Human Cloning Part 4
HUMAN CLONING: PART 4
Roberto Colombo
Pontifical Academy for Life
Cloning carries international implications
Not only did the end of the Second World War coincide with a rapid recovery and unprecedented development in biological and medical research, deeply debased by the crimes of Nazi scientists and in need of moral redemption in the eyes of the world still captured by the Nuremberg trials that had brought them to light; it also saw the international community being rebuilt on the recognition and safeguard of fundamental human rights, which had likewise been infringed, and violently, by a eugenic ideology and its execution.
Emblematic of a movement with regard to the political blocs that emerged in the post-war period was the Universal Declaration of Human Rights, adopted on 10 December 1948 with the resolution of the General Assembly of the United Nations in the Preamble of whose Statute, signed in San Francisco on 26 June 1945, the delegates reaffirmed their "faith in fundamental human rights, in the dignity and worth of the human person".
While lacking binding juridical power, the Declaration still possessed the indisputable merit of setting down for the first time in an international document the consideration of and protection for certain indivisible and inalienable natural rights (ius gentium), whose violation offends the conscience of all humanity. It marked "a step in the right direction, an approach towards the establishment of a juridical and political ordering of the world community" (Pacem in Terris, n. 144 [Vatican Website version]), and is "one of the most precious and important documents in the history of law,... the Declaration has made a decisive contribution to the development of international law, it has challenged national legislation and has allowed millions of men and women to live with greater dignity" (John Paul II, Message to the President of the 53rd Session of the General Assembly of the U.N. General Assembly, 30 November 1998; ORE, 23/30 December 1998, p. 6).
The programmatic character of this act was reflected at the regional and multilateral levels in a series of conventions and agreements on the safeguarding of fundamental human rights, including the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 1950). With their additional protocols, these were to lead to the establishment — among the other ad hoc bodies charged with supervising their application — of the European Court of Human Rights in Strasbourg, and to the formation of a model for other continents.
The affirmations of the philosophy of law and of juridical debates which place rights in the category of the "freedom of the individual" and "universal", have led certain authors to distinguish between various "generations" of fundamental human rights, starting with those listed in the French declaration of 1789, La Declaration des droits de l'homme et du citoyen, which states outright that "men are born and remain free and equal in rights [and dignity]" (art. 1).
"Rights" and "dignity", on a par with freedom and equality, are common to all human beings; hence, they cannot be conferred, revoked or trampled upon at the discretion of the national or supernational authority. They must be recognized and guaranteed as belonging to every human being as such and are a prerequisite of civil coexistence in every social circumstance. "The Universal Declaration is clear: it acknowledges the rights that it proclaims but does not confer them, since they are inherent in the human person and in human dignity.... Together they form a single whole, directed unambiguously towards the promotion of every aspect of the good of both the person and society" (Message of John Paul II for World Day of Peace 1999, 8 December 1998, n. 3; ORE, 12 December 1998, p. 10).
"For this very reason, the Holy See gives full moral support to the common ideal contained in the Universal Declaration, as well as to the gradual increase in the knowledge of human rights that it expresses" (Paul VI, Message for the 25th Anniversary of the United Nations Organization, 10 December 1973, in: AAS 62 [1974] 673-677, pp. 674-675). The Holy See received just as favourably the European Convention (1950), the Declaration on the Rights of the Child (1959) and the Convention on the Rights of the Child (1989).
Even the grave moral and civil question posed by extending cloning techniques to humans can be addressed in an international forum by a correct application of these instruments and charters that are inspired by the "universal, inviolable and inalienable rights of man" (Pacem in Terris, n. 145 [Vatican Website version]). Indeed, "these are not abstract points; rather, these rights tell us something important about the actual life of every individual and of every social group. They also remind us that we do not live in an irrational or meaningless world. On the contrary there is a moral logic which is built into human life and which makes possible dialogue between individuals and peoples" (John Paul II, Address to the 50th General Assembly of the United Nations Organization, 5 October 1995, n. 3; ORE, 11 October 1995, p. 8).
If we examine closely the text and context of the Declaration as well as its degree of assimilation, application and violation in the more than 50 years since its promulgation, we cannot miss certain limitations in this document and others that have followed it. Their intrinsic weakness is of an anthropological kind (an absence of an explicit rooting in human dignity, in an ontology of the person on whom the universal and incontrovertible nature of human rights is founded): the Declaration "does not, of course, present the anthropological and ethical foundations of the human rights which it proclaims" (John Paul II, Address at the Conferral by La Sapienza University, Rome, of a Degree honoris causa in Jurisprudence, 17 May 2003; ORE, 28 May 2003, p. 3). Their extrinsic weakness derives from the gradual emptying of their moral authority due to the activity of cultural and political forces which promote the "tendency to interpret rights solely from an individualistic perspective" (John Paul II, Address to Participants in the Ministerial Conference of the Council of Europe for the 50th Anniversary of the European Human Rights Convention, 30 November 2000; ORE, 8 November 2000, p. 4).
Nevertheless, the very serious threat cloning poses to life and to the psychological and physical integrity and dignity of the human being subjected to it would logically leave no room for the non-application or only partial application of what is sanctioned by the Declaration in the specific case of this radical manipulation of human life by biotechnology. Moreover, the Universal Declaration on the Human Genome of UNESCO (Paris, 1997), in confronting — although not without some important ambiguities and omissions — the matter of the recognition and protection of the human genetic heritage, managed to find in the affirmation of the rights and inalienable dignity of every human being, a legal foundation for the requirement of a body of norms to regulate the conditions for and practice of research on the identity and biological individuality of the human being.
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The possibility that cloning through somatic cell nuclear transfer (SCNT) might also be applied to humans did not appear to be excluded immediately after the first cloned sheep was born in 1996 and publicized in early 1997 (I. Wilmut et al., Nature 1997, 385: 810-813). At that time, several laws were already in force in a limited number of States that implicitly or expressly forbade attempts to clone human embryos for purposes of research or eugenics. These included Brazil (1995), Canada (1996), Denmark (1992), Germany (1990), Norway (1994), Slovakia (1994), Spain (1988), Sweden (1991), Switzerland (1982) and the United Kingdom (1990).
Spurred by the citizen and political reactions over the news of a new technique for cloning mammals, some states (Argentina, China, Israel, Italy, New Zealand and the United States) drafted emergency legislation to prohibit SCNT to humans, but permitting it in certain cases regarding animals. Lastly, other countries such as Bulgaria, Chile, Russia, France, India, Japan and Portugal, preferred to delegate to ad hoc commissions or government bodies the task of pronouncing on this sensitive subject and of reassuring public opinion.
On the European and world levels, reaction to the news that cloning animals may soon be possible was not long in coming. The international community's sensitivity to the ethical and juridical problems posed by cloning had grown since the U.N. General Assembly adopted Resolution 2540 (XXII), titled Human Rights and the Progress of Science and Technology. That same General Assembly had also asked member States to prevent the use of certain technological achievements that harm the fundamental rights and freedoms of man and his dignity (Declaration on the Use of Scientific and Technological Progress in the Interest of ' Peace and for the Good of Humanity: Resolution 3384 [XXX]).
From the mid-1980s, many resolutions and declarations have been drafted that acknowledge the pre-eminence of the rights and interests of individuals and peoples on the individual and environmental modifications ensuing from certain applications of scientific research.
In Europe the Convention of the Council of Europe for the Protection of Human Rights and the Dignity of the Human Being Concerning the Applications of Biology and Medicine was adopted on 19 November 1996 after negotiations lasting more than five years; it was signed at Oviedo on 4 April 1997, the day after the news broke of the first successful experiment of cloning a mammal through SCNT. This introduced for the first time a concrete frame of reference offering a minimal degree of legal protection to the life, integrity and dignity of the human person in the context of clinical and biomedical research activities. These standards are binding on signatory states (currently 31, of which only 13 have ratified their signature), even if each one can adopt or maintain, in its own legislation, levels of protection superior to those sanctioned by the Convention (cf. art. 27).
The Oviedo Convention already contained the legal elements for banning human cloning: article 2, which assimilated the prescription of the Helsinki Declaration (1964, art. 5) of the World Medical Association, and article 18.2 refer directly to the conditions and consequences of an act of cloning. The Council of Europe, "taking note of the scientific developments that have occurred with regard to the cloning of mammals", nonetheless deemed it necessary to stipulate an Additional Protocol to the Convention, signed in Paris on 12 January 1998, which prohibited "every intervention whose objective is to create a human being genetically identical to another human being, whether dead or living" (art. 1.1). Later, the European Parliament, with a resolution on 7 September 2000, denounced cloning once again, asking in addition, "at the level of the United Nations, for a universal and specific ban on the cloning of human beings at all the stages of their growth and development" (n. 10).
A dent soon appeared in the cultural and moral opposition to human cloning that began in 1997 and was apparently determined and precise also with regard to international law. The dent grew through the spread of information on research projects whose goal was the treatment of certain diseases by regenerating tissue via stem cells obtained from human embryos cloned through SCNT. The promising character of this research — exaggerated, beyond any realistic forecast of the experts themselves, by interests at times foreign to its scientific and medical context — led some lawyers and politicians to think that prohibiting human cloning with no exceptions would prevent the implementation of these projects and harm the rights and interests of researchers and of patients affected by diseases who were candidates for the new cell therapy.
Thus, the distinction was surreptitiously introduced — under the pretext of biological and ethical reference — between "reproductive cloning" and "therapeutic cloning", in an attempt to allow the production of cloned human embryos not for their development and the birth of a child, but rather for the extraction of their autologous embryonic stem cells. This arbitrary distinction was also adopted by the Charter of Fundamental Rights of the European Union (Nice, 2000) which provides in article 3.2 for "the prohibition of the reproductive cloning of human beings". In the document's Preamble, currently not legally binding because it is not integrated in the body of the Treaty, the European Union declares that it puts "the person at the centre of his action", and in the same article 3, recognizes the right of each individual to physical integrity, whereas eugenic practices and the use of the human body or parts of it for the sake of profit are forbidden.
The incongruence can be understood only by presuming, without justification, the embryo's exclusion from the ranks of human subjects entitled to the legal protection of their life; this seems to conflict with what is prescribed by the Oviedo Convention, which requests "the adequate protection of the embryo" (art. 18.1), and with the "fact that the embryo is a human individual and, as such, possesses the inviolable rights of the human being. Juridical norms, therefore, are called to define the legal status of the embryo as a subject of rights who cannot be overlooked by either the moral or juridical order" (John Paul II, Address at the Conferral... op. cit.; ORE, 28 May 2003, p. 3).
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Among those who do not recognize the urgent need for an international ban on any kind of human cloning — or even strong opposition to such a project — there are some who invoke certain human rights that would be violated by a total prohibition of access to cloning by researchers and patients, or who intend to justify the preference of exemption from law when there is an "irreconcilable conflict" of rights that can be claimed by the various persons involved in the cloning operation.
The right most frequently invoked is the right to freedom. It is said that banning human cloning would curtail two important expressions of freedom: "freedom of science" and "reproductive autonomy". With regard to the latter, the argument that it would be violated if cloning for the birth of a child were unavailable, appears unsustainable in the face of the various options (including adoption) currently accessible to couples affected by sterility or who are afraid of transmitting some genetic abnormality to their offspring.
"Freedom of science", called into question by the champions of cloning for therapeutic purposes and research, relies on articles 18 ("Everyone has the right to freedom of thought") and 19 ("Everyone has the right to freedom of opinion and expression") of the Universal Declaration of Human Rights as well as the International Convention on Economic, Social and Cultural Rights (1996), which notes that "the signatory States must... respect the freedom that is indispensable for scientific research" (art. 15.3). Article 27.1 of the same Declaration ("Everyone has a right... to share in scientific progress and in its benefits") was taken up in this context.
In confronting this interpretation, an epistemological consideration arises first of all: the biological and medical sciences are not only a form of theoretical knowledge but are also, and today more than ever, experimental. If it is true that "freedom of research... is part of freedom of thought" (Universal Declaration on the Human Genome, art. 12b), "freedom of experimentation" is not coextensive with "freedom of research".
Furthermore, the freedom to manipulate physical reality using any kind of technique, as compared with freedom of conscience, is not absolute: "What is technically possible is not for that very reason morally admissible" (Congregation for the Doctrine of the Faith, Donum Vitae, Introduction, n. 4). More conclusively, this principle is applied when the "object" of the experimentation is a human subject, as was recognized by the Helsinki Declaration, the International Convention on Civil and Political Rights (1966), the Oviedo Convention and the Charter of Fundamental Rights of the European Union.
The so-called "right to health" (more specifically, the right to "equal access to health care of an appropriate quality": Oviedo Convention, art. 3) and "the right to benefit from scientific progress" in the field of biology and medicine (cf. Universal Declaration on the Human Genome, art. 12a) are also invoked to defend cloning for the purpose of cell therapy. In this regard, it is impossible to forget that while research on producing autologous stem cells via SCNT is not, in fact, the only procedure for cell therapy (alternative sources of stem cells have been identified and are currently being examined), nor is it certain that it can contribute to "restoring the health" of many or even only a few patients, it already represents the introduction of a certain violation of the right to life of cloned embryos because it is impossible to extract cells from the internal cellular mass of a blastocyst without destroying the embryo.
Even with a purely proportionalistic consideration of the human act, which disregards the fundamental value of human life and the intrinsic unacceptability of its suppression, the possible future benefits of research on so-called "therapeutic" cloning cannot stand up to the comparison with today's unequivocal violations of. the rights and dignity of the human being caused by experimentation, albeit limited, in human cloning for therapeutic ends. Preserving the rights to "health" and to "benefit from scientific progress" of those already born cannot be achieved by violating the right to life and physical integrity of those who are only in the very earliest stages of their prenatal development.
If the rights of certain people are to be affirmed and defended, all the rights of all people must be recognized and protected, first and foremost, the fundamental right to life. "All human rights are universal, indivisible, interdependent and interrelated. The international community must consider human rights in general in a just and equitable manner, on the same basis and with the same importance. Although the significance of national and regional particularities and different historical, cultural and religious horizons should not be forgotten, it is a duty of States, independent of their political, economic or cultural systems, to promote and safeguard all the fundamental human rights and freedoms" (World Conference on Human Rights, Vienna Declaration, 1993, part I, art. 5).
The Church feels it is her duty "to be committed to respect for the life of every human being, from conception until natural death. Likewise, the service of humanity leads us to insist, in season and out of season, that those using the latest advances of science, especially in the field of biotechnology, must never disregard fundamental ethical requirements by invoking questionable solidarity, which eventually leads to discriminating between one life and another and ignoring the dignity which belongs to every human being. For Christian witness to be effective, especially in these delicate and controversial areas, it is important that special efforts be made to explain properly the reasons for the Church's position, stressing that it is not a case of imposing on non-believers a vision based on faith, but of interpreting and defending the values rooted in the very nature of the human person. In this way charity will necessarily become service to culture, politics, the economy and the family, so that the fundamental principles upon which depend the destiny of human beings and the future of civilization will be everywhere respected" (Novo Millennio lneunte, n. 51).
Taken from:
L'Osservatore Romano
Weekly Edition in English
1 October 2003, page 9
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