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Congressional Testimony
February 5, 2002 Tuesday
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 2468 words
COMMITTEE:
SENATE JUDICIARY
HEADLINE: SCIENTIFIC
IMPACT ON COLONING BAN
TESTIMONY-BY: HENRY T. GREELY,
PROFESSOR OF LAW
AFFILIATION: STANFORD UNIVERSITY
BODY: Statement of Henry T. Greely C. Wendell
Professor, by Courtesy, of Genetics Director, Center for Law and the Biosciences
before the Judiciary Committee of the United States Senate
February 5, 2002
Madam Chairman and members of the Senate
Judiciary Committee, my name is Hank Greely. I am a professor of law and a
professor, by courtesy, of genetics at Stanford University.
Since early
1999, I have been a member of the California Advisory Committee on
Human
Cloning, which made its statutorily-mandated report, entitled Cloning
Californians? Report of the California Advisory Committee on
Human
Cloning, to the California legislature on January 11, 2002. I have made
copies of that report available to the Committee's staff; I am only attaching
its Executive Summary to this testimony.
I am here today both to report
the findings of that Committee and to provide my own insights into legislation
now pending before this body concerning
human cloning. Except
as specifically noted, the views I express today are my own and not necessarily
those of the California Committee or of Stanford University. Those views lead me
to support, strongly, Senate Bill 1758. I want to discuss four things in my
testimony: The California report, reproductive cloning, non-reproductive
cloning, and the implementation of any legislation related to
human
cloning. The California Report
In 1997 California
became the first U.S. jurisdiction to ban human reproductive cloning. The ban
was to last for five years, until January 1, 2003. As part of this statute, the
legislature required the executive branch to appoint a committee to make
recommendations back to the legislature about appropriate policy on
human cloning by December 31, 2001. The legislature and the
governor would thus have a full year to consider the report before the existing
ban on reproductive cloning expired.
The California Advisory Committee
on
Human Cloning was appointed in early 1999. Its twelve
members, identified below, represented a variety of professional backgrounds and
a wide range of political viewpoints.
Francine Coeytaux, MPH Public
Prof. Theodore Friedmann, MD Genetics . Dr. David Gollaher, PhD Biotechnology
Prof. Henry T. Greely, JD Law Dr. Roger Hoag, MD Medicine Prof. Bernard Lo, MD
Ethics Dr. Bert Lubin, MD Medicine Prof. Margaret R. McLean, MDiv, PhD Religion
Francis C. Pizzulli, JD Law Prof. Radhika Rao, JD Law Prof. Larry Shapiro, MD
Medicine Dr. Tracy Trotter, MD Medicine
Under the leadership of Dr.
George Cunningham, Chief of the Genetic Disease Branch, California Department of
Health Services, the Committee held five public meetings, beginning in May 1999,
and innumerable closed meetings. It discussed, debated, negotiated, and argued
about the subject and about its report up until the day before it delivered that
report to the State. But, remarkably, the report it delivered contained five
unanimous recommendations, as the Committee achieved a consensus on these very
difficult issues.
The exact recommendations are contained in the
Executive Summary of the Committee report, attached at the end of this
statement. The most important recommendations were the first - that California
should ban human reproductive cloning - and the second - that California should
not ban, but should regulate, human non- reproductive cloning.
Those
recommendations are not, in themselves, novel. Other groups, and other
jurisdictions, including the United Kingdom, have reached similar conclusions.
What was remarkable about the Committee's conclusions, I believe, is not what
they were but how they were reached. The twelve members of this Committee
started with very different positions on both reproductive and non- reproductive
human cloning. As we heard more testimony and public comment,
read more deeply in the literature, and began writing (and arguing about) our
report, our views began to converge. They never converged completely. We have
some different reasons for believing human reproductive cloning should be
banned; although all of us agree more regulation of human non-reproductive
cloning is needed, we have different ideas for the appropriate extent of such
regulation. But, in 32 months of study and effort, we came much closer together.
I believe our experience is evidence that, although the issues raised by
human cloning are both profound and complex, a latent consensus
exists, in California and, I believe, in the United States, on these issues.
Government should not allow
human cloning to be used to make
people; it should allow - with due care -
human cloning
research to proceed to find ways to relieve diseases and conditions that cause
suffering to existing people. Senate Bill 1758, introduced by Senator Feinstein
and others, reflects that emerging consensus; Senate Bill 790, introduced by
Senator Brownback and others, does not.
Human Reproductive Cloning
No responsible authority has supported the current use of human
reproductive cloning. The California Committee was no exception. Every member of
our Committee concluded that the issues of the physical health and safety of any
children produced by such cloning compelled its prohibition. Every member also
had concerns about human reproductive cloning even if it were proven safe. A
large majority of the Committee concluded that other issues would justify a ban
on reproductive cloning even if it were proven safe, although there was no
agreement on just which non-safety issues were compelling.
The safety
concerns are not a smoke-screen for the other worries; they are only too real.
Many strong theoretical reasons cast doubt on the safety of this procedure. The
empirical results to date with reproductive cloning in other mammals are a
daunting record of miscarriages, still-births, birth defects at ten times the
normal rate, and at least some possible indications of late onset illness. The
almost total failure of efforts to clone non- human primates, in spite of
substantial efforts, is yet another reason for concern. One should not demand
perfect safety - the usual way of making babies has its own serious risks for
both mother and child - but before we should consider seriously allowing human
reproductive cloning, the procedure should have demonstrated, in non-human
mammals (and preferably primates), that it is as safe or nearly as safe as
normal reproduction or in vitro fertilization technologies.
Statutory
prohibitions of reproductive cloning, such as exist in California and a few
other states, would be useful. It is not clear that they are essential - the
unanimous condemnation of the procedure by professional groups; the potential
for civil liability; the assertion by the Food and Drug Administration, no
matter how questionable, of jurisdiction over cloning; and their own
professional duty to "first do no harm" should stop all but the most reckless
physicians. Adding a statutory prohibition, with clear and serious penalties,
would, however, be another useful measure to limit such unjustified experiments.
Human Non-reproductive Cloning
The California report's position
on human non-reproductive cloning is more complicated. We believe that its
medical promise meant that it should not be banned. At the same time, we do not
believe that the existing regulation of this research is sufficient. Both parts
of that recommendation were essential to our unanimous conclusion. Only Senate
Bill 1758 combines those two crucial points.
Consideration of human
non-reproductive cloning can usefully begin with analysis of the arguments
against it. Almost every argument about human non-reproductive cloning is, in
fact, an argument against any destructive research with the human embryos.
Arguments about the moral status of the embryo, the possible commodification of
human life, the risk of oppression to egg donors have been made for more than a
decade about human embryo research, as well as human fetal research. Our society
has not reached a consensus about any of those arguments, but our governments
have reached a compromise resolution. The federal government does not fund
research that entails the destruction of human embryos; nor does it, under
President Bush's August 9, 2001 position, fund research on embryonic stem cell
lines derived from human embryos that were destroyed after that date. But
neither the federal government nor most states forbid such research if it is
privately funded. This resolution makes both sides unhappy, but it has proven,
to date, an acceptable compromise. There is no reason to treat human embryonic
research differently because the embryo involve was created through cloning.
Only one argument against non-reproductive
human
cloning is not just a recycled argument against human embryo research.
Some have argued that human non-reproductive cloning must be banned to forestall
human reproductive cloning. This "slippery slope" argument is largely silly. One
could make the same argument for banning automobiles because they might be used
for get-aways from bank robberies or banning electricity because it might be
used to commit a murder. In the case of
human cloning, the
argument requires that someone who is willing to violate the law (and incur its
penalties) by performing human reproductive cloning would not be able to make
his own embryos, but would be able to beg, borrow, or steal a most likely
anonymous cloned embryo from a research laboratory and, using an in vitro
fertilization clinic, implant the transported cloned embryo into a willing
woman. If the production of cloned human embryos proves possible, it is most
likely that, as with other cloned mammals, the creation of the cloned embryo
will be the easy part of the work - bringing it successfully to term will be the
hard part.
This slippery slope argument does have one good use. It
highlights the value of increasing the regulation of human non- reproductive
cloning. The California Committee concluded that the State should regulate
non-reproductive cloning by at least a) forbidding all research with cloned
human embryos after the appearance of the so-called "primitive streak" at about
14 days from its creation, b) requiring the informed consent of all those who
donated cells to the process, and, last but most importantly, c) requiring the
review and approval of any such work by an Institutional Review Board. Such IRB
review will help ensure that the research is documented, that the researchers
are accountable, and that the means and goals of the research are appropriate.
This review is not now generally required for research that does not involve
federal funding, Food and Drug Administration approval, or major research
institutions. I am pleased that Senate Bill 1758 includes this extension of IRB
review to human non-reproductive cloning.
Issues of Implementation
Finally, the California Committee discussed not just what policy the
State should adopt, but how that policy should be implemented. We strongly
recommended that the legislature delegate the details of regulation, including
the detailed definition of the covered procedure, to an administrative agency.
The same concerns clearly exist at the federal level.
It is difficult
for a legislature to regulate science effectively, particularly in a fast-moving
field. Drafters of the legislation, in spite of their best efforts, may not
understand scientific terms in the same way the scientists do. Even if their
understanding is correct at the time the legislation passes, the science can and
will change much more quickly and easily than statutory language. I have studied
the definition of
human cloning in the numerous bills
introduced and the few statutes passed in various jurisdictions after Dolly. See
Henry T. Greely, Banning "
Human Cloning": A Study in the
Difficulties of Defining Science, So. Cal. Interdisc. Law Rev. 8:131-152 (1998).
Many of those bills would not have achieved their goals because their
loose use of terms like "cloning", "somatic cell," or "diploid" left loopholes
that could be exploited. Some used definitions that made no sense at all.
Several bills would have banned "the replication of a human individual by
cultivating a cell with genetic material through the egg, embryo, fetal and
newborn stages into a new human individual." Unless the term "replication,"
itself undefined and ambiguous, has special meaning, this definition seems to
describe the age-old method of human reproduction. A bill introduced in Florida
would have banned
human cloning, defined as "creating a new
individual by using the complete nuclear genetic material of an existing human
being to create a second genetic duplicate of that human being." Presumably the
first duplicate would have been permitted. Even the California legislation,
which, in my professional view, has the best definition of human reproductive
cloning, could be read to exclude some advanced reproductive technologies that
involve transfer of a nucleus into an egg but do not involve
human
cloning - the resulting egg would later be fertilized with sperm.
Although the Congress is likely to avoid making some of these mistakes,
it cannot avoid the unpredictability of the future course of this science. Any
legislation passed, therefore, should define human reproductive cloning broadly
- probably as the intentional creation of a fetus or child that is substantially
genetically identical to a previously existing human - and delegate the power to
define the subject matter more precisely to an administrative agency.
Conclusion
The explosion of our knowledge about biology
confronts us all - as legislators, as citizens, as moral actors - with new
challenges. It holds the promise of unprecedented reductions in human suffering;
it also holds the threat of unprecedented changes . . . and dangers . . . to our
humanity. The combination of a science that is both unclear and rapidly changing
with a host of moral questions of great depth makes perfect solutions
impossible. We cannot know what is right; we can only act, humbly, in ways that,
after due consideration, seem right based on what we now know. The various
dangers of human reproductive cloning, as we now understand them, demand that it
be banned. The various promises of human non-reproductive cloning, with the
benefits they now seem likely to offer, compel its continuation but with
appropriate new regulation. This mixed verdict is not the perfect solution to
the challenge of
human cloning; it is merely the best solution
we fallible humans can come up with today. As such, Congress should enact it
into federal law through adopting Senate Bill 1758.
It has been an
honor, and a pleasure, to appear before you. Thank you for the opportunity to
discuss these fascinating and compelling issues.
LOAD-DATE: February 6, 2002