Monitoring Stem Cell Research
The President's Council on Bioethics
(The following commissioned paper was prepared
at the request of the President’s Council on Bioethics;
the Council has not itself verified the accuracy of the information
contained therein, nor does it necessarily endorse any of the
author's conclusions or opinions. Additionally, the Council
has not edited this paper either for style or content.)
LEGISLATORS AS LOBBYISTS: PROPOSED
STATE REGULATION OF EMBRYONIC STEM CELL RESEARCH, THERAPEUTIC
CLONING AND REPRODUCTIVE CLONING
Lori B. Andrews, J.D.
Distinguished Professor of Law,
Chicago Kent College of Law, Illinois Institute of Technology
The issue of research involving embryos and fetuses has
been a matter of serious social concern for the past three
decades. As each new scientific and medical development
is introduced that affects embryos and fetuses, new state
laws are proposed to deal with them. In the wake of the
1973 U.S. Supreme Court abortion decision in Roe v.
for example, 24 states passed laws prohibiting research
on human conceptuses.2
When in vitro fertilization (IVF) was accomplished,
at least one state passed a law attempting to discourage
After Dolly the cloned sheep was born, nine states adopted
laws restricting human reproductive cloning.4
When researchers began creating and using human embryos
for stem cell research, states began introducing laws
to deal with that technology as well. In 2002 and 2003,
dozens of bills were introduced in state legislatures
on cloning and stem cell research. In total, 38 states
considered such bills;5
some states considered multiple and conflicting bills.
In all, 133 separate bills were introduced on these subjects.
(See overview in Chart II and specific provisions in Chart
Although state legislatures have addressed regulation
of research on the unborn for 30 years, the more recent
technologies are being debated within a new context.
Pro-life and pro-choice advocates are aligning in unusual
ways. Unlike the clear line of demarcation between the
groups on the issue of abortion, some pro-choice advocates
oppose all forms of human cloning6
and some pro-life advocates support so-called "therapeutic"
It would seem that these unique alliances might allow
more fruitful policy discussions. However, despite agreement
across traditional boundaries on the substance of particular
bills, some of the new alliances break down because the
sponsors of the bills include preambles that evince either
pro-life or pro-biotechnology sentiments that go far beyond
the substance of the bills themselves. This is a new
development in the policy considerations related to human
conceptuses. The legislators themselves are acting like
lobbyists by including within their bills language espousing
a particular position that goes far beyond the bills'
actual legal substance.8
Some bills seem to be driven more by political posturing
than by an attempt to actually get legislation enacted
to deal with the issue at hand.
This paper surveys the state law
landscape by analyzing 1) existing laws with implications
for reproductive cloning, therapeutic cloning and embryo
stem cell research, 2) proposed bills addressing those
technologies, and 3) potential constitutional challenges
to the laws.
I. The Existing Legal Framework
A. Existing Bans on Cloning
1. The Restrictions
There are eight states that have enacted explicit laws
to ban reproductive cloning,9
and one state that prohibits only the use of state funds
for reproductive cloning.10
(See Chart I). Of these eight states, four also ban "therapeutic"
Some states also ban shipping, transferring, or receiving
for any purpose an embryo produced by human cloning.12
Under the existing reproductive cloning bans, some states
ban the purchase or sale of an ovum, zygote, embryo, or
fetus for the purpose of cloning a human being.13
Other states, however, have bans on payment for eggs,
embryos, or human tissue that could also cover some of
the transactions involved in reproductive or "therapeutic"
California's initial anti-cloning bill, adopted in 1998,
created an advisory committee that met frequently over
a five year period, heard extensive testimony from scientists
and members of the public, and issued a report.15
2. Exceptions for Certain Research
In some states, the ban on reproductive cloning is accompanied
by language supporting other types of research or medical
practices. In Louisiana and Michigan, for example, the
cloning bans say that they do not prohibit scientific
research on a cell-based therapy.16
Similarly, some states allow the use of nuclear transfer
or other cloning techniques to produce molecules, DNA,
cells other than human embryos, tissues, organs, plants,
or animals other than humans.17
The Arkansas and Rhode Island laws also specifically allow
in vitro fertilization and fertility enhancing
drugs, so long as they are not used in the context of
The Iowa law more broadly allows in vitro fertilization
and the use of fertility drugs.19
The penalties for violation of existing cloning bans
range widely. In Louisiana and Michigan, for example,
penalties can be up to 10 years imprisonment and fines
of $10 million for an entity such as a clinic or corporation
and $5 million for an individual.20
In contrast, in Arkansas the penalty is a mere $250,000,
but there are also felony criminal penalties.21
Moreover, in some states, cloning can result in the permanent
revocation of a doctor's license22
and the denial of any other type of license or permit
from the state regarding any trade, occupation or profession.23
B. Existing Bans on Embryo Research
Twelve states' laws apply to in vitro embryos.
In New Hampshire, the regulation of research on embryos
prior to implantation is minimal.24
The research must take place before day 14 post-conception,25
and the subject embryo must not be implanted in a woman.26
These stipulations could readily be met by researchers
wanting to use IVF embryos as a source of stem cells.
Nine states ban research on in vitro embryos
and two states ban destructive embryo research.28
In Louisiana, an in vitro fertilized ovum
may not be farmed or cultured for research purposes;29
the sole purpose for which an IVF embryo may be used is
for human in utero implantations.30
In the other states, embryo research is banned as part
of the broader ban on all research involving live conceptuses.
These laws ban embryo stem cell research. The penalties
are high -- in some states, the punishment includes imprisonment.31
In some instances, the woman or couple who donate an
embryo or fetus for research purposes also face liability.
Laws in Maine, Michigan, North Dakota, and Rhode Island
prohibit the transfer, distribution, or giving away of
any live embryo for research purposes.32
In Maine, a person who does so is subject to a fine of
up to $5,000 and up to five years' imprisonment.33
C. Existing Laws Specifically Addressing Embryo
Stem Cell Research
A California law declares that research shall be permitted
on human embryonic or adult stem cells from any source,
including somatic cell nuclear transfer.34
Such research must be reviewed by an approved institutional
review board and such research may not be undertaken without
written informed consent of the embryo donor. Interestingly,
the law does not say consent of the "donors," plural.
So it would appear that the female patient of infertility
services (and not the woman and her husband) is the sole
source of consent. California also enacted a law urging
Congress to ban reproductive cloning, while permitting
therapeutic cloning and embryo stem cell research.35
II. Proposed Bills36
A. Preambles to the Bills - Hype versus Doom
Legislators are currently considering bills that govern
the technologies of cloning or embryo stem cell research.
But even when the provisions of those bills are narrowly
tailored to deal with those specific technologies, lawmakers
include extensive preambles that include sweeping pro-life
or pro-biotechnology language. None of the bills include
a pro-choice preamble.
A Kentucky bill attempts to fuel a biotechnology sector
in the state. Its preamble mentions the "great potential"
of nuclear transplantation to treat "diseases and disorders,
including but not limited to Lou Gehrig's disease, Parkinson's
disease, Alzheimer's disease, spinal-cord injury, cancer
cardiovascular diseases, diabetes, rheumatoid arthritis,
and many others."37
Its provisions would require anyone engaging in therapeutic
cloning to register with the health department and pay
a $50 fee. The bill also implores public colleges in
Kentucky to protect "the interest of the Commonwealth
or the institution relating to all intellectual property
and other rights to any research, experiments, or other
activity related to human nuclear transplantation. . . ."38
On the other hand, some bills' preambles are designed
to cast aspersions on the technologies. The preamble
of a Virginia Senate resolution contains a hodge-podge
of historical facts (from slavery in Virginia 1619 to
1865 to Advanced Cell Technologies cloning of an embryo),
Presidential statements (from President Reagan through
President George W. Bush), and concerns about eugenics
and commodification of humans.39
The resolution would establish a legislative task force,
but its agenda is directed in a one-sided way. It is
supposed to "examine the medical, ethical and scientific
policy implications of prohibiting the creation of embryos
in vitro for any purpose other than bringing them
to birth, and the criminalizing of the transfer of compensation,
in cash or in-kind, to induce any person to donate sperm
or eggs for any purpose other than procreation. The joint
subcommittee shall also examine the efficacy of research
using adult stem cells rather than embryonic stem cells."40
Some bills assert scientific or medical facts that are
not necessarily accurate. For example, Louisiana's resolution
says, "stem cells derived from adult or placental tissues
may hold greater promise than embryonic stem cells for
human medicine, due to a lesser danger of immune reactivity
against a recipient."41
B. Proposed Bills on Reproductive Cloning
1. The Restrictions
In 2002 and 2003, 27 states introduced bills that would
ban reproductive cloning.42
One bill details a specific enforcement mechanism for
the human cloning ban. A New Jersey bill provides that
the Commissioner of Health and Senior Services may issue
a cease and desist order, with a subsequent administrative
hearing within 20 days, with judicial review available.43
Many of these proposed laws suffer from drafting infirmities.
For example, some of the states' proposals create a loophole
by only prohibiting the reproduction of a "genetically
identical" individual through cloning.44
Since the current cloning technique uses a donated egg
to create a clone, the resulting individual will have
some additional mitochondrial DNA from the enucleated
egg, so he or she will not be genetically identical to
the original individual.45
In contrast, other states' bills prohibit the reproduction
of a "virtually genetically identical" individual through
human cloning using a human or non-human egg,46
which would apply even if a donated egg, containing additional
mitochondria were used.
Certain states' bills would prohibit the transferring
of a human cell into a human egg cell.47
But, in January 1998, scientists at the University of
Wisconsin revealed that cow eggs could serve as incubators
for nucleic DNA of other mammalian species.48
Thus, the proposed laws could be evaded by making a human
clone via somatic cell DNA transfer into an enucleated
cow egg. Other states' bills prohibit human reproductive
cloning using a human or non-human egg.49
A New Jersey bill has the opposite problem. Rather than
being too narrow, it is too broad, using vague language
in places and even potentially banning the creation of
children through sexual intercourse.50
The focus of the bill is to ban human cloning and germline
genetic engineering. But it defines human cloning as
the replication of one or more human beings, through "sexual
or asexual reproduction." When two people create a child
sexually are they replicating themselves? The key word,
"replication," is not defined.
The bill prohibits the destruction of human or non-human
embryos "for the purpose of human cloning."51
There is a certain vagueness to that provision. If a
researcher working on primate cloning generates data that
might be useful to cloning human beings could he or she
2. Public funds
Six states' bills would prohibit the use of public funds
and facilities to participate in cloning or attempted
3. Other Means to Discourage Cloning
Some states' bills attempt to discourage reproductive
cloning by prohibiting either the sale or purchase53
or the shipment or receival of an ovum, zygote, embryo,
or fetus to clone a human.54
Some states' laws attempt to discourage cloning through
liability provisions. A Florida bill would create vast
liabilities as another means to discourage cloning.55
Participants in human reproductive cloning would be liable
to "the individual, the individual's spouse, dependents,
and blood relatives, and to any woman impregnated with
the individual, her spouse, and dependents, for damages
for all physical, emotional, economic, or other injuries
suffered by such persons at any time as a result of the
use of human cloning to produce the individual." Even
more dramatically, participants in human reproductive
cloning would be liable to the cloned individual and his
or her legal guardian for support until the age of majority
(or longer, if the clone has "any congenital defects or
other disability" related to the cloning).
Eighteen states' bills have an exception allowing cloning
to create DNA, tissues, and organs.56
Eleven states' bills would not restrict the use of in
vitro fertilization or fertility enhancing drugs.57
C. Proposed Bills on Therapeutic Cloning
There are 26 states that have bills about therapeutic
Two states have at least one bill that would ban therapeutic
cloning and at least one that would allow therapeutic
1. Ban Therapeutic Cloning
Twenty-six states have bills that would prohibit all
human cloning including therapeutic cloning.60
Some states prohibit therapeutic cloning through a general
cloning ban that defines human cloning as the creation
of any human organism through somatic cell nuclear transfer.61
Others prohibit therapeutic cloning by banning not only
the creation of the cloned embryo, but also the "derivation
of any product from human cloning."62
2. Allow Therapeutic Cloning
Two states have bills that specifically allow therapeutic
In addition, twelve other states allow for the use of
stem cells from any source, including those derived from
somatic cell nuclear transplantation.64
One state bill would encourage researchers to do stem
cell research using only human adult or placental tissues
obtained with informed consent, and would discourage research
involving human embryonic or fetal tissue.65
One state's bill urges state universities to refrain from
embryonic stem cell research.66
D. Proposed Bans on Embryo Stem Cell Research
1. Ban Embryo Stem Cell Research
Five states have bills that would prohibit acts where
a human fetus or embryo is destroyed or subject to injury.67
New Jersey has these provisions in a cloning bill, while
Wisconsin has them in an artificial insemination/in
vitro fertilization bill.68
The others (Kansas, Michigan, and Virginia) have these
provisions in stem cell research bills.69
One state's bill would make all contracts for payment
for the extraction or use of embryonic stem cells against
public policy, void, and unenforceable.70
In addition, a Michigan bill, in its preamble, opposes
the White House decision to allow certain embryonic stem
The substance of the bill is a provision urging the state's
public universities to refrain from embryonic stem cell
2. Allow Embryo Stem Cell Research, Including Therapeutic
Twelve states have bills that would allow embryo stem
cell research from any source.73
While the bills literally say "from any source," some
also have a list saying this includes human embryonic
stem cells, human embryonic germ cells, and human adult
stem cells, from any source, including somatic cell nuclear
In the states where proposed bills would permit embryonic
stem cell research, there are often provisions regarding
how the research should be conducted. In eleven states,
for example, physicians undertaking in vitro fertilization
on patients must discuss options for the disposition of
frozen embryos, including donation to research, and written
informed consent for such donation would have to be obtained.75
In at least one state, the proposed research must be assessed
by a state department,76
and in eleven states the research must be assessed by
an institutional review board.77
A Kentucky bill requires that individuals engaged in therapeutic
cloning must register their name, address, and phone number,
which information shall be public record.78
Under one proposed California bill, the State Department
of Health Services would have the responsibility to develop
guidelines regarding the derivation or use of human embryonic
In Illinois, care was taken in the proposed bill favoring
embryonic stem cell research not to create barriers for
the research due to contract or tort liability. Consequently,
the proposed Illinois bill states that "procuring, furnishing,
donating, processing, distributing, or using embryonic
or cadaveric fetal tissue for research purposes pursuant
to this Act is declared for the purposes of liability
in tort or contract to be the rendition of a service by
every person, firm, or corporation participating therein,
whether or not remuneration is paid, and is declared not
to be a sale of any such items and no warranties of any
kind or description nor strict tort liability shall be
3. Address Embryo Donation
Twelve states' bills would expressly allow a person to
donate human embryos for research.81
Twelve states' bills would also prohibit the sale of embryonic
or cadaveric fetal tissue for research purposes.82
4. Review Committees
Six states' bills would establish a subcommittee or task
force to review and/or study issues related to stem cell
Some of these states have a bill that only establishes
a task force.84
Some states establish this task force, subcommittee, or
review board within a bill relating to stem cell research.85
Maryland has one of each.86
It has often been true in the bioethical area that when
controversial new technologies are introduced, states
propose commissions to address the issue.87
Often, the creation of the commission is a stalling tactic
to avoid having to confront the issue head on or to postpone
having to limit a technology, or to facilitate a moratorium
on the technology (while the Commission evaluates the
technology). Sometimes, though, state commissions have
admirably overseen a technology's development, application
and evaluation. Such was the case in the 1970's and 1980's
with Maryland's newborn screening commission. So it is
no surprise that of the bills proposing a state task force
or commission, the Maryland bill provides the best guidance
about what the commission would do. The Maryland task
"(1) Make recommendations for state policy regarding
stem cells derived from embryos created solely for research
(2) evaluate whether there should be written informed
consent requirements for prospective donors of embryonic
stem cells derived from embryos created during infertility
(3) study constitutional, ethical, and
policy issues with respect to whether the state should
regulate or prohibit commerce in embryos or stem cells;
(4) (i) determine what stem cell research
is already being done in the state by private companies
and academic institutions; and
(ii) evaluate how these companies and
institutions are regulating themselves when doing stem
(5) determine the effect on Maryland
businesses and institutions of Federal restrictions that
limit federally funded research and development to existing
cell lines on stem cell research;
(6) analyze the roles of, and interrelationship
between, federal and state oversight of stem cell research;
(7) review any other matter relating to stem cell research
that the task force considers necessary and proper."88
5. Public Funding or Tax Credits for Stem Cell Research
States have also proposed bills allowing for or prohibiting
the granting of state funds for stem cell research. California's
proposed "Biomedical Research and Development Act of 2004"
would award grants or loans to public or private institutions
conducting research in stem cell biology.89
To be eligible for funding, all research projects must
be reviewed and approved by an institutional review board.
The states of Indiana, Michigan, Mississippi, and Nebraska
have gone the opposite direction and introduced bills
specifically prohibiting the use of state money or tax
credits for stem cell research.90
The Indiana bill proposes an amendment to the state tax
code denying tax exemptions and credits for research involving
human cloning or stem cell research with embryonic tissue.
A Mississippi House Bill and a Mississippi Senate Bill
provide that no public funds shall be used to assist in
or to provide facilities for stem cell research that uses
cells from human embryos and human cloning.
Finally, although not establishing public funds for embryonic
stem cell research, six Florida bills seek to establish
a center for "Universal Research to Eradicate Disease"
which will facilitate funding opportunities for stem cell
E. Proposed Bills on Health Care Providers'
Right of Conscience
In addition to proposing bills on the prohibition of
or allowance of embryonic stem cell research and cloning,
a number of states have proposed bills protecting a health
care provider, payer, or institution's right to refuse
certain services based on moral or ethical convictions.
Kansas, Louisiana, and Rhode Island have all introduced
bills entitled "Health Care Providers Rights of Conscience."
The Kansas bill introduced on January 28, 2002, specifically
allows all persons to refuse to participate in the provision
of, or pay for, a health care service related to human
cloning and embryonic stem cell and fetal experimentation.
The Louisiana bill and the identical Rhode Island House
and Senate bills allow all health care providers, institutions
and payers to decline to counsel, advise, pay for, provide,
perform, assist, or participate in providing or performing
health care services that violate their consciences, including,
human cloning and embryonic stem cell research.
F. Constitutionality of State Law
Not all regulations affecting research are constitutional.
Laws restricting research on conceptuses may be struck
down as too vague or as violating the right to privacy
to make reproductive decisions. Such a challenge was
successful in a federal district court case, Lifchez
which held that a ban on research on conceptuses was unconstitutional
because it was too vague in that it failed to define the
terms "experimentation" and "therapeutic."94
The court pointed out that there are multiple meanings
of the term "experimentation."95
It could mean pure research, with no direct benefit to
the subject. It could mean a procedure that is not sufficiently
tested so that the outcome is predictable, or a procedure
that departs from present-day practice. It could mean
a procedure performed by a practitioner or clinic for
the first time. Or it could mean routine treatment on
a new patient. Since the statute did not define the term,
it was unconstitutionally vague. It violated researchers'
and clinicians' due process rights under the fifth amendment
since it forced them to guess whether their conduct was
A similar result was reached by a federal appellate court
assessing the constitutionality of a Louisiana law prohibiting
nontherapeutic experimentation on fetuses in Margaret
S. v. Edwards.97
The appeals court declared the law unconstitutional because
the term "experimentation" was so vague it did
not give researchers adequate notice about what type of
conduct was banned.98The
court said that the term "experimentation" was
since physicians do not and cannot distinguish clearly
between medical experimentation and medical tests.100
The court noted that "even medical treatment can
be reasonably described as both a test and an experiment."101
This is the case, for example, "whenever the results
of the treatment are observed, recorded, and introduced
into the data base that one or more physicians use in
seeking better therapeutic methods."102
A third case struck down as vague the Utah statute that
provided that "live unborn children may not be used for
experimentation, but when advisable, in the best medical
judgment of the physician, may be tested for genetic defects."103
The Tenth Circuit held "[b]ecause there are several competing
and equally viable definitions, the term 'experimentation'
does not place health care providers on adequate notice
of the legality of their conduct."104
In a fourth case, Forbes v. Napolitano,105
a number of plaintiffs106
challenged the constitutionality of an Arizona statute
that criminalized medical experimentation or investigation
involving fetal tissue from induced abortions.107
The statute at issue in that litigation, A.R.S. § 36-2302(A),
provides: A person shall not knowingly use any human fetus
or embryo, living or dead, or any parts, organs, or fluids
of any such fetus or embryo resulting from an induced
abortion in any manner for any medical experimentation
or scientific or medical investigation purposes except
as is strictly necessary to diagnose a disease or condition
in the mother of the fetus or embryo and only if the abortion
was performed because of such disease or condition.108
An exception to this is found in A.R.S. § 36-2302(C),
This section shall not prohibit any
routine pathological examinations conducted by a medical
examiner or hospital laboratory provided such pathological
examination is not part of or in any way related to any
medical or scientific experimentation.109
The penalty for violation of A.R.S. § 36-2302, a class
5 felony, is one and a half years in prison and fines
up to $150,000.110
Plaintiffs argued that the statute prevented fetal tissue
transplantation treatment of Parkinson's disease, certain
fertility treatments, and development of treatments for
The court ultimately affirmed the decision of the lower
in holding that the statute was unconstitutionally vague.113
Specifically, the "distinction between experiment and
treatment in the use of fetal tissue is indeterminate,
regardless of whether the tissue is obtained after an
Furthermore, the court determined that a criminal statute
that serves to prohibit medical experimentation but provides
no guidance as to where to draw the line between experiment
and treatment does not provide doctors with constructive
notice, nor does it provide police, prosecutors, juries,
and judges with standards for application.115
Specific bans on embryo stem cell research are unlikely
to raise the same constitutional concerns. Part of the
constitutional deficiency in the Arizona, Illinois, Louisiana,
and Utah cases was that physicians offering health care
services for their patients (such as embryo donation from
an infertile woman, preimplantation genetic screening
on an embryo, or treatment of a pregnant woman for diabetes)
would not know if the activity would be considered by
prosecutors to be experimental with respect to the embryo
or fetus. Moreover, the female patient's reproductive
freedom was implicated in the previous cases, providing
another reason for overturning the statute. Stem cell
researchers do not have those potential legal arguments.
There is a slight possibility, however, a reproductive
liberty challenge could be raised against a law banning
Bills on cloning and stem cell research are the subjects
of vast media attention and public debate. As technologies
develop that focus increasingly on the human embryo, lawmakers
are having difficulty coming to agreement on legislative
policy in the absence of societal accord about the moral
and legal status of the embryo.
[PLEASE SEE THE ACCOMPANYING CHARTS
DETAILING STATE LAWS AND BILLS RELEVANT TO THIS AREA.
ADDITIONAL INFORMATION IS AVAILABLE ON THE COUNCIL'S WEBSITE
AT WWW.BIOETHICS.GOV IN THE ELECTRONIC VERSION
OF THIS REPORT AS WELL AS IN THE TRANSCRIPTS OF THE AUTHOR'S
PRESENTATION TO THE COUNCIL AT ITS JULY 24, 2003, MEETING.]
1. Roe v. Wade,
410 U.S. 113 (1973).
2. See Lori
B. Andrews, Medical Genetics: A Legal Frontier
70 (Chicago: American Bar Foundation, 1987).
3. See description
of the Illinois law in Lori B. Andrews, The Clone Age:
Adventures in the New World of Reproductive Technology
24-28 (New York: Henry Holt, 1999).
4. See Section
5. Alabama, Arizona,
Arkansas, California, Colorado, Connecticut, Delaware,
Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Maryland, Massachusetts, Michigan, Mississippi,
Missouri, Nebraska, New Hampshire, New Jersey, New York,
North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode
Island, South Carolina, Tennessee, Texas, Vermont, Virginia,
Washington, West Virginia, Wisconsin.
6. See, for
example, Nigel Cameron and Lori Andrews, "Cloning and
the Debate on Abortion," Chicago Tribune, August
8, 2001, at 17.
7. Orin Hatch, for
8. See Section
9. Ark. Code § 20-16-1001
et seq. (2003) (formerly AR SB 185); Cal. Bus. & Prof.
§§16004, 16105 (2003) and Calif. Health & Safety
§§ 24185-24187 (2003) (formerly CA SB 1230); Iowa Code
§ 707B.1-.4 (2003) (formerly IA SB 2046, became IA SB
2118); La. Rev. Stat. Ann. § 1299.36.1-.6 (2003); Mich.
Comp. Laws §§ 333.26401-06, 333.16274, 16275, 20197, 750.430a
(2003); ND Cent. Code §§ 12.1-39-01 to 02 (2003) (formerly
ND HB 1424); RI Gen. Laws § 23-16.4-1 to .4-4 (2003);
Va. Code Ann. § 32.1-162.21 to .22 (2003). Two of these
state laws could be evaded if a non-human egg was used
instead of a human egg as the incubation for the somatic
cell DNA. Ark. Code § 20-16-1001(5) (2003); La. Rev.
Stat. § 1299.36.1 (2003).
10. Mo. Rev. Stat.
§ 1.217 (2003).
11. Arkansas, Iowa,
Michigan, and North Dakota.
12. Ark. Code § 20-16-1002
(A)(3); Iowa Code § 707B.4(1)(c); ND Cent. Code §§ 12.1-39-01
to 02; Va. Code Ann. § 32.1-162.22(A) (for purposes of
13. See, for
example, Cal. Health & Safety Code §§ 24185(b); La.
Rev. Stat. § 1299.36.2(B).
14. Lori B. Andrews,
"State Regulation of Embryo Stem Cell Research," in National
Bioethics Advisory Commission, Appendix II at pages A1
16. La. Rev. Stat.
Ann. § 1299.36.2(c); Mich. Comp. Laws § 750.430a(2).
17. See, for
example, Ark. Code § 20-16-1003(A); Iowa 707B.4(2); R.I.
Gen Laws § 23-16.4-1 (specifically allows animal cloning
in another section, R.I. Gen Laws. § 23-16.4-2(c)(1)(iii)).
Virginia allows gene therapy, cloning of non-human animals,
and cloning molecules, DNA, cells or tissue. Va. Code
Ann. § 32.1-162.22(B).
18. Ark. Code § 20-16.1003(B);
R.I. § 23-16.4-2(c)(2)(i). Rhode Island's bill goes overboard
in its hype about scientific progress. Rhode Island's
preamble to its reproductive cloning ban states, "recent
medical and technological advances have had tremendous
benefit to patients, and society as a whole, and biomedical
research for the purpose of scientific investigation of
disease or cure of a disease or illness should be preserved
and protected and not be impeded by regulations involving
the cloning of an entire human being; and . . .
molecular biology, involving human cells, genes, tissues,
and organs, has been used to meet medical needs globally
for twenty (20) years, and has proved a powerful tool
in the search for cures, leading to effective medicines
to treat cystic fibrosis, diabetes, heart attack, stroke,
hemophilia, and HIV/AIDS." R.I. Gen. Laws. § 23-16.4-1.
19. Iowa Code § 707B.4(2).
20. La. Rev. Stat.
§ 1299.36.3; Mich. Comp. Laws § 750.430(a)(3) (in Michigan
even individuals too, can be fined up to $10 million.)
Rhode Island has a penalty of $250,000 for individuals
and $1 million for entities. R.I. Gen. Laws § 23-16.4-3.
21. Ark. Code § 20-16-1002
(B ) to (D).
22. See, for
example, La. Rev. Stat. § 1299.36.4; See also, Iowa §
23. La. Rev. Stat.
§ 1299.36.4; Iowa § 707B.4(6).
24. N.H. Rev. Stat.
Ann. § 168-B:15.
25. N.H. Rev. Stat.
Ann. § 168-B:15 at I.
26. N.H. Rev. Stat.
Ann. § 168-B:15 at II.
27. Fla. Stat. Ann.
§ 390.0111(6); La. Rev. Stat. Ann. § 9:121 et. seq.; Me.
Rev. Stat. Tit. 22 § 1593; Mass. Ann. Laws. Ch. 112 §
12J; Mich. Comp. Laws. §§ 333.2685 to 2692; Minn. Stat.
Ann. § 145.421 (applies only until 265 days after fertilization);
N.D. Cent. Code §§ 14-02.2-01 to -02; 18 Pa. Cons. Stat.
Ann. § 3216; R.I. Gen. Laws. § 11-54-1.
28. S.D. Codified
Laws § 34-14-16; Iowa Code § 707B.1-4.
29. La. Rev. Stat.
Ann. § 9:122.
30. La. Rev. Stat.
Ann. § 9:122.
31. The Maine law,
which applies both to research on embryos and research
on fetuses, carries a maximum five year prison term.
Me. Rev. Stat. tit. 22 § 1593. The Massachusetts and
Michigan laws also carry with them a potential prison
sentence of up to five years. Mass Ann. Laws 112 § 12J(a)(V);
Mich. Comp. Laws § 333.2691.
32. Me. Rev. Stat.
Ann. tit. 22 § 1593; Mich. Comp. Laws Ann. § 333.2690;
N.D. Cent. Code § 14-02.2-2(4); R.I. Gen. Laws § 11-54-1(f).
In addition, S.D. Codified Law § 34-14-7 bans the sale
or transfer of an embryo for nontherapeutic purposes.
33. Me. Rev. Stat.
Ann. tit. 22 § 1593.
34. Cal. Health &
Safety Code § 125115.
35. California Senate
Joint Resolution 38.
36. This research
was undertaken in Lexis current session bill text and
bill text archive for 2002 and 2003, using the words "human
cloning," "stem cell research," "embryo," "cloning," "twinning,"
"oocyte," and "somatic cell nuclear transfer" in order
to locate bills.
39. "WHEREAS, although
the "commodification" of human of human beings existed
in this Commonwealth and the United States from 1619 to
1865, the concept of human beings as property has been
rejected by Americans in their constitution and in their
deeply held belief in the value of human life; and
WHEREAS, Ronald Reagan, the 40th President
of the United States, stated this country understood that
the personhood of every American should be protected "from
the moment of conception until natural death"; and
WHEREAS, the United States Patent and
Trade Office rejected human commercialization in a ruling
on April 7, 1987, which stated "A claim directed
to or including within its scope a human being will not
be considered to be patentable subject matter" under
the federal patent law; and
WHEREAS, on August 25, 2000, the National
Institutes of Health published guidelines relating to
stem cell research and the funding thereof that called
for the denial of funding for research involving stem
cells derived from embryonic human beings created for
research purposes and noted that President Clinton, many
members of Congress and the NIH Human Embryo Research
Panel and the National Bioethics Advisory Committee had
all endorsed the "distinction between embryos created
for research purposes and those created for reproductive
WHEREAS, the NIH guidelines also called
for assurances that "there can be no incentives for
donation" of human embryos and "any inducement
for the donation of human embryos for research purposes"
would be prohibited; and
WHEREAS, George W. Bush, the 43rd President
of the United States noted on August 9, 2001, that he
is "deeply troubled" by the creation of "human
embryos in test tubes solely to experiment on them,"
and described this act as a "warning sign" to
"all of us" as Americans; and
WHEREAS, Senator William Frist, distinguished
physician representing the State of Tennessee in the United
States Senate, has proposed as a first principle of ethical
research that "the creation of human embryos solely
for research should be strictly prohibited"; and
WHEREAS, recently a Massachusetts research
company claimed that it had cloned the first human embryo,
that " [T]his work sets the stage for human therapeutic
cloning as a potentially limitless source of immune-compatible
cells," and that this work provides "hope for
people with spinal injuries, heart disease and other ailments";
WHEREAS, the Jones Institute of Norfolk
recently published research involving stem cell research
conducted through the creation of approximately 110 embryos
developed with the purchased sperm and eggs from men and
WHEREAS, this conduct established a trade
in new human life that treats such lives as merchandise
for manipulation and destruction; and
WHEREAS, reportedly, the Jones Institute
screened and evaluated the fitness of new human life according
to the absence of "cosmetic handicaps, and other
eugenic formulations"; and
WHEREAS, the General Assembly of Virginia
has, by way of HJR 607 of 2001, condemned past practices
within the Commonwealth involving institutional involvement
in eugenics and eugenic ideology; now, therefore, be it
RESOLVED by the House of Delegates, the
Senate concurring, That a joint subcommittee be established
to study the medical, ethical, and scientific issues relating
to stem cell research conducted within the Commonwealth."
VA HJR 148. See also VA HJR 573.
40. VA HJR 148.
See also VA HJR 573.
41. LA House Current
Resolution (HCR) 29.
42. AL HB 9; AL SB
314; AZ HB 2108; CA SB 133; CA AB 267; CA SB 1557;
CO HB 1073; CT SB 407; CT HB 5639; CT SB 410; DE SB 55;
DE SB 329; DE SB 344; FL HB 285; FL SB 1726; FL HB 805;
FL SB 1164; IL HB 253; IN HB 1538; IN HB 1984; IN SB 151;
IN SB 138; KS HB 2736; KY HB 138; KY HB 153; KY HB 265;
LA HB 472; LA HB 1810; MA HB 1280; MA HB 3125; MA
HB 2048; MA HB 2052; MA SB 1917; MO HB 163; MO HB 209;
MO HB 1449; MO SB 191; NE LB 602; NE LB 1067; NH HB 1464;
NJ AB 2040; NJ AB 2840; NJ AB 1379; NJ SB 542; NY AB 1819;
NY AB 3295; NY AB 4533; NY AB 6249; NY SB 206; NY SB 7638;
NY SB 612; NY SB 3013; OK HB 1130; OK HB 2011; OK HB 2036;
OK HB 2142; OK SB 1552; OR HB 2538; OR HB 2504; SC HB
3819; SC HB 4408; SC SB 820; TN HB 1075; TN SB 1515; TN
HB 2675; TN SB 2295; TX HB 1175; TX SB 1034; TX SB 156;
VT HB 326; WA HB 1461; WA SB 5466; WA HB 2173; WA SB 5571;
WV HB 2832; WV SB 402; WV SB 514; WI AB 104; WI AB 246;
WI SB 45; WI SB 699; WI AB 736; WI SB 404.
44. See, for
example, IN HB 1538 § 1; IN SB 151 § 1.a; MO HB 163 §
565.305; TN HB 1075 § 1; TN SB 1515 § 1.
45. Unless, of course,
one used an egg from the to-be-cloned person's own mother.
46. See, for
example, CA SB 133 § 1; FL SB 1726 § 2.A; KY HB 153 §
1.A; NE LB 602 § 2.2; OK HB 1130 § C.1; SC SB 820 § 2.1;
SC HB 3819 §2.1; WI SB 45 § 1.c; WI AB 104 § 1.c.
47. See, for
example, DE SB 55 § 3002; IL HB 253 § 10.c; NH HB 1464
§ 141-J:2; NY SB 206 § 3230; NY SB 7638 § 3230; OR HB
2538 § 1.
48. See Robert
Lee Hotz, "Cow Eggs Used as Incubator in Cloning Boon,"
L.A. Times, Jan. 19, 1998, at A1.
49. See, for
example, CA SB 133 § 1.
50. NJ AB 2040 (1).
See also MA HB 3125 § 2A.
52. IN HB 1538; IN
HB 1984; IN SB 138; IN SB 151; LA HB 472; MS SB 2747;
MO HB 481; MO SB 191; MO HB 163; NY AB 4533; OK HB 1130.
53. See, for
example, CA SB 133.
54. See, for
example, CO HB 1073; FL SB 1726; KY HB 153; OK HB 1130;
SC HB 820; SC HB 3819; WI SB 45; WI AB 104.
56. AL HB 9; AZ HB
2108; CA SB 133; CA SB 1557; DE SB 55 § 3003; DE SB 329;
DE SB 344; FL HB 285; FL HB 805; FL SB 1164; FL SB 1726
§ 5; IL HB 253; KS HB 2736; KY HB 138; KY HB 153 § 3;
LA HB 1810; MA HB 2048; MA HB 3125; NE LB 1067; NH HB
1464 § 1441-J:4; NY AB 3295; NY AB 6249 § 2; NY SB 206
§ 3232; NY SB 7638 § 3232; NY SB 3013; OK HB 2142; SC
HB 3819 § E; SC SB 820; TN HB 1075 § e; TN SB 1515 § e;
TX HB 1175; WA HB 1461; WA HB 2173; WA SB 5466.
57. AZ HB 2108; IN
HB 1538; IN HB 1984; IN SB 138; IN SB 151; KS HB 2737;
LA HB 1810; NH HB 1464 § 1441-J:4; NY AB 6249 § 2; NY
SB 206 § 3232; NY SB 7638 § 3232; NY SB 612; NY SB 3013;
OK HB 2142; OR HB 2538 § 2; VA HB 2366; WA HB 2173; WI
AB 736; WI SB 404.
58. AL HB 9; AZ HB
2108; CA SB 133; CA SB 1557; CO HB 1073; CT SB 407; CT
HB 5639; DE SB 55; FL HB 805; FL SB 1164; FL SB 1726;
IL HB 253; IN HB 1538; IN HB 1984; IN SB 151; IN SB 138;
KS HB 2736; KY HB 138; KY HB 153; LA HB 1810; MA HB 3125;
MO HB 1449; NE LB 602; NH HB 1464; NJ AB 2040; NY AB 4533;
NY AB 6249; NY SB 206; NY SB 3013; NY SB 7638; OK HB 1130;
OK HB 2011; OK HB 2142; OK SB 1552; OR HB 2538; SC HB
3819; SC SB 820; SC HB 4408; TN HB 1075; TN SB 1515; TX
HB 1175; TX SB 156; WA HB 2173; WA SB 5571; WV HB 2832;
WV SB 402; WV SB 514.; WI SB 699; WI AB 104; WI AB 736;
WI SB 404; WI SB 45. (Therapeutic cloning, as currently
undertaken, would also fall within the ban on destructive
embryo research discussed infra.)
59. See, for
example, Indiana and New York.
60. AL HB 9; AZ HB
2108; CA SB 133; CA SB 1557; CO HB 1073; CT SB 407; CT
HB 5639; DE SB 55; FL HB 805; FL SB 1164; FL SB 1726;
IL HB 253; IN HB 1538; IN SB 151; IN SB 138; KS HB 2736;
KY HB 138; KY HB 153; LA HB 1810; MA HB 3125; MO HB 1449;
NE LB 602; NH HB 1464; NJ AB 2040; NY AB 4533; NY SB 206;
NY SB 7638; OK HB 1130; OK HB 2011; OK HB 2142; OK SB
1552; OR HB 2538; SC HB 3819; SC SB 820; SC HB 4408; TN
HB 1075; TN SB 1515; TX HB 1175; TX SB 156; WA HB 2173;
WA SB 5571; WV HB 2832; WV SB 402; WV SB 514; WI AB 104;
WI SB 699; WI AB 736; WI SB 404; WI SB 45.
61. See, for
example, FL SB 1726.
62. See, for
example, NE LB 602.
63. IN HB 1984; NY
AB 6249; NY SB 3013.
64. MA HB 1280; MA
HB 2052; NJ AB 2840; NJ SB 1909; NY AB 1819; NY SB 612;
TX SB 1034; VT HB 326; WA HB 1461; WA SB 5466.
67. KS HB 2737; MI
HB 4507; NJ AB 2040; VA HB 2366; WI AB 736; WI SB 404.
68. NJ AB 2040; WI
AB 736; WI SB 404.
69. KS HB 2737; MI
HB 4507; VA HB 2366.
73. CA SB 771; CA
SB 1272; IL HB 3589; MD HB 482; MA HB 2052; MA HB 1280;
NJ AB 2840; NJ SB 1909; NY AB 1819; NY SB 612; PA HB 2984;
PA HB 422; PA HB 945 (Limited to those from fertility
clinics); RI SB 266; TN HB 945; TN SB 1654; TX SB 1034;
VT HB 326; WA HB 1461; WA SB 5466.
74. See, for
example, IL HB 3589 § 10.2.
75. CA SB 771; CA
SB 1272; IL HB 3589 (does not require Dr. to inform patient
of embryo disposition options, but requires written informed
consent); MA HB 2052; MA HB 1280; NJ AB 2840; NJ SB 1909;
NY AB 1819; PA HB 2984; PA HB 422; PA HB 945 (Does not
require Dr. to inform patient of embryo disposition options,
but requires written informed consent); RI SB 266; TN
HB 945; TN SB 1654; TX SB 1034; VT HB 326; WA HB 1461;
WA SB 5466.
76. PA HB 2984; PA
SB 322; CA SB 771; CA SB 1272; IL HB 3589; MD HB 482;
MA HB 1280; MA HB 2052; NJ AB 2840; NJ SB 1909; NY AB
1819; RI SB 266; TN HB 945; TN SB 1654; TX SB 1034; VT
HB 326; VA HB 639.
SB 771; CA SB 1272; IL HB 3589 § 15; MD HB 482 § 20-901.C;
MA HB 1280 § 3; MA HB 2052; NJ AB 2840 § 2.b.3; NJ SB
1909 § 2.b.2; NY AB 1819 § 2452.2; PA HB 2984 § 5.b; PA
HB 422 § 5.b; PA HB 945; RI SB 266 § 23-77-2; TN HB 945;
TN SB 1654; TX SB 1034 § 168.003; VT HB 326 § 9341.B;
WA HB 1461§ 4; WA SB 5466 § 4.1.
82. CA SB 771; CA
SB 1272; IL HB 3589 § 15a; IN HB 1538; IN SB 138; IN SB
151; MD HB 482 § 20-901; MA HB 1280; MA HB 2052; NJ AB
2840 § c.1; NJ SB 1909 § c.1; NY AB 1819 § 2453; PA HB
2984 § 6; PA HB 422 § 6; PA HB 945; TN HB 945; TN SB 1654;
VT HB 326 § 9342; VA HB 2366 (If used in destructive research);
WA HB 1461 § 5.2; WA SB 5466 § 5.2.
SB 322; CA SB 771 (State department to oversee ESC research);
MD HB 72 (Task force would cover bioscience in general,
including ESC research); MD HB 1171; MA HB 1280 § 220;
MA HB 2052; NY AB 6249 § 4372; NY SB 3013; PA HB 422 §
4; PA HB 2984 § 4; VA HJR 148; VA HJR 573; VA HB 639 (Task
force would cover all human research in general, including
for example, California, Maryland, and Virginia.
for example, Illinois, Maryland, Massachusetts, New Jersey,
New York, Pennsylvania, Rhode Island, Texas, and Vermont.
HB 72; MD HB 1171.
was the case, for example, with newborn screening and
HB 1001; MI SB 1485; MI HB 4454; MS HB 361; MS SB 2747.
SB 2212; FL SB 572; FL SB 2390; FL HB 107A; FL HB 845;
FL SB 2142.
HB 2711; LA SB 850; RI SB 906; RI HB 5846.
F. Supp. 1361 (N.D. Ill. 1990).
at 1364. The court also held that the statute violated
couples' right to privacy to make reproductive decisions
to undertake preimplantation genetic screening, or procreate
with a donated embryo. Id. at 1377. With embryo
stem cell research, the progenitors' reproductive freedom
is not an issue, however.
S. v. Edwards, 794 F.2d 994 (5th Cir. 1986).
Id. A concurring judge found this analysis to be
contrived and opined that the provision was not unconstitutionally
vague. Id. at 1000 (Williams, J., concurring).
Instead, he suggested that the prohibition was unconstitutional
because "under the guise of police regulation the
state has actually undertaken to discourage constitutionally
privileged induced abortions." Id. at 1002,
citing Thornburgh v. American College of Obstetricians
and Gynecologists, 106 S. Ct. 2169, 2178 (1986).
The concurring judge pointed out that the state had "failed
to establish that tissue derived from an induced abortion
presents a greater threat to public health or other public
concerns than the tissue of human corpses [upon which
experimentation is allowed]." Id. Moreover,
the state had not shown a rational justification for prohibiting
experimentation on fetal tissue from an induced abortion,
rather than a spontaneous one. Id.
Margaret S. v. Edwards, 794 F.2d 994, 999 (5th
Utah Code Ann. § 76-7.3-310.
Jane L. v. Bangerter, 61 F.3d 1493, 1501 (10th
Cir.), rev'd on other grounds sub nom., Leavitt
v. Jane L., 518 U.S. 137 (1996).
2000 U.S. App. LEXIS 38596 (9th Cir. 2000).
include numerous doctors and individuals suffering from
Parkinson's disease who cannot receive transplants of
fetal brain tissue because of the statute.
2000 U.S. App. LEXIS 38596 (9th Cir. 2000).
A.R.S. § 36-2302(A)(2000).
109. A.R.S. § 36-2302(C)(2000).
110. See A.R.S.
111. 2000 U.S. App.
LEXIS 38596, *5 (2000).
112. Forbes v.
Woods, 71 F. Supp.2d 1015, 1999 U.S. Dist. LEXIS 17025
2000 U.S. App. LEXIS 38596, *12 (9th Cir. 2000).
2000 U.S. App. LEXIS 38596, *11 (9th Cir. 2000). The
court determined that the "knowingly" scienter requirement
within the statute did not serve as a clarification for
2000 U.S. App. LEXIS 38596, *12 (2000).
* * *
State Cloning Legislation
of State Funds
Ark. Code §20-16-1001 et. seq.
|Asexual human reproduction,
accomplished by introducing the genetic material from
one or more human somatic cells into a fertilized or unfertilized
oocyte whose nuclear material has been removed or inactivated
so as to produce a living organism, at any stage of development,
that is genetically virtually identical to an existing
or previously existing human organism
|CaliforniaCal. Bus. &
Prof. §16004, 16105; Cal. Health & Safety §§24185-24187
|Nucleus transfer from a human cell from
whatever source into a human or nonhuman egg cell from
which the nucleus has been removed for the purpose of,
or to implant, the resulting product to initiate a pregnancy
that could result in the birth of a human being.
Iowa Code §707B.1-.4 (2003)
|Human asexual reproduction, accomplished
by introducing the genetic material of a human somatic
cell into a fertilized or unfertilized oocyte whose nucleus
has been or will be removed or inactivated, to produce
a living organism with a human or predominantly human
La. Rev. Stat. Ann. §1299.36.1-.6 (2003)Sunset Provision:
July 1, 2003
not prohibit use of state funds for scientific research
or cell-based therapies that do not involve human cloning
||Identical to California
Mich. Comp. Laws §§333.26401-06, 333.16274,
16275, 20197, 750.430a (2003)
|Use of human somatic cell
nuclear transfer technology (transferring the nucleus
of a human somatic cell into an egg from which the nucleus
has been removed or rendered inert) to produce a human
Mo. Rev. Stat. §1.217 (2003)
|Replication of a human person by taking
a cell with genetic material and cultivating such cell
through the egg, embryo, fetal and newborn stages of development
into a new human person
N.D. Cent. Code §§12.1-39-01-02 (2003)
|Human asexual reproduction, accomplished
by introducing the genetic material of a human somatic
cell into a fertilized or unfertilized oocyte, the nucleus
of which has been or will be removed or inactivated, to
produce a living organism with a human or predominantly
human genetic constitution
R.I. Gen. Laws §23-16.4-1 -.4-4 (2003)Sunset provision:
July 7, 2010
transfer and other cloning technologies not included
in ban; mitochondrial, cytoplasmic and gene therapy
not prohibited for research or animal creation
||Use of somatic cell nuclear transfer
for pregnancy prohibited (transferring the nucleus of
a human somatic cell into an oocyte from which the nucleus
has been removed).
Va. Code Ann. §32.1-162.21-.22 (2003)
|Transferring the nucleus from a human
cell from whatever source into an oocyte from which the
nucleus has been removed or rendered inert in order to
create a human being
Laws and 2002-2003 Bills
||Prohibit All Human Cloning
||Prohibit Reproductive Cloning
||Allow Therapeutic Cloning Specifically
||Ban Destructive Embryo Research
||Allow Embryo Stem Cell Research
*The Laws that have already
been enacted are indicated by the word "Law"
*The bills are indicated by an "X"