The Frankenstein Controversy: The Constitutionality of a Federal Ban on Cloning

80 Pages Posted: 6 Mar 2015

Date Written: 1999

Abstract

Part I of this Article begins with a description of the science of cloning and concludes with a history of cloning research, both of which provide a much needed perspective on the current national debate over cloning. Part II summarizes the President's proposed cloning legislation, as well as the bills introduced in Congress since February of 1997, when Dolly's birth was announced. The quality of the drafting of these proposals suggests caution, because poorly crafted legislation leads to unintended consequences. Part III examines the federal response to cloning in the context of Supreme Court Commerce Clause jurisprudence. Part III concludes that Congress may ban cloning pursuant to its power to regulate interstate commerce, notwithstanding the Supreme Court's recent decision in United States v. Lopez. Finally, Part IV provides an analysis of the Supreme Court's substantive due process cases involving the right of personal privacy. The trends in the Court's case law strongly suggest that a majority of the current Court would hold that a federal government ban on cloning would not violate the Fifth Amendment's Due Process Clause. Although the reasoning used by individual Justices may vary, it is likely that a majority of the current Court would conclude that the right to use and have access to cloning technology is not a fundamental right protected by the Constitution.

Keywords: cloning

Suggested Citation

Lawton, Anne, The Frankenstein Controversy: The Constitutionality of a Federal Ban on Cloning (1999). Kentucky Law Journal, Vol. 87, 1999, Available at SSRN: https://ssrn.com/abstract=2573777

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