The legal and moral debate in the United States over cloning is likely to be long and complicated. American lawyers, politicians, and policymakers grappling with the complexities of the issue may find it instructive to look to the United Kingdom, where some of the most pressing questions have already been addressed. British scholar and lawyer Ruth Deech, principal of St. Anne's College, Oxford, offered the following insights during a speech at Boston College Law School last spring.

In a season when President George W. Bush was urging the Senate to pass a bill banning the cloning of human embryos-even for research into cures for diseases-the Law School's second annual Libby Lecture took up the legal and regulatory framework governing cloning and other embryological research in the United Kingdom. In the March 14 lecture, Oxford's Ruth Deech, who chairs the UK's Human Fertilization and Embryology Authority (HFEA), described a regime that, while more permissive than what Bush is proposing, also involves closer government oversight of scientific research than is likely to be accepted in the United States, given this country's decades-long trend favoring laissez faire government.

Deech began by describing the UK's 1990 Human Fertilization and Embryology Act and the widespread anxiety that led to its passage. The public, she said, understood the benefits of new techniques such as in vitro fertilization, but wanted assurances that the embryos that remained from in vitro fertilization procedures not be used in research without consent of the donors, and that donor identities would remain confidential.

The 1990 Act permitted embryo research with donor consent, and only in a narrow range of reproduction-related research areas such as infertility, congenital abnormalities, miscarriages, and contraception. The act also established the HFEA, the twenty-one member body Deech has chaired for seven years, and charged it with regulating reproductive clinics, as well as research using human embryos. Under the Act, such research requires prior approval from HFEA, whose members include scientists, physicians, and assorted laypersons. Researchers applying for approval must explain the need for the proposed study, and describe the methods to be used. In addition, two peer reviewers--expert reproductive biologists--must submit reports evaluating the study's merits.

In 1997, the birth of Dolly, the cloned sheep, underscored the need for refinements to the 1990 Act. Until then, most scientists thought the cloning of mammalian, not to mention human, embryos would not occur for many years. (The term cloning refers to a technique where the nucleus of an egg is replaced by a cell nucleus from a living adult; the resulting embryo is a genetic carbon copy of the adult.) With the cloning of a human embryo looming on the horizon, the HFEA took part in a "public consultation" to address the prospect. The resulting report, published in December 1998, found widespread opposition to human reproductive cloning-that is, cloning to create a new human being. However, the report also suggested Parliament consider extending the 1990 law to allow therapeutic cloning, that is, the use of cloned embryos for research into therapies for diseased and damaged organs. Stem cells extracted from embryos are especially good at generating healthy tissue that can replace tissue damaged by disease or injury.

Despite the opposition of religious groups who say embryos are humans who are killed in the process of extracting stem cells, Parliament legalized therapeutic cloning, while outlawing the placement of a cloned embryo into a woman's uterus. Deech explained that "the view seems to have prevailed in Britain that it is more ethical to use scientific knowledge to relieve existing human disease than it is to block this research.…" Nevertheless, a British group, the Pro-Life Alliance, attacked the new bill in a 2001 lawsuit, arguing that a cloned egg, because it lacked a sperm, didn't qualify as an embryo. Their suit won in trial court, with the ironic result that human reproductive cloning became legal in the UK. Deech speculated that the Pro-Life Alliance brought the case not to legalize reproductive cloning but to underscore what they saw as the law's vague language. In any case, the trial court's decision was reversed on appeal, and reproductive cloning is again illegal.

Deech ended her speech with a survey of attitudes toward embryo research in Europe and the US, concluding that "there is no international consensus." Unlike the UK, for example, she said, Germany bans research that "does not benefit the embryo itself." Meanwhile, in the US, a Bush administration policy bans the use of federal funds for research involving cloning, but until a law passes like the one Bush has been lobbying for, therapeutic cloning is permitted in privately funded research. (Last November, a Worcester, Massachusetts, firm said it had succeeded in cloning a human embryo and planned to use the stem cells to generate new therapies.) Though she did not explicitly suggest that the US adopt a system like the UK's, Deech did point out that the UK's system "is often held up as an example to other countries considering their own system of regulation of this area."

-David Reich

Other articles from Legal Currents....
Separation Anxiety
The Emergence of Elder Law