Got into a discussion at the bar about the rights of clones. This is a fairly typical day in the life, mind you.
So we’re all talking about human cloning and what rights said clones would or would not have under the law as it stands. There was a bit of googling that led to a few interesting discoveries.
First off, several bar regulars were surprised that there is not, in fact, any sort of federal law against the cloning of human beings in the United States. Funding is covered, the act is not. So that’s interesting. (Other nations have various stances. It’s illegal to knowingly create a human clone in Canada, for example.)
The various United States all have differing policies. More than half of them don’t have any sort of law on the books. Arizona, Arkansas, Michigan, North Dakota, Oklahoma, South Dakota, and Virginia each have an outright and total ban on the practice of human cloning. And then there’s this…
California, Connecticut, Illinois, Iowa, Maryland, Massachusetts, Missouri, Montana, New Jersey, and Rhode Island each have some version of what’s sometimes called a clone-and-kill law. This essentially allows for the creation in vitro of human tissues so long as this doesn’t result in the birth of a living human child.
This is primarily for research purposes, of course. Certain people got very angry about it and claimed that these laws were designed to make it legal to create a clone baby for the purpose of then aborting that baby right at the very cusp of birth, which is … an astoundingly absurd thing to think. The idea that somebody wants an abortion so badly they’ll make a fucking clone. This is why we can’t have nice things, people.
So anyway, we all found that interesting enough but then we wondered what the deal was here in Tennessee. All of this, by the way, was sparked by the question of whether or not a clone would be able to vote, get a driver’s license, inherit property and so on. I found it particularly surprising that the most illuminating answers we found came from here in Tennessee, one of the many states that has absolutely zero laws (explicitly) regarding cloning.
First, I want to point out that the overwhelming majority of search results had to do with marijuana husbandry. But then I found something amazing.
Buckle up, kids.
You can read the entire thing here, but I’ll summarize. A couple files for divorce. The parties were able to agree on all terms but one: who got to keep the frozen embyros stored in a local IVF clinic the couple had gone to seeking help conceiving … in the wake of no less than five “tubal” (ectopic) pregnancies that had resulted in one fallopian tube removed and the other tied. No further natural pregnancies could occur. (Again, you can read the entire story and the court’s decision at the link beginning this paragraph. It’s a lot.)
The wife – Mary Sue – wants to have the embryos implanted in her womb so she can have a child. The husband – Junior – isn’t entirely sure what he thinks about his ex-wife having what is still technically his baby, and would prefer the embryos remain frozen for the forseeable.
Now the original court, defining the embryos as human beings, awarded “custody” to Mary Sue and instructed that she “bepermitted the opportunity to bring these children to term through implantation.” (Whoa.)
The Court of Appeals reversed this decision on the grounds of Junior’s “constitutionally protected right not to beget a child where no pregnancy has taken place.” The appeals court sent it back to the lower court with a directive to essentially assign joint custody.
Mary Sue then took it to the state Supreme Court. And that court chose to hear the case “…not because we disagree with the basic legal analysis utilized by the intermediate court, but because of the obvious importance of the case in terms of the development of law regarding the new reproductive technologies…”
This isn’t about cloning. But it isn’t not about cloning. The Court has an explicitly stated interest in emergent technologies and the shaping of laws to fit those new technologies. OK, so they hear the arguments.
By this time, it must be noted, both parties have remarried. Mary Sue no longer even wants to use the embryos, but she does want the right to donate them to another childless couple. Junior is very much against this, and by this point wants the frozen embryos destroyed.
Now here’s the meat. Sayeth the Courth, “One of the fundamental issues the inquiry poses is whether the preembryos in this case should be considered “persons” or “property” in the contemplation of the law.” The court of appeals had ruled in favor of property, and the high court concurred:
The policy of the state on the subject matter before us may be gleaned from the state’s treatment of fetuses in the womb… . The state’s Wrongful Death Statute […] does not allow a wrongful death for a viable fetus that is not first born alive. Without live birth, the Supreme Court has said, a fetus is not a “person” within the meaning of the statute.
Davis v. Davis, 842 S.W.2d 588 (1992)
At this point in our reading, you may imagine, the tone of the conversation shifted somewhat. While we are still fascinated by the implications of this with regard to human clones and whether or not they can steal our jobs, we must suddenly contend with the fetal elephant in the womb.
The Court goes on:
Without live birth, the Supreme Court has said, a fetus is not a “person” within the meaning of the statute. […] Other enactments by the legislature demonstrate even more explicitly that viable fetuses in the womb are not entitled to the same protection as “persons”. […]
Davis v. Davis, 842 S.W.2d 588 (1992)
And furthermore:
A woman and her doctor may decide on abortion within the first three months of pregnancy but after three months, and before viability, abortion may occur at a properly regulated facility. Moreover, after viability, abortion may be chosen to save the life of the mother. This statutory scheme indicates that as embryos develop, they are accorded more respect than mere human cells because of their burgeoning potential for life. But, even after viability, they are not given legal status equivalent to that of a person already born.
Davis v. Davis, 842 S.W.2d 588 (1992)
So there’s that. Right there in plain language. From the Tennessee State Supreme Court. Huh.
Anyway, the court notes that the original court’s “custody” ruling would have made the embryos legal “persons,” thus counteracting previous case law and leading to the effective outlawing of IVF treatments (and any other new and emerging reproductive technologies, one imagines).
The court concludes that the embryos are neither persons nor are they fully “property,” given their potential to become persons. In that light, the prospective genetic parents have to hash it out. Where there is dispute, as in this case, the court rules that the party wishing to avoid procreation (Junior) should prevail.
However, in cases where other methods of procreation are not available to the other party (as is the case here, as Mary Sue’s last eggs are tied up in those frozen embryos), then the argument in favor of procreation must be considered.
However however, since Mary Sue in this case wants to donate the eggs to a couple not party to the matter, fuck what she wants (I may be paraphrasing).
So anyway, what a story. The wisdom here is that, at least insofar as the State of Tennessee is concerned, a cloned human would seem to be a person and accorded full rights as such so long as the experienced live birth.
Does this mean children – cloned or otherwise – born of an artificial womb are not persons? Strictly speaking, I don’t think so … but should that circumstance arrive, there would likely have to be further litigation to firmly establish a yes or no on that. Because this was a custody battle and an indirect confirmation of existing abortion law, not a case about cloning.
John A. Underwood 