During the week of October 18, 2004, an intense debate on human cloning resumed at the United Nations, after being postponed for a year. In essence, there are two major competing proposals for a U.N. treaty on human cloning being considered: the Costa Rican proposal, and the Belgian proposal.
By week's end apparently the debates became too politically embroiled with the U.S. election momentum, so it was decided to postpone the final debates and votes again until November 10, 2004.
In the meantime the Family Research Council (FRC), which has had a heavy presence at all of these U. N. debates, posted on their website and sent out an announcement about their human cloning brochure which they distributed to those involved at these U. N. human cloning debates. The brochure is entitled: Human Cloning: An Abuse of Science.22
Although such efforts are surely genuine, closer examination of that short brochure reveals a number of serious scientific, ethical and legal flaws - many of which are also reflected in the U.S. Congressional "bans" on human cloning supported by the FRC. Given the impact and consequences that any U. N. treaty on human cloning would have on individuals and societies around the globe for decades to come, it would be at least prudent to make sure that any supposed "total ban" on the cloning of human beings would do exactly what it purports to do - and nothing less. As the FRC brochure itself states: "To make an informed decision about human cloning, we must understand what it is and what it entails. How we answer the question of human cloning has significance for the future of biotechnology, medicine, ethics, and human dignity."23
Below please find a very short analysis of a few of the major scientific, ethical and legal flaws embedded in this cloning brochure. If in turn such serious flaws were to be embedded into the language of any U. N. cloning ban, the negative consequences would be more than serious. [Scientific references I cite are all in concert with the international nomenclature on human embryology.]24
The FRC brochure consists of two short articles - one on "the precise science" of human cloning by Dr. David Prentice (an excellent scientist but not a human embryologist), and the other on ethics by William Saunders (a lawyer). Rather than go piece-meal through each article, I have placed up front the more serious and obvious problems and internal contradictions with this brochure for people to consider. I have then copied the brochure in full below, highlighting in the text exactly where these problems can be found. Hopefully these problems can be resolved and eliminated before the resumption of the debates at the U. N. resuming on November 10, 2004.
Dr. David Prentice, a molecular geneticist, Senior Fellow for Life Sciences at Family Research Council, and an Affiliated Scholar for the Center for Clinical Bioethics, Georgetown University Medical Center, presents the following "precise science" involved in human cloning in the first part of this brochure. Much of his presentation is excellent, but examples of some of the erroneous science and contradictions he uses include the following statements:
This is an amazingly erroneous scientific statement. A human embryo - even the single-cell human embryo - is a human organism.25 But with the exception of human cloning by "twinning" (embryo splitting, embryo multiplication), cloning always starts with individual cells, or parts of cells - not with whole "embryos" or "organisms". These cloning materials can be taken from somatic ("body") cells or from germ line (sex) cells,26 from a single-cell human embryo, a multi-celled human embryo, as well as from a human fetus, a young human child, a grown human adult, by using artificially constructed human genes, chromosomes, sperms, oocytes, by "nano-cloning",27 etc. If such language were used in a U. N. "total ban", it would render such a ban useless, as part of the human cloning process at issue in such a ban would be erroneously scientifically defined - and thus the "ban" would not apply to real human cloning techniques. Thus they could be performed around the world with impunity.
(a) Here Dr. Prentice seems to acknowledge that there are several techniques available for performing human cloning, only one of them being somatic cell nuclear transfer (SCNT). However, he then goes on to imply that there is only one human cloning technique (i.e., SCNT): "Both "reproductive cloning" and "therapeutic cloning" use exactly the same technique to create the clone, and the cloned embryos are indistinguishable. The process, as well as the product, is identical." These statements are contradictory. Either there is only one kind of human cloning technique or there are many different kinds. If there are many different kinds, then neither the "processes" used nor the cloned embryos produced are "indistinguishable" (at least genetically). The accurate scientific fact is that there are many techniques or processes that can be used to clone or otherwise genetically engineer a human being,28 and all of them can be used in both "therapeutic" and "reproductive" cloning.
(b) Furthermore, it is highly debatable if the SCNT human cloning technique is "the most common proposed". A quick search through the cloning and IVF literature will demonstrate that many of the other human cloning techniques mentioned above are far more common, especially as IVF "infertility treatments"29 (e.g., "twinning", "hemi-cloning", "pronuclei transfer, germ line cell nuclear transfer, mitochondria transfer, etc.).
Dr. Prentice seems to be contradicting himself, and the same ambiguity will appear throughout this brochure. If such erroneous scientific language were to be used in a U.N. "total cloning ban", then that "ban" would be internally contradictory and thus could not apply to either the SCNT cloning technique or to any other human cloning techniques - for "therapeutic" or for "reproductive" purposes. Thus such a "total ban" would ban nothing. Instead it would actually allow real human cloning for "infertility treatments", for patient "therapies", and for purely scientific research with impunity around the globe.
One can clone by nuclear transfer by transferring the nucleus of any diploid cell (a cell with "46" chromosomes). Thus both somatic cells and germ line cells (used for eugenics) can be used to clone new human beings. By specifically restricting cloning by "nuclear transfer" to only the use of somatic (body) cells, such language in a U. N. treaty would not prohibit human cloning by nuclear transfer using diploid germ line cells - i.e., germ line cell nuclear transfer (GLCNT).
This statement is also scientifically erroneous, and mis-defines the SCNT process and product itself. As with any legal-type document, if something is not specifically addressed or articulated in the formal document, or if something is mis-defined, then the document doesn't apply to it. "Loopholes" and erroneous "scientific" definitions would render such a document inapplicable to the real processes and real products of human cloning.
The single-cell human embryo produced either sexually or asexually is genetically unique, having never existed genetically as such before - thus it can never be "virtually genetically identical" to anything or anyone, including "an existing or previously existing human being".30 Curiously both Dr. Prentice and Mr. Saunders, have supported the same erroneous definition of "SCNT" and its product in human cloning "bans" which they note are currently before the U. S. Congress. Yet those involved have even published in their own words that this is an erroneous scientific definition of "SCNT" cloning and its product, and that such genetic differences would cause rejection reactions in patients receiving stem cells derived from such cloned human embryos (because of the differences in mitochondrial DNA).31
If such language were used in a U. N. cloning "ban" it would render the ban meaningless. Even if they corrected this scientifically erroneous definition of the SCNT cloning technique and its product in the U. N. "ban", literally all cloning and other genetic engineering methods could still be slipped through the loopholes in the "prohibition" (or "restriction") section of the "ban".32 Either way, any serious legal challenge would find any such law or treatise rejected in the courts for "vagueness", and human cloning would continue globally unabated.
What is missing from both Dr. Prentice's and from Mr. Saunders' statements when referring to the proponents of "therapeutic" and "reproductive" cloning is that: (a) by "children" proponents of "therapeutic" and "reproductive" cloning mean only born human beings,33 thus human embryos and fetuses before birth - in vitro or in utero -- are not even acknowledged, and thus would not be covered by any Treaty; and (b) by cloning cells from sick patients to produce a cloned human embryo for research purposes is to purposefully produce disabled human embryos, to allow those disabled human beings to develop to a certain point, and then to kill them.34 It is not just the "precise" science that must be addressed; it is also the "imprecise" science that must be addressed as well.
(a) Again, the cloned embryo produced cannot be "virtually identical to the cloned subject". Indeed, as a scientist I have never heard the use of the phrase "virtually identical" until these cloning debates. Only precisely accurate scientific terms should be used in scientific definitions used in any U. N. treaty to totally ban human cloning.
(b) The term "cloned subject" could also be problematic, as precisely who is to be defined as a "subject" - rather than an "object" - of research has been controversial and very contentious in the field of "human subject research" for decades. For example, in U. S. federal documents for the use of "human subjects" in research since 1981, the early human embryo is not included in the definition of a "human subject" - which would include its first 8 weeks of development - in vitro or in vivo. Indeed, the human embryo isn't even mentioned. If such language were incorporated into a U. N. cloning treaty, it would be critical for the term "human subject" to be properly defined as including the human being from the beginning of its existence until natural death. If by a "subject" one means only a competent adult human being who is a "person" in the Singer-style definition of "person", then not just human embryos, human fetuses, and young human children but also mentally and physically disabled adult human beings would not fit into the category of "human subject" - and thus all of these human beings could be used in destructive experimentation.
(c) Likewise, why the term "intended" is used in Prentice's scientific definition is also obscure. The term "intention" is synonymous with "purpose" or "goal". Would it mean that if a clone were not intended to be "virtually identical to the cloned subject", then it is not a human clone, and what one is doing is not cloning? The real scientific fact is that the product of cloning is not "virtually identical" to the cloned subject. Oddly, the use of the term "intended" in this brochure would actually translate into a real human clone allowed to be produced - but it wouldn't be classified as a human "clone" because it really is not "virtually genetically identical" to the cloned subject. How and why did such non-scientific terms come to be used in formal scientific definitions?
(d) Similarly, unscientific "language" such as "intention", "purpose", and "goal" is currently being used by California research cloner Irving Weissman in order to literally deconstruct the scientific definition of "cloning". For Weissman, if the purpose (or intention) of performing "nuclear transfer" (a cloning technique) is just to use the cloned human embryo for destructive research, then what he is doing is not cloning. But, if the purpose (or intention) of performing "nuclear transfer" is to implant the cloned embryo and to bring it to birth, then it is cloning. Note that the clone in utero must be "born" in order to consider the cloning process used as "reproductive cloning" or the clone as a human clone. This is scientifically absurd, and extremely dangerous for both unborn human clones and the women into whom they will be implanted. The use of the term "intention" or any equivalent should not be used to define whether or not a scientific procedure per se is cloning or not cloning. If such language were used in a U. N. cloning "ban", not only would it ban no human cloning, it would ensure that women could be impregnated with dangerous experimental cloned human embryos, which could be allowed to grow in utero until just before birth, and then killed (or miscarried). But it wouldn't be called "reproductive cloning" - and thus would not be banned - because birth of the clone was not "intended" - even if it were carried out, resulting in the birth of a human clone.
(e) Indeed, it is true that all human cloning is reproductive. But new living human beings can be reproduced a-sexually through many genetic engineering techniques, not just by cloning. A U. N. treaty on a total ban of any and all genetic engineering techniques to produce a human embryo, single-celled or multi-celled -- a human being -- is more urgently needed than one to ban just one technique (i.e., cloning). The real issue is that it is wrong and dangerous to artificially reproduce a new living human being to be killed in research, its parts used for "studies" or for "therapies", or implanted (whether for purposes of a live birth or not), regardless of the kind of technique used. Even a perfect U. N. bill to ban just human cloning would not ban the use of other genetic engineering techniques that could accomplish the same thing by simply calling it something else.
It is not even "theoretically" true that stem cells from the cloned human embryo would genetically match the patient from whom the embryo was cloned, because of the differences in the GENOMES of the stem cells from the cloned embryo used and the patient's own non-cloned cells - as noted above. The genome includes both the nuclear and the mitochondrial DNA (genetic material).35 Thus there would be no genetic "match" because: (1) the mitochondrial DNA from the patient's cell that is used for cloning is not transferred to the cloned embryo, thus the embryo is missing that part of the donor's genome, and hence no "match"; (2) the foreign mitochondrial DNA from the enucleated oocyte is retained in the cloned embryo, thus the embryo contains genetic material not present in the donor's cell, hence no "match". Therefore, the genome of the stem cells derived from the cloned embryo is different than the genome of the patient's own non-cloned cells. This is precisely why such cells are rejected as "not-self" by the patient. As noted above, the real genetic differences between such stem cells and the donor patient do cause rejection reactions in the patient. If such language were used in a U. N. cloning ban it would allow the use of genetically different stem cells to be injected into patients - even those derived from clones of the patient him/herself -- causing rejection reactions. Most likely there are other genetic irregularities produced in the process, with possible other dangerous consequences to the patient.
William Saunders, Senior Fellow and Director of the Center for Human Life and Bioethics at the Family Research Council, and a graduate of Harvard Law School, has also done outstanding work on these bioethics issues, and presents the following "ethical" considerations relevant to the cloning of human beings. But here too serious scientific, ethical and legal errors can be identified, such as the following:
(a) It is scientifically ambiguous to use the term "human life" in these contentious debates, because even a human cell - e.g., a skin cell, a sperm, or an oocyte - "has" human life, but they are not human organisms, human beings. They are just living cells, parts of a whole living human being. Such ambiguities should not be incorporated into any U. N. treaty or used in any of the scientific definitions therein; otherwise the treaty would be banning only the production of simple cells.
(b) It is also scientifically erroneous to state or to imply that all human beings begin to exist only by means of human sexual methods of reproduction. Human beings can also be reproduced a-sexually (as documented above). A familiar example is natural monozygotic twins developed in utero. Human beings can also be reproduced a-sexually in vitro by means of many other cloning and genetic engineering techniques. If the whole point of the U. N. debates and eventual human cloning treaty concerns banning the production of human beings who have been a-sexually reproduced, why is Saunders referring only to those human beings sexually reproduced, and not even mentioning those human beings who have been a-sexually reproduced, e.g., by cloning? This is an on-going mystery. Such language incorporated into a U. N. treaty wouldn't ban anything having to do with a-sexual human reproduction - and that includes naturally or artificially reproduced human twins - in utero or in vitro.
(a) If Saunders, a lawyer, is presenting the "ethics" involved with human cloning, why is he referring to the Nuremberg Code?36 There are dozens of ethical theories, with different ethical norms, thus reaching different ethical conclusions. But the Nuremberg Code is not one of them.
(a) There were no such "established ethical norms of the civilized world" at the time of the Nuremberg Military Trials, nor were there any such established international legal precedents of the civilized world. Indeed, that is why Justice Jackson was so sorely criticized by his legal colleagues around the world for "making up international law".37 There were, of course, some laws in some countries (not many), and some professional codes of "ethics" in some countries (not many), but no "established ethical norms of the civilized world" or even established legal precedent for it. Indeed, the major criticism of the Nuremberg Code since its establishment it only looked good on paper, but no one has, or is, following it. It's most essential provisions have since been drastically diluted by the various Declarations of Helsinki,38 and in the U. S. by the OHRP federal regulations on the use of human subjects in research.39 In fact, the current WHO/CIOMS guidelines on the use of human subjects in research40 violate most of the tenets of the Nuremberg Code, and are explicitly grounded on the "bioethics" principles of "autonomy", "justice", and "beneficence" - as curiously defined in the U.S. Belmont Report. It is thus unusual that Saunders would appeal to the Nuremberg Code as a source of "ethics" for a United Nations treaty, especially given these other current "ethical" guidelines, and the convoluted arguments concerning the Nazi concentration camps and other atrocities still raging today even at the U. N.
(c) Although the Nuremberg Code may be appealed to as an "ideal", and in many of its provisions it is such, great caution needs to be exercised when attempting to use it to protect "human subjects of research". In the Nuremberg Code, the term "human subjects" means only competent adult human beings who are capable of giving legally valid informed consent - i.e., "persons" in the Singer-sense. Thus it would not consider human embryos, human fetuses, or even young human children as "human subjects" to be protected from research abuse, nor would it be interpreted as such by bioethicists today.
The principle author of that NAS report on human cloning referred to here by Saunders was California cloning researcher Irving Weissman, so I'm not sure it is so prudent to quote from him. Weissman also chaired the NAS report on human embryonic stem cell research. In all of these reports, "therapeutic" cloning is defined as not cloning if the purpose or intention is to use the cloned embryo only for research and to produce human embryonic stem cells. It is just "stem cell research". And the product of such "nuclear transplantation" is just a human "cell" - not a living individual human organism.41 This, as already documented, is scientifically absurd. They have definitionally eliminated the single-cell human organism that is the immediate product of both sexual and a-sexual human reproduction, and simply reduced it to a "cell". But scientifically there is a big difference between just a "cell" and an "organism",42 and one is mystified as to why these scientists don't seem to know such basic biological facts.
Weissman is also an avid supporter of the mythical term "pre-embryo", even though the term has been formally rejected by the international nomenclature committee for years now,43 and used the false term over and over again in his work on the California Report of the Advisory Committee on Human Cloning,44 which grounded the now already existing laws in that State legalizing human cloning and human embryonic stem cell research, as well as the contentious Proposition 71.45
It is thus worrisome that Saunders would refer in this brochure on human cloning to this particular "author" (who is appealing to the Nuremberg Code) without name (even in the endnotes). If, like Weissman, one operates on the explicit acceptance of the "pre-embryo", then these "pre-embryos" would not be considered as "human subjects" in research. They would be "human objects". Since the Nuremberg Code applies only to competent human subjects who can give legally valid informed consent, it could not apply to the cloned human embryos or fetuses involved, only to the adult competent woman who is capable of giving legally valid informed consent.
Thus ironically Weissman can hold both to reproductive human cloning and to the Nuremberg Code without (seeming) contradiction. That is, in his opinion, "therapeutic" cloning only involves "pre-embryos", non-subjects. Only "reproductive" cloning involves a "human subject" who is to be protected in research -- a competent adult human woman capable of giving legally valid informed consent. The Nuremberg Code would not consider cloned human embryos or fetuses as "human subjects", but it would consider adult competent women as "human subjects". As with Dr. Prentice's unfortunate use of the term "cloned subject" above (#4.b), the incorporation of the term "subject" in any U. N. treaty must explicitly include the human embryo and fetus, otherwise it would not apply to them, and thus human cloning would not be prohibited - for either "therapeutic" or for "reproductive" purposes.
(a) Here Saunders is contradicting himself. Above he stated that human "life" begins at "conception" - which means fertilization, sexual reproduction only; here he is admitting that human "life" can begin either sexually or a-sexually. Which is it? Both statements should not be incorporated into a U. N. treaty to ban human cloning, as the treaty would then be internally contradictory. If only Saunders' statement that human beings are (only) reproduced sexually (fertilization) is used, then the treaty would not prohibit any human cloning, which is the supposed aim of the U. N. treaty.
(b) In fact, any effective "total human cloning ban" must state clearly that human cloning can be accomplished by using a mixture of sexual and a-sexual reproductive methods. For example, in cloning by means of "pronuclei transfer", the first step is to sexually reproduced human beings by means of IVF. Before the pronuclei have mixed in the new human embryos, the male pronuclei from a male human embryo and the female pronuclei from a female human embryo can then be placed in an enucleated oocyte (or other totipotent cell), stimulated (activated), and a new genetically distinct a-sexually reproduced human being would result. In fact this would produce a human/human chimera. Another example is to use genetically engineered human chromosomes, sperms or oocytes in the IVF fertilization process - producing new genetically unique human beings. Thus the a-sexual reproduction of human beings by any process -- including a mixture of sexual and a-sexual methods of reproduction - should be banned by the U. N. treaty. Neither Saunders nor Prentice acknowledge this in their brochure.
(c) Although Saunders has at least at one point acknowledged the reality of a-sexual human reproduction, he then proceeds to define human cloning only in terms of the SCNT method (just as in the U. S. human cloning "bans"). This contradicts at least one of Dr. Prentice's statements (above) that there are more than one kind of cloning technique that can be used to clone human beings. It is also scientifically erroneous to define "human cloning" only in terms of one technique. As documented above, there are many different human cloning and human genetic engineering techniques available (and being used) to produce new living human beings. Why the persistence on defining "human cloning" only in terms of the SCNT technique?
The recent statement of Dr. Grifon, nationally recognized expert in IVF, comes to mind - that infertility researchers want as narrow a definition of "cloning" as possible, and only in terms of SCNT, and only using certain specified cells - so that the other human cloning techniques can be used as "infertility treatments" with no legal or regulatory restrictions.46 If this "narrow" definition of "human cloning" is used in a U. N. cloning ban, it puts both unborn human clones and the women into whom they are implanted in great danger, including those women undergoing "infertility treatments". Furthermore, no human cloning would be banned, since such a "narrow" definition leaves out all other cloning techniques, and mis-defines the SCNT cloning technique itself. Thus human cloning would proceed unencumbered globally - both "therapeutic" and "reproductive".
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