Liberty, Identity and Human Cloning

76 Texas Law Review 1371 (1998)

Posted: 8 May 1998

Abstract

The birth of a sheep cloned from an adult cell has raised the possibility of human cloning. If human cloning is shown to be safe and effective, several plausible uses of human cloning to enable married couples or individuals to have and rear genetically related children can be imagined, such as treating gametic infertility, avoiding the birth of children with severe genetic disease, and obtaining tissue or organs for transplant. This article examines whether those uses would fall within the constitutionally protected rights of married couples and individuals to have and rear children. It argues that the "right to procreate" recognized in Skinner v. Oklahoma and in subsequent dicta should extend to the use of noncoital means of conception and to some right to control or choose the genes of offspring. If this is correct, then several of the likely uses of human cloning should fall within the constitutional protection ordinarily extended to decisions to avoid or engage in procreation, and require a strong showing of actual harm to justify prohibition or strict regulation of human cloning. The article then examines several of the harms alleged to flow from human cloning (threats to human dignity, to individuality, to kinship relations, to commodification of children, and to eugenics) and concludes that none of them are sufficient to justify overriding fundamental rights to procreate. The article concludes with an assessment of several types of regulation that might nevertheless be appropriate for human cloning, such as requiring the consent of the DNA source, limits on the number of clones from one source, clarification of rearing rights and duties in resulting children, and limits on who might be cloned.

(Copyright 1998 by the Texas Law Review Association. Reprinted by permission.)

Suggested Citation

Robertson, John A., Liberty, Identity and Human Cloning. 76 Texas Law Review 1371 (1998), Available at SSRN: https://ssrn.com/abstract=84948

John A. Robertson (Contact Author)

University of Texas Law School ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1307 (Phone)
512-232-2399 (Fax)

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