performed (twice) screening of the sex of a fetus and disclosed the result to its mother. Reasons for this final decision include the prevention of the tendency to neglect of human lives, which may be generated by fetal sex screening and subsequent abortions in order to have children of particular sex. The judiciary, however, acknowledges that the doctor was not paid for this service, and in the two cases where he performed sex screening, there was no subsequent abortion. This suggests that the judiciary admits the existence of acts of sex screening with different moral implications. Given the infamous Korean proclivity toward male children, however, I think that this decision might be understood as a sound legal strategy of making an error on the safe side.

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