Bruce J. Robinson

Creating life has been the boogieman of science fiction for over two centuries.[1] Since Mary Shelly first introduced the mad Victor Frankenstein’s desire to create life from lifelessness, we’ve wondered if one day humans could create artificial life or exact replicas of themselves; what horrific Ship of Theseus would such a creation cause?[2] Fearmongering about moral concerns is only a subset of the issues surrounding human cloning. Many legal scholars have also raised the possible constitutional issues arising in relation to human cloning.[3] But, this scholarship is now stale. Science does not stand still, in fact South Korea is well on the way to making human cloning a viable reality, as such legal scholarship must be prepared for the inevitability of human cloning.

Constitutional arguments surrounding reproductive cloning stem from the United States’ tenuous right to privacy.[4] The Due Process and Equal Protection Clauses of the U.S. Constitution provide the backdrop for this right of privacy in its current form.[5] The right of privacy has been used in the past to derive and protect the fundamental right to procreate—among related reproductive and relationship rights.[6] In 2008, Professor Radhika Rao sought to answer the question “what happens to those who lose the ability to reproduce the old-fashioned way?” or “what if they never had that ability to reproduce to begin with?” Do these people lose that fundamental right along with their ability to bear children of their own?[7] Although the Supreme Court has never formally recognized reproductive cloning as a fundamental right, Professor Rao sees the potential for such litigation related to human cloning on the horizon. He surmises reproductive cloning is an extension of the fundamental right to bear children.[8] Thus, under Skinner v. Oklahoma, the Court analyze reproductive cloning laws under the Court’s strict scrutiny framework.[9]

Although Professor Rao did not address the results of such a strict scrutiny analysis, other scholars have. In a 2002 article, Professor Cass Sunstein addressed several arguments against reproductive cloning.[10] Sunstein considers the strongest arguments against human cloning are: (1) protecting the cloned individual from suffering and death; (2) psychological harm to the cloned individual; and (3) exploitation of human clones.[11] Sunstein opined on the possible success of these arguments and concluded that only the first would likely survive a strict scrutiny analysis, concluding unequivocally that clones would live short painful lives—a fact sufficient to kill reproductive cloning under strict scrutiny.

At the time of Sunstein’s writing in 2002, he was probably right because Dolly the Sheep was the only example of a cloned organism that had been closely studied. Dolly lived a short life full of suffering and died at the age of six—only half the life expectancy of the average sheep in captivity.[12] Dolly’s suffering gives credence to Sunstein’s argument that children born from reproductive cloning would suffer a similar fate. This claim would likely be a death knell for any law permitting human reproductive cloning.

The advancement of science in the intervening twenty years, however, demonstrates that Dolly’s suffering was an isolated incident. Following Doll’s premature death, she was cloned again producing a batch of healthy offspring. Whereas Dolly died at six, Dolly’s children were alive and healthy at the age of nine, well into old age by sheep standards.[13]

Dolly’s children are not the only examples of the increased viability of modern cloning. Since Dolly and her progeny, research and testing of reproductive cloning in other livestock species has proven that modern clones are more and more viable. While these modern clones have been found to need increased care in their first week of life, much like a premature baby, after the first week they live completely normal lives, even compared to their non-cloned counterparts.[14]

Science continues its march into the future. Science will inevitability make reproductive cloning as safe and viable as traditional reproduction. When that day comes, constitutional arguments against reproductive cloning will one day be as outdated as the science used to clone Dolly in the first place.

[1] Mary Shelley, Frankenstein 69–77 (Puffin Books 1994) (1818).

[2] The “Ship of Theseus” is a philosophical thought experiment in which over the course of time Theseus slowly replaces every piece of his vessel. The experiment poses the question is this the same ship, or did the replacement of all the component parts make it an entirely new vessel? Perter Worley, The Ship of Theseus, The Phil. Found., (last visited March 21, 2022).

[3] See Generally Elizabeth Price Foley, The Constitutional Implications of Human Cloning, 42 Ariz. L. Rev. 647 (2000).

[4] Griswold v. Conn., 381 U.S. 479, 484–85 (1965); see also Mapp v. Ohio, 367 U.S. 643, 656 (1961).

[5] Cass R. Sunstein, Is there a Constitutional Right to Clone?, 53 Hastings L.J. 987, 989–90 (2002).

[6] Skinner v. Okla., 316 U.S. 535, 541 (1942) (procreation); Loving v. Virginia, 388 U.S. 1, 12 (1967) (interracial marriage); Obergefell v. Hodges, 576 U.S. 644, 664 (2015) (gay marriage).

[7] Radhika Rao, Equal Liberty: Assisted Reproductive Technology and Reproductive Equality, 76 Geo. Wash. L. Rev. 1457, 1478 (2008).

[8] Id.

[9] Skinner, 316 U.S. at 541

[10] Cass R. Sunstein, Is there a Constitutional Right to Clone?, 53 Hastings L.J. 987, 995–97 (2002).

[11] Id. at 995–1001.

[12] Rachel Felman, Dolly the Sheep Died Young – But Her Clones Seem Perfectly Healthy as they Turn 9, Wash. Post (July 26, 2016)

[13] Id.

[14] Cesare Galli & Giovanna Lazzari, Current Application of SCNT in Advanced Breeding and Genome Editing in Livestock, 162 Sco’y of Reprod. And Fertility F23, F26 (2001).

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