By Carmel Shalev
In December 2001, the General Assembly of the United Nations adopted a resolution to establish an ad-hoc
committee to consider elaborating on an international convention to oppose reproductive cloning of human beings.1 The committee convened for its first meeting in February 2002. During the exchange of views between government representatives, there was general agreement that the reproductive cloning of human beings should be prohibited by an international ban. However, cloning for the purpose of medical research and experimentation-that is, therapeutic cloning-also raised concerns. Several delegations suggested that the convention should be comprehensive and include a ban on all human embryonic cloning.2
Concern about cloning has already found expression in international human rights instruments. The Universal Declaration on the Human Genome and Human Rights, 1997 (UDHGHR) recognizes that genetics research could have vast potential for improving the health of humankind, but it also emphasizes the need to fully respect human dignity, freedom, and human rights. Article 11 states: “Practices which are contrary to human dignity, such as reproductive cloning of human beings, shall not be permitted.”3
The 1997 European Convention on Human Rights and Biomedicine (hereafter, the European Convention) spawned a similar prohibition. Article 1 of the 1998 Additional Protocol on the Prohibition of Cloning Human Beings (hereafter, the European Protocol) provides: “Any intervention seeking to create a human being genetically identical to another human being, whether living or dead, is prohibited.”4
A ban on cloning constrains two important liberties freedom of reproduction and freedom of science. The
essence of liberty is that it may not be constrained except to protect the liberty of another person or a strong public interest. Proposed justifications to prohibit reproductive cloning are based primarily on concern for human dignity and the moral status of the human embryo. This commentary suggests that there are other concerns about therapeutic cloning that justify restrictions on research, including in the private sector. These concerns relate to the protection of egg donors as subjects of research and to the human right of universal access to potential health benefits. The argument is that therapeutic cloning raises issues of global justice that, if not addressed through regulation, might pose a threat to human integrity.
Liberty and Morality
The apparent international consensus against reproductive cloning reflects a popular sentiment that deeply opposes human cloning. Literary classics feed our fascination with and fears of tampering with human nature and the consequences of playing god. Will we lose control and create a monster-a golem or a Frankenstein that destroys its inventor?5
Objections to cloning are often connected with objections to all research in human embryos (including surplus in vitro fertilized eggs) because of concern for the moral status of the embryo. Some even consider that the human embryo should be protected by human rights. However, in liberal jurisprudence, it is only after human beings are born that they are covered by these rights and obligations. Moreover, enforcing morality by law is unacceptable in liberal theory.
In the 1960s, this was the subject of the well-known Hart Devlin debate about crimes of prostitution and homosexuality.6 The accepted conclusion was that the moral belief or repugnance of “the man on the Clapham omnibus” is not sufficient to outlaw conduct engaged in by consenting adults. In other words, the right to privacy includes a right to moral integrity even if most others disapprove.
