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Worldwide Reproductive Cloning Bans

The Danger of Misusing “Human Dignity”

May 2009 
 
A tremendous amount of scientific progress has been made since the 1997 announcement that a sheep had been successfully cloned; cloned primates and pets and the creation of induced pluripotent stem cells and human-nonhuman chimeras are just a few of the scientific discoveries that get us closer everyday to the prospect of a cloned human being.
 
The ability to radically alter human reproduction raises fundamental questions regarding the nature of our humanity and the character of our society. Thousands of scientists, scholars, journalists, religious leaders, and policy makers have debated and discussed the ethical implications of a wide range of reproductive technologies, citing ethical concerns from safety, kinship disruption, and the commoditization of reproduction to concern for genetic diversity and the threat of eugenic application (Kolehmainen 1998). While the benefits of many reproductive technologies –genetic testing, therapeutic cloning, genetic germline modification, and chimeric modeling, to name a few – are still being debated, reproductive cloning is nearly universally opposed.  Most believe it currently poses unacceptable safety risks.

As the world’s moral conviction is often expressed through force of law, the opposition to reproductive cloning has led to a growing effort to ban the practice at a state, national, and international level. The United Nations general assembly approved a declaration to ban human cloning on March 8, 2005; 59 countries independently prohibit reproductive cloning; and 97 percent of countries in the Organization for Economic Cooperation and Development (which accounts for 84 percent of the world’s GDP) ban reproductive cloning (Hayes 2008.) While the United States is one of the few developed countries, along with Russia, that has not enacted a nation-wide ban on the practice, 15 states already prohibit reproductive cloning (NCSL 2008) and bills to ban the practice have been introduced in both houses of Congress.

All this activity led us to consider the question:  Is there a consistent theme in the ethical language of these policy instruments used to justify banning reproductive cloning? Does the language reflect the moral values and common goals of the world community or does it unwittingly set the stage to undermine procreative liberty and scientific progress by appealing to vague ethical principles that serve a broader political agenda. To explore that contention, we examined policy instruments from around that world that represent a range of religious and cultural traditions (United States, Japan, Norway, France, New Zealand, Israel, Canada as well as the United Nations and the Council of Europe) to analyze the ethical language and principles used to justify a ban on reproductive cloning and other reproductive technologies.

Survey of Ethical Language used in Cloning Ban Policy Vehicles

 
The United Nations
The United Nations General Assembly adopted the United Nations Declaration on Human Cloning on March 23, 2005 to oppose the reproductive and therapeutic cloning of human beings. Although non-binding, it is considered the official position of the UN. An effort to ratify a binding declaration was stalled over deep disagreements on whether ban research cloning as well. The foundational premise of the declaration is that reproductive cloning of human beings is contrary to human dignity. It stresses the urgency of such potential dangers as the exploitation of women and medical, physical, psychological, and social dangers for the individuals involved—all of which could be considered human rights issues. 

Additionally, genetic engineering technologies are considered to be contrary to human dignity and member states are urged to adopt measures to prohibit its use as well. Perhaps as a way to remind the world that reproductive technologies are not the only enemy of human dignity, the final paragraph of the declaration urges medical research funding for HIV/AIDS, tuberculosis and malaria. 

The UN’s International Bioethics Committee met in Paris on October 28 and 29th, 2008 to reconsider the cloning ban.  We will review the report from that meeting and implications for the concept of human dignity in a later section of this paper.

The Council of Europe
The 47-member Council of Europe passed 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 in 1998. Like the UN, the Council recommended a ban on reproductive cloning because it is contrary to human dignity and thus constitutes a misuse of biology and medicine. In addition to reproductive cloning, it bans inheritable genetic modification, social sex selection, and research cloning. It has been ratified by 34 of its member countries.

The United States
In the United States, 15 states (Arkansas, California, Connecticut, Illinois, Indiana, Iowa, Maryland, Massachusetts, Michigan, Missouri, New Jersey, North Dakota, Rhode Island, South Dakota, Virginia) have independently banned reproductive cloning.   Six states ban therapeutic cloning as well. (NCSL 2008)  We examined each of the state laws and found none used ethical language or made appeals to moral principles.  Instead, the laws defines the terms used, outlined the practices prohibited, and named the penalties for violating the prohibitions. Although no national legislation has been passed, there are currently two bills banning cloning before Congress.

Canada
Canada has played a leadership role in discussing the implications of reproductive technologies, the use ethical principles as the basis of their policy vehicles, and developing a comprehensive list of prohibitions. Canada’s Assisted Human Reproduction Act of 2004, which was the product of a comprehensive two year study, is based on seven ethical principles that makes explicit appeals to the promotion and protection of human health, safety, respect for informed consent, prohibitions against discrimination on the basis of sexual orientation or marital status, concern for commercial exploitation of reproduction as well as integrity of the human genome, and of course, the pairing of human dignity and human rights (with particular attention to the needs of women and children).

New Zealand
New Zealand’s Human Assisted Reproductive Technology Act 2004 prohibits human reproductive cloning, the implantation of chimeras, the implantation of genetically modified embryos, the development of in vitro embryos beyond 14 days or the appearance of the primitive streak, social sex selection, sale of embryos and gametes, and commercial surrogacy. This Act also articulates a wide range of ethical principles including the health, safety, and dignity of future generations, need for informed choice and consent, as well as respect for differing cultural perspectives, particularly of the Maori people. Like Canada, New Zealand’s act emphasizes concern for the health and well being of women and children. By mixing the concept of dignity with race/gender/age, New Zealand’s policy instrument is, like others, blurring the lines between human rights and human dignity.

Norway
Norway’s Act of 5 December 2003 No. 100 relating to the application of biotechnology in human medicine was enacted to ensure that the benefits of biotechnology are available to all people. The act stipulates that should be accomplished in accordance for “respect for human dignity” as the first ethical principle as well as “human rights, personal integrity, and without discrimination on the basis of genetic constitution.” In addition to reproductive cloning, the act prohibits social sex selection, genetic modification of embryos, donation of eggs or sperm, research on fertilized eggs, human embryos and cell lines derived from fertilized eggs or human embryos, research cloning, gene therapy on fetuses and embryos, gene therapy that may involve genetic modification of gametes and surrogacy.

France
France’s Bioethics Law No. 2004-800 enacted August 6, 2004 calls for respect for the dignity of the human embryo as well as for all stages of life and the recognition of human rights. The Bioethics Law of 2004 prohibits reproductive cloning, the creation of human embryos for research purposes, inheritable genetic modification, sex selection (except for medical reasons), and surrogacy.

Japan
Japan’s Law Concerning Regulation Relating to Human Cloning Techniques and Other Similar Techniques enacted in June 2001 prohibit human reproductive cloning as well as human-animal reproduction in order to preserve human dignity, safety for human life, and maintain the social order. Japan’s political leaders have also urged that “international measures be established against reproductive human cloning immediately, before any attempts at that practice were made (United Nations 2002).”

Israel
Israel’s Prohibition of Genetic Intervention (Human Cloning and Genetic Manipulation of Reproductive Cells) Law, 5759-1999 begins with an ethical appeal to human dignity just as Norway, France, and Japan do. It calls for a moratorium prohibiting reproductive cloning and inheritable genetic modification until March 1, 2009 out of concern the implications of the genetic intervention for human dignity. Research cloning is permitted.

Human Dignity as the Foundational Concept

In our analysis, we found that within the language of all of these policy instruments was the emotionally charged, imprecise and anthropocentric concept of human dignity.  In many ways this is not surprising.  In a paper authored by law Professor David A. Hyman, “Does Technology spell Trouble with a capital “T”?:  Human Dignity and Public Policy”, he begins by observing:

In recent years, human dignity has attracted considerable attention as a policy standard.  From bioethics to constitutional law to torts and regulation of the Internet, human dignity has seemingly become the most salient touchstone for assessing current policy initiatives.  Yet dignity is a slippery concept…In door plumbing, the printing press, skyscrapers, the suburbs, automobiles, television, the Sony Walkman and the franchise for women were all met with objection that they were inconsistent with human dignity.

Given the history of how human dignity has been used to justify prevailing fears and existing paradigms, it is important to examine the concept in further depth.

Problem of “human dignity”
In all of these policy vehicles, human dignity plays an important role—but is human dignity is up to the task of being the ethical concept on which a worldwide ban on reproduction is justified? Bioethicist and international reproductive rights expert Bonnie Steinbock suggests that it is not, noting that the “idea that a reproductive technology can threaten or violate human dignity is puzzling and requires us to think about what human dignity consists of.”  In his essay in “Human Dignity and Bioethics,” Leon Kass, former chairman of the President’s Council on Bioethics, himself notes that, “discussions of human dignity are, alas, not generally known for their concreteness.” Nonetheless, he urges us to become “friends with the concept even thought it is not within the American tradition to think in such terms.”

Though dignity is the central theme in the President's Council on Bioethics 555-page Human Dignity and Bioethics report, those who contributed to the collection of 28 essays and commentaries often contradict each other on the concept. In his May, 2008 article “The Stupidity of Dignity: Conservative bioethics' latest, most dangerous ploy” for The New Republic, Harvard Psychology Professor Steven Pinker writes:

Judged solely on the merits of their arguments, how well do the essayists clarify the concept of dignity? By their own admission, not very well. Almost every essayist concedes that the concept remains slippery and ambiguous. In fact, it spawns outright contradictions at every turn. We read that slavery and degradation are morally wrong because they take someone's dignity away. But we also read that nothing you can do to a person, including enslaving or degrading him, can take his dignity away. We read that dignity reflects excellence, striving, and conscience, so that only some people achieve it by dint of effort and character. We also read that everyone, no matter how lazy, evil, or mentally impaired, has dignity in full measure.

It appears that even the essayists agree that the concept of human dignity is fluid enough to justify almost any position.  In his article, “Bush Administration Health Care Policy in Three Rules” in the Baltimore Sun, John Hickman gets to the heart of the problem with the dignity concept:

The obvious problem with using ‘dignity’ to justify a health policy decision, or any public policy decision for that matter, is that it is a religious-philosophical abstraction. The empirical evidence for ‘dignity’ is no better than that for the ‘soul’ or the ‘sacred.’ Conservatives deploy ‘dignity’ when they want to avoid difficult discussions about the assumptions and interests underlying their policy preferences. The less obvious problem with ‘dignity’ is that whatever it means, everyone must deserve it in equal measure. That’s a problem because society values individual human lives unequally. The priorities assigned to waiting transplant recipients or the quality of medical care given the insured and uninsured leave no doubt that some human lives are valued more than others.

Effective policy decisions require precision and transparency. With no consensus on what it means, how can human dignity be the philosophical basis for an international ban?

Beyond “Human” Dignity
Another limitation to human dignity is that it ignores the larger problem of the potential harm human reproductive cloning may pose to the entire biosphere. If dignity of humans is at risk from biotechnological advances, shouldn’t we consider the impact on other creatures? The traditional concept of human dignity assumes that human life has an inherent worth that a non-human does not have. It is an anthropocentric, hierarchical view that is based on the notion that the earth was the center of the universe, and that man was given ‘dominion’ over the earth.  The traditional concept disregards that humanity is part of complex system and cannot or should not be treated as if it exists in a vacuum, unique and superior to all other life. 

While not specifically addressing reproductive cloning and genetic engineering, thirty-five years ago the United Nations passed the World Charter for Nature resolution that acknowledged “Every form of life is unique, warranting respect regardless of its worth to man, and, to accord other organisms such recognition, man must be guided by a moral code of action.”  Today, in many parts of Europe there is a controversial movement that advocates a broader, more inclusive concept of dignity that includes all living beings when considering the impact of biotechnology. A legislative example is the “2004 Gene Technology Law” enacted by the Swiss government that stipulates that "the dignity of creatures" should be considered in any grant-funded research.  While some have scoffed the recent interpretation of the Swiss law to include the concept of plant dignity, it is important to recognize how the uses of genetic technologies impact the world beyond humans.  Concern about human dignity is not enough-we must change the paradigm from dominion over to stewardship of the world.

Pairing Human Dignity with Human Rights
Using the concept of human dignity for ideological and political purposed is nothing new; in the United States conservatives have been using that term broadly for years to define their position on any given issue from physician assisted suicide to embryonic stem cell research.  However, what we found most alarming in the policy statements we analyzed was the way in which the concept of human dignity is used alongside—and sometimes interchangeably—with the concept of human rights.  We found that instead of muddying the water on the already vague ethical concept of human dignity, the practice of pairing it with human rights adds validity to it and inextricably ties the concepts together. The conflation of the concepts of human dignity and human rights is, to us, where the danger lies.

Human rights and human dignity are not interchangeable concepts, as conservative policymakers would have us believe.  Bolstering the power of the fuzzy ethical concept of human dignity by pairing it with issues or statements about human rights is dangerous and is providing it with momentum.

UN Revisits International Cloning Ban

The United Nation’s International Bioethics Committee just completed a two-day meeting at UNESCO headquarters in Paris to reconsider the international ban on human cloning. The current UN declaration states “Member States are called upon to prohibit all forms of human cloning inasmuch as they are incompatible with human dignity and protection of human life.”  One area of discussion was the identification of several new scientific, social and political changes, which would justify new initiatives in the international governance of human cloning, particularly therapeutic cloning.

Much of the concern focused on the misplaced use of human dignity as a foundational concept. IBC member Prof. (Mr.) Richard Gardner, Mammalian Development Laboratory, Department of Zoology, University of Oxford, United Kingdom, in a report to the committee, noted, “I have long felt that simply arguing that human reproductive cloning should not be attempted because it is an affront to human dignity is rather vacuous.” (Emphasis not added)  Supporting that sentiment, Prof. (Mr) Hans Galjaard, Emeritus Professor, Department of Clinical Genetics, Erasmus MC Rotterdam, the Netherlands, shared his concern that the current focus on human dignity and cloning obscures more pressing priorities:

We must not exaggerate the social and medical importance of human cloning or stem cell research because many people are so excited by the ethical aspects. The reality is that worldwide every minute a woman dies as a result of pregnancy and a large proportion of this is related to illegal abortion (some estimated 20 million annually). It is no surprise that the maternal mortality and teenage pregnancies are high in countries where abortion is not legalized and/or the education of girls falls behind. Compared to these problems the social significance of preimplantation genetic diagnosis, research cloning and stem cell research is negligible. The number of human embryos involved in these activities is much smaller than for instance the estimated 40,000 abortions annually in India because of sex selection.

Many believe the ban as currently written is overly vague and could have the effect of unintentionally banning a host of other technologies.  Specifically, a number of the member countries would like to use cloning technology for therapeutic purposes. The working group recommends human reproductive cloning to be banned at the international level by a legally binding convention, while guidelines for regulating cloning-based stem cell research in countries where it is legal should be developed at the international level.

Political Agendas:  Therapeutic and Reproductive Cloning Bans

Like discussions currently happening at the UN, there are a number of reasons why the United States has not been able to pass national legislation to ban cloning, but primarily it’s because of the debate over banning only reproductive cloning or extending the ban to therapeutic cloning as well.   The current bill before the U.S. House of Representatives, H. R. 2564 Human Cloning Prohibition Act of 2007, was introduced on June 5, 2007. This bill is based on model legislation developed by Americans United for Life (AUL), an influential pro-life public interest law firm founded in 1971 by two physicians who were worried that the growing women’s rights movement was giving strength to the legalization of abortion.

HR 2564 makes ethical appeals over safety due to the “massive risk of producing children”, against commoditization or “turning human production into a manufacturing process”, against kinship disruption that “weakens existing notices regarding who bears parental duties and responsibilities for children”, and with concern over consent and exploitation. The bill invokes the concept of human dignity in section 10 where it quotes the preamble to the 1998 Prohibition of Cloning Human Being by the Council of Europe. The focus on human dignity is carefully crafted to be easily extendable to bans on therapeutic cloning, genetic engineering and nanotechnologies (Burke 2006). 

Alternative Ethical Concept:  Do No Harm

If we don’t use the term human dignity, what other terms should be employed? We propose replacing human dignity with the ethical imperative to “do no harm.” Ethical language needs to be able to reflect a variety of human experiences and evolving worldviews.   The concept of “do no harm” is well-established within the international medical community, it is a lot more concrete and could, as it should be with laws, easily reassessed in light of scientific, ethical, social, political and legal advances.  As a concept, it doesn’t need to be forever and unyieldingly finite like concepts of human dignity and puts the focus back on our ethical responsibilities.

Conclusion
Before we support a worldwide ban on cloning, we need to carefully examine the ethical language used and be sure it reflects the common good. By adopting vague ethical language we are making ourselves vulnerable to manipulation by those with a broader policy agenda than just banning reproductive cloning.  We must watch carefully as human dignity is employed to ban human reproductive cloning, for it can unwittingly set the stage for banning other reproductive technologies such as IVF, genetic testing and genetic modification as well as therapeutic cloning. 
 
Authors:
Board President and Founder
Women’s Bioethics Project
 
Assistant Professor, Department of Medical Education
Alden March Bioethics Institute
Albany Medical College 
 

Bibliography

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