Cloning and the preservation of family integrity

Louisiana Law Review

Volumn 59, Issue 4, 1999, Pages 1019-1039

  Orentlicher, David ^a,b,c  

^a Department of Law ^*  (United States)

^b INDIANA UNIVERSITY   (United States)

^c INDIANA UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CHILD; CHILD PARENT RELATION; CIVIL RIGHTS; CLONING; DONOR; ETHICS; FAMILY SIZE; FEMALE; GENETICS AND REPRODUCTION; HUMAN; INDIVIDUALITY; INFERTILITY THERAPY; LEGAL APPROACH; LEGAL ASPECT; MALE; MOTIVATION; POLICY; REPRODUCTION; SPOUSE; UNITED STATES;

GENETICS AND REPRODUCTION; LEGAL APPROACH;

CHILD; CIVIL RIGHTS; CLONING, ORGANISM; FEMALE; HUMANS; INDIVIDUALITY; MALE; MOTIVATION; PARENT-CHILD RELATIONS; PUBLIC POLICY; REPRODUCTION; REPRODUCTIVE TECHNIQUES, ASSISTED; SINGLE PERSON; SPOUSES; TISSUE DONORS; UNITED STATES;

EID: 0033264139     PISSN: 00246859     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (131)

1. It turns out to be a little more complicated than that. There is genetic material not only in the nucleus of a cell, but also in the mitochondria (the "energy factories" of the cell), which reside outside the cell's nucleus. Lori B. Andrews, Is There a Right to Clone? Constitutional Challenges to Bans on Human Cloning, 11 Harv. J.L. & Tech. 643, 647 (1998). Thus, a woman's egg has genetic material in the nucleus and in the mitochondria outside the nucleus. If a woman clones herself and uses one of her own eggs, then all of her child's genetic material will come from her. If a man clones himself, or a woman clones herself with the eggs of another woman, then the child will have genetic material from two "parents."
2. Stephen Jay Gould, Dolly's Fashion and Louis's Passion, 106(5) Natural History 18, 22 (1997). It is not known at this time the extent to which mitochondrial genetic material affects a person's development.
3. Non-married couples might also choose cloning, and they could employ cloning to avoid a comparable violation of their relationship from using the sperm or egg of a third person.
4. This concern would also apply to artificial methods of reproduction employed by single men or women.
5. Ronald Chester, To Be, Be, Be . . . Not Just to Be: Legal and Social Implications of Cloning for Human Reproduction, 49 Fla. L. Rev. 303, 324-25 (1997). Placental transfer of infectious disease might occur in the case of reproduction by surrogacy. If the surrogate has an infectious disease, she could transmit it to the fetus. Similarly, she could also pass nicotine, alcohol, cocaine or other toxins to the fetus.
6. Ian Wilmut et al., Viable offspring derived from fetal and adult mammalian cells, 385 Nature 810 (1997). In cloning, genes are taken from an adult cell and inserted into an egg whose genetic material has been removed. The egg then develops into an embryo and fetus.
7. Gina Kolata, Scientist Reports First Cloning Ever of Adult Mammal, N.Y. Times, Feb. 23, 1997, at A1;
8. Thomas H. Maugh II, Scientists Report Cloning Adult Mammal, L.A. Times, Feb. 23, 1997, at A1;
9. Scientists Succeed in Cloning a Sheep; Genes Transplanted, Then Hello, "Dolly," St. Louis Post-Dispatch, Feb. 24, 1997, at A1.
10. Can We Clone Humans?, Newsweek, Mar. 10, 1997;
11. Will There Ever Be Another You? A Special Report on Cloning, Time, Mar. 10, 1997;
12. Biotech: Forget Cloning Sheep!, Fortune, Mar. 31, 1997.
13. Letter from the President, reprinted in Cloning Human Beings: Report and Recommendations of the National Bioethics Advisory Commission, at preface (June 1997).
14. Dirk Johnson, Eccentric's Hubris Set Off Global Frenzy Over Cloning, N.Y. Times, Jan. 24, 1998, at A1.
15. Since the cloning of Dolly, researchers have also cloned mice and cows. Gina Kolata, Japanese Scientists Clone a Cow, Making Eight Copies, N.Y. Times, Dec. 9, 1998, at A8.
16. Cloning Human Beings, supra note 8, at 65.
17. Andrews, supra note 1, at 651.
18. Jean-Paul Renard et al., Lymphoid hypoplasia and somatic cloning, 353 Lancet 1489 (1999).
19. Wilmut et al., supra note 5, at Table 1.
20. Cloning Human Beings, supra note 8, at 24;
21. Gina Kolata, Clone: The Road to Dolly, and the Path Ahead 239-42 (1998).
22. Cells in the body contribute to growth or repair by dividing to form new cells. Thus, a damaged skin cell will produce other damaged skin cells, but not damaged heart, lung or brain cells.
23. Cloning Human Beings, supra note 8, at 24.
24. Michael Tooley, The Moral Status of Cloning of Humans, in Human Cloning 65, 74-77 (James M. Humber & Robert F. Almeder eds., 1998).
25. George J. Annas, The Prospect of Human Cloning: An Opportunity for National and International Cooperation, in Human Cloning 51 (James M. Humber & Robert F. Almeder eds., 1998).
26. The one exception of course is identical twins, triplets or other identical, multiple births.
27. Pre-embryo Splitting, in 6 Council on Ethical and Judicial Affairs, American Medical Association, Code of Medical Ethics: Reports 3, 7-8 (1995) (Staff author David Orentlicher).
28. Dan W. Brock, Cloning Human Beings: An Assessment of the Ethical Issues Pro and Con, in Clones and Clones: Facts and Fantasies about Human Cloning 141, 152-53 (Martha C. Nussbaum & Cass R. Sunstein eds., 1998).
29. Judith Rich Harris, The Nurture Assumption: Why Children Turn Out the Way They Do (1998);
30. Leon Eisenberg, Would Cloned Humans Really Be Like Sheep?, 340 New Eng. J. Med. 471, 474 (1999).
31. One study reports a fifty percent correlation in personality traits of identical twins, with non-twin siblings exhibiting a correlation of eleven percent and strangers a correlation close to zero. Thomas J. Bouchard, Jr., Whenever the Twain Shall Meet, The Sciences, Sept./Oct. 1997, at 52, 54.
32. Moreover, a cloned person would have even less in common with the child than do identical twins, since the twins have much more similarity in their environments while growing up. Tooley, supra note 18, at 79.
33. The same effect occurs when two balls move in slightly different directions in a pinball machine. Edward N. Lorenz, The Essence of Chaos 9-11 (1993).
34. Richard A. Epstein, A Rush to Caution: Cloning Human Beings, in Clones and Clones: Facts and Fantasies about Human Cloning 262, 268-71 (Martha C. Nussbaum & Cass R. Sunstein eds., 1998);
35. Ruth Macklin, Splitting Embryos on the Slippery Slope: Ethics and Public Policy, 4 Kennedy Inst. Ethics J. 209, 219-21 (1994);
36. Nancy L. Segal, Behavioral Aspects of Intergenerational Human Cloning: What Twins Tell Us, 38 Jurimetrics 57 (1997).
37. Richard M. Zaner, Surprise! You're Just Like Me!, in Human Cloning 105, 136 (James M. Humber & Robert F. Almeder eds., 1998)
38. (citing Barbara Ehrenreich, The Economics of Cloning, Time, Nov. 22, 1993, at 86).
39. Rosamond Rhodes, Clones, Harms, and Rights, 4 Cambridge Q. Healthcare Ethics 285, 286 (1995).
40. Brock, supra note 22, at 156-57.
41. For example, consider the person who lives for only a very brief time after birth and suffers excruciating pain the entire time.
42. Leon R. Kass, The Wisdom of Repugnance: Why We Should Ban the Cloning of Humans, 32 Val. U. L. Rev. 679, 693 (1998).
43. Andrews, supra note 1, at 653-55; Lisa Sowie Cahill, No Human Cloning: A Social Ethics Perspective, 27 Hofstra L. Rev. 487, 493-94 (1999);
44. Vernon J. Ehlers, The Case Against Human Cloning, 27 Hofstra L. Rev. 523, 526-27 (1999).
45. See supra text accompanying notes 30-32.
46. For example, although an adult can refuse a blood transfusion on religious grounds, adults cannot refuse blood transfusions for their children on religious grounds. William J. Curran et al., Health Care Law and Ethics 643 (5th ed. 1998).
47. Of course, for some diseases, the new child's bone marrow would carry the same defect as the dying child's bone marrow.
48. Cloning Human Beings, supra note 8, at 80.
49. Pablo Rubinstein et al., Outcomes Among 562 Recipients of Placental-Blood Transplants from Unrelated Donors, 339 New Eng. J. Med. 1565 (1998).
50. Dena S. Davis, What's Wrong with Cloning?, 38 Jurimetrics 83, 89 (1997).
51. John A. Robertson, Liberty, Identity, and Human Cloning, 76 Tex. L. Rev. 1371, 1446-47 (1998).
52. As suggested above in text accompanying notes 36-37, there may be some circumstances in which it would be permissible for parents to clone their children.
53. Michael Jordan is the retired Chicago Bull who many consider the greatest player in the history of basketball.
54. See Lee M. Silver, Remaking Eden: Cloning and Beyond in a Brave New World 124 (1997).
55. The Human Genome Project is a major, government-funded effort to map in detail each of the human cell's estimated 140,000 genes. Leslie Roberts, Plan for Genome Centers Sparks a Controversy, 246 Science 204, 204 (1989);
56. Nicholas Wade, Count of Human Genes is Put at 140,000, a Significant Increase, N.Y. Times, Sept. 23, 1999, at A19. Once the entire genome is mapped, it will be much easier to identify genetic causes of disease and personality.
57. In his fictional book, Ira Levin describes an effort to use cloning to create dozens of copies of Adolf Hitler. Ira Levin, The Boys from Brazil (1976).
58. Aldous Huxley, Brave New World 14-17 (1932)
59. (Modern Library 1946).
60. Tooley, supra note 18, at 93; Robertson, supra note 40, at 1387.
61. Kass, supra note 32, at 686-87.
62. Judith F. Daar, The Future of Human Cloning: Prescient Lessons from Medical Ethics Past, 8 S. Cal. Interdisc. L.J. 167 (1998).
63. In re Baby M, 537 A.2d 1227 (N.J. 1988).
64. See, e.g., Elizabeth S. Anderson, Is Women's Labor a Commodity?, 19 Phil. & Pub. Aff. 71 (1990);
65. Daniel Callahan, Surrogate Motherhood: A Bad Idea, N.Y. Times, Jan. 20, 1987, at A25.
66. To be sure, one can reasonably object to surrogacy because of concerns with the large payments involved. My focus pertains to opposition on the ground that women should not bear children for other women.
67. Kass, supra note 32, at 687. For an important discussion of the "yuck factor," see Laurence H. Tribe, On Not Banning Cloning for the Wrong Reasons, in Clones and Clones: Facts and Fantasies about Human Cloning 221, 225-26 (Martha C. Nussbaum & Cass R. Sunstein eds., 1998) (observing that opposition to new technologies based on feelings of repugnance can be as serious a threat to society as the new technologies themselves).
68. The woman would be a gestational surrogate mother because she would carry the pregnancy to term but not contribute to the child's genetic material. Advances in science may soon make it possible for men to carry a pregnancy. Steve Farrar and Karen Bayne, Science Ready to Let Men Have Babies, London Sunday Times, Feb. 12, 1999, at S.1 p. 3.
69. Since "donors" are typically paid for their sperm, it is not accurate to refer to the process as sperm donation. Similarly, egg donors are typically paid for their eggs. Nevertheless, donation is the term of art for these methods of artificial reproduction. See, e.g., Anne Reichman Schiff, Solomonic Decisions in Egg Donation: Unscrambling the Conundrum of Legal Maternity, 80 Iowa L. Rev. 265 (1995).
70. With advances in treatment for male infertility, it has become more feasible for couples to rely on the man's sperm rather than on artificial insemination to have children. Abi Berger, Science Commentary: What is Involved in Intracytoplasmic Sperm Injection?, 318 BMJ 705 (1999).
71. Silver, supra note 43, at 116; Lawrence Wu, Note, Family Planning Through Cloning: Is There a Fundamental Right?, 98 Colum. L. Rev. 1461, 1470 (1998).
72. The surrogate mother would supply the egg and would carry the fetus during pregnancy. A couple might prefer surrogacy to egg donation because surrogacy does not require any special medical techniques.
73. However, the couple would need enucleated eggs from another woman into which their genetic material could be inserted.
74. John A. Robertson, Two Models of Human Cloning, 27 Hofstra L. Rev. 609, 635 (1999).
75. Of course, this statement must be qualified by the fact that the man's child would receive mitochondrial DNA from the woman whose egg was used for the cloning procedure. Gould, supra note 1.
76. 224 Cal. Rptr. 530 (Cal. App. 1986).
77. The California appellate court ruled in favor of the male sperm donor, holding that women having children through artificial insemination need to observe the state's statutory requirement of a physician's involvement if they want to prevent the sperm donor from having rights of paternity. Id.
78. For example, while physicians have been able to test for most of the blood-borne viruses that cause hepatitis, a significant percentage of hepatitis cases are caused by a virus that has so far eluded detection. Recent medical research suggests that a test may soon be developed for that virus. Lawrence K. Altman, Baffling Hepatitis Virus Is Isolated, Scientists Say, N.Y. Times, July 20, 1999, at F1.
79. Robertson, supra note 40, at 1379.
80. Surrogacy contracts therefore typically include provisions prohibiting the woman from smoking, drinking or using other drugs during her pregnancy. See, e.g., the surrogacy contract in the Baby M case. In re Baby M, 537 A.2d 1227, 1268 (N.J. 1988).
81. Ricardo A. Yazigi et al., Demonstration of Specific Binding of Cocaine to Human Spermatozoa, 266 JAMA 1956 (1991).
82. Doctor Is Found Guilty in Fertility Case, N.Y. Times, Mar. 5, 1992, at A14.
83. Barring further advances in medicine, see supra note 54, male-male couples and single men would not be able to reproduce even by cloning without the involvement of a woman. They would need a woman to serve as a gestational surrogate for their embryo, and, while gestational surrogates are probably less likely than traditional surrogates to insist on a long-term relationship with the child, some gestational surrogates do so. See, e.g., Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (finding that the genetic mother, rather than the gestational mother, should become the social mother of the child). Men would also need an enucleated egg into which their genetic material could be inserted.
84. Paul Lauritzen, Pursuing Parenthood: Reflections on Donor Insemination, 17(1) Second Opinion 57, 72 (1991) (citing position paper of the United States Catholic Conference).
85. By social parent, I mean a person who raises the child. Lauritzen, supra note 69, at 58.
86. Lisa Sowie Cahill, The Ethics of Surrogate Motherhood: Biology, Freedom, and Moral Obligation, 16 L. Med. & Ethics 65, 68-70 (1988).
87. Leon Kass, Toward a More Natural Science: Biology and Human Affairs 113 (1985). To be sure, cloning also blurs the lines of generation. If a couple chooses to clone a child from the woman in the couple, we might identify the woman's parents as the child's genetic parents, just as they are the woman's genetic parents.
88. Nanette Elster, Who is the Parent in Cloning?, 27 Hofstra L. Rev. 533, 536 (1999). Still, even with this degree of blurring, the lines of generation are clearer than when a third party supplies the sperm or egg.
89. It is important to note that many cultures and ethnic groups rely on extended families rather than only the nuclear family for childbearing and that it can enhance childbearing if multiple people provide parental guidance. In such cases, though, the parents involve other persons voluntarily.
90. I recognize that there are unplanned pregnancies. Still, people engaging in sexual intercourse do so with the understanding that the intercourse may result in a pregnancy. Pregnancy through rape is an exception, but it does not undermine my point.
91. This concern would apply to other artificial methods of reproduction when used by single people. For example, if a single man uses surrogacy to have a child, or a single woman uses artificial insemination to have a child, neither of the two people has to persuade another person to share the parenting of a child. The risk that the absence of a natural screen will result in more unfit parents is not purely speculative. A single man who became a father through surrogacy killed his child through physical abuse five weeks after the child's birth. Infant Beaten by Father Who Paid Surrogate Dies, Chicago Trib. Evening Update, Jan. 18, 1995, at C2.
92. Laurence H. Tribe, American Constitutional Law 1437-39 (2d ed. 1988). Indeed, one can argue that differently situated people need to be treated differently. The principle of reasonable accommodations in the Americans with Disabilities Act can be seen as an example of required differential treatment for differently situated persons. The principle of reasonable accommodations in the Disabilities Act requires employers (and other entities covered by the Act) to make reasonable adjustments in their workplace, program or service so that a person's disability does not interfere with the person's ability to qualify for the job, program or service.
93. David Orentlicher, Destructuring Disability: Rationing of Health Care and Unfair Discrimination Against the Sick, 31 Harv. C.R.-C.L. L. Rev. 49, 63-65 (1996).
94. Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848 (1950).
95. Cf. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct. 1110, 1113 (1942) (rejecting forced sterilization of certain three-time felons because of the serious potential for abuse of the power to sterilize); Julien S. Murphy, Should Lesbians Count as Infertile Couples? Antilesbian Discrimination in Assisted Reproduction, in Embodying Bioethics: Recent Feminist Advances 103 (Anne Donchin & Laura M. Purdy, eds. 1999) (discussing discriminatory treatment of lesbians by reproductive medicine clinics). Screening of potential parents in the adoption process can be distinguished since, in that setting, the agency is trying to find the best home for an already existing child.
96. For a recent review of legislative bills regarding cloning, see Heidi Forster & Emily Ramsey, Legal Responses to the Potential Cloning of Human Beings, 32 Val. U. L. Rev. 433 (1998).
97. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 2267 (1997) (in rejecting a right to physician-assisted suicide, the Court observed that "[i]n a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the 'liberty' specially protected by the due process clause includes the right to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion."). It is possible that the Court would also analyze the case under the Privileges or Immunities Clause of the Fourteenth Amendment Saenz v. Roe, 119 S. Ct. 1518 (1999).
98. 505 U.S. 833, 851, 112 S. Ct. 2791, 2807 (1992) (reaffirming the right to abortion first recognized in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973)).
99. 316 U.S. 535, 541, 62 S. Ct. 1110, 1113 (1942) (invalidating an Oklahoma statute that provided for the sterilization of some three-time felons). Moreover, as the Court has observed, it has held in its decisions that a person's liberty interests extend to activities like marriage, procreation, contraception, family relationships, child rearing, and education. Casey, 505 U.S. at 851, 112 S. Ct. at 2807.
100. 405 U.S. 438, 453, 92 S. Ct. 1029, 1038 (1972) (invalidating a law that prohibited the dispensing of contraceptives to unmarried persons).
101. Lifchez v. Hartigan, 735 F. Supp. 1361, 1377 (N.D. Ill. 1990), aff'd mem., 914 F.2d 260 (7th Cir. 1990); Cass R. Sunstein, The Constitution and the Clone, in Clones and Clones: Facts and Fantasies about Human Cloning 207, 211 (Martha C. Nussbaum & Cass R. Sunstein eds., 1998).
102. John A. Robertson, Children of Choice: Freedom and the New Reproductive Technologies 22-42 (1994) (discussing the importance of procreative liberty). The Supreme Court did uphold a forced sterilization law in Buck v. Bell, 274 U.S. 200, 47 S. Ct. 584 (1927), a decision that undermines the argument for a constitutional right to procreate. However, that argument has been severely criticized, and recent lower court decisions involving forced sterilization have rested their decision on the individual right to be sterilized rather than on the absence of a right to procreate. See, e.g., In re Valerie N., 707 P.2d 760 (Cal. 1985) (discussing the constitutional right of developmentally disabled persons not to bear children).
103. Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967) (invalidating a law prohibiting marriages between whites and "colored persons").
104. Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 768-69, 106 S. Ct. 2169, 2182-83 (1986) (striking down a provision of a Pennsylvania statute that required physicians to use the abortion procedure most likely to result in a viable child).
105. Note too that a right to reproduce by cloning would entail a negative, rather than a positive, right. If the Court recognized a right to engage in cloning, it need only hold that states cannot prohibit voluntary cloning by patients and physicians. The Court need not require public funding for cloning, and it need not require physicians to provide cloning when patients request it. In other words, a right to cloning would be similar in form to a right to abortion.
106. 521 U.S. 702, 117 S. Ct. 2258 (1997) (rejecting a constitutional right to physician-assisted suicide).
107. Id. at 727-28, 117 S. Ct. at 2271-72 (citations omitted).
108. 491 U.S. 110, 109 S. Ct. 2333 (1989).
109. Id. at 123-30, 109 S. Ct. at 2341-46.
110. Id.; see also Glucksberg, 521 U.S. at 720, 117 S. Ct. at 2268 (observing that "'we ha[ve] always been reluctant to expand the concept of substantive due process . . . lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.").
111. Note, Human Cloning and Substantive Due Process, 111 Harv. L. Rev. 2348, 2354 (1998). Some commentators have argued that constitutional rights in reproduction rest on the protection of bodily integrity and that therefore a right to cloning would not be encompassed by the right to procreate.
112. Ann MacLean Massie, Regulating Choice: A Constitutional Law Response to Professor John A. Robertson's Children of Choice, 52 Wash. & Lee L. Rev. 135, 159-62 (1995);
113. Radhika Rao, Constitutional Misconceptions, 93 Mich. L. Rev. 1473, 1484-85 (1995).
114. But see David Orentlicher, The Alleged Distinction Between Euthanasia and the Withdrawal of Life-Sustaining Treatment: Conceptually Incoherent and Impossible to Maintain, 1998 U. Ill. L. Rev. 837, 847 (arguing that it is wrong to rest personal liberty in concerns about bodily integrity); Wu, supra note 56, at 1480-85 (arguing that the Supreme Court has recognized a right to procreate that goes beyond considerations of bodily integrity).
115. George J. Annas, Human Cloning: A Choice or an Echo?, 23 Dayton L. Rev. 247, 254 (1998); Sunstein, supra note 84, at 216-17.
116. Glucksberg, 521 U.S. at 720-21, 117 S. Ct. at 2267-68.
117. Id. at 710, 117 S. Ct. at 2262.
118. Id. at 721, 117 S. Ct. at 2268.
119. Clark D. Forsythe, Human Cloning and the Constitution, 32 Val. U. L. Rev. 469, 516 (1998).
120. Glucksberg, 521 U.S. at 711-19, 117 S. Ct. at 2263-67.
121. Bowers v. Hardwick, 478 U.S. 186, 191-94, 106 S. Ct. 2841, 2844-47 (1986).
122. We might look to how the law has traditionally treated other artificial methods of reproduction for guidance. However, the evidence is mixed. States generally permit some methods, like artificial insemination, but typically prohibit other methods, like paid surrogacy. Curran et al., supra note 35, at 867-68, 894-96. In other words, legal precedent indicates that we must decide the acceptability of each artificial method of reproduction on its own terms.
123. Of course, physicians are involved as third parties in cloning, but physicians or midwives are routinely involved as third parties in all methods of reproduction.
124. Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S. Ct. 1932, 1938 (1977) ("Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition"); Massie, supra note 94, at 160-61 (discussing constitutional respect for the marital relationship).
125. Cleveland v. United States, 329 U.S. 14, 18-19, 67 S. Ct. 13, 15-16 (1946).
126. Meyer v. Nebraska, 262 U.S. 390, 399-400, 43 S. Ct. 625, 626-27 (1923) (upholding the right of parents to educate their children in foreign languages); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S. Ct. 571, 573 (1925) (upholding the right of parents to educate their children in private schools).
127. Reno v. Flores, 507 U.S. 292, 304, 113 S. Ct. 1439, 1448 (1993) (observing that a child will not be removed from the custody of parents, even if another couple would provide a better upbringing, as long as the parents are providing an adequate upbringing) (citing Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554 (1978)).
128. A right to cloning is also supported by the freedom of association with respect to "intimate human relationships." Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18, 104 S. Ct. 3244, 3249 (1984).
129. One might cite the tradition of state laws prohibiting incestuous sexual relations and incestuous marriages to reject a constitutional right to cloning. This tradition arguably points to a tradition in favor of children being born to two unrelated persons. However, prohibitions against incest seem to be rooted in different concerns than whether a child has genes from two unrelated persons. With incestuous relations, one has to worry whether both persons are participating voluntarily. (Consider, for example, a sexual relationship or marriage between a parent and child.) Incest bans also reflect concerns about psychological harm to minors and disruption of family harmony. As to the latter, incest might create unhealthy competition for sexual companionship among family members. There are also genetic concerns about incest If people carry the trait for a genetic disease but are unaffected with the disease themselves, they are much more likely to have children with the genetic disease if they marry a close relative than if they marry someone with no blood relationship. Close relatives have a greater chance of also being carriers of the trait. Carolyn S. Bratt, Incest Statutes and the Fundamental Right of Marriage: Is Oedipus Free to Marry?, 18 Fam. L.Q. 257, 271, 289-90, 293-94 (1984). Cloning, however, does not raise the concerns posed by incest Cloning is essentially a voluntary act, and instances of involuntary cloning are amenable to regulation. See supra text accompanying notes 36-44. Cloning does not involve sexual relations with minors, and the interest in family harmony supports a right to cloning. See supra text accompanying notes 54-73. Finally, cloning does not increase the risk of genetic disease. Silver, supra note 43, at 103-04 (observing that "there is no scientific basis for the belief that cloned children will be any more prone to genetic problems than naturally conceived children"). Incest is also prohibited because it is "unnatural," Bratt, supra, at 287-88, but one must do more than invoke arguments about naturalness to condemn a potentially important reproductive practice. Artificial inseminations, as well as artificial heart valves and hip replacements, are also unnatural.
130. Planned Parenthood v. Casey, 505 U.S. 833, 869-71, 112 S. Ct. 2791, 2816-17 (1991).
131. Silver, supra note 43, at 103-05.