Cloning (4)

by Brian on November 24, 2003

No argument this time, just a serious question. If cloning is to be banned, that presumably means there will be criminal penalties for creating clones. Who, exactly, should be vulnerable for those penalties? If a couple X and Y decide they want a cloned baby (say with Y’s DNA inserted into one of X’s eggs), and Dr. Z assists with this so clone baby A is born of X, who should be punished for this act of illegal cloning? X? Y? Z? A? (Well, presumably not A.) Any others?

I think many people who want to ban cloning have in mind punishing Z, but I can’t tell from most discussions just exactly what their position comes to. The Weldon-Stupak bill that passed the House doesn’t distinguish, and seems to leave at least X and Z liable, and possibly Y as well. The British Human Reproductive Cloning Act only says Z would be liable, but in debate in the House of Lords Lord Hunt said that the birth mother may also be liable “under the general rules of criminal law if she is an active and knowing participant.” And obviously neither Bill settles the moral question of who should be liable, assuming, as I do not, that there should be a ban. (I think in this case punishing X but not Y seems rather absurd, but maybe Y would also be liable as an active and knowing participant.)

In part I want to figure this out so I can get the opposition picture right. As people have noted, I’ve been fairly cavalier in my representation of opposing views in earlier postings. (Normally I’m fairly easy-going about these things, but I’m actually a little embarrassed about some of the mistakes in the last post, even by blogging standards it was pretty bad in places, so I want to get things better in the future.) And in part it’s so I can have a go at dramatising the difference between pro- and anti-cloning forces. The image of Feds storming into the maternity ward to arrest X and Y, as repugnant an image as I can imagine in this whole situation, seems to make vivid some of the libertarian concerns I have with the anti-cloning movement. But if X and Y would be left to raise baby A, and only Z, the handmaiden, was taken off to jail, then obviously we can’t use just that image.

(I know that even if X and Y were thought to be criminally liable here there might be a humanitarian reason for not arresting them at the, like, ‘scene of the crime’. But it might be thought better to arrest them before A forms any emotional attachments, so maybe the Feds would choose just this moment to storm in.)



Robert Lyman 11.24.03 at 3:00 pm

Under conventional notions of criminal liability, X, Y, and Z would all be liable, even if the “act” of cloning consisted of actually inserting the nucleus into the egg cell.

This is no different than holding accomplices liable for murder even though the people who hired the hit man didn’t actually pull the trigger.

There would also probably be conspiracy liability, even if the cloning itself didn’t take place. Also, X and Y might be held for soliciting a crime, even if the doctor refused.

In addition, nurses, lab assistants, etc. might get swept up in the accomplice net.

If you only want to punish Z, and not X or Y, you’ll have to write that into the statute specially.

Obviously A cannot be held liable.


rea 11.24.03 at 3:19 pm

The way criminal law generally works in the US, at least, is that anyone who “aids, abets, counsels or procures” a crime is criminally responsible for the crime, on the same terms as the principal. X and Y, hiring Z to clone a baby for them, would be just as liable for the cloning as Q and R, hiring S to commit a murder for them, are criminally liable for the murder committed by S.


Hamishm00 11.24.03 at 3:33 pm

Yeah, and don’t forget in most common law jurisdictions:

1) an “attempt” at a crime (ie the cloning doesn’t work) is also a crime; and
2) conspiring to commit a crime is also a crime(ie at the consultation stage).

And under the bible (the book of the “law”?) you have “original sin” to deal with – so “A” could be liable in the biblical sense….errr maybe that’s drawing the bow a little far.


enthymeme 11.24.03 at 3:46 pm

The British Human Reproductive Cloning Act only says Z would be liable, but in debate in the House of Lords Lord Hunt said that the birth mother may also be liable “under the general rules of criminal law if she is an active and knowing participant.”

Section 1 of the Criminal Law Act 1977 provides that:

(1) Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either–
(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or
(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,
he is guilty of conspiracy to commit the offence or offences in question.

Any conspiracy to clone will be a violation of a double statute bind – the aforementioned plus the HRCA.


Lemuel Pitkin 11.24.03 at 6:19 pm

Oh come on, you’re getting into Derbyshire territory here. The logic here applies to any fertility procedure — any medical procedure really. So I guess none of them should be banned ro regulated in any way?


UncleBob 11.24.03 at 7:16 pm

Well, in the event the feds *do* decide to proceed with a quick arrest of X and Y before A forms an attachment to them, I might suggest that they also clone B and keep him in the other room.

For years now I’ve felt guilty over not having confessed to use a similar tactic to smuggle an illegal carnivorous pitcher plant from Ontario into New York State. I asked if it were legal to bring in this plant (indicating a specimen next to me on the car seat). After deliberation, and some mild protest on my part, it became clear I had to give up the plant.

But not the one in my trunk.

Oops. I think I’ve digressed.


Harry Tuttle 11.24.03 at 9:24 pm

If clones are outlawed only outlaws will have clones.

Lemuel, this is not a regulation issue. Only a diehard libertarian would argue that the procedure should not be regulated by the FDA just as any other medical procedure is. This is about an outright ban on the procedure regardless of the safety or danger such a procedure would entail. It’s the difference between regulating fertility treatments so that only safe ones are allowed and banning any and all attempts at enhanced fertility no matter how safe they are.

What is it about parthenogenesis that scares people so? Sure it’s an evolutionary dead end, but so is not having children and we don’t force breed people.


Lemuel Pitkin 11.24.03 at 10:07 pm

Harry, I don;t disagree at all. Banning reporductive cloning is a terrible idea.

That doesn’t change the fact, however, that Brian’s argument against it in this post is a silly debating point that doesn’t stand a momnet’s scrutiny. If there were good reasons to ban reproductive cloning, the decision on who to prosecute in case of violations would be no more difficult than for any other regulation regarding medical procedures.


Anthony 11.25.03 at 6:00 am

The focus of the post, as I read it, was rather that there exists such ambiguity in current legislation regarding liability. I also find it odd such a thing requires discussion, but the obvious answer doesn’t seem to have occurred to those writing the laws.

What surprised me most was the issue raised by this discussion that no one has mentioned: if X and Y are arrested as specified in a cloning ban, what is the legal status of A afterwards? It’s fairly obvious his or her future would involve State foster care, but given that the government has questioned the child’s parentage, who are [is] the child’s parent[s] in the eyes of the state? If such a case arose, it would stand to put a lot of the questions regarding the identity/citizenship of a clone to rest.


Jason McCullough 11.25.03 at 6:38 am

Doctors, of course; they’re the least sympathetic party. Note this has been borne out with abortion.


Rob Lyman 11.25.03 at 4:22 pm


The FDA does not regulate “medical procedures.” Since its power is predicated on the Commerce Clause, it is empowered to regulate only things (medical devices and drugs) which can travel in interstate commerce. No Federal governmental agency regulates, for instance, what kind of surgery a doctor can perfom. State medical boards, which do regulate such things, are a different matter.

Banning cloning would be, in some ways, a legal innovation which would face Constitutional challenges in court. These issues will be litigated in the context of the PBA ban just passed, no doubt, and the resolution may tell us whether a cloning ban is even possible.


Lemuel Pitkin 11.25.03 at 10:55 pm

No Federal governmental agency regulates, for instance, what kind of surgery a doctor can perfom

Eh? No federal law against organ sales? No federal regulation of castration or sex changes or elective trepanning? You sure?


Anthony 11.25.03 at 11:51 pm

Lemuel –

You’ve missed the point of the post. Brian is asking opponents of cloning, of which he is not one, who should be liable if cloning is criminalised. He may be asking the question honestly, because he doesn’t understand the opponents position, or he may be asking it in a rhetorical sense, hoping to show up some sort of inconsistency in the anti-cloners case, or to show up something that would prove rather unpopular. But Brian is not arguing that we should ban cloning, nor arguing that we should not regulate fertility procedures.


Brian Weatherson 11.26.03 at 6:07 am

Anthony’s assistance is appreciated here, but Lemuel is right that I was (inter alia) looking for a cheap debating point. And I know the image of the Feds storming in is really cheap since there’s obviously plenty of circumstances when we’d say that was exactly the right thing to do. But I’ve been getting fed up with the caricatures of the pro-cloning side as being in various ways inhuman. So I’d like some visual reminder of the very human values that we’re lobbying for, for my own sake as much as anything else, even if the existence of the reminder has no argumentative force.

Having said that I was also honestly asking who people thought should be liable, because I really don’t know what anti-cloners thought. And the answers I’ve received so far have been interesting. Some committed anti-cloners have said they think only the doctors and scientists should be liable. This isn’t the case under current law. So even anti-cloners might agree that there is need to reform the anti-cloning law to narrow its net.

The framers of the US anti-cloning law do try to address Rob’s point. There is a somewhat ritualistic invocation of the commerce clause. The clause banning cloning starts:

“It shall be unlawful for any person or entity, public or private, in or affecting interstate commerce, knowingly…”

I’m no expert on US jurisprudence, but my impression is that the rule on interstate commerce is interpreted so liberally that basically chanting these words is enough to pass muster with at least a few Supreme Court judges. Just what would happen if a doctor with no interstate practice challenged the law on this basis I wouldn’t like to guess.

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