HUMAN CLONING

Helena Pereira de Melo

Helena.melo@fd.unl.pt

March 2014

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RICHARD DAWKINS:

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RICHARD DAWKINS:

“My feeling is founded on pure curiosity. I know how I turned out, having been born in the 1940’s, schooled in the 1950’s, come of age in the 1960’s, and so on. I find it a personally riveting thought that I could watch a small copy of myself, 50 years younger, nurtured through the early decades of the 21st century. Mightn’t it feel almost like turning back your personal clock 50 years?”.

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“If, one of these days, someone asks a physician to have his clone born, before or after his own death, how can we not fulfill his desire?”

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Death is overwhelmed by:

• Sexual reproduction – genetic information is inherited by each generation, but biodiversity is assured;

• Asexual reproduction – the creation of a new life from a single parent – the same individual genome is transmitted to offspring, until the end of times.

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Is this kind of immortality acceptable from a legal point of view?

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What is cloning?

Which are the applications of cloning?

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Cloning: producing genetically identical individuals (cells, tissues, animals, plants…) by a form of asexual reproduction.

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Ways to produce genetically identical animals:

a) Embryo splitting;

b) Nuclear transfer.

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Embryo splitting:

a) physically separating the cluster of cells derived from a single fertilized egg into 2 or more parts;

b) it occurs spontaneously in our species, to produce “identical” twins;

c) it supposes a mother and a father;

d) you can only obtain 4 genetically identical individuals.

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Nuclear transfer:

a) never occurs spontaneously in mammals;

b) produces thousands of copies of genetically identical individuals;

c) the nucleus of an unfertilized egg is removed, and replaced by a nucleus of a somatic cell, and this reconstructed egg is stimulated to start developing as an embryo;

d) can be done with the genetic material of 1 individual.

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The history of cloning:

a) Embryo splitting;

b) Nuclear transfer.

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a) Embryo splitting:

a) monozygotic twins have always existed;b) artificially done in the last 50 years with

frogs, rabbits, sheep, cows and human embryos;

c) in 1993, JERRY HALL and ROBERT STILLMAN of George Washington University, splitted 17 nonviable human embryos in 48 embryos, some of which survived in vitro 6 days.

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b) Nuclear transfer cloning:

a) commonplace in the plant breeding world;

b) in the animal breeding world – preformed in frogs, sheep, mice, cows and monkeys;

c) Megan and Morag, Welsh Mountain sheep were born in 1996 at Roslin Institute – the first clones from differentied embryo cells.

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Megan and Morag:

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1996 – Dolly is born:

• cloned from the mammary cells of an adult female;

• Scottish;

• had no father;

• was a twin sister of her biological mother;

• mother of a lamb, named Bobby.22

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She had 3 mothers:

a) the ewe which gave the somatic cell;b) the ewe which gave the enucleated egg;c) a surrogate mother (a Scottish Blackface).

Dolly was the first mammal to be cloned from an adult cell, since she was genetically identical to the donor ewe.

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1996 - 2014:

a) Meng and Wolf clone monkeys from embryonic cell nuclei;

b) Wakayama clones mice from adult cell nuclei;

c) Wells clones cows from adult cell nuclei;

d) Severino Antinori proposes to reproductively clone humans.

When shall humans be cloned?

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Dr. Antinori and Dr Panos Zavos:

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Prof. Grahame Bulfield

Human cloning:• technically possible – “in

principle, what we can do with one mammal we can do with another”;

• “the only barrier to cloning is the political and ethical barrier”.

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Is human cloning ethically and legally acceptable?

Dolly’s cloning lead to the discussion of human cloning.

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We have to consider:

a) Non-human animal cloning;

b) Human cloning.

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a) Non-human animal cloning:

a) is useful for the treatment of human diseases;

b) allows the serial production of genetically engineered animals that can be used as animal “donors” for xenotransplantation;

c) allows to expand the n.º of chosen livestock, so that we can have more and better food.

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Ex.:

a) Polly, a transgenic sheep that has a human gene in every cell of her body, and produces proteins that can be used as medicine in her milk;

b) Pigs are genetically engineered in order to became source animals for xenografts.

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Polly, the sheep:

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Questions:

• How many human genes must a lamb or a pig have in order to be a juridical person?

• Which are the risks of the disappearance of the barriers among species?

• Which are the consequences of cloning in biodiversity? – all clones shall be affected by the same infections that may kill them all.

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Chimera:

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Animal cloning is not forbidden:

• it is very important for medical progress;

• if the legal principals that rule animal research are respected and animal welfare preserved.

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Why should we clone sheep if they are so similar to each other?

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Why should we clone human beings if they are so similar to each other, the sheep would ask.

Why should we clone or not clone human beings?

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For cloning:

a) it is important for medical research, allowing a better understanding of human development;

b) therapeutic cloning is useful for the treatment of diseases like cancer and Parkinson.

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Reproductive cloning:a) embryo splitting raises the n.º of embryos

available for womb implantation, and so it will not be necessary to repeat in case of failure, medical treatment in infertile women;

b) allows us to perform pre-implantation diagnosis in one embryo and to implant the other if the first embryo is healthy;

c) allows us to have identical twins that are born in different years.

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It allows:

d) a grown up person to have an identical twin that he should rise as if it were his own child;

e) a couple with a genetic disease to have a child only with the genome of the healthy member;

f) the enlargement of the reproductive options available for humans;

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g) the resurrection of the dead, cloning them from cells that were kept in laboratories.

h) to settle the old-age nature-nurture dispute by creating clones and raising them systematically in different environments.

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To produce:

i) embryos for allotransplantion in case we needed an organ;

j) embryos to replace a child in case she/he dies;

k) hundreds of copies of genetically superior persons;

l) clones to give or to sell multiples of chosen human beings.

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The clone would be “unique” since:

a) identical twins have different personalities;

b) the genome determinates only a part of human identity, being also important factors as the place and time of birth, the culture where one lives and the family to which one belongs.

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c) if clone and cloned had a very large age difference they might not even recognize each other;

d) it is better for the child to be born as a clone than not being born at all;

e) as we got used to single mothers and fathers we shall get used to families with clones.

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On the other side of the mirror:

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Cloning is ethically unacceptable:

a) it violates the respect for the dignity of the human being;

b) embryo splitting reduces the size of each embryo and might damage it;

c) nothing is known about the health or disease of cloned people;

d) a manufacturing error might affect several generations of clones and have unforeseen consequences.

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e) it reduces biodiversity;

f) it represents one more step in the progressive dissociation between sexuality and reproduction;

g) the serial production of human beings violates the quality that each human being has of being unique and irreplaceable.

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The deliberate creation of the clone:

a) he is treated as an object, chosen accordingly to the tastes of the person who ordered him, as a car or a boat are chosen;

b) allows the production of human beings with a pre-determined genome, as aimed by the proponents of eugenics.

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c) the production of a child for egoistic proposes – Jacques Testard: “je préfère l’enfant que serait issu de moi seul à celui procrée avec un partenaire; ou, pour le dire moins durement: ce que j’aime dans mon enfant, c’est moi”;

d) the person would be less respected because she could be easily replaced;

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e) the distinction between human beings of “1st class” and of “2nd class” since a copy is less valuable than the original;

f) the violation of the dignity of the clone, who has been produced as a copy;

g) the offense of the futures generations rights, since they have not consented in being born as clones;

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g) the weakening of social relations, in particular of family relations;

h) the commercial use of cloning, with catalogues that have a list of human beings available for cloning, with a different price for different features.

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The clone would:

• feel he was manufactured;

• be reared up to act as the copied person;

• be regarded as an object.

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What are the legal national and international rules for human reproductive cloning?

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UNESCO:

Universal Declaration on the Human Genome and Human Rights of 11 November 1997: “Practices which are contrary to human dignity, such as reproductive cloning of human beings, shall not be permitted”.

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WHO:

Resolution adopted in 14 May 1997, on the 50th World Health Assembly: “the use of cloning for the replication of human individuals is ethically unacceptable and contrary to human integrity and morality”.

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UN’s Declaration on Human Cloning:

• General Assembly’s Resolution of 8 March 2005;

• invites Member States to forbid all kinds of human cloning that are “incompatible with human dignity and the protection of human life”.

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Council of Europe:

a) Recommendation 1046 (1986) on the use of human embryos and foetuses for diagnostic, therapeutic, scientific, industrial and commercial purposes;

b) Principles on human artificial procreation (1989);

c) Additional protocol to the CHRB, on the prohibition of cloning human beings (1998).

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Recommendation 1046.º and the Principles:

Call on the governments of the member states to forbid “the creation of identical human beings by cloning or any other method, whether for race selection purposes or not”.

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Additional protocol to CHRB:

Art. 1.º prohibits “any intervention seeking to create a human being genetically identical to another human being, whether living or dead”, meaning “genetically identical” the fact that they share “the same nuclear gene set”.

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European Union:

a) European Parliament;

b) European Commission;

c) European Council of Amsterdam.

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a) European Parliament:

a) Resolution on the Ethical and Legal Problems of Genetic Engineering (1989) – “criminal penalties are the only possible reaction against human cloning”;

b) Resolution on Cloning (1997) – “call each Member State to enact binding legislation prohibiting all research into any kind of human cloning within its territory”.

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c) Resolution on artificial insemination “in vivo” and “in vitro” of 16 March 1989;

d) Resolution of 28 October 1993 on the cloning of the human embryo;

e) Resolution of January 1998 on human cloning;

f) Resolution of 7 September 2000 on human cloning.

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Directive 98/44/EC of the European Parliament and of the Council:

• of 6 July 1998 on the legal protection of biotechnological inventions;

• art. 6.º - the processes for cloning human beings are considered unpatentable since their commercial exploitation would be “contrary to ordre public or morality”.

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b) European Commission:

• JACQUES SANTER – requests in February 1997 an opinion to the Group of Advisers on the Ethical Implications of Biotechnology to the European Commission;

• Opinion issued in May 1997 – considerations of instrumentalization and eugenics render any attempt to produce a human individual by nuclear transfer unacceptable.

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c) The European Council of Amsterdam:

• 16 and 17 June 1997;

• Declaration on the banning of human cloning – “all Member States wish to adopt the measures that are necessary to prohibit human cloning”.

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Charter of Fundamental Rights of the European Union:

• proclaimed in December 2000;

• art. 3.º - prohibits the reproductive cloning of human beings.

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Portugal:

a) National Council of Ethics for the Life Sciences;

b) Constitutional Law n.º 1/97, of 20 September – approved the 4th alteration to the Portuguese Constitution of 1976;

c) Lei n.º 32/2006, de 26 de Julho sobre Procriação Medicamente Assistida.

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a) National Council of Ethics for the Life Sciences:

“Human cloning for reproductive purposes should be prohibited because it constitutes a violation of human dignity” (Opinion n.º 48/CNECV/06).

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b) Constitutional Law N.º 1/97:

alters art. 26.º - “The law shall guarantee the personal dignity and genetic identity of the human person, particularly in the creation, development and use of technologies and in scientific experimentation”.

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c) Law n.º 235/2006:

• art. 7.º - prohibits human reproductive cloning that aims at creating genetically identical human beings;

• art. 36.º - punishes it with imprisonment from 1 to 5 years.

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Resolution of the National Parliament n.º 1/2001, of 3 January:

ratifies CE’s additional protocol to the CHRB with regard to the application of Biology and Medicine, on the prohibition of cloning human beings.

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Spain:

a) Ley 14/2006, de 28 de mayo, sobre técnicas de reproducción humana asistida – “reproductive cloning by nuclear transfer is a very serious infraction” (art. 26);

b) Penal Code – punishes “the creation of identical human beings by cloning or other methods that aim at racial selection” (art. 161, n.º 2).

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Belgium:

• Loi relative à la recherche sur les embryons in vitro du 11 mai 2003;

• prohibits human reproductive cloning (art. 6);

• the breach of the law is punished with imprisonment (5 years) and or fine (10 000 Euros).

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Italy:

• Legge 19 febbraio 2004, norme in materia di procreazione medicalmente assistita;

• art. 13.º - human reproductive cloning is prohibited and punished with fine and imprisonment.

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France:

a) Loi n.º 2004-800 du 6 août 2004 relative à la bioéthique;

b) Opinion of the Comité Consultatif National D’Éthique pour les Sciences de la Vie et de la Santé.

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Loi n.º 2004-800:

• art. 16-4 of Code civil – “any intervention that aims at creating an human being genetically identical to another human being alive or dead is prohibited”;

• art. 214-2 of Code pénale – the breach of the law is punished with prison (30 years) and a fine (75 00000 Euros);

• art. L. 611-18 of Code de la propriété intelectuelle - the processes for cloning human beings are unpatentable.

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CCNE:

“Such a practice, which imperils radically the autonomy and dignity of the human person, would be a grave moral regression in the history of civilisation. (…) it should be legally qualified with a view to an universal ban.”

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United Kingdom:

• Human Reproductive Cloning Act 2001;

• a “person who places in a woman a human embryo which has been created otherwise than by fertilisation is guilty of an offence” and is “liable on conviction on indictment to imprisonment for a term not exceeding 10 years or a fine or both”.

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Human Fertilisation and Embryology Authority:

• keeps under review information about embryos and authorises embryo research;

• authorised in 2004, replacing a nucleus of an embryo’s cell with a nucleus taken from another cell.

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Germany:

Law on Embryo Protection (Embryonenschutzgesetz) of December 1990 – “any intervention seeking to create a human being genetically identical to another human being, whether living or dead, is prohibited”.

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Greece:

• Law n.º 3089 on medically assisted human reproduction;

• prohibits in article 1455 of the Civil Code “human reproduction with the methods of cloning”.

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Switzerland:

• Loi fédérale relative à la recherche sur les cellules souches embryonnaires, du 19 décembre 2003;

• prohibits the creation of a clone (art. 3);

• the processes for cloning human beings and the human clones are unpatentable since their commercial exploitation would be contrary to ordre public or morality.

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Australia:

• Prohibition of Human Cloning for Reproduction Act 2002;

• prohibits the placing of a human embryo clone in the human body or the body of an animal;

• maximum penalty: imprisonment for 15 years.

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Japan:

• Law Concerning Regulation Relating to Human Cloning Techniques and Other Similar Techniques (2000);

• art. 3 – “No person shall transfer a human somatic clone embryo (…) into a uterus of a human or an animal”.

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Israel:

• prohibition of Genetic Intervention (Human Cloning and Genetic Manipulation of Reproductive Cell) Law n.º 5759-1999;

• a person who performs human reproductive cloning shall be liable to 4 years of imprisonment or a fine.

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Peru:

• Penal Code of April 1991;

• art. 324 – human reproductive cloning is punished with 8 years of imprisonment.

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Brasil:

• Lei n.º 11.105, de 24 de Março de 2005;

• art. 26.º - punishes with imprisonment (maximum 5 years) the realization of human cloning.

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Argentina:

• Decreto 200/97 – Prohíben-se los Experimentos de Clonación Relacionados con Seres Humanos

• art. 1 – forbids human cloning.

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Bill Clinton (1946):

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BILL CLINTON

• human reproductive cloning raises serious ethical questions;

• “each human life is unique, born from a miracle”, and so we must resist the temptation of producing clones – “we’re in the business where people are trying to play God”;

• asked an opinion to the National Bioethics Advisory Commission.

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National Bioethics Advisory Commission (June 1997):

“it is morally unacceptable to attempt to create a child through nuclear transplantation cloning, since available scientific information shows that this technique does not offer the indispensable safety conditions to be used in human beings”.

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Human Cloning Prohibition Act of 2001:

• enacted by the Senate on 26 April 2001;

• any person who performs or attempts to perform human cloning shall be fined or imprisoned not more than 10 years.

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What is the position of the several religions on reproductive human cloning?

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Catholic Church:

a) Instruction on the Respect for Human Life in its Origin and on the Dignity of Procreation (1987);

b) Osservatore Romano (27 February 1997).

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a) Instruction on the Respect for Human Life:

“attempts for obtaining a human being without any connection with sexuality through cloning are to be considered contrary to the moral law, since they are in opposition to the dignity both of human procreation and of the conjugal union”.

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b) Osservatore Romano:

“the human being has the right to be born in a human way and not in a laboratory. It is ethically desirable that the national governments adopt laws that forbid the cloning of human beings”.

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Buddhism:

“What did Dolly do in a previous life that determined that she was cloned?” (Donald Lopez)

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The Muslim Church:

Cloning is ethically acceptable since it represents a progress in the better knowledge of nature by man.

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In EU almost everyone agrees that human reproductive cloning is unacceptable from an ethical and legal point of view.

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And if it becomes real?

Shall it alter our understanding of what being “human” means?

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The concept of “person”:

• Boethium (480 -525);

• Thomas Aquinas –(1225 - 1274);

• Emmanuel Mounier (1905 – 1950).

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“persona est rationalis naturae individua substantia”

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“what exists in itself and by itself and does not communicate to another”

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“a person is what can not be repeated twice”.

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We may have to rethink what “person” means since:

a) a human being could be easily replaced from a genetic point of view;

b) from a creature created to the image of God – to a free and unique being – to a simple genetic code.

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Cloning would affect our concept of humanity.

Would it affect the respect due to the human being as an end in itself?

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The personal dignity of the human being:

• “Act with reference to every rational human being (whether yourself or another) so that it is an end in itself and never as a mere means” (Kant);

• basic value of European Human Rights Law.

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• CFREU: “Human dignity is inviolable. It must be respected and protected” (art. 1).

• CHRB: “Parties to this Convention shall protect the dignity and identity of all human beings (…)” (art. 1).

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Cloning violates human dignity:

• aims at producing a child whose production is similar to the production of a boat, a car, a house…

• the child is not an end in herself but a means to have a child with certain genetic features.

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It offends the:a) right of every human being to be unique;

b) right to inherit a genetic patrimony that has not been artificially altered;

c) principle of the primacy of the human being – “the interests and welfare of the human being shall prevail over the sole interest of society or science” (art. 2 CHRB).

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After being born what would be the juridical status of a clone in Europe?

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As any other child born in Europe the clone would be:

• a juridical person from birth to death;

• an European citizen that would be “a younger twin” of other European citizen.

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Legal problems:

Family Law

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For instance in Portugal, Spain, France:

• A, a woman, decides to give birth to a clone of B, her deceased father;

• A is the clone’s mother – maternity is a consequence of birth.

Who is the father?

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If A is:

• Married – under common law, a child born to the wife during a marriage is usually presumed to be the husband’s child;

• Single – the clone is a child born out wedlock.

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In this case it is not possible to:

a) legally acknowledge paternity since it is only possible if it is ulterior to fertilization and B died before the clone was produced;

b) ask the court to determine paternity since A is the father of B – incestuous relationship.

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A is a man that wants to produce a clone of himself to raise up as a son. He asks B (a woman) to give birth to the clone.

Who are the clone’s parents?

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The mother is B.

The father is:-B’s husband if she is married to another man;-A if B indicates at birth that the child is his;-A’s father, since the clone is an identical twin of A?

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The clone according to these European legal systems might not have a father.

Is the father his great-grand father?

Is the clone a brother of his father?

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The clone:• is a twin of a different generation of

someone alive or dead;

• his existence would have consequences in the juridical concept of parental relationship as a bond established between 2 individuals since one descends from the other or they both descend from the same person.

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From the questions raised by cloning:

a) The updating of legal rules;

b) To know if clone and cloned are genetically identical;

c) Which is more important – nature or nurture?

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The most important:

The decision to build a society in which a child is built by asexual reproduction – as foreseen in Greek Mythology where Baco was born from Jupiter’s leg.

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After:

• twins being born separately, sometimes with years of difference;

• children being produced to donate tissues in order to heal a sick brother,

Isn’t cloning only one step ahead?158

What is doubtful is:

• not that the clone after birth will be a legal person;

• not that he shall have his human dignity fully respected;

• the way he was designed by Genetics from one single somatic cell.

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Jacques Testard:

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Paris: Éditions Odile Jacob, 1998

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François Roussel:

• is a geneticist that knows how to clone human beings;

• considers that the most important thing in his life is the love he has for his wife, Pauline;

• decides to produce a clone of himself and a clone of Pauline to turn their love eternal;

• places Pauline’s clone in Pauline and his clone in the concierge of the building who was unfertile.

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The clones are born and become adults:

• François dies;

• his clone, Robert, falls in love with his wife, Pauline, and has two children with her;

• Pauline’s clone, Eve, falls in love with a job partner, Bertrand…

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J. L . Borges:

“to give advice or to discuss was not useful, since his unavoidable destiny was to became what he has became”.

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