human cloning

days thereafter.”165 Since fertilization is not defined, a court might turn to a dictionary definition: “the process of union of two germ cells whereby the somatic chromosome number is restored and the development of a new individual is initiated . . . .”166 Cloning is not the union of two germ cells, but this process does restore the somatic chromosome number, and the development of a new individual is initiated. The two most important elements of fertilization are satisfied, and the third merely explains the only way previously known to accomplish the first two. Thus fertilization could be interpreted to include cloning. The 265-day period of coverage in the Minnesota statute potentially creates a loophole, though. If an embryo is created through cloning, it could be argued that if it is cryopreserved for 265 days after “fertilization,” it could be experimented upon thereafter.

Pennsylvania prohibits nontherapeutic experimentation and nontherapeutic medical procedures on an “unborn child,”167 which is defined as being an organism of the species of homo sapiens from fertilization to live birth.168 Fertilization, in turn, is defined as the fusion of a human spermatozoa with a human ovum. Like Minnesota, then, the reach of the statute would depend in part on whether the definition of fertilization was stretched to cover nucleic transfer.

Pennsylvania’s law is open to an additional challenge. The statute’s use of the term “unborn child” might allow for an argument that it should not be interpreted to cover cloning research which is not intended to lead to birth.

A further complication is presented by the fact that six of the statutes apply to “live” fetuses only.169 Two of the statutes— Florida170 and Maine171— do not define “live” but it is likely that a court would determine that the product of cloning research was live.

In the other four states that provide protection for “live fetuses,” a fetus is defined as being “live” at that time when “in the best medical judgment of a physician, it shows evidence of life as determined by the same medical standards as are used in determining evidence of life in a spontaneously aborted fetus at approximately the same stage of gestational development.”172 Whether these statutes would apply to the new cloning technique is a medical determination. If they are to apply, Massachusetts, North Dakota, and Rhode Island would prohibit all research or experimentation,173 while Michigan would prohibit only non-therapeutic research and experimentation.174 Some of the states that ban research and/or experimentation on fetuses have exceptions if the activity is necessary to preserve the life or health of the fetus.175 An argument could be made that these statutes might create an exception for cloning whole individuals, because without the very procedure the statute would regulate, the fetus would not be alive to preserve. John Robertson argues that, in cloning, “the intent there is actually to benefit that child by bringing it into being so if one views it somehow as experimentation on the expected child I would think it should be classified as experimentation for its benefit and thus would fall within recognized exceptions when experimentation can occur.”176 However, a court would be unlikely to find such an argument persuasive; a court is likely to hold that the procedure needs to be therapeutic to an already existing fetus.

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