A Law Professor discusses Cloning and Other Matters

Here is one of several questions on a final exam given law school students in 1997, followed by the professor's notes and comments. I'm not using italics here because plain type is easier to read. Quotations are in blue. LINK here to the source (pdf).

Mary and Joseph, a married couple in their early fifties, are residents of Bethlehem City, which is located in Futura, a state in the United States of America. Last year, their 23 year old daughter, Dolly, a second-year medical student at Futura State University, was in a serious car accident. Dolly sustained severe head injuries as a result of the accident, and was already unconscious when removed from the wreck. Despite the best efforts of the doctors at Bethlehem Medical Center, Dolly has been in a persistent vegetative state for the past year. She survives only with the assistance of respiratory, feeding and hydration tubes, and shows no sign of brain function. Doctors have indicated to Mary and Joseph that Dolly has no prospects whatsoever for recovery, and that the removal of the life-support system currently in place will cause Dolly’s death.

Perhaps due to her interest in medicine, or perhaps due to a natural morbidity, Dolly had the foresight to draft her own “living will” prior to the accident. The will grants Mary and Joseph joint authority “in making any and all decisions regarding medical treatment” on Dolly’s behalf in the event she becomes comatose, “including the decision to terminate life-sustaining treatment.” It is uncontroverted that the “living will” constitutes “clear and convincing” evidence of Dolly’s informed and voluntary wish to delegate authority to her parents regarding the decision to terminate life-sustaining treatment, and that such a conferral of authority is valid under Futura state law.

Grief-stricken at the imminent loss of their only child, Mary and Joseph have been following with considerable interest the rapid advances taking place in the field of human cloning. It seems that over the past five years, several hundred happy, healthy infants have resulted from the process, which involves taking a cell from a living person (so far, these cells have all come from infertile couples seeking to conceive) and slipping the cell into an egg cell whose genetic material has been removed. The emergent embryo, which will be a genetic copy of the adult cell donor, is then transferred to a woman’s womb, where it will develop in the usual fashion until birth.

Despite the controversy that surrounded the initial batch of cloned infants and the continuing opposition of most religious groups to the new technology, the U.S. Congress has thus far declined to ban the practice. Congress has established a limited set of federal guidelines regulating the medical practices and technologies to be used in the cloning of humans, but has otherwise chosen to leave the decision regarding the regulation and/or permissibility of human cloning in the hands of state legislatures. So far, 10 states have instituted an outright ban on the practice; another 10 have no laws at all pertaining to the
practice, while the remaining 30 have a patchwork of regulations with varying degrees of intrusiveness. Medical ethicists remain divided on the issue, but all agree that there is no scientific evidence that the hundred or so “clone babies” currently in existence experience rates of illness, behavioral disorder, psychological difficulty, or abuse at the hands of parents, that are demonstrably higher than children conceived in the traditional fashion.

After careful deliberation and consultation, Mary and Joseph have decided to remove Dolly from life-support. They have also decided that, prior to removing Dolly from life-support, they would like to take a healthy cell from Dolly’s body and have her cloned. They have based their decision in part on the belief that Dolly would want her genetic line continued, and in part on their feeling that a new child will help fill the void cause (sic) by Dolly’s imminent death. (Mary has already experienced menopause, and hence can no longer provide her own eggs for either natural conception or in vitro fertilization;
technology does permit her to carry to term a cloned embryo implanted in her womb.)

Mary’s and Joseph’s decision is also influenced by the fact that prior to the accident, Doily expressed an interest in becoming an infertility specialist, and had stated to her parents on several occasions that she saw nothing ethically wrong with the use of cloning either to help infertile couples conceive, or to facilitate a decision by grieving parents to reproduce a terminally ill infant or child. Dolly shared this view with a number of her friends, who are prepared to testify to that effect.

According to the doctors at Bethlehem Medical, there is nothing related to Dolly’s medical condition that would prevent her from being cloned. Moreover, the technology
required to carry out the procedure already exists in the infertility wing of the hospital. There’s only one problem: Futura is one of the 10 states that has banned human cloning.
According to the hospital’s lawyer, the state defends the ban on the grounds that i) human cloning violates “the sanctity of life and the bonds of family that lie at the very core of our ideals and our society”; ii) human cloning “makes our children objects rather than cherished individuals,” and therefore opens the door to such potential abuses as the cloning of individuals solely for organ harvesting; and iii) children conceived through the cloning process “may experience psychological damage, ostracism or even discrimination as a class, outcomes which the state has an deep interest in preventing.”

Moreover, the hospital lawyer has indicated that even if Mary and Joseph were willing and able to incur the additional expense and risk of transporting Dolly to another state in order to perform the cloning procedure, those states which permit human cloning all require proof of voluntary and informed consent from the individual who is to be cloned. An exception to this consent requirement exists where the individual to be cloned is a terminally ill minor, an exception that does not apply in Dolly’s case. In the hospital lawyer’s view, neither Dolly’s “living will” nor her general statements regarding cloning constitute sufficient proof for the purpose of meeting this consent requirement.

Mary and Joseph come to your law office to discuss their options. Specifically,they ask you to answer the following two questions:

1) First, they would like to know whether the State of Futura’s indiscriminate ban on cloning violates either Dolly’s constitutional rights, or their own constitutional rights, under the “substantive” component of the Fourteenth Amendment’s Due Process Clause. You do not need to arrive at a definitive conclusion regarding these issues. Instead, make the strongest possible argument for each claim, then explore the weaknesses of each claim. Be sure to consider the possibility that Futura’s ban on cloning does in fact encroach on some constitutionally recognized rights, but is nevertheless constitutional.

2) Second, assuming Mary and Joseph decide to transport Dolly to a state that already permits human cloning, they would like to know whether they can mount a successful constitutional challenge to a possible state ruling that neither Dolly’s “living will” nor her general statements regarding cloning are sufficiently indicative of Dolly’s consent to permit the removal of her cells for cloning purposes. In answering this question, assume that under both the common law and statutory law of all states, Dolly’s general statements regarding cloning would not constitute “clear and convincing” evidence of her consent to be cloned, but might be considered evidence of consent under a “preponderance of the evidence” (that is, a “more likely than not”) standard.

When the exam was completed the professor's memo to his students [LINK here to the source (pdf)] included the following remarks:

One way to approach this question is to first consider whether Futura’s ban on cloning would violate the constitutional rights of Dolly if she were competent and decided to reproduce herself through cloning. If the answer is yes, then Futura’s outright ban would presumably be struck down, and we can move to the narrower question of whether consent requirements of the sort instituted in those states that permit cloning are also unconstitutional.

As most of you recognized, whether a decision to clone one’s self is constitutionally protected from government intrusion largely depends on whether such a decision falls within the ambit of “fundamental” rights recognized by the Supreme Court under the “substantive” prong of the Fourteenth Amendment’s Due Process Clause. There are several related arguments for the “fundamentalness” of the cloning decision.

First, Dolly might argue that a decision to clone herself involves the right to procreate, a right the Court first deemed fundamental in Skinner v. Oklahoma. Skinner involved the selective sterilization of convicts, and hence was decided under the Equal Protection Clause; by definition, Futura’s outright ban on cloning involves no such classifications. Nevertheless, both the language of Skinner and a line of subsequent “right to privacy” cases decided under the Due Process Clause (Griswold, Eisenstadt, Carey, and Roe) all argue for a broad reading of the right at stake: a right to make decisions regarding childbearing free from government interference - at least absent a government showing that such interference is narrowly tailored to serve a compelling government interest. Moreover, although Griswold appeared to rest its opinion on issues of marital privacy and the sanctity of the home, Eisenstadt, Carey and Roe clearly extended the right beyond the boundaries of the home or marital intimacy.

Does cloning fall within this fundamental zone of procreation/privacy? As many of you discussed, the answer probably depends on the degree to which the Court embraces or rejects the notion of “tradition” as a mechanism for curtailing the scope of the “substantive” Due Process Clause. In Michael H., Justice Scalia argued that constitutionally protected substantive rights under the Due Process Clause must be defined at their most specific, traditionally recognized level. This is the approach taken in Bowers v. Hardwick, for example, where the right at issue is described by the Court not as the right to sexual intimacy between unrelated, consenting adults, but rather as the right to engage in homosexual sodomy.

As applied to this case, Justice Scalia’s approach might lead to an extremely narrow description of the right asserted by Dolly. Indeed, Scalia might argue that cloning does not even qualify as “procreation” under a standard dictionary definition of the term (for what it’s worth, Webster’s Dictionary defines procreation as “to bring a living thing into existence by the natural process of reproduction.“) Given the recent vintage of
cloning technology, it would be difficult to argue that a narrowly-defined “right to clone one’s self’ is “deeply rooted in the Nation’s history and traditions.” Moore. In the absence of any deeply rooted tradition, Scalia would argue, and in circumstances where the states exhibit no clear political consensus on the issue, the Court has no business minting a new “right” or “liberty interest” to protect, but should instead evaluate Futura’s ban under rational basis review.

Whether a majority of the current Court would in fact embrace such a cramped reading of the right to privacy/procreate cases is not entirely clear. On the one hand, a majority of the Court appears to reject Scalia’s approach in Casey. In that case, Justice O’Connor not only defends an activity that enjoyed a record of protection prior to Roe that was spotty at best, but also uses relatively expansive language to connect the abortion right with the contraception cases, indicating that these cases all “involve decisions concerning not only the meaning of procreation but also human responsibility and respect for it.” Indeed, it might be argued that for a majority of the Court, the outcome in Bowers depended in part on the fact that there was a long-standing tradition of prohibiting sodomy, and that in the absence of such a specific, traditional prohibition on cloning, the Court must necessarily rely on general principles - such as individual autonomy, or reproductive freedom - in evaluating the constitutionality of Futura’s ban. Dolly might also point out that Bowers emphasizes the absence of any childbearing interest with respect to sodomy, and that such a childbearing interest (through admittedly untraditional means) does exist in this case.

On the other hand, the reasoning of the majority opinion in Washington v. Glucksberg appears to closely track Justice Scalia’s; not only does the Court identify tradition and “a careful description of the asserted fundamental liberty interest” as the “guideposts for responsible decision-making” in substantive Due Process cases, but the majority opinion also explicitly rejects a more fluid approach suggested by Justice Souter, in which tradition is understood as a “living thing.” Again, Dolly might argue that the analysis in Glucksberg rested heavily on the strong tradition against assisted suicide, a
tradition that is not present in this case; she might also argue that while Justice O’Connor provided the fifth vote for the majority opinion in Glucksberg, O’Connor went on to write a concurring opinion in which she appears to distance herself somewhat from the tradition-laden language of the four other members of the majority. Still, the Glucksberg opinion indicates at the very least a deep hesitance on the part of the Court to further broader the scope of interests protected under the substantive Due Process Clause.

A few of you suggested that a competent Dolly might have more luck couching her decision to clone solely as an issue of bodily integrity. Irrespective of whether cloning is or is not “procreation,” the argument runs, there clearly exists a long-standing tradition, both under the common law and under constitutional interpretation, of protecting an individual’s choice to reject even life-sustaining medical treatment. The same concern is evident in the abortion decisions; the state can’t force a woman to maintain a pregnancy against her wishes. Roe. If the state can’t force a woman to bear a child or accept life-sustaining treatment, why should it be able to control her decision to clone absent a compelling (or at least important) government interest?

The problem with such an analysis, of course, is that the Court has never interpreted the Due Process Clause to protect a person’s right to do whatever he or she wants with his or her own body. The prohibition on suicide is just one example of a constraint on bodily autonomy that the Court considers constitutional; other examples include prohibitions on the ingestion of illicit drugs, prostitution, and the sale of body parts. A focus on bodily integrity/autonomy does highlight the possibility, however, that the Court might apply a balancing test of the sort used in Casey and Cruzan. In those cases, the Court refrained from clearly identifying the decision to have an abortion or to reject life-sustaining medical treatment as “fundamental,” but did acknowledge such decisions as “liberty interests” that deserve some constitutional protection. Applied to our case, a Court might determine that Futura’s outright ban constitutes an “undue burden” on Dolly’s decision to replicate, while upholding regulations that severely restrict the circumstances under which cloning technology might be used.

It is important to recognize, however, that the term “liberty interest” is just as malleable as the term “fundamental right,” so that the use of a balancing approach by the Court does not avoid the definitional problems already discussed. For example, the Court might recognize a broad liberty interest in medically-assisted procreation, but still find Futura’s ban on cloning to be merely a restriction on one highly specialized technique among many. Under such an analysis, the fact that cloning might be the only means of bearing a genetically-related child for a handful of people like Mary and Joseph might trouble the Court; on the other hand, several of you were correct to point out that in Casey, Justice O’Connor expressed little concern for the fact that for some women, waiting periods and other restrictions might constitute an effective ban on abortion, and not merely an inconvenience incidental to an otherwise available right.

Mary and Joseph’s Claims

Most of the discussion above regarding the appropriate standard of review with respect to Dolly’s potential claim applies with equal force to any consideration of Mary’s and Joseph’s potential claims. Again, it’s worth considering first what Mary and Joseph’s claims might be if not complicated by the fact of Dolly’s incapacity - in circumstances, say, where Dolly is terminally ill but competent and consents to the cloning procedure. Under such circumstances, it might be argued that Mary and Joseph’s claim of a “right to procreate” through cloning is even more persuasive than Dolly’s, since a) any cloned child would be in fact a product of Mary and Joseph’s genetic mixture; b) Mary and Joseph might have no other means of bearing a child genetically related to both of them; and c) the cloned embryo would be implanted in Mary’s womb and Mary would carry it to term like any traditional pregnancy.

Described in these terms, it would be difficult to differentiate the cloning of Dolly from the use by other techniques commonly used by infertile couples to conceive - i.e. in
vitro fertilization, the use of donated eggs, and so on. None of these technologies are “traditional” as that term is commonly understood, and yet it is hard to imagine the Court sanctioning an outright prohibition on their use without a pretty compelling reason for doing so. The fact that these new technologies increasingly facilitate post-menopausal child-bearing raises further doubts that any constitutional analysis of cloning can rest simply on the “natural” limits of reproductive capacity.

Futura’s Interests - How Compelling?

Depending on how the Court resolves the “fundamentalness” issue, the Court would evaluate Futura’s justifications of its ban on cloning under either a) strict scrutiny (in which case the ban would need to qualify as “narrowly tailored” to achieve a
“compelling government interest”); b) rational basis review (in which case the ban would merely have to be rationally related to achieving an legitimate government interest); or c) a more fluid balancing test of the sort employed in Casey and Cruzan. (I should note, by the way, that the first two of Futura’s asserted rationales for a cloning ban are drawn almost verbatim from President Clinton’s Commission on Human Cloning, which sought to explain its recommendation for a moratorium on any attempts to clone humans. The third rationale summarizes some of the arguments offered by various medical ethicists in the debate surrounding cloning.) Below we consider each of Futura’s rationales in turn:

1) Preventing psychological damage, etc. As most of you recognized, the weakest rationale offered by the state appears to be its asserted interest in preventing a class of clones who may experience “psychological damage, ostracism or even discrimination as a class.” While the interest in protecting children generally, and cloned children in particular, is certainly legitimate and probably compelling, the means the state has chosen can hardly be described as narrowly tailored, and would therefore not support the Futura’s ban under any form of heightened scrutiny.

To begin with, the hypothetical offers no evidence of cloned children experiencing a disproportionate amount of psychological damage and social ostracism. But even if cloned children did experience such problems, the state surely cannot use possible evidence of societal bigotry against a class of children as a justification for preventing such children from coming into existence, any more than it can use bigotry to justify discriminatory child custody policies (Palmore) or discriminatory school assignment policies (Cooper). To hold otherwise would be to endorse a not-so-subtle theory of eugenics that might conceivably support state policies to prevent the birth of other groups who experience psychological difficulties, social ostracism and discrimination - e.g. minorities and the disabled.

Indeed, it is not clear that this rationale could survive even rationale basis review. As several of you noted, in Cleburne, the Court reject the state’s use of social ostracism against the mentally disabled as a justification for discriminatory policies against such persons, even though it declined to hold that the classifications based on mental disability constituted a “suspect” classification under the Equal Protection Clause. If the state wants to prevent discrimination against the cloned, it can pass anti-discrimination laws.

2) Preventing objectification. organ harvesting, etc. The state’s asserted interest in preventing the objectification of children and the possible abuses that might attend such objectification is only slightly more persuasive than the “social ostracism” rationale. Concerns about the “objectification” of children seem to rest on the assumption that cloned children will be treated differently from children produced in the traditional fashion, an assumption that is not supported by the evidence. And although the interest in preventing organ harvesting or other abuses against cloned individuals - including children -- seems compelling (particularly in light of some of the more far out reports that have come out since I wrote the exam, regarding the possible creation of headless clones!), the state has at its disposal a wide range of means (e.g. bans on organ harvesting, bans on child abuse, etc.) that already prevent commerce in humans or human body parts.

Although the “objectification/abuse” rationale would probably not survive strict scrutiny, and would not appear to justify an outright ban under an “undue burden” analysis (a range of regulations - from restrictions on who can clone to where cloning can be performed - could address fears of organ harvesting and other abuses without banning the procedure entirely), it might be sufficient under rational basis review. The state might argue, for instance, that the further development and widespread use of cloning technology will increase the risk of children and fetuses being bred for unsavory purposes, and make organ harvesting prohibitions more difficult to enforce. An outright ban might thus be considered rationally related to the state’s goal under the extremely deferential standards on display in Bower and some of the Equal Protection Cases decided under rational basis review (e.g. Railway Express Agency).

3) Preserving the sanctity of life/family bonds. This leaves the state with one last rationale - the notion that cloning violates “the sanctity of life and the bonds of family that lie at the very core of our ideals and our society.” That a state has a compelling interest in preserving an actual human life (i.e. preventing murder, suicide, etc.) is clear from the case law (Cruzan, Glucksberg). This doesn’t necessarily mean, however, that the state also has a compelling interest in preventing what it considers to be the “devaluation” of human life that might result from cloning. It might be argued that the abortion cases lend support to such an abstract “sanctity of life” concept, given that the Court finds the state’s interest in protecting the “potentiality of human life” to be compelling, without ever ruling that a fetus is a “person” or resolving the difficult
question of when individual life begins. Roe. Whatever we consider a fetus to be, however, it is clearly more than an abstract proposition; in any event, it is hard to see how a compelling interest in protecting potential life translates into a compelling interest in preventing potential life.

Similar problems arise when we consider the state’s interest in preserving the bonds of family. In other contexts, the Court has indicated that an individual has constitutionally protected rights to determine his or her familial relationships (Loving,
Moore, Zabiocki). The Court has also upheld state regulations that seek to preserve existing family bonds - freely chosen by the individuals involved -- in the face of what a majority of the Court considered to be the countervailing liberty interest of a biological father who wants to establish paternity (Michael H.). In none of these cases, however, do* we find the Court upholding state restrictions on an individual’s fundamental right to bear children or form a family solely on the basis of the state’s abstract judgment of what a family should look like. As several of you pointed out, cases like Moore would seem to
lend more support for exactly the opposite proposition - that the state cannot, and should not, make such judgments, but must instead base restrictions on family life on something
more concrete.

The question, then, boils down to this - can Futura’s moral judgment regarding the potential harms that cloning will visit on our current conceptions of life and family serve as a sufficient basis for instituting an outright ban? The answer appears to be yes if the Court evaluates Futura’s ban under rational basis review -- as many of you pointed out, it was just such moral judgments that the Court in Bowers found to be sufficient in upholding the ban on consensual homosexual sodomy at issue. Whether such moral justifications are enough to survived heightened review is a closer question. On the one hand, it might be argued that the moral judgments at issue with respect to cloning are far more profound than the moral questions involved in consensual sodomy - tinkering with the basic building blocks of life is obviously discomfiting, as are the possibilities of a world in which one’s child is one’s genetic twin, scientists claim they are God, and the very concept of individuality is called into question. On the other hand, to the extent that the Court is forced to grapple with such weighty issues, it might prefer to do so in the context of deciding whether cloning is or is not a fundamental right, rather than establish the troubling precedent that the state’s moral judgments, standing alone, can override an individual’s fundamental rights or liberty interests.