This document summarizes and analyzes the debate around whether human reproductive cloning is protected as a privacy right under the US Constitution. It begins by explaining the cloning process and then outlines the constitutional framework for analyzing privacy rights. It argues that human cloning is not a fundamental right protected by substantive due process because it has no roots in US history or tradition. It notes the widespread domestic and international opposition to human cloning through legislation and public opinion polls. While some argue cloning extends established reproductive rights, the document concludes cloning does not warrant strict scrutiny and governments would have a rational basis to ban it.

1. Human Reproductive Cloning: Protected Privacy Right or Not?
Spring 2003
Salvatore J. Lucido
Introduction
I. Cloning and Human Reproduction
a. What is Cloning?
b. Somatic Cell Nuclear Transfer Cloning
II. The Constitutional Privacy Framework
III. Applying the Constitutional Privacy Framework
a. Is There a Fundamental Right to Engage in Human
Cloning?
i. The Domestic Response to Cloning
ii. The International Response to Cloning
iii. Judicial Consideration of the Societal Response
to Cloning
iv. Assisted Reproductive Technology as a Fundamental
Right
v. Human Cloning as an Extension of ART
vi. Balancing the Fundamental Rights of Family,
Marriage, and Procreation with Human Cloning
vii. The Equal Protection Implications
b. Defining the Justification for Government Infringement
on The Right to Clone Humans
i. Health and Privacy Rights
1. Known Health Affects Associated with cloning
2. Health Risks Associated with ART
3. Health Affects of ART on Women
4. Legitimacy of Exerting Control Over Cloning
ii. Unethical Experimentation
iii. Perversion of Basic Human Relationships
iv. The Threat to Individuality
c. A Cloning Ban as the Least Restrictive Alternative
Conclusion
INTRODUCTION
In 1997 Dolly the sheep became the first mammalian species to be
successfully cloned. As science fiction was transformed into
science reality, politicians and scientists began to struggle
with what many view as the natural progression of this research
– human reproductive cloning. The potential of a human clone
resulted in an unprecedented unanimity of action across the
globe. Politicians in most developed countries, horrified by

2. the possibility of human reproductive cloning, initiated
legislative action to ban human cloning. These efforts were
spurred on by the classification of human cloning as an anathema
to responsible, ethical by a wide variety of international
institutions. Despite the unprecedented consensus surrounding
the issue of human reproductive cloning, the American legal
system has remained slow to respond to the possibilities
presented by these technological advances. Unfortunately, the
legal profession appears to remain on the sidelines, unable or
unwilling to bring about “timely and effective control over this
new technology.”1
This complacency remains despite the
exhortations of many, including Admiral Rickover, who stated 40
years ago that the “legal profession [must] protect society from
the onslaughts of technology as a special civic responsibility.”2
If ever there were a need to pick up the Rickover gauntlet and
lead the charge against technology it would seem to be here and
now. While the “Constitution may extend to science a certain
protected status, it does not shield science from government
regulation and restriction to the extent that scientific
activity may be injurious to health, life, safety, public order,
and other legally protected interests.”3
The threats posed by
human reproductive cloning to potential life, maternal life, and
our nation’s genetic life justify such action. This paper
reviews the constitutional legitimacy of a ban on reproductive.
This analysis responds to the increasing volume of journal
articles and papers that make a case against such a ban claiming
that human reproductive cloning should be protective by the Due
Process clause as an extension of the “reproductive privacy
rights” established by previous Court rulings. Part I of this
paper provides a brief overview of the cloning process and the
implications this process has for human application. Part II
examines the Constitutional framework that should be utilized to
analyze a ban on human reproductive cloning. Part III applies
the Due Process analysis to a hypothetical ban on human
reproductive cloning in an effort to determine whether this
procedure rises to the level of a fundamental right requiring
the state to employ a strict scrutiny standard of review. While
Part III rejects the concepts of human reproductive cloning as a
fundamental right, it nonetheless makes that argument that, even
if the Court finds such a right, the application of this ban
would be justified as narrowly tailored and serving a compelling
state interest. Implicit in this argument is the notion that
the justifications for imposing a ban on human reproductive
cloning easily meet the rationale basis test which is reserved
1
Harold P. Green, The Law-Science Interface in Public Policy Decision Making, 51 Ohio St. L. J. 375, 383 (1990)
2
Id. quoting Admiral Rickover’s address, 110 Cong. Rec. S10, 478-81 (1964).
3
Green at 384.

3. for government against activities not viewed as fundamental
rights.
I. Cloning and Human Reproduction
a. What is Cloning?
The word clone is derived from the Greek klon, meaning
twig.4
The Greeks knew that if one broke a twig from some species
of trees and planted it a copy of that tree would result.5
In
modern, scientific terms, cloning “refers to a precise genetic
copy of a molecule, cell, plant, animal, or human being.”6
While
recent debates would lead many to believe that cloning is a new
and relatively narrow field, the opposite is actually true. The
term cloning can refer to molecular cloning,7
cellular cloning,8
blastomere separation cloning,9
or nuclear transplantation
cloning. For the purposes of this discussion, we will be
focusing on nuclear transplantation or somatic cell10
nuclear
transfer as it is commonly referred to in the field.
b. Somatic Cell Nuclear Transfer Cloning
Somatic cell nuclear transfer involves taking a mature but
unfertilized egg, removing or deactivating its nucleus, and
introducing a nucleus obtained from a specialized (somatic) cell
of another adult organism. The egg is chemically treated so
that it begins to behave as if fertilization has occurred. Once
the egg begins to divide, the embryo is transferred to a
female’s uterus to initiate pregnancy. Since almost all the
hereditary material of a cell is contained in its nucleus, the
re-nucleated egg and the individual into whom it develops are
genetically identical to the organism that was the source of the
4
George E. Seidel, Jr., Cloning Mammals: Methods, Applications, and Characteristics of Cloned Animals, in
Human Cloning: Science, Ethics, and Public Policy, 17 (Barbara MacKinnon ed., 2000).
5
Id.
6
Cloning Human Beings: Report and Recommendations of the National Bioethics Advisory Commission (1997).
7
The replication of large quantities of identical DNA for scientific experiments. See Cloning Human Beings:
Report and Recommendations of the National Bioethics Advisory Commission (1997).
8
Copies of cells derived from the soma or body are duplicated in laboratory cultures resulting in a cell line identical
to the original cell that can be used for scientific experiments. See Cloning Human Beings: Report and
Recommendations of the National Bioethics Advisory Commission (1997).
9
The separation of an embryo shortly after fertilization in order to produce genetically identical organisms. See
Cloning Human Beings: Report and Recommendations of the National Bioethics Advisory Commission (1997).
10
See generally, H.R. REP. No. 107-170 (2001)(defining somatic cell as a diploid cell (having a complete set of
chromosomes) obtained or derived from a living or deceased human body at any stage of development

4. transferred nucleus.11
The first successful use of this
technology occurred in 1997 with the birth of Dolly the sheep.
Although theoretically possible, no one has actually
successfully cloned a human being. In fact, the use of this
technology has proven effective in only five (sheep, mice,
rabbits, pigs, and cows) mammalian species since the birth of
Dolly in 1997.12
Further, a recent study at the University Of
Pittsburgh School Of Medicine indicates that the somatic cell
nuclear transfer utilized to replicate Dolly may not work in
non-human primates and suggest that these same problems may
hinder efforts to clone humans.13
Despite the doubts associated with human cloning, the
outrage of its mere possibility has driven President Bush and
Congress to pursue a ban on human cloning. Such a ban, while
hailed by many, has been criticized by a few as a potential
violation of our privacy rights under the Constitution. The
remainder of this discussion will examine the validity of these
arguments should a human cloning ban become law.
II. THE CONSTITUTIONAL PRIVACY FRAMEWORK
In 1923 the Supreme Court held a Nebraska law prohibiting
the teaching in school of any language except English.14
In its
holding, the Court broadly defined the term “liberty” in the Due
Process Clause when it stated: “Without doubt, [liberty]
denotes not merely freedom from bodily restraint, but also the
right of the individual to contract, to engage in any of the
common occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally
to enjoy those privileges long recognized at common law as
essential to the orderly pursuit of happiness by free men.15
Since Meyer, the Court has expressly held that certain aspects
of family autonomy are fundamental rights including the right to
marry,16
the right to have children,17
the right to direct the
education and upbringing of one’s children,18
the right to bodily
11
H.R. REP. No. 107-170, 2 (2001).
12
Oversight of Human Cloning Research: Hearing before the Energy and Commerce Subcomm. on Oversight and
Investigations, 107th
Cong. (2001)(statement of Mark E. Westhusin, Ph.D., Associate Professor, Texas A&M
University, College of Veterinary Medicine).
13
Gretchen Vogel, Misguided Chromosomes Foil Primate Cloning, Science, Apr. 2003, at 225.
14
Meyer v. Nebraska, 262 U.S. 390 (1923).
15
Id. at 399.
16
See, Loving v. Virginia, 388 U.S. 1 (1967).
17
See, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).
18
See, Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925).

5. integrity,19
the right to marital privacy,20
the right to use
contraception,21
and the right to abortion22
and that government
interference will be allowed only if a strict scrutiny test is
met.23
While the Court has expanded the nature of the liberty
interests protected by the Due Process Clause, this expansion is
not without limitations. The Court has repeatedly expressed
concern about expanding “the concepts of substantive due process
because guideposts in this unchartered area are scarce and open-
ended.”24
Recognizing that these decisions often place the
issues outside the realm of public debate, the Court
acknowledges that it has a responsibility for “exercising the
utmost care whenever [they] are asked to break new ground in
this field,”25
“lest the liberty protected by the Due Process
Clause be subtly transformed into the policy preferences of the
members of the Court.”26
Generally, the Court employs a two-part test for
substantive due process analysis. The first part of the test
examines whether the protections claimed are associated with
fundamental rights and liberties that are “deeply rooted in the
Nation’s history and tradition”27
and so “implicit in the concept
of ordered liberty that neither liberty nor justice would exist
if they were sacrificed.”28
If the protections claimed rise to
the level of fundamental rights and liberties, the Court employs
a strict scrutiny test examining whether there is sufficient
justification for the government’s infringement on that right
and whether that infringement is narrowly tailored to serve a
compelling state interest. If the protections claimed do not
rise to the level of fundamental rights, than the state must
merely assert a rational basis to support a law banning human
reproductive cloning.
19
See, Rochin v. California, 342 U.S. 165 (1952).
20
See, Griswold v. Connecticut, 381 U.S. 479 (1965).
21
See, Eisenstadt v. Baird, 405 U.S. 438 (1972).
22
See, Planned Parenthood of Southeastern Pa., v. Casey, 505 U.S. 833 (1992).
23
Erwin Chemerinsky, Constitutional Law: Principles and Policies, 644 (1997)
24
Washington v. Glucksburg, 521 U.S. 702, 720 (1997)(quoting Collins v. Harker Heights, 503 U.S. 115, 125
(1992))
25
Id.
26
Washington v. Glucksburg, 521 U.S. 702, 720 (1997)(quoting plurality opinion, Moore v. East Cleveland, 431
U.S. 494, 502 (1977)).
27
Id., (quoting plurality opinion at 503).
28
Washington v. Glucksburg, 521 U.S. 702, 720 (1997)(quoting Palko v. Connecticut, 302 U.S. 319, 326-26 (1937).

6. III. APPLYING THE CONSTITUTIONAL FRAMEWORK TO HUMAN CLONING
a. Is There a Fundamental Right to Engage in Human Cloning?
The possibility that human beings could come into existence
without a man and woman engaging in procreative activity is a
possibility that the Founding Fathers could never have imagined
when drafting the Constitution. As a result, there is no
textual justification for supporting a fundamental right to
clone human beings within the Constitution. Advocates for human
cloning have attempted to justify human cloning as a fundamental
right by rejecting the traditional historical analysis utilized
by the Court29
and expanding the notion of “procreative liberty”
to include human cloning.
First, as stated above human cloning is a technology never
considered by the Founding Fathers and, in truth, never taken
seriously by this country until Dolly the sheep was cloned in
1997. The relative infancy of this technology demonstrates the
fact that human cloning is not an activity “so rooted in the
traditions and conscience of our people as to be ranked as
fundamental.”30
To categorize human cloning as a fundamental
right would be a rejection of the restraint called for by
Justice White when he stated, “The Judiciary, including this
Court, is the most vulnerable and comes nearest to illegitimacy
when it deals with judge-made constitutional law having little
or no cognizable roots in the language or even design of the
Constitution. … the Court should be extremely reluctant to
breathe still further substantive content in the Due Process
Clause so as to strike down legislation…”31
Human cloning was
never contemplated by the Constitution nor are there an
“cognizable roots in the language and design of the Constitution
to justify a judge-made law the extends the definition of
fundamental rights to include human cloning.
i. The Domestic Response to Cloning
The legislative reaction domestically and internationally
buttresses the notion that human cloning lacks the historical
foundation necessary to support a claim that it is a fundamental
privacy right. Since 1997, twenty-one states and both Houses of
29
See generally, Snyder v. Massachusetts, 291 U.S. 97 (1934).; Palko v. Connecticut, 302 U.S. 319 (1937); Moore
v. East Cleveland, 431 U.S. 494, 502 (1977); Bowers v. Hardwick, 478 US 186, 191-92 (1986); Collins v. Harker
Heights, 503 U.S. 115, 125 (1992); Washington v. Glucksburg, 521 U.S. 702 (1997).
30
Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
31
Michael H. v. Gerald D., 491 U.S. 110 (1989)(quoting White in Moore v. East Cleveland, 431 U.S. 494, 544
(1977))

7. the United States Congress have introduced legislation to ban
human reproductive cloning. These states join six others
(Michigan, Iowa, Louisiana, California, Virginia, and Rhode
Island) that banned human reproductive cloning immediately after
the birth of Dolly the cloned sheep.32
These efforts reflect the
unmistakable opposition that exists in this country to human
reproductive cloning. These legislative efforts are bolstered
by polls of the American public that revealed: eighty-seven
percent thought cloning should be banned; eighty-two percent
thought that cloning human beings was morally wrong; and ninety-
three percent said they would not choose to be cloned.33
A more
recent Time/CNN poll found that ninety percent of those polled
opposed the cloning of human beings.34
These domestic efforts
come after the National Bioethics Advisory Council’s (NBAC) 1997
recommendations against human reproductive cloning. Among its
recommendations, NBAC called for a prohibition against the use
of federal funding to create a child through somatic cell
nuclear transfer as well as the enactment of legislation
prohibiting the use of somatic cell nuclear transfer to create a
child.
ii. The International Response to Cloning
These efforts domestically are complimented by significant
efforts globally to restrict human cloning. National bans on
human cloning began in 1990 with the passage of a German statute
that banned cloning and included a criminal penalty of five
years in prison.35
Since 1990, twenty countries (Argentina,
Australia, Belgium, Canada, China, Columbia, Denmark, France,
Ireland, Israel, Italy, Japan, Norway, Peru, Slovakia, South
Korea, Spain, Sweden, Switzerland, and the United Kingdom) have
banned cloning or issued policy statement opposing cloning and
New Zealand is considering similar action.36
These countries
include a number of common law countries (Australia, Canada,
United Kingdom, and New Zealand) with whom we share many legal
traditions and customs. Finally, international institutions,
including the Denver Summit of Eight, the Council of Europe, the
European Convention on Biomedicine and Human Rights, the World
Health Organization, the Human Genome Organization, and the
32
Richard Willing, Clone Claim Produces Flurry of Bills, USA Today, February 25, 2003, at 3A.
33
Cloning Hearing regarding Senate Bill 649 before the Illinois Senate Executive Subcommittee, (1999)(statement
by C. Ben Mitchell, Senior Fellow, Center for Bioethics and Human Dignity).
34
See generally, H.R. REP. No. 107-170, 15 (2001).
35
Oversight of Human Cloning Research: Hearing before the Energy and Commerce Subcomm. on Oversight and
Investigations, 107th
Cong. (2001)(statement of Nigel M. de S. Cameron, Ph.D., Principal, Strategic Futures Group
LLP).
36
Id. See also, H.R. REP. No. 107-170, 3 (2001).

8. European Commission called for a ban on human cloning. On March
1, 2001 the European Convention on Biomedicine and Human Rights
revised its international treaty on bioethics to include a human
cloning ban. The revised treaty has been signed by 29 European
states.37
iii. Judicial Consideration of the Societal Response to Cloning
While the actions of legislatures, here and abroad, are not
determinative in this analysis, the Court certainly can take
these issues into account when performing a substantive due
process analysis. In Bowers v. Harwick, the Supreme Court
upheld the Constitutional validity of a state statute outlawing
sodomy. The Court rejected the assertion that this statute
violated an individual’s Constitutional right to engage in
private sexual conduct. As part of its analysis, the Court
responded to an assertion that that this law was founded solely
on antiquated notions of morality, the Court noted that “the law
… is constantly based on notions of morality”38
and that the
Court was “unpersuaded that the sodomy laws of some 25 states
should be invalidated on this basis.”39
Although Bowers was recently overruled by the Court in
Garner v. Texas, the traditional approach taken by the Court
when analyzing due process questions appears undisturbed by
Garner. Unlike prior due process cases, the Garner majority
does not “declare that homosexual sodomy is a ‘fundamental
right’ under the Due Process clause; nor does it subject the
Texas law to the standard of review that would be appropriate
(strict scrutiny) if homosexual sodomy were a fundamental
right.”40
This decision does little to alter the premise that
“only fundamental rights which are deeply rooted in this
Nation’s history and tradition qualify for anything other than
rational basis scrutiny under the doctrine of substantive due
process.41
Rather, the majority states that the Texas statute in
question “furthers no legitimate state interest which can
justify its intrusion into the personal and private life of the
individual.42
In essence, the Court holds that the state may not
prohibit activities that are viewed as immoral and unacceptable
embracing the view expressed by Justice Stevens in his Bowers
dissent, that “the fact that the governing majority in a State
37
Id.
38
Id. at 196.
39
Id.
40
Lawrence v. Texas, 123 S.Ct. 2472, 2488 (2003)(quoting Scalia dissent)
41
Id. at 2489 (quoting Washington v. Glucksburg, 521 U.S. 702, 721 (1997).)
42
Id. at 2483-84.

9. has traditionally viewed a particular practice as immoral is not
sufficient reason for upholding a law prohibiting the
practice.”43
While this poses some concern regarding a
legislative ban on human cloning, the premise of such a ban does
not rely solely on societal definitions of immorality. Further,
the impact of this decision could be quite limited given the
potential ramifications associated with it. As Justice Scalia
notes, this decision could be utilized to overturn “criminal
laws regarding fornication, bigamy, adultery, adult incest,
bestiality, and obscenity.”44
Given the far-reaching
possibilities associated with this decision, its impact may be
severely limited by future decisions rendered by this Court in
order to avoid what is likely to be a Pandora’s Box of cases
objecting to morality based laws.
Admittedly, the Court is under no obligation to consider
the activities of state legislators or foreign governments and
conventions when analyzing the constitutionality of federal
legislation passed in the United States. However, the Court in
Lawrence appeared willing to give considerable deference to the
decisions reached by state legislatures, state courts,
international legislative bodies, and international institutions
when crafting a rationale to support the overruling the Bowers
decision.45
Consistent with that approach, it is conceivable
that the Court may take judicial notice of the national and
global efforts to prohibit reproductive cloning and uphold a
prohibition on activity that is universally rejected as morally
repugnant and against the basic concepts of human nature.
Further any attempt to extend whatever “procreative rights” may
be delineated from the Court’s prior rulings is an “an
abstraction imposed on the case law, not a principle derived
from it.”46
Proponents of human cloning rely on this abstraction
when making two legal assumptions: First, those procreative
rights include assisted reproductive technology (ART) under the
Due Process Clause; and second, human cloning is a form of ART
that benefits from its “status” as a fundamental right under the
Due Process Clause.
iv. Assisted Reproductive Technology as a Fundamental Right
The notion as of ART as a protected privacy interest under
the Constitution remains in serious doubt given that, to date,
43
Id. at 2483(quoting Bowers v. Harwick, 478 U.S. 186, 216 (1986) Stevens dissent.)
44
Id. at 2495.
45
See generally, Lawrence v. Texas, 123 S.Ct. 2472 at 2480-81.
46
Cloning Issues: Hearing Before the Senate Comm. On Commerce, Science, and Transportation, 107th
Cong.
(May 2, 2001)(statement of Richard M. Doerflinger, Associate Director, National Conference of Catholic Bishops)

10. “no court in an American jurisdiction has held in favor of a
federal constitutional right to have a child by in vitro
fertilization.”47
The sole example of jurisprudence on this
issue can be found in Lifchez v. Hartigan where the court held
that a ban on conspectuses research was unconstitutional because
it impermissibly infringed on a woman’s right to privacy.
Specifically, the court stated, “It takes no great leap of logic
to see that within the cluster of constitutionally protected
choices that includes the right to have access to
contraceptives, there must be included within that cluster the
right to submit to a medical procedure that may bring about,
rather than prevent, pregnancy. Choionic villi sampling is
similarly protected. The cluster of constitutional choices that
includes the right to abort a fetus within the first trimester
must also include the right to submit to a procedure designed to
give information about a fetus that can then lead to a decision
to abort.”48
This limited case law and the relative inaction on the part of
federal and state legislatures to regulate ART is a far cry from
establishing ART as a fundamental right under the Due Process
Clause. In many ways the previous discussion concerning cloning
is just as applicable to ART. The technology involved with ART
was never something contemplated by the Founding Fathers nor is
it an issue that has cognizable roots in the language or design
of the Constitution. However, as Professor Bradley notes in his
testimony “the principle of reproduction in IVF procedures is
the human couple. The child born is the issue of two parents,
who become mother and father of that child. That child is
genetically unique, the unrepeatable combination (genetically
speaking) of his/her mom and dad.”49
While the process
admittedly relies on the intervention of a lab technician to
insure fertilization and implantation, ART remains a process
that is relatively consistent with the fundamental liberty
interests associated with the right to have children;50
the right
to marital privacy;51
the right to use contraception;52
and,
arguably, the right to abortion.53
Although the similarities do
not affirmatively establish ART as a fundament liberty interest
47
Human Cloning Ban: Hearing before the House Judiciary Subcomm. on Crime, 107th
Cong. (2001)(statement of
Gerard V. Bradley, Professor of Law, University of Notre Dame).
48
Lifchez v. Hartigan, 735 F. Supp. 1361 (N.D.Ill.), aff’d without opinion, sub. Nom., Scholberg v. Lifchez, 914 F.
2d 260 (7th
Cir. 1990), cert. Denied, 498 U.S. 1068 (1991).
49
Human Cloning Ban: Hearing before the House Judiciary Subcomm. on Crime, 107th
Cong. (2001)(statement of
Gerard V. Bradley, Professor of Law, University of Notre Dame).
50
See, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).
51
See, Griswold v. Connecticut, 381 U.S. 479 (1965).
52
See, Eisenstadt v. Baird, 405 U.S. 438 (1972).
53
See, Planned Parenthood of Southeastern Pa., v. Casey, 505 U.S. 833 (1992).

11. under the Due Process Clause, there is certainly a reasonable
argument to be made in favor of such an extension.
v. Human Cloning As an Extension of ART
Assuming that ART is a protected liberty interest under the
Due Process Clause, the next assumption that must be overcome is
the inclusion of human cloning as an accept ART technology.
While the classification of ART as a protected liberty interest
is tenuous at best, the definition of human cloning as an ART is
in direct opposition to the policy positions taken by the
medical fertility experts. In fact, these experts have
explicitly rejected any connection between current efforts to
address infertility through ART and human cloning.
During Congressional hearings on cloning Dr. Michael
Soules, President of the American Society of Reproductive
Medicine unequivocally rejected a connection between human
cloning and ART when he stated, “The asexual replication in
cloning is nothing like the Assisted Reproduction that has
helped provide families with more that 100,000 new children in
the U.S. alone.”54
To support this point, Dr. Soules stated,
“there are huge differences between cloning and sexual
reproduction, even if that reproduction occurs in a laboratory
in both instances. In an IVF procedure we help a sperm and egg
get together. Just as with natural conception, half the genetic
material comes from the mother and half from the father. These
gametes mix and mingle and align themselves in new ways to form
a new and unique genetic combination. Cloning is the
replication of an existing genome, and it’s simply a copy. This
is very, very different from the new being created through
asexual reproduction.”55
vi. Balancing the Fundamental Rights of Family, Marriage, and
Procreation with Human Cloning
These differences should not be trivialized as minor or
insignificant. As Dr. Soules goes on to observe, “it is sexual
reproduction that has given us the magnificent diversity of
species we have on our planet today.”56
The fundamental
differences between assisted reproduction and human cloning are
fundamental differences that the Court will likely acknowledge
54
Oversight of Human Cloning Research: Hearing before the House Energy and Commerce Subcomm. on
Oversight and Investigations, 107th
Cong. (2001)(statement of Michael Soules, M.D., President, American Society
of Reproductive Medicine).
55
Id.
56
Id.

12. and take into consideration as it evaluates the constitutionally
validity of a ban on human reproductive cloning. The Court is
often focused on protecting key, traditional privacy rights
inherent in our society. A consistent theme in this
jurisprudence has been the Court’s desire to protect the
sanctity of family, marriage, and procreation.
In Skinner v. Oklahoma ex rel. Williamson, the Court
discussed the sanctity of marriage and procreation as part of
its rationale for overturning an Oklahoma statute permitting the
forced sterilization of criminals convicted or moral turpitude
two or more times. The Court stated that this legislation
“involves one of the basic civil rights of man. Marriage and
procreation are fundamental to the very existence of the race.”57
Similarly, the Court in Griswold overturned a Connecticut
statute outlawing the distribution of contraceptive in order to
protect the basic rights to family, marriage, and procreation.
The Court observed that this case was dealing with a privacy
right “older than the Bill of Rights – older than political
parties, older than our school system. Marriage is a coming
together for better or worse, hopefully enduring, and intimate
to the degree of being sacred. It is an association that
promotes a way of life, not causes; a harmony of living, not
political faiths; a bilateral loyalty, not commercial or social
projects. Yet is an association for as noble a purpose as any
involved in our prior decisions.”58
Finally, the Court in
Eisenstadt declared a Massachusetts law prohibiting the
distribution of contraceptives to unmarried individual as
unconstitutional. In doing so, the Court stated "if the privacy
right means anything, it is the right of the individual, married
or single, to be free from unwarranted government intrusion into
matters so fundamentally affecting a person as the decision to
bear or beget a child.”59
Maintaining the Court’s traditional role of protecting the
sanctity of marriage, family, and procreation, requires the
Court to recognize human cloning as an anathema to these social
ideals. Human cloning eliminates the need to establish a family
through marriage and procreation – ideals that remain important
to our society. In determining whether human cloning represents
a fundamental privacy right, the Court will need to choose
between adding to the list of protected privacy rights and
adhering to a legal framework that limits constitutional
protections to the basic societal freedoms associated with
57
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).
58
Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
59
Eisenstadt v. Baird, 405 U.S. 438 (1972).

13. family, marriage, and procreation. The tenuous relationship
between human cloning and “reproductive freedom” coupled with a
precedential history that favors a limited expansion of these
rights unless basic freedoms are implicated limits the
likelihood that the Court will extend the protection of the Due
Process Clause to human cloning.
vii. The Equal Protection Implications
The link between ART and human reproductive cloning calls
into question whether such a ban would meet the equal
protections requirements of the 14th
Amendment. Historically,
common law frowned on the concept of artificial insemination
where the male was infertile.60
However, as Professor Williams
notes, modern views on AID and adultery [hold] “that a husband
who consented to AID is the child’s lawful father…and natural
father of the child.”61
While statutory and case law adjusted to
permit an infertile man the ability to procreate through ART
similar adjustments were no made to accommodate women. In fact,
surrogate motherhood, an infertile women’s option for ART
procreation faced numerous legal obstacles. Surrogate
motherhood, paying a natural mother to give up a child for
adoption, was outlawed in almost half the states.62
Further,
statutes did not deem the wife of the donating husband the
natural mother unless she formally adopted the child.63
AS
Professor Williams, these statutes engage in a “differential;
treatment of men and women”64
who are similarly situated –
infertile.
While the statutory differences during the early stages of
ART represented a legitimate equal protection issue, the same
may not necessarily be true for a blanket ban on human
reproductive cloning. During the early stages of ART, the basis
for asserting that ART statutes were unconstitutional under the
Equal Protection clause hinged not on defining procreation as a
fundamental right but on the de facto classifications that these
statutes made between similarly situated men and women.65
Therein lays the key distinction between a general ban on human
reproductive cloning and the early ART statutes – nothing about
60
See generally, Jack F. Williams, Differential Treatment of Men and Women by Artificial Reproduction Statutes,
21 Tulsa L. J. 463.
61
Id. at 467.
62
Id. at 469. (quoting Andrews, The Stork Market: The Law of New Reproductive Technologies, A.B.A.J., Aug.
1984 at 50, 52)
63
Williams at 471.
64
Id. at 481.
65
See generally, Jack F. Williams, Differential Treatment of Men and Women by Artificial Reproduction Statutes,
21 Tulsa L. J. 463, 481.

14. this ban is gendered-based. The arguments asserted in favor of
a ban on reproductive cloning address issues that are gender
neutral. Banning human reproductive cloning imposes the same on
infertile individual regardless of their gender. Further, the
discussion that follows will address the substantial
relationship between a ban on human reproductive cloning and
legitimate governmental objectives related to protecting public
heath, potential life, and maternal health, upholding ethical
principles associated with human experimentation, and insuring
the protection of traditional societal values life family,
marriage, and individuality.
b. Defining the Justification for Government Infringement on
the “Right” to Clone Humans?
While the extension of fundamental privacy rights to
include human cloning appears unlikely, there remains the
possibility that the Court could be compelled by the arguments
linking reproductive freedom, ART, and human cloning. Even if
human cloning was defined as a fundamental privacy right under
the Due Process Clause, there remains ample justification for
government infringement on that right in the form of a ban.
i. Health and Privacy Rights
Meaningful protection and assurance of the population’s
health require communal effort. The community as a whole has a
stake in environmental protection, hygiene and sanitation, clean
air and surface water, uncontaminated food and drinking water,
safe roads and products, and control of infectious disease.
These collective goods and many more, are essential conditions
for health. Yet, these goods can be secured only through
organized action on behalf of the population.66
The collective
goods described above include the population’s genetic health
and dangers posed to genetic health should be attacked with as
much vigor as our Nation’s response to the infectious and
chronic diseases. While the long-term genetic effects of
cloning on mammalian populations is unknown, initial studies
provide ample evidence to support the imposition of strict
controls on this activity as a serious threat to the public’s
general and genetic health.
The legislative authority to address threats posed to
public health are derived from Jacobson v. Massachusetts which
stands for the proposition that state’s may enact public health
66
Lawrence O. Gostin, Public Health Law, 7-8, (2000).

15. measures under their police power authority, a power that was
not relinquished when the Constitution was ratified. In
Jacobson, the Court expressly stated that it “has refrained from
any attempt to define the limits of that [police] power [and]
has distinctly recognized the authority of a state to enact
quarantine laws and health laws of every description.”67
The
only requirement imposed on states by the Court was to adopt
“such reasonable regulations established directly by legislative
enactment as will protect the public health and safety.”68
While
some may reject this proposition as trumped by the liberty
interests associated with human cloning, the Court prophetically
addressed this issue when it stated, “but the liberty secured by
the Constitution of the United States to every person within its
jurisdiction does not import an absolute right in each person to
be, at all times and in all circumstances, wholly freed from
restraint. There are manifold restraints to which every person
is necessarily subject for the common good.”69
The uncertainties
associated with human cloning, and even ART for that matter,
represent a threat to our Nation’s genetic health that can and
should be addressed in a reasonable manner consistent with the
principles of Jacobson.
Further, even if the Court refuses to consider this issue
under Jacobson directly, Jacobson should play a role in defining
the extent of any privacy right associated with human cloning.
The Court has expressly permitted infringement of certain
privacy rights where the state’s interest in both the health of
the mother and potential life are sufficient to justify such an
infringement. The Court first addressed this issue in Roe v.
Wade when it created a sliding regulatory scale that permitted
the government to exert control over abortions during the second
and third trimesters of a pregnancy. While the Court
acknowledged that its decision was effectively legalizing
abortion, it specifically noted that there are “important state
interests in the areas of health and medical standards,”70
a
statement that harkens back to the Jacobson decision. Further
support for the notion that public health may justify infringing
on privacy rights can be found in the Courts explanation for why
the right to an abortion is qualified under the Roe holding.
Specifically, the Court stated that the, “prevalence of high
mortality rates at illegal abortion mills strengthens rather
than weakens the states’ interest in regulating conditions under
67
Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905).
68
Id.
69
Id. at 26.
70
Roe v. Wade, 410 U.S. 113, 149 (1973).

16. which abortions are performed.”71
The privacy right established
in Roe was not absolute and paid homage to Jacobson when it
stated that “the Court has refused to recognize an unlimited
right of this kind in the past” with specific reference to
Jacobson as justification for this limitation. The State’s role
in protecting the health of the mother as well as potential life
was reiterated in Planned Parenthood of Southeastern Pa. v.
Casey when the Court stated “the very notion that the State has
a substantial interest in potential life leads to the conclusion
that not all regulations must be deemed unwarranted.”72
The
health concerns that would justify a states’ intervention based
on the holdings in Jacobson, Roe, and Casey are implicated by
what we currently know about cloning technology and the effects
of ART generally.
1. Known Health Affects Associated with Cloning
In 1997, NBAC reviewed the technology of somatic cell
nuclear transfer cloning and determined that the technique was
not safe for use in humans. The Commission stated that current
scientific information indicates that this technique is not safe
for use in humans at this time”73
and that “it would violate
important ethical obligations were clinicians and researchers to
attempt to create a child using these particular technologies,
which are likely to involve unacceptable risks to the fetus and
/or potential child.”74
The scientific concerns associated with
this technology dealt with the low success rates of this
technology and the scientific uncertainties associated with this
technology.
The birth of Dolly the lamb was the sole successful birth
out of 277 attempts. Specifically, the scientists were able to
successfully fuse a mammary gland nuclei and enucleated oocytes
developed to the blastocyst stage in 29 of 277 attempts (11
percent). Of the 29 successful fusions, only one (3 percent)
developed into the lamb we now know as Dolly.75
Overall, the
success rate of this effort was .36 percent. These extremely
low success rates were coupled with many unknowns that caused
the commission serious concern including: the ability to
successfully replicate the experiment; the ability to
successfully use this technology in other species; the impact of
71
Id. at 150.
72
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 876 (1992).
73
Cloning Human Beings: Report and Recommendations of the National Bioethics Advisory Commission, 108
(1997).
74
Id.
75
Id. at 22

17. this technology on genetic imprinting and the future development
of the clone; the impact of this technology on cellular aging;
and the increased risk of disease as a result of mutations that
accumulated in somatic cells.76
Since the birth of Dolly, the scientific community has
generated significant amounts of evidence that support the
concerns expressed by the Commission in 1997. The concerns
expressed about premature aging and related health risks reached
fruition in February 2003 was raised when the first cloned sheep
Dolly was euthanized at the age of 6 after a veterinary
examination confirmed that the sheep had contracted a lung
disease common in sheep twice her age. This diagnosis followed
the January 2002 announcement that Dolly was suffering from
arthritis, again a condition expected in older sheep. The
anecdotal evidence raises concerns that cloning may be linked to
premature aging. Dr. Patrick Dixon, a human cloning expert
stated “the greatest worry many scientists have is that human
clones, even if they don’t have monstrous abnormalities in the
womb, will need hip replacements in their teenage years and
perhaps develop senile dementia by their 20th
birthday.”77
The efficacy of utilizing this technology in other species
was questioned in an April 4, 2003 article addressing the
limited success rates in other species. Dr. Rudolf Jaenisch from
the Whitehead Institute for Biomedical Research explained that
low success rates are due to faulty programming in cloning that
is caused by the inability of a clone to activate certain genes
necessary for early development. While these genes are
typically active in a normally developing embryo, they have been
long dormant in the adult cells used in somatic cell nuclear
transfer cloning.78
The application of this technology was
further questioned with the announcement that efforts to clone
non-human primates had met with failure because “cloning robs an
embryo of key proteins that allow a cell to divvy up chromosomes
and divide properly.”79
The results of these efforts were far
worse than the results that produced Dolly. Of the more than
700 experiments only 33 produced embryos that were implanted
into female monkeys and none of these embryos resulted in a
pregnancy.80
Finally, recent attempts to successfully clone
bantengs, a rare breed of cattle, resulted in euthanasia for one
76
Id. at 22-24.
77
First Cloned Sheep Dolly Dies at 6, CNN.com, (February 2003), at
http://www.cnn.com/2003/WORLD/europe/02/14/cloned.dolly.dies. .
78
Jacqueline Stenson, New Data Shed Light on Why Cloning Often Fails, Reuters Health, Apr. 2003.
79
Gretchen Vogel, Misguided Chromosomes Foil Primate Cloning, Science, 225-26, (Apr. 2003).
80
US Researchers Highlight Problems in Cloning Humans, Yahoo! News, (Apr. 2003).

18. of the resulting calves. One of the cloned pair of bantang
calves was born twice the normal size (40 pounds versus 80
pounds), a common cause of death in cloned animals.81
A
representative of Advanced Cell Technologies, the company
responsible for the cloning, acknowledges that “cloning is
fraught with problems and the calf’s abnormalities did not come
as a surprise.”82
ACT further confirmed that cloning often leads
to “abnormal placentas resulting in lager than normal newborns,
fatal heart conditions, and potential organ failure.”83
Successful mammalian clones have been fraught with chronic
health problems including: “larger than normal fetuses, a high
incidence of still birth and Caesarian section deliveries, a
high incidence of developmental disabilities including heart and
circulatory problems, underdeveloped lungs, and immune system
problems that result in premature death, and lower resistance to
disease, and faster aging processes.”84
Federal, state, and
local public health agencies expend billions of dollars annually
research, prevent, and control the very disease apparently
inherent to the mammalian cloning process. It seems
inconceivable that this government could support an endeavor
like cloning that could result in the type of morbidity and
mortality that public health officials fight on a daily basis.
The prospects these abnormalities implicate the very concerns
that resulted in the Court’s Jacobson decision and the caveats
attached to a woman’s right to an abortion in Roe and Casey.
While some may argue that a replication of these results in
human cloning may be speculative, current studies addressing the
long-term health affects of ART demonstrate that these
technologies do pose a significant risk to the children born of
it.
2. Health Risks Associated with ART
ART studies have generally found that ART infants suffer
more complications than the general population.85
These
complications include low birth weight,86
multiple birth
81
Maggie Fox, Scientists Euthanize Cloned baby Bantang, Yahoo! News, (Apr. 2003).
82
Id.
83
Id.
84
Cloning Issues: Hearing Before the Senate Comm. On Commerce, Science, and Transportation, 107th
Cong.
(May 2, 2001)(statement of Robert A Best, President, Culture of Life Foundation)
85
See generally, Dahlquist B. Stromberg, Neurological Sequelae In Children Born After In-Vitro Fertilization: A
Population based Study, Lancet, 359, 451-65, (2002)
86
See generally, Meikle Schieve, Low and Very Low Birth Weight in Infants Conceived with Use of
AssistedRreproductive Technology, New Engl. J. Med., 346, 731-37 (2202).

19. defects,87
and higher perinatal mortality associated with
multiple pregnancies.88
Further, a number of the health risks
currently associated with cloning have been observed in ART
including abnormalities in fetal and neonatal development,
oversized offspring, and prolonged pregnancies.89
The ART
studies conducted on the health affects of ART on offspring seem
to mirror the problems that affect animal cloning activities.
Further, there is concern that children produced through ART may
have epigenetic90
risks that are higher than non-ART children.
These risks can potentially lead to altered fetal development
and increased health risks later in life.91
Similar problems
have been observed in cloning experiments.92
3. Health Affects of ART on Women
While not studied extensively, there is some data that
suggest participating in ART may have some negative long-term
health consequences for the women as well as the offspring. ART
procedures place women at increased risk for ovarian
hyperstimulation syndrome which may have severe side affects
that include stroke, cerebovascular accident, tension ascites,
ovarian torsion, adult respiratory distress disorder, venous and
arterial thromboembolism, peripheral gangrene, hypercoagulation,
and serious impairment of liver or renal functions.93
Further,
there are indications that ovulation induction agents may be
associated with significant bone loss and may increase the
women’s risk for osteoporosis later in life.94
There are also
concerns associated with the instruments used to facilitate the
ART process. The surgical procedures may contribute to an
increased risk of pelvic infections, assorted complications
related to the use of anesthesia, and rare visceral, vascular,
and ovarian injuries that could result in death.95
While these
complications are rare and studies of these complications have
been limited, it is clear that women with ART–related
pregnancies experience poor outcomes more often than unassisted
87
See generally, Kurinczuk Hansen, The Risk of Major Birth defects After Intracytoplasmic Sperm Injection and In
Vitro Fertilization, New Engl. J. Med., 346, 725-30 (2202).
88
See generally, A.P. Murdoch, How Many Embryos Should be Transferred?, Hum. Reprod., 16, 1588-91 (1998).
89
See generally, Brian Dale, Development of the Human Embryo In Vitro, Hum. Reprod. 13, Supp. 4, (1998).
90
See generally, M.De. Rycke, Epigentic Risks related to Assisted Reproductive Tecnologies, Hum. Repro. 17,
2487 (2002)(defining epigenetics as the phenomenah where modifications of DNA methylation and/or chromatin
structure underlie changes in gene expression and phenotype).
91
Id.
92
Id. at 2490.
93
Julia Shelley, Long Term Effects on Women of Assisted Reproduction, International Journal of Technology
Assessment in Health Care, 15:1, 36, 37 (1999).
94
Id.
95
Id. at 38.

20. pregnancies. These complications include spontaneous abortion
rates of over 20%, ectopic and heterotopic pregnancy rates of 3%
- 5% and .5% - 1.2% respectively, higher than normal fetal death
rates, higher than normal neonatal death rates, and higher than
normal pre-term deliveries, and caesarian delivery rates almost
double that for unassisted pregnancies.96
While these data are
not conclusive and there is clearly a need for further research,
there does appear to be an increased risk of poor health
outcomes for women who utilize ART. It is clear that utilizing
reproductive technology does result in increased health risks
for woman. There is no reason to believe that similar risks
would not be associated with human.
4. Legitimacy of Exerting Control over Cloning
The current status of cloning presents significant enough
risks to potential life to justify government infringement on
that right. The significantly low success rates coupled with
the typically poor offspring outcomes represent the type of
health issues that is appropriately addressed by the
legislature. States, “subsequent to viability, in promoting its
interest in the potentiality of human life may, if it chooses,
regulate and even proscribe, abortion”97
than it seems logical
and reasonable for states to “regulate and even proscribe”
procedures that present an unreasonable level of harm to
potential life. The level of harm is further bolstered by the
limited ART data that demonstrates the dangers associated with
reproductive technology not only to the offspring but also to
the mothers. In Roe, the Court discussed the need to regulate
abortion given the nature of the adverse health consequences
associated with an unregulated abortion industry. Arguably, the
Court would face a similar situation here where there are
increased risks of poor health outcomes for mothers and little
to no regulation over the ART (and potentially the human
cloning) industry.
Finally, while there is no data available on this issue, it
is possible that ART and human cloning could affect the genetic
stability of the offspring produced as a result of this
technology. The unanswered questions are: What occurs
genetically later in life when these individuals begin to
reproduce naturally of otherwise? Is it possible that genetic
defects resulting from cloning will be transmitted to their
offspring? Will these defects eventually undermine the genetic
96
Id. at 38-40.
97
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 879 (1992).

21. stability of the population as a whole? While specific answers
to these questions are unknown, a ban on human cloning appears
to find support in Jacobson when it stated, “Real liberty for
all could not exist under the operation of a principle which
recognizes the right of each individual person to use his own,
whether in respect to his person or property, regardless of the
injury that may be done to others.”98
The significant potential
harm human cloning presents to the mother, the potential life,
and the general population far outweigh whatever liberty
interests may be implicated by this technology. Public and
individual health together justifies proscription of this
technology by the government.
ii. Unethical Experimentation
In support of thee arguments are serious ethical concerns
related to ART and human cloning technology. In a review of the
safety issues associated with ART, Raymond Lambert observed that
“during the 1980s the transfer of multiple IVF embryos was
common accepted practice in medical practice”99
despite the fact
that the detrimental health consequences of pregnancies
resulting from the transfer of several IVF embryos was well
documented. Examining this issue retrospective, Lambert
concludes that this practice should never have “reached Phase I
in the clinical trials, much less become a widely accepted
medical practice.”100
This conclusion is based on the ethical
principles contained within the Nuremburg Code and the
Declaration of Helsinki supporting respect for “human dignity as
a moral imperative by using experimental or novel treatments
only if adequate safety has been documented.”101
Lambert
specifically cites articles 10 and 11 of the code that state,
(10) “It is the duty of the physician in medical research to
protect the life, health, privacy, and dignity of human
subjects. (11) Medical research involving human subjects must
conform to generally accepted scientific principles, be based on
a thorough knowledge of scientific literature, other relevant
sources of information, and on adequate laboratory and where
appropriate, animal experimentation.”102
NBAC initiated its discussion of the ethical implications
of cloning with the same sort of discussion focusing on adhering
to the Nuremburg Code and avoiding a violation of the first
98
Jacobson at 26.
99
Raymond D. Lambert, Safety Issues in Assisted Reproductive Technology, Hum. Repro. 17, 3011, 3013 (2002).
100
Id.
101
Id.
102
Id. (quoting the Declaration of Helsinki (2000))

22. canon of the Hippocratic oath which is to “first do no harm.”
NBAC stated that the “burden of proof to justify such and
experimental and potentially dangerous technique falls on those
who would carry out the experiment.”103
As discussed above, the
driving force behind this pronouncement were the health risks
associated with the technology. NBAC specifically expressed
concern over the “risk of hormonal manipulation in the egg
donor; multiple miscarriages in the birth mother; and possibly
severe developmental abnormalities in any resulting child.”104
These ethical arguments draw some strong parallels to the
Court decisions discussed above. The Jacobson, Roe, and Casey
decisions all seek to strike a balance between fundamental
rights and the government’s interest in protecting the health of
the mother and prospective life. The ethical positions opposing
human cloning strike the same balance in support of the
conclusion that human cloning should be banned. There is a
synergy between the law and ethics that the Court should
acknowledge and adhere to in this circumstance.
iii. Perversion of Basic Human Relationships
As discussed above, the Court has demonstrated a
traditional willingness to protect sanctity of marriage, family,
and procreation. If it is to adhere to this tradition, the
Court must acknowledge that human cloning represents an anathema
to these social ideals. Human cloning eliminates the need to
establish a family through marriage and procreation – societal
ideals that individuals in our society continue to strive for
today. The nature of human sexuality and its relationship to
marriage and family would be severely diminished in a world
where cloning becomes the norm. Women and men would no longer
need to join together in that noble union of marriage. The
connection between sexuality and reproduction would be
eliminated in favor of asexual replication. Further, the
weakening of familial and societal bonds would further
jeopardize the notion of family, an ideal under attack for a
half century. As Robert Best noted, “human cloning would weaken
and even pervert basic human relationships such as family,
fatherhood and motherhood, consanguinity, and kinship.”105
If
human cloning were allowed, “a woman can be the twin sister of
her mother, lack a biological father and be the daughter of her
103
Cloning Human Beings: Report and Recommendations of the National Bioethics Advisory Commission, 64
(1997).
104
Id.
105
Cloning Issues: Hearing before the Senate Commerce, Science, and Transportation Subcomm. on Science,
Technology, and Space, 107th
Cong. (2001)(statement of Robert A Best, President, Culture of Life Foundation).

23. grandmother.”106
The Court must recognize what Justice Jackson
prophetically commented on in his Skinner concurrence when he
stated, “the present plan to sterilize the individual in pursuit
of a eugenic plan to eliminate from the race characteristics
that are only vaguely identified and which in our present state
of knowledge are uncertain as to transmissibility presents other
Constitutional questions of gravity. There are limits to the
extent to which a legislatively represented majority may conduct
biological experiments at the expense of the dignity and
personality and natural powers of a minority.”107
Just as the
Skinner Court opposed the legislative pursuit of eugenics and
biological experiments in Oklahoma, the Court here should uphold
the legislature’s efforts to protect society from similar
experiments that are potentially more dangerous.
Finally, the concerns regarding the threat human cloning
poses to basic human relationships is not a speculative concern.
In fact, the California appeals court has struggled with similar
issues that forecast the challenges facing courts in a future
where human cloning becomes the norm. In Buzzanca v. Buzzanca,
the “resulting detachment between parent and child was
demonstrated as the California courts struggled to determine
where parental rights and obligations resided when a child
conceived through the anonymous donation of sperm and egg at the
request of an infertile couple who contracted with a surrogate
mother to bear the child and divorced prior to taking custody of
the child.”108
The surrogate disavowed responsibility, the
intended father disclaimed responsibility because he lacked any
biological ties to the child, and while the mother claimed
parental rights, the lower court rejected that claim because she
lacked any biological ties to the child. The “trial court
reached the extraordinary conclusion that Jaycee (the child) had
no lawful parents.”109
The Court of Appeals overturned this
decision holding that the Buzzaancas were the lawful parents as
a result of their agreement with the surrogate and that Mr.
Buzzanca was responsible for child support as the lawful father.
While the Court was able to reach a legal resolution to the
problem, the real issue is what type of relationship, if any,
will this child maintain with a father that has no genetic
relationship to Jaycee and disavowed any legal obligation to the
child. Similar scenarios are likely to test the voracity of the
Court systems as we move further away from natural reproduction
106
Id., (statement of Richard M. Doerflinger, Associate Director, National Conference of Catholic Bishops).
107
Skinner at 546.
108
Cloning Issues: Hearing Before the Senate Comm. On Commerce, Science, and Transportation, 107th
Cong.
(May 2, 2001)(statement of Richard M. Doerflinger, Associate Director, National Conference of Catholic Bishops)
109
Buzzanca v. Buzzanca, 72 Cal.Rptr.2d 280, 282 (Cal.App. 4 Dist. 1998)

24. and toward impersonal reproduction and replication. These
scenarios clearly undermine the traditional societal values of
marriage, family, and procreation that the Court appears to
revere as fundamental building blocks of this society.
iv. The Threat to Individuality
No less of a concern is the impact human cloning could have
on our Nation’s concept of the individual. The Declaration of
independence states that “All men are created equal .. endowed
by their Creator, with certain unalienable rights .. among
[which] are life, liberty, and the pursuit of happiness. While
this document carries little weight in the Judiciary, it clearly
establishes “the definitive statement for the American policy of
the ends of government, of the necessary conditions for the
legitimate exercise of political power, and of the sovereignty
of the people who establish the government, and, when
circumstances warrant, may alter or abolish it.”110
This
definitive statement has historical been viewed as one that
holds the individual, and the rights attributed to that
individual, supreme in our society. The supremacy of the
individual is undermined by the very concept of human cloning.
In a world without cloning, “our children begin with a kind of
genetic independence. They replicate neither their father nor
mother. That is a reminder of the independence that we must
eventually grant them and for which it is our duty to prepare
them.”111
While the Founding Fathers could not have anticipated
this technology, they certainly understood the value of the
individual and individual rights. In a sense, this
individuality is a product of our genetic composition, family
and society as we mature, nurture it, and it becomes our grant
of societal power once we accept the duty and responsibilities
that come with the grant.
The prospect of human cloning threatens to undermine the
basic societal right to individuality by increasing the
likelihood of losing the essential freedom to be oneself,
through the imposition of unrealistic expectations on the cloned
individual that may diminish their quality of life.112
A cloned
child would not enter our society with the benefit of genetic
independence, rather the cloned human being would be the product
of a process that permits the donor to control “whether the
110
Encyclopedia of the American Constitution (Leonard W. Levy et al eds., (1986)
111
Cloning Human Beings: Report and Recommendations of the National Bioethics Advisory Commission, 64
(1997)(quoting NBAC testimony submitted by Gilbert Meilaender).
112
Cloning Issues: Hearing Before the Senate Comm. On Commerce, Science, and Transportation, 107th
Cong.
(May 2, 2001)(statement of Robert A Best, President, Culture of Life Foundation)

25. person comes into existence or not; what the person’s genetic
composition will be; what the person’s intelligence and
appearance will be; and the nature of a person’s natural skills
and abilities.”113
The clone, in essence, is the product of its
donors design and no longer owes has the genetic independence
that place it on equal footing with it makers.114
The clone has,
in essence, become a means to an end – instead of a person with
his or her own inherent dignity and independence. This same
attitude, an attitude that turns humans into commodities, lies
at the root of human slavery”115
and threatens the basic
equalities of our society”116
c. A Cloning Ban as the Least Restrictive Alternative
As discussed above, human cloning technology represents a
significant health threat to the mother, the potential life, and
possibly society as a whole. Success rates associated with
animal cloning efforts are extremely low and many animals born
as a result of cloning experiments must be euthanized due to the
health consequences associated with cloning. The Supreme Court
has clearly recognized the need of government to balance
fundamental privacy interests with protecting the health of
woman and potential human beings. The risks associated with
cloning clearly exceed those associated with abortion from a
personal and public health perspective, justifying a ban on
human cloning.
In addition to the health risks, there are clear ethical
and moral reasons for banning human cloning. Attempts to
produce a human clone represent a clear violation of the
standards we abide by with regards to human experimentation.
Again, the health risks associated with this procedure clearly
outweigh any potential benefits we could attribute to human
cloning. Further this technology presents a significant risk to
some of the basic philosophies upon which we established our
society. Human cloning would undermine the societal values of
marriage, family, and procreation by permitting the replication
of human beings without the benefit of man and woman. Cloning
threatens to confuse and undermine familial ties that bind us
113
Cloning Issues: Hearing Before the Senate Comm. On Commerce, Science, and Transportation, 107th
Cong.
(May 2, 2001)(statement of Robert A Best, President, Culture of Life Foundation)
114
Cloning Issues: Hearing Before the Senate Comm. On Commerce, Science, and Transportation, 107th
Cong.
(May 2, 2001)(statement of Leon R. Kass, M.D., Ph.D., Professor, University of Chicago)
115
Cloning Issues: Hearing Before the Senate Comm. On Commerce, Science, and Transportation, 107th
Cong.
(May 2, 2001)(statement of Richard M. Doerflinger, Associate Director, National Conference of Catholic Bishops)
116
Cloning Issues: Hearing Before the Senate Comm. On Commerce, Science, and Transportation, 107th
Cong.
(May 2, 2001)(statement of Robert A Best, President, Culture of Life Foundation)

26. together and serve as a unifying force in this society. Even
now, reproductive technology is calling into question parental
responsibilities and rights. Human cloning will only serve to
confuse these issues even more and divorce the child from a
critical component of their development – a stable, nurturing
family. Finally, human cloning threatens to undermine the
essence on individuality. Individuality is a cornerstone of
this society and that cornerstone is supported with every unique
child born in this country. Human cloning would undermine that
individuality and, as a result, undermine the cornerstone of our
society. The risks associated with human cloning to health,
family relations, and the individuality of our citizens support
the legitimacy of a legislative ban on human cloning as the
least restrictive approach to protecting our citizens and our
society.
CONCLUSION
The birth of Dolly presents our society with some serious
questions concerning human cloning, reproductive rights, and
fundamental freedoms. It is clear that human cloning was never
an issue considered by the Founding Fathers as a fundamental
freedom. Nor does an historical examination of the issue
demonstrate that human cloning is so fundamental to this society
that an infringement of it would undermine our basic freedom.
In fact, the relatively short history associated with human
cloning demonstrates a broad based, almost universal rejection
of the view that human cloning is a critical component of our
society domestically or globally internationally.
Those who assert that human cloning is somehow encompassed
within a zone of fundamental reproductive freedoms exaggerate
the existing case law and fail to acknowledge the Courts
inherent concern about breaking new ground in the area of
substantive due process. Recent Court decisions demonstrate a
strong hesitancy to expand the fundamental privacy rights
associated with the Due Process Clause unless there is a
compelling reason to do so. Further, the Court decisions
related to reproductive rights focus on relatively narrow issues
with no indication that the Court’s intentions were to establish
an umbrella of fundamental privacy rights under which all
“reproductive” activities are protected as fundamental rights.
The general presumption is human cloning is sufficiently similar
to reproduction to warrant protection. Such a presumption
relies on the connection between ART and cloning. The analysis
presumes that because individuals have the fundamental right to
procreate, they, therefore, have the fundamental right to

27. procreate via ART, and, by default, this right extends to human
cloning. These presumptions ignore the fact that the Court has
never ruled on extending fundamental privacy rights to include
ART. Further, the presumption that human cloning is a natural
extension of ART is equally problematic given the inherent
reproductive versus replicative characteristics that distinguish
the two procedures. The generally hesitancy of the Court to
extend fundamental privacy rights coupled with the tenuous
relationship between reproduction and human cloning present
significant legal obstacles to the establishment of human
cloning as a fundamental right.
Further, even if the Court chooses to connect the dots of
“reproductive rights” in a manner consistent with the logic
espoused by cloning advocates, the existing case law that serves
as the umbrella for “reproductive rights” provides the
government with the clear ability to infringe upon these rights
to protect the health of the mother, potential human life and
societal health. The clear and undisputed risks associated with
this technology present the government with ample justification
for enacting a ban on human cloning. Beyond the health risks,
human cloning presents a clear threat to basic societal goods
(family, marriage, reproduction, individuality) that the Court
has long sought to protect in its rulings on fundamental privacy
rights. The threat to these ideals provides added justification
for infringing on such a right. In the end, a ban on human
cloning will withstand judicial scrutiny at every level.