- The Washington Times - Tuesday, June 26, 2001

President Bush last week pronounced with canonical certitude that human cloning should be a federal crime. The idea is well-intended, but seems as wildly misconceived as Ludditism, the Vatican's Index Liborum Prohibitorum, and the hemlock for Socrates.
Intellectual humility teaches that human cloning freedom for American citizens might foster evils that cannot, at present, be imagined. But if such theoretical harms crystallize, criminal or civil prohibitions or regulations might then be targeted accordingly. Nothing in our current store of knowledge and experience, however, indicates cloning is cause for worry. On the other hand, Mr. Bush's proposed categorical ban pinches the constitutional right to procreation recognized by the Supreme Court in Skinner vs. Oklahoma (1942) and seems leagues beyond the powers of Congress.
Criminal enforcement, moreover, would be nightmarish. Mr. Bush should withdraw his proposal, following the wisdom of Abraham Lincoln that a man who does not grow wiser by the day is a fool.
Human nature resists novelties, especially those like cloning that touch on human relations and traditions. The majority instinctively feels squeamish about challenges to customs concerning family, sex or childbirth.
Indeed, these conceptions of the human condition are the most fiercely held and the most difficult to question or dislodge.
Human cloning is instinctively opposed by many because disturbing to our general emotional and psychological attachment to children born from sexual relations and featuring some genetic incertitude. Children born from cloning, in contrast, would not necessarily be the offspring of love between husband and wife. Further, their genetic profiles would be known in advance, and would duplicate that of another human, like an identical twin.
But these cloning variances from traditional procreation seem untroublesome.
Some detractors worry that cloning would make sex selection flawless, thus yielding an artificial preponderance of males to females, as in India and China where female infanticide and abortions are cultural fixtures. But in the United States, medical testing for sex during pregnancy coupled with a constitutional right to an abortion already permits skewing in favor of males. Experience shows, however, that American parents are equally delighted with a boy or girl, and thus no imbalance has emerged.
It might be said that cloned children are less likely to be loved because divorced at conception from sexual passion. That argument seems facially fatuous. Probably the most ill-conceived decisions known to mankind are driven by sexual appetites. Moreover, there is no evidence that test tube babies are less loved than infants born to a fertile mother.
Fears that cloning will impair free will or moral accountability are discredited by identical twins. They share the same genetic makeup, yet routinely sport different personalities, ambitions and even taste preferences. Identical twins strongly corroborate that genius will forever remain 1 percent inspiration and 99 percent perspiration, to borrow from Thomas Edison.
Genetic configuration, nevertheless, can be advantageous in a Darwinian world. Cloning permits a mother to search for a genetic template from sports stars, artistic virtuosos, intellectual giants or others thought capable of giving her child a head start in life. But that genetic game is already at work in choosing a spouse or sperm donor for artificial insemination. Cloning, of course, permits the game to be played knowing the precise genetic outcome in advance. But that opportunity would be available to any mother, not only to an elite. Furthermore, to believe that genetic identity leads to identical or even proximate achievements or happiness is delusional, as identical twins prove. At present, we are ignorant of the exact ingredients of exceptional talent or psychological serenity. Even in athletics, genes are a necessary but far from sufficient road to greatness.
Criminalizing cloning would entail nontrivial harms. It would thwart medical discoveries fostered by comparing genetic duplicates, as is done with identical twins. It would deny couples and mothers a reproductive choice without any convincing government justification. And enforcement would be ridiculous because cloning commands no general opprobrium. What jury would send a mother to prison for the cloning of a son or daughter who had died? What prosecutor would even bring cloning cases? What FBI director would send agents to gather evidence of cloning by interrogating mothers, family members, doctors or nurses?
In addition, the Constitution denies Congress the power to prohibit cloning based on moral scruples alone. Its enumerated and implied powers in Article I, section 8 fall far short of the mark. The Commerce Clause formerly had been interpreted to empower Congress to regulate anything that might indirectly influence the national economy, no matter how indirect and microscopic. But that benighted era ended with the Supreme Court's decisions in Lopez vs. United States (1995) and United States vs. Morrison (2000) arresting congressional efforts to regulate guns in schools and gender-motivated violence, respectively. Economic activity, the chief justice explained in Morrison, is the touchstone of Commerce Clause power, and human cloning seems wanting under that test.
All scientific developments deserve close watching. Virtually all knowledge theoretically could be enlisted on behalf of a lively malevolence. But until concrete evils appear on the horizon, government should withhold its hand. That is the axiom that has brought us from the Stone Age to the Information Age and the countless benefits of civilization.

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