Therapeutic Cloning: Why Congress Should Butt Out

For several years, adventurous researchers have been cloning animals. For several years, other adventurous researchers have been harvesting stem cells from human embryos, killing the embryos in the process. It was inevitable that the two streams would merge, and finally, last month, they did. On November 25, a Massachusetts company called Advanced Cell Technology Inc. announced it had taken a step toward cloning human embryos for medical research.

You could have heard the resulting furor from Mars. "We should not as a society grow life to destroy it, and that's exactly what's taking place," said President Bush. The National Right to Life Committee said: "Unless Congress acts quickly, this corporation and others will be opening human embryo farms." House Republicans demanded (unavailingly) that the Senate immediately vote on their bill, passed in July, banning all forms of human cloning.

For their part, some advocates of the research retreated to obfuscation. "There is a big difference between cloning a human embryo in order to create a human being and using laboratory techniques to produce stem cells and other cellular therapies," one advocate told The Washington Post in November. "Using laboratory techniques"? This was gobbledygook intended to obscure the fact that the process in question seeks to create human embryos—cloned embryos, no less—in order to kill them and harvest cells from them.

The official term for this unsavory process is "therapeutic cloning." (By contrast, reproductive cloning aims to clone full-fledged people.) Opponents, however, prefer to call it "embryo-farming," which in fact is a perfectly accurate term for cultivating, killing, and using embryos. Advocates of therapeutic cloning would be wise to stop fogging this point and meet it head-on.

For the defense of therapeutic cloning is a strong one: Embryonic stem cells have the potential to grow into many sorts of tissue, and thus to regenerate damaged or dead organs or cells. Stem cells from adults and from umbilical cords and placentas also show therapeutic promise, but many researchers believe that embryonic cells are most versatile and thus offer the best hope of reversing Parkinson's and Alzheimer's disease (by regenerating brain tissue), cystic fibrosis and spinal injuries (by regenerating nerves), diabetes (by regenerating insulin-producing cells), and other degenerative maladies.

Cloned stem cells, moreover, promise to be doubly valuable. Any organs or cells regenerated from them would be genetically identical to the originals. Though this is still science fiction, imagine if your liver failed and doctors were able to grow an exact replacement, with no fear of rejection by your body's immune system. Wow! If there exists any more hopeful avenue for medical research, I can't think what it is.

So is therapeutic cloning morally monstrous? Or morally essential? That depends on what you think of stem-cell research—not on what you think of cloning.

There are a lot of reasons to oppose human cloning. Cloned children would face daunting risks. Parents and teachers and everyone else might expect the clone to be a copy of its progenitor, and thus might psychologically warp the child. The children would be in the awkward and possibly traumatic position of having only one natural parent, who would also be a twin sibling. Perhaps most important, cloning sheep to see if they come out deformed or survive past the sixth week may be OK. But conduct such experiments on people? No way—especially since cloning people is not something that anyone really needs to do. It is technology's ultimate rendezvous with narcissism.

Those arguments have merit. But they apply only if the clone is actually born. Of course, the whole point of a therapeutic clone is not to be born. Moreover, therapeutic cloning, unlike reproductive cloning, is anything but frivolous or narcissistic. Anyone who has seen or even read about the descent of a person into the abyss of Alzheimer's understands that seeking to abate such a scourge is the very opposite of frivolity.

Some anti-cloners reply that a law banning only reproductive cloning would be unenforceable. Unless all cloning is banned, renegade researchers might use cloned embryos to start a pregnancy, and what then? But this seems a singularly unconvincing argument. The prospect of stiff criminal penalties would deter most scientists from impregnating a woman with a cloned embryo. Of course, some people always will break laws. But that cannot be an argument for banning therapeutic cloning, any more than Osama bin Laden is an argument for banning airplanes. The law's business is to make moral distinctions, not to obliterate them. To suppress a potentially lifesaving technology because a few bad apples might illegally abuse it is the very definition of extremism. In any case, why would a ban on all cloning be any easier to enforce than a ban on just reproductive cloning?

The real problem with therapeutic cloning, it seems to me, is not the cloning, it's the killing. If farming conventional embryos is abominable, then farming cloned embryos is also abominable. Many distinguished and thoughtful people point out that even the youngest embryo has all the makings of a human being. We all started out as embryos, they say; and so the medical farming of embryos is morally just as abhorrent as the farming of people. No end, however beneficent, can justify it.

To a great extent, one has to just take or leave this argument. One must look at a blastocyst—the microscopic cluster of about 100 cells from which embryonic stem cells are taken—and decide how one feels about it. To me, this ball of cells is much more than a fingernail clipping, but it is also much less than a human being. Speaking of it as a person or near-person does not preserve the dignity of human life; it trivializes it.

Farming embryos strikes me as distasteful. Yet allowing millions of children and adults to suffer and die from horrible diseases seems more distasteful, even repugnant. Stem-cell research offers hope against agony and debility and death; and the cloning of stem cells may offer the brightest hope of all. Thus the moral claim of therapeutic cloning is doubly strong. Research on therapeutic cloning should be legal.

That is my judgment; it may not be yours. In the case of therapeutic cloning, as with stem-cell research generally, the ethic of respect for human life collides with itself. The conflict is intractable; any simple national consensus would perforce be simpleminded. What to do? Read the Constitution. It says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

There is the answer, as bold and brilliant as the day the Founders wrote it down. Forget about a national consensus. Forget about a national law. Let the states go their separate ways, as they are doing already. Today, about two dozen states regulate human-embryo research, and about 10 of those have banned research that harms embryos. Federalism lets local people create a legal and moral climate that honors their disparate consciences. No uniform national policy can ever do that.

Congress would be wholly within its rights to restrict or bar the use of federal money for stem-cell research or cloning or both. It would also be wholly within its rights to ban interstate commerce in human embryos (probably a good idea, to forestall a national market in factory-farmed embryos). The Food and Drug Administration can and should ensure the safety and effectiveness of any medical products and techniques that emerge from therapeutic cloning or stem-cell research.

But the federal criminalization of therapeutic cloning would amount to nothing less than an aggressive power grab by Congress. "So far ... human research generally remains untouched by federal law," writes R. Alta Charo, a law professor at the University of Wisconsin (Madison) in The Chronicle of Higher Education. "Research supported by private funds that is not covered by [FDA and voluntary] regulations can be conducted without fear of federal penalty, although state laws and the rules of professional societies may restrict it."

Consider the ironies when a fervently pro-life and pro-states'-rights House majority demands a federal ban on therapeutic cloning, complete with 10-year prison sentences for cloners. These pro-lifers would criminalize a field of research whose life-saving potential may well turn out to be unique. To do so, they would trample on the prerogatives and consciences of the states.

In 1973, the Supreme Court ignited a bitter and pointless culture war when it imposed a national, one-size-fits-all abortion policy. Was it too much to expect that pro-life states' righters, of all people, might have learned a lesson? When a national moral consensus is unavailable, improbable, and most likely undesirable, a wise Congress butts out.