Title:
Is Human Reproductive Cloning Inevitable and Options for Governance

Darryl Macer, Ph.D.,
Regional Adviser in Social and Human Sciences for  Asia and the Pacific,
Regional Unit for Social and Human Sciences in Asia  and the Pacific (RUSHSAP),
UNESCO Bangkok , 920 Sukhumvit Road , Prakanong, Bangkok 10110 , THAILAND
www.unescobkk.org/rushsap

Abstract:
Human cloning has been one of the most emotive and divisive issue to face the international community in recent years. The United Nations University Institute of Advanced Studies (UNU-IAS) report “Is Human Reproductive Cloning Inevitable: Future Options for UN Governance” examines how, that despite a widespread consensus amongst nations that it is desirable to ban reproductive cloning, efforts to negotiate an international convention ground to a halt due to fundamental divisions regarding so-called research or therapeutic cloning. Firm positions on both sides of the debate led to the compromise position of a non-binding UN Declaration on Cloning.

The report included a brief introduction to the science of cloning using the definition that Cloning is the “Process of producing cells genetically identical to the original ancestor”, and that Reproductive cloning “involves the use of cloning technology to produce one or more individuals genetically identical to another individual.” The report noted that over the last fifty years we have moved from being able to clone a few cells to cloning of mammals. Despite media hype, it is still reasonable to conclude, that given the amount the work ongoing in the field that advances in embryo research are set to increase during this century, providing a good reason for considering regulation. Scientists have called for allowing multiple scientific approaches to achieve beneficent goals of research. The report was written before the announcement of IPS technology.

The analysis of the ethical considerations revolved around the questions of – human dignity, what is natural, human health, social justice, freedom of research and choices. The conclusions include that the intrinsic dignity (feeling of self-worth) and extrinsic (respect for the dignity of others) dignity of the human person is not violated by human reproductive cloning. Society may have an obligation to disallow activities which might lead to commoditisation of life.

The Universal Declaration on Human Genome and Human Rights adopted by all member countries of UNESCO in 1997 recognises human biological diversity as part of our natural heritage. Replicating genetic characteristics via human cloning would result in shrinking of biological diversity. This will be an issue if reproductive cloning is widely practiced, but not if it was used for limited numbers. The UNESCO International Bioethics Committee (IBC) published a report including analysis of the UNU-IAS report, which further calls for governance decisions on human reproductive cloning to be made.

The reports of UNU and UNESCO contribute to dissemination, discussion and debate on cloning issues at the international level, so that all countries including the developing and least developed countries can participate and put forward their concerns regarding this new technology. This issue however is one that affects all of humanity, and the reports intend to provide a basis on which the international community may wish to revisit the issue of human cloning, at a time which may be not too distant. There should be dissemination, discussion and debate on cloning issues at the international level, such that all countries including the developing and least developed countries can participate and put forward their concerns regarding this new technology.

Given the immature state of technology, the possibility of mutations and potential physical harm and general long term health risks are serious concerns that make applications of such technology ethically unacceptable. This is the point on which all parties (scientific and religious) converge and their objective of prohibiting human reproductive cloning comes together.

Other ethical issues include the social justice issues of selection of research priorities. Prioritisation of research is an issue that is being debated and progress is being made at the international level. The 2005 Bioethics Declaration developed by the UNESCO IBC seeks to establish a principle of social responsibility. Bioethics needs to rethink its agenda and part of that rethink should include an analysis on the benefit that cloning technology can bring to disadvantaged and underprivileged groups.

There is also consideration of potential discrimination against children born from cloning.
There is a call for greater research and description of diverse ethical positions from non-Western countries, and countries that were not so focal in the UN GA debates. Philosophy of science and bioethics have often ignored potential contributions from non-western philosophies, which can bring both useful insights into current issues and also aid in rethinking the agenda for bioethics in a way that is relevant to more people across the globe. An analysis of the construction of ethical positions and their application to the issue could be made. Discussion of ethics at the UN level often brings to mind the notion of deep, profound, commonly held principles to guide human actions. While general ethical principles, such as the principle of doing no harm in medical practice, are widely respected, the question of what amounts to harm is less easily de?ned. The debate on reproductive and research cloning has demonstrated the diversity of ethical beliefs. It is interesting, for instance, that while there is an almost complete consensus amongst countries with regard to the need to ban reproductive cloning, a number of academics and some religious groups do not necessarily believe that such cloning is unethical.

The General Assembly ( UN GA ) debate on the agenda item brought by France and Germany which culminated in the 2005 Cloning Declaration is instructive of a number of lessons in biodiplomacy. The choice of forum for such debate has to be carefully considered, the place of moral issues in the regulation of biotechnology has to be fully recognised, and the historical continuity with debates in assisted reproduction and reproductive technologies has to be kept in perspective.

The UN GA Cloning debate evolved from calls for a Convention to the formulation of a Declaration, as a way to bridge the division over the international governance issues. The United Nations Declaration on Human Cloning (A/RES/59/280) was thus adopted on 8 March, 2005 . The Declaration was passed with 84 countries supporting it, 34 against, while 37 abstained. Comparisons are made between the reasoning of countries for and against the Declaration. Research efforts on reproductive as well as therapeutic cloning continue to be governed by national law and policy.

The Formation of Customary International Law is reviewed, and the report concludes that an analysis of existing municipal legislation on cloning indicates strong evidence of state practice and opinio juris supporting the prohibition of reproductive cloning. In the case of reproductive cloning, over 50 countries have legislated to ban reproductive cloning and there is no country that legislated to allow the practice. The Universal Declaration on the Human Genome and Human Rights, approved by UNESCO General Conference in 1997, was endorsed unanimously by the General Assembly, as a prohibition on reproductive cloning. There is however no consensus on use of human embryos for research cloning.

National legislation provides a framework for regulating behaviour within national jurisdictions. They do not apply beyond the boundaries of the state. However, international law is formed via these national legislation, provided they are all uniform and achieving the same effect. An international Custom is supposed to have emerged. Such custom is binding on all states. International custom can be pictured as a web of rules created by the enmeshing of national legislation and other forms of official statements, subsequently followed by action (including inaction) and provides as much coverage if not more than treaty law (Art. 38 (1) (b), Statue of the International Court of Justice). The procedure whereby a cloned embryo is implanted into the uterus has been declared a criminal offence under many national legal systems ? and the same is reflected in the corresponding customary rule.

Future options for international governance of cloning could include further work by UNESCO IBC on the issue of reproductive and research cloning, in the context of resolution A/RES/59/280 and also in the context of the Universal Declaration on Bioethics and Human Rights, which was adopted by the General Conference of UNESCO on the 19th of October 2005 . The UN GA Sixth committee takes up the issue of customary international law on cloning. The current status quo is one option, but the report presents discussion relevant to the different options that exist to establish temporary moratorium, total bans or to leave the decision to the national governments.

Amongst the options available for regulation of cloning only option b below has near universal consensus among governments:
a) Ban all cloning research
b) Ban reproductive cloning
c) Ban reproductive cloning but allow research cloning
d) Ban reproductive cloning and provide a time limited period for research cloning with a built in review process.
e) Place a moratorium on all cloning research.

While noting the existence of article 11 of the UDHGHR, and its endorsement by the UN GA in 1998, as the most significant international norm against human reproductive cloning, the UNU IAS report notes that is notoriously difficult to establish international custom. For that reason if it is written down in the form of a resolution, then it is recognised more easily as custom. To this end the International Community could take write the custom down into law.

The UNU-IAS report recommended that either UNESCO IBC takes up the issue of reproductive and research cloning, in the context of resolution A/RES/59/280 and also in the context of the Universal Declaration on Bioethics and Human Rights, which was adopted by the General Conference of UNESCO on 19 October 2005; and/or the UN GA Sixth committee takes up the issue of customary international law on cloning.

In discussion of governance, case studies on the ethics of human reproductive cloning research wherein a diversity of ethical positions exist on the issue could be gathered. Case studies on the ethics of healing would constitute a valuable resource for the international community to draw upon while deliberating on embryo research. Case studies on the status of the embryo in international law. Such a study will provide a sound foundation from which to consider the ethics of embryo research.