[NOTE: The recent proposal on human cloning submitted by Costa Rica and about 40 other nations for consideration by the United Nations for it's human cloning treaty deserves some serious reconsideration, as the proposal would not support a "total ban on all human cloning." In the following commentary I have emphasized in "underline" those phrases in the Costa Rican proposal that need quick attention, as the issue is being debated this week at the United Nations. My own comments are bracketed and in "block". I hope that the concerns expressed in this commentary are helpful to those involved in these cloning issues. - DNI]]
United Nations A/58/73
General Assembly Distr.: General
17 April 2003
English
Original: Spanish
03-33084 (E) 200503 210503
*0333084*
Fifty-eighth session
Item 172 of the preliminary list*
Letter dated 2 April 2003 from the Permanent Representative of Costa Rica to the United Nations addressed to the Secretary-General
I have the honour to transmit to you attached hereto the draft international convention for the prohibition of all forms of human cloning, prepared by the Government of Costa Rica, as well as the text of a brief explanatory commentary to it (see annexes I and II).
The Government of Costa Rica is convinced that this draft will be a constructive contribution to the negotiation process currently being carried out within the General Assembly in order to prohibit human cloning.
[[If the hope is that the Costa Rican proposal would guarantee that all cloning of human beings would be banned by such a United Nations treaty, I would respectfully submit that unfortunately it would not. - DNI]]
We hope that the text will be able to serve eventually as the basic document for discussion.
(Signed) Bruno Stagno
Permanent Representative
Annex I to the letter dated 2 April 2003 from the Permanent Representative of Costa Rica to the United Nations addressed to the Secretary-General
Draft international convention on the prohibition of all forms of human cloning ... Have agreed as follows:
For the purposes of this Convention:
1. "Somatic cell nuclear transfer" means introduction of nuclear material from a somatic cell into a fertilized or unfertilized oocyte whose nuclear material has been removed or inactivated;
[[A "fertilized oocyte" is not an oocyte anymore. It is a human embryo. Thus this provision would allow the insertion of a foreign nucleus into an already existing human being - thus producing a cloned human being. - Nor would it prohibit the cloning of human beings by means of germ line cell nuclear transfer (GLCNT). - DNI]]
2. "Somatic cell" means a cell containing a complete set of chromosomes;
[[All germ line cells are diploid, and thus also "contain a complete set of chromosomes" until meiosis 2 has taken place. Therefore this definition of "somatic cell" would not prohibit the cloning of human beings by means of germ line cell nuclear transfer (GLCNT). Primitive germ line cells are also totipotent. Therefore since no germ line cells are not acknowledged in this definition, human beings could also be cloned by means of the "twinning" these primitive germ line cells. - DNI]]
3. "Genetically virtually identical organism" means an organism containing the same complete set of chromosomes
[[The cloned product of any nuclear transfer cloning technique is not "genetically virtually identical" to the donor organism. On at least two accounts the clone would be genetically different from the donor: (1) the mitochondrial chromosomes (DNA) of the donor is not transferred to the cloned embryo; and, (2) the mitochondrial chromosomes (DNA) of the enucleated oocyte remains in the cloned embryo. Therefore, this provision would not prohibit the cloning of human beings by means of any real nuclear transfer technology - whether the nucleus transferred is from a somatic cell or from a germ line cell.
One could also clone a human being by means of pronuclei transfer - using male and female pronuclei from two different donor human embryos produced by IVF fertilization. Such cloned embryos would also be genetically unique, would not contain the "same complete set of chromosomes" as another organism, and would not be virtually identical to any "existing or previously existing" organism. Therefore, this provision would not prohibit the cloning of human beings by means of pronuclei transfer. - DNI]]
as another organism;
[[One could possibly clone human beings without using chromosomes from "another organism". In fact, one current cloning bill - that of New Zealand - considers the cloning of human beings by means of using "artificially constructed" sperm, oocytes and embryos. Such a cloned human embryo would thus not contain the "same complete set of chromosomes" as another organism, nor would it be virtually identical to any "existing or previously existing" organism. It would be genetically unique, not produced by using materials from another organism - whether existing or previously existing. Therefore, this provision would not prohibit the cloning of human beings by means of the use of "artificially constructed" materials. - DNI]]
4. "Victim" means both the person whose genetic material or oocyte is used without permission
[[And so if this "person" gives permission to use their genetic material or oocytes it is permissible to use them to clone new human beings? And what about permission to use their sperms? And depending on how one defines when a "person" begins to exist, the permission to use the genetic materials of "non-persons" is not necessary before using them to clone new human beings? Consider that bioethicists such as Peter Singer et al would not include human embryos, human fetuses, young human born children, or even mentally and physically handicapped adult human beings in their definition of "persons". - DNI]]
1. Any person commits an offence within the meaning of this Convention if that person intentionally engages in an action, such as somatic cell nuclear transfer or embryo-splitting, resulting in the creation of a living organism, at any stage of physical development, that is genetically virtually identical to an existing or previously existing human organism.
[[As mentioned above, human beings cloned by means of nuclear transfer - either SCNT or GLCNT - are not "genetically virtually identical" to any donor. And some cloning techniques can be used to clone new human beings by means of pronuclei transfer or the use of "artificially constructed" genetic materials. Therefore, according to this provision, no crime will have been committed by cloning human beings by means of SCNT, GLCNT, pronuclei transfer, or the use of "artificially constructed" genetic materials. Embryo splitting theoretically could result in a cloned embryo that is basically genetically identical to the embryo that was split - unless one first genetically modifies a sperm, an oocyte or an embryo by DNA-recombinant gene transfer, and THEN uses these materials to clone human beings using any cloning technique. In such cases, the human embryo that is split would not be genetically identical to any existing or previously existing donor, and thus such cloning of human beings would not be considered a crime under this provision. - DNI]]
Annex II to the letter dated 2 April 2003 from the Permanent Representative of Costa Rica to the United Nations addressed to the Secretary-General
The draft international convention on the prohibition of all forms of human cloning is intended as a contribution to the negotiation process currently being carried out within the United Nations General Assembly in order to prohibit human cloning. The text seeks to ensure respect for the dignity and basic rights of the human being in the broadest possible manner in view of the threat posed by experiments in the cloning of human beings.
The draft aims to prohibit both "reproductive" cloning of human beings, that is, cloning whereby human clones are "produced", implanted in a woman's uterus and culminate in the birth of a child.
[[This provision would not prevent the implantation of a cloned human embryo, allowing it to gestate in the mother's uterus, and then aborting the cloned embryo or fetus for any purpose before birth (including the purpose of the necessary requirement of the scientific method to scientifically verify the effects of previous genetic manipulations of sperm, oocytes and embryos in the later stages of pre-natal development). This is "reproductive" cloning by any other name. - DNI]]
that is genetically identical to another human being,
[[As explained above, since cloned human embryos could be produced that are not really "genetically identical", and even not really genetically identical "to another human being", such embryos and (later) fetuses could be gestated in utero for research purposes, and then aborted according to this provision. Also, since most cloned embryos would not be virtually "genetically identical" to an existing or previously existing human organism (they would be genetically unique), even "reproductive cloning" resulting in the birth of the cloned child would not be prohibited by this provision. - DNI]]
as well as the ill-termed "therapeutic" cloning of humans, which is characterized by having experimental purposes and ending with the destruction and death of the cloned embryo.
[[This provision would not prohibit all cloning of human embryos by twinning because the use of such of a cloning procedure would not necessarily result in the "destruction and death of the cloned embryo." It would also not prohibit the production of cloned human embryos reproduced by any other cloning technique that survived those cloning processes. It would also not prohibit the implantation, gestation, or birth of any cloned human embryos that are allowed to continue living in their various developmental stages. - DNI]]
During the fifty-eighth session of the General Assembly, the international community will have to decide whether it is to work on a broad prohibition of all forms of human cloning or whether it will elaborate only a prohibition limited to the reproductive cloning of human beings. The Government of Costa Rica, together with a number of friendly countries, has advocated the negotiation of a broad prohibition covering all forms of human cloning.
[[With all due respect, this generous proposal by the Government of Costa Rica and numerous other friendly countries would unfortunately not constitute "a broad prohibition covering all forms of human cloning" as written, for the various reasons submitted above. - DNI]]
The Government of Costa Rica trusts that this draft will be an important contribution to the negotiation process by eventually becoming the basic document for discussion.
... To the extent possible, the text is based on language used previously by the General Assembly. The provisions on jurisdiction, cooperation and the final clauses were inspired by the provisions of the recent International Convention for the Suppression of the Financing of Terrorism.
... It should be noted that the draft does not seek to regulate abortion, stem-cell research or in vitro fertilization.
[[As indicated above, the draft as written would, depending on which phrases relied on, even require some abortions of cloned embryos and fetuses if these cloned children were not allowed to come to birth. Since much cloning of human beings would invariably be permitted by this proposal, stem cell research would thrive using stem cells derived from such cloned embryos. IVF-produced human embryos could be permitted to be used under this proposal in cloning experiments that genetically alter human embryos thus produced, or human embryos produced by using genetically altered sperm and oocytes. Therefore, the use of such IVF-produced human embryos could be used in many human cloning experiments using many human cloning techniques which would not be prohibited by this proposal. Connections between the production of human embryos using IVF and their use in later human cloning procedures is not addressed at all in this proposal. - DNI]]
Similarly, the text does not aim to define what a human being is
[[It is a sad and tragic commentary on our contemporary culture that the long-acknowledged objective scientific facts of when a human being begins to exist, or any attempt to scientifically define a human being, are so severely compromised, manipulated, deconstructed, and suppressed by obvious political pressures. Scientifically, one should be professionally expected and required to either prove and successfully defend one's position on these questions using the internationally sanctioned terminology of human embryology, or withdraw one's "theory". Perhaps it has become diplomatically incorrect to even consider that someone is objectively scientifically correct here, and someone is scientifically wrong. However, such scientific ignorance should not be imposed on the whole community of nations by any prestigious cultural body such as the United Nations. The real-life concrete consequences of such "diplomacy" would be disastrous. Why not consider that only the best should do, particularly at that level of influence? - DNI]]
and when the human person comes about.
[[The issue of "delayed personhood" - and thus a "reduced moral status" for the early human embryo -- has been propagated especially in contemporary bioethics - a brand new field of "ethics" formally created by a U.S. Congressional mandate in 1978 by The Belmont Report of the National Commission. No such "delayed personhood" theories have ever stood the test of rigorous academic scrutiny, and most of them are grounded in junk science, such as the use of the term "pre-embryo", or on many of its linguistic substitutes. The International Nomina Embryologica Committee has formally rejected the terms "pre-embryo" and "individualization":
"The term 'pre-embryo' is not used here for the following reasons: (1) it is ill-defined because it is said to end with the appearance of the primitive streak or to include neurulation; (2) it is inaccurate because purely embryonic cells can already be distinguished after a few days, as can also the embryonic (not pre-embryonic!) disc; (3) it is unjustified because the accepted meaning of the word embryo includes all of the first 8 weeks; (4) it is equivocal because it may convey the erroneous idea that a new human organism is formed at only some considerable time after fertilization; and (5) it was introduced in 1986 'largely for public policy reasons' (Biggers). [Ronan O'Rahilly and Fabiola Muller, Human Embryology &Teratology (New York: Wiley-Liss, 2001), p. 88] [Note: O'Rahilly is one of the originators of The Carnegie Stages of Early Human Embryological Development, and has sat on the international Nomina Embryologica Committee for decades.]
Hopefully an austere body such as the United Nations will not allow itself to be commandeered by bioethicists to further propagate such defective "delayed personhood" theories - and thus essentially impose such defective theories on the community of nations. It has been scientifically demonstrated what a human being is and when a human being begins to exist for over a century. I would respectfully submit that international treaties would be more credibly formulated on the basis of the inalienable rights of all human beings, and should not be deterred in addressing these cloning issues forthrightly on the basis of these long established objective scientific facts of human embryology. - DNI]]
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