What is wrong about Human Reproductive Cloning? A Legal Perspective
Dr. Tade Matthias Spranger,
Research Fellow, University of Bonn,
Institute for Public Law (Dept. Administrative Law),
Adenauerallee 24-42, 53113 Bonn, Germany
Eubios Journal of Asian and International Bioethics 11 (2001), 101-2.
According to international consensus, reproductive human cloning is prohibited. It appears that no government is inclined to give permission to this evolutionary technique (1). Nevertheless, earlier this year, some scientists (2) announced their intention to produce a human clone within the next eighteen months. In fact, human cloning is expected to result in several miraculous medical breakthroughs (3). Therefore it is all the more remarkable that valid laws seem to underestimate possible benefits and overstate the feared risks (4). Looking for the legal reasons of this reaction is a difficult task. The following remarks intend to bring to light the lack of legal necessity of prohibiting reproductive human cloning.
II. Some legal frameworks for reproductive human cloning
Different international provisions deal with reproductive human cloning. Although it is legally non-binding, the UNESCO's Universal Declaration on the Human Genome and Human Rights is of extraordinary interest for the particular question of human cloning. It is expected to serve as pattern for International Law as well as a source of knowledge for national courts (5). Although it tries to set minimal standards in general, the Declaration contains specific provisions relating to human cloning. Art. 7 of the Declaration reads as follows: "Practices which are contrary to human dignity, such as reproductive cloning of human beings, shall not be permitted. [_c]"
Similar, Art. 1 (1) of the Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings (6) states: "Any intervention seeking to create a human being genetically identical to another human being, whether living or dead, is prohibited."
Until now, the Convention has been signed by twenty-nine Member States of the Council of Europe (i.e. Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Greece, Hungary, Iceland, Italy, Latvia, Lithuania, Luxembourg, Moldova, Netherlands, Norway, Poland Portugal, Romania, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, and Turkey). Eight of these countries (i.e. Denmark, Georgia, Greece, Romania, San Marino, Slovakia, Slovenia, and Spain) has already ratified the Convention. In these eight countries the Convention also came into effect. According to Art. 4 of the Additional Protocol, the ratification of the Convention is a central condition for the ratification of the Protocol, too. Hence, there cannot be more then eight ratifications of the Protocol so far. At the moment, Georgia, Greece, Romania, Slovakia, Slovenia, and Spain ratified not only the Convention but also the Protocol.
Furthermore, the European Union recently proclaimed the Charter of Fundamental Rights (7), which is addressed to the institutions and bodies of the Union (cf. Art. 51  of the Charter). It is expected to serve as the core of the Union's developing Human Rights system. Art. 3 (2) of the Charter runs as follows: "In the fields of biology and medicine, the following must be respected in particular: [_c] the prohibition of the reproductive cloning of human beings".
III. Legal analysis
Until now, the rationale of these provisions is based in the protection of human dignity, as the UNESCO's Universal Declaration states explicitly. As a matter of fact, human dignity is defined by the individual's interest. Hence, not humankind as a whole, but the individual is the focus of attention. This leads to the question of the prioritization of individual interests. Human dignity, seen as the core of human self-determination, also protects the individual's decision for reproductive cloning. If, for example, a married couple is not able to give birth to children, reproductive cloning could be a solution. From this point of view, the prohibition of human cloning must be seen as an intervention in the couple's rights (8). Regardless of cloning's other conceivable advantages it is important to emphasize this individual perspective of human dignity. Therefore, from a strictly legal angle, it is disproportional to prohibit reproductive human cloning without exception.
As a result, international law's reaction to reproductive human cloning reflects no legal but an ethical dominated view. This blending of ethical and legal issues involves, again from a lawyer's point of view, exceptional risks for legal clarity and certainty (9): Neither the judge is qualified for an ethical decision-making, nor are ethical principles feasible in legal practice. Therefore, it is of paramount importance to re-define the role of ethics in legal decision-making. Or, to put it the other way around, to underline the separation of law and ethics. Hence it follows that, in the interest of diminishing legal disagreements, a prohibition of reproductive human cloning has to be labelled as an ethical decision. Furthermore, if the regulatory framework of international Human Rights is chosen as a tool for the genesis of legally binding ethics, Human Rights' nature is changing. Until now, we are still waiting for law's answer to these developments.
1. Cf. also Nudeshima, Human Cloning Legislation in Japan, EJAIB 11 (2001), 2.
2. Severino Antinori (Italy), Panayiotis Zavos (United States), and Avi Ben-Abraham (Israel).
3. Cf. Human Cloning Foundation, All the Reasons to Clone Human Beings (www.humancloning.org/allthe.htm [27.4.2001]).
4. Lupton, Human Cloning _€ The Law's Response,  9 Bond Law Review 123, 129.
5. See also Herdegen/Spranger, in: Herdegen (Ed.), Internationale Praxis Gentechnikrecht, Part 5 I 6, No. 1.
6. ETS No. 168.
7. O.J. C 364/1 18.12.2000.
8. See Wu, Family Planning through Human Cloning: Is there a Fundamental Right ?,  98 Columbia Law Review 1461.
9. Cf. Spranger, Ethical Aspects of Patenting Human Genotypes According to EC Biotechnology Directive,  31 International Review of Industrial Property and Copyright Law 373, 380.
Commentary by Verma
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