Ban Cloning? Why NBAC Is Wrong

Abstract

In its report on cloning, NBAC recommended a ban of unprecedented scope. (1) Based on commission consensus that human cloning would currently be unsafe, NBAC called for congressional prohibition throughout the public and private sectors of all somatic cell nuclear transfer with the intent of creating a child. President Clinton promptly responded by proposing legislation to enact such a ban for five years. NBAC was wrong to urge a ban. Cloning undoubtedly warrants regulation. But the ban proposed will not yield the sort of regulation required. Instead, it will reduce cloning to a political football in Congress, raise serious constitutional problems, and chill important research. NBAC defends its ban as a limited one, prohibiting somatic cell nuclear transfer (not all forms of cloning), when used to create a child (not in research), and for three to five years (not indefinitely). A congressional ban, however, is likely to be far broader. NBAC erred by taking cloning out of context. Like any technology, cloning needs to be safe before used. But that counsels regulation, not a ban, which merely slows development of safe procedures. And cloning demands we deal with issues beyond safety on which NBAC achieved no consensus, issues bound up in the ethics of human experimentation and reproductive technologies. A better approach would extend human subjects protection into the private sphere and regulate reproductive technologies effectively, with a central advisory body for novel issues such as cloning. By failing to tackle private research and reproductive technologies, NBAC avoided the real job and instead proposed an isolated and misguided response to cloning. The Regulatory Challenge Human cloning clearly requires regulation. Indeed, some regulation already applies. President Clinton has barred all federal funds for cloning, covering both research and clinical application. (2) Earlier prohibitions on the use of federal money to create human embryos for research purposes would also impede cloning research with federal funds. (3) And federal regulations protecting human subjects would seem to block cloning in research covered by those regulations because cloning remains unsafe, at least for now) This leaves two regulatory gaps that properly troubled NBAC: private sector research outside federal oversight and private clinical activity, especially infertility programs using reproductive technologies. But by responding to these worries with a congressional ban, NBAC missed the target. Protecting human subjects in private research and regulating reproductive technologies are both long overdue. A ban on cloning just suppresses one technology, while these two systemic problems guarantee the development of other technologies in need of regulation. Some would argue that somatic cell cloning deserves to be singled out as the most threatening possibility. But that assumes a conclusion we have not had time to reach, that Dolly-style cloning raises radically more difficult problems than, for example, cloning by embryo splitting (which can also lead to a delayed twin, with cryopreservation). (5) NBAC admits that protecting human subjects in private research offers advantages over a ban on cloning (pp. 99-100). Yet the commission balks. It first complains that extending human subjects protections requires legislation and thus delay. But Senator John Glenn (Dem., Ohio) has already proposed legislation, (6) and enacting a congressional ban involves delay as well. The commission further complains that human subjects legislation would rely on decentralized institutional review boards (IRBs). But others have suggested creating a national IRB for novel questions, (7) and NBAC ought to be considering this among other improvements in human subjects protection anyway. Moreover, IRBs are actually part of a larger mechanism providing centralized federal agency review when needed. The commission's final objection is that human subjects legislation would not reach beyond research activity to clinical use, as in infertility clinics. …