The Great Indiana Cloning Debate
and Other Tales for Children
"If you know what has happened in the past, there have been multiple, multiple failures in animal cloning, and some devastating things have happened with animals," said Miller, R-Indianapolis, referring to birth defects, premature aging and high death rates. "I just don't think that ought to happen with human beings."Yup. Sure. Human cloning is an unsafe proposition. But the problem with this state debate, like so many others, is that the sponsors of this state legislation put so little energy into questions of the constitutionality of their proposed legislation that even if the law passes, which it might, it is stillborn at best and dangerous at worst. Safety for the first clone isn't the only issue. And it isn't easy to protect. But in the face of abject terror about cloning, little pragmatic problems melt away:
State Sen. Miller isn't sure whether human-cloning research is going on in Indiana. But the consequences are so potentially disastrous that the General Assembly must act, she said. "If you clone a human being, and they have an artificial aging process so that by the time a child is a year old they have the body and age of an 80-year-old, there is a number of issues that are ethical and moral there," Miller said.But apart from the obvious question about why Miller would include cloning of embryos in her bill if there's no risk that process would make it more likely that a little clone would be born in Indiana, there is that nagging, bigger question: where is the discussion among state policymakers about how to regulate cloning, rather than whether to do so. Isn't it obvious that cloning cases are going to go to the state and even local courts, immediately, no matter who clones what or why?
Someone will file charges against the very first nutty Indiana cloning scientist, charges that will immediately be challenged on grounds of constitutionality. The first nuclear transfer-based stem cell company that doesn't move to California will have to file suit to challenge the definitions of embryo, cloning, etc. proposed by the legislature. A scientist will say that it is within her 1st Amendment rights to do science that includes cloning. A family will argue that its right to make a clone in Indiana, or to bring one over from another state, is protected by at least three amendments. On, and on, and on it will go. You have to feel sorry for the local judge, appeals judge, and, yes, even Supreme Court judge who gets the first one of these cases. The legislature should not be able to treat cloning like a simple political football and turf out the details to the courts.
The U.S. state cloning laws are not clear, none of them, and they particularly fail when it comes to empowering courts (or taking away their jurisdiction, where appropriate). Someone will no doubt eventually seek to have a child through cloning in Indianapolis. But what guidance is Sen. Miller's law? It says nothing about the dozens of questions that go right to the heart of cloning and parenthood. So when those cases hit the family courts in Indiana, judges who adjudicate divorce and adoption will find themselves struggling for rules to allow them to make sense of laws that are even worse than the laws for divorce and adoption!
I will admit that since making this argument with my collaborator Ian Wilmut I have had few takers. But several states are being slightly more careful than others (including California, who actually considered our proposal), and what distinguishes smart from dopey law about cloning is a simple process - asking how to regulate cloning, not whether to do so. But the rush to ban cloning is on again, and I'm not looking for a whole lot of that subtlety from the kind of state legislatures Americans have elected this time around. - Glenn McGee
