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Friday, January 18, 2002

Session 5: Human Cloning 2: Ethical Issues in Clonal Reproduction

Discussion of Cloning Working Paper #3

CHAIRMAN KASS: The first session this morning is on the ethical issues in clonal reproduction, and the texts for discussion, though they are meant really as a springboard for discussion, are Working Paper 3 which is in two parts at your Tabs 2E and 2F.

And let me say something since there might be some misunderstanding about the working papers. These working papers are not the official work of this Council. They are not part of any report, or anticipation of any report. They have been prepared by the staff at my direction to try to outline as best one can the arguments both in favor, the arguments in favor of human reproductive cloning, and the arguments opposed to it.

Similarly, when we come to the discussion of the policy options, there is an attempt to at least raise the kinds of questions that either have been raised, or might be raised, about the various legislative alternatives that are before us. And similarly, with respect to the question of therapeutic cloning, or research cloning, which we can only get into briefly today, to trigger some conversation. No one is standing behind any or all of these arguments. Those arguments have been prepared by searching the literature to see what people have said about those matters, and they have put these arguments before us in these several working papers. I remind people who have picked up copies of the working papers that we ask that these be treated as not for quotation or attribution, precisely because of their status as working papers for the discussion by this body.

I trust that members have read the two parts of Working Paper 3, the arguments for and against reproductive cloning. I do not know that I want to summarize these, but we might turn pages together. The structure of the first working paper, the arguments for reproductive cloning, sets forth reasons that have been offered by one or another advocate, summarized on page 3 and 4. Some of these arguments have been to enhance human reproductive freedom, and to provide treatments for infertility, and to avoid the risk of known genetic disease, and the like. And other arguments have, in fact, been made. Whether these are appropriate or not remains to be discussed. For example, to allow people to replicate individuals of great genius, et cetera, et cetera. Those arguments are made. Whether the biology would support that or not is a long question.

Then there is in this paper arguments against a ban on reproductive cloning, multiple arguments made, and the rest of the paper, the structure of the rest of the paper beginning on page 6 to the end really are arguments against the arguments against cloning. In other words, they are an attempt to neutralize the arguments that are made against human reproductive cloning in anticipation of the arguments that are going to be made by the antagonists in the next part. We have chosen to present these, by the way, as separate briefs rather than as an ongoing dialectical discussion partly to sharpen the focus to begin with.

In Working Paper 3b, the arguments against reproductive cloning, there are eight separate kinds of arguments here, questions having to do with safety, questions of consent, especially the bizarre question of wondering about implied consent to do the experiment on the child-to-be, or to have a child become a cloned child. Then, questions about the relation between reproductive cloning and the prospects for enhancement or quote unquote "eugenics"; arguments about nature and respecting the natural way; arguments about manufacture and commodification, touching on things that we did discuss yesterday; arguments about identity and individuality, also touching on things that were at the heart of the discussion yesterday, including arguments having to do with the child as a surprise; some discussion about family relations and procreation.

And finally, if I may stress something which I think will be welcome to at least some people who spoke yesterday, a last point generally ignored in the discussions which usually focus on individual rights, a discussion, arguments, about the impact on society, pointing out that while the use of reproductive cloning might be a private choice, it is a public act in some way. And the question is whether a society that clones human beings is a different society, even if it is a minority practice, just as the question could be raised whether a society which permitted the buying and selling of babies, or the buying and selling of organs, even if done on a small scale, would be the same society. The question is whether this should be discussed simply in terms of rights, or whether the larger social considerations should enter.

That by way of warm up. I think that for this discussion, (and it is obviously just the first of several such discussions we are going to have), I think it would be best if we went around and asked people to say how they respond to these various briefs, as if one were a judge hearing this argument, and to indicate which of the arguments one thinks are better or worse, and which ones seem just irrelevant.

With this, I will stop. I am mindful of comments by Michael Gazzaniga and Paul McHugh yesterday, particularly, Paul, your remark about reading The Birth-mark as a young man, and thinking that that reaction was superior; and Michael Gazzaniga's remark almost saying that, look, this is a repellent idea. What is there to discuss? And there is a question whether or not these arguments are adequate to the task, but we are a public body, and we are, I think, compelled to try to give reasoned arguments for whatever judgments we might reach, though it might very well be that the analytical discussion does not support the conclusion that one intuitively might reach. But that is a risk one takes, and I think we should just proceed.

So, consider yourself presented with these briefs, and let's hear what the reaction is. Is anybody persuaded by anything in here one way or the other?

DR. ROWLEY: In 3a, I think it is important to, on page 5, to separate out what we are discussing in terms of reproductive cloning, and things like artificial insemination, and IVF, because I think they are different. And the reproductive cloning, as we are discussing, or as it is generally referred to, is taking the intact nucleus of an individual, and that is then the nucleus that becomes the genetic material of the resulting embryo, whereas both artificial insemination and IVF have two partners, male and female, sperm and egg, that are joined together. So, the individual formed from the union of the sperm and the egg is a totally different and unique individual, and I think it is very important to make sure that we do not appear to confuse these.

CHAIRMAN KASS: No, that is very welcome. I do not want to cut you off. You are going on to other things?

On this particular point, I think certainly in the public discussion of this, people— Part of the reaction to the arguments that we should ban reproductive cloning is that this would, in fact, have a chilling effect on other assisted reproductive technologies, and that in fact, in the Congressional testimony, various members of Congress wanted reassurance on this question, and some of them were not even satisfied that if you move against reproductive cloning you are not also threatening these other things. But I think it is easy to make the distinction. I think the distinction can be clarified, and it is one of our tasks. But this is an argument that has been advanced, and yesterday's discussion, in fact, between Jim Wilson and Gil raised the question of whether the argument that is being used here does not also apply retroactively to that, and that does at least mean that we have to be mindful of the relation, and the need to make these careful distinctions, lest we do too much.

PROF. SANDEL: This is really just a question in response to— Do we take it for granted that having a chilling effect on other reproductive technologies would be a bad thing? I think listening to some of the arguments that were made yesterday against cloning, at least some views around the table would not take it for granted that having a chilling effect would be a bad thing on these other—on IVF and so on. So that, at least, should be open as we explore the grounds, and it may affect which grounds we most want to emphasize.

CHAIRMAN KASS: Very good. Point well taken. Rebecca, please.

PROF. DRESSER: I understand you would like us to focus on ethical issues right now, and save policy for later?

CHAIRMAN KASS: Yes, I think we should make a separation on this. And the plan really is, this is the first explicit discussion on the arguments pro and con reproductive cloning, and then, in the second session, we will take up the policy options constrained— I mean, there are lots of policy options, but we have constrained ourselves because the policy options now under consideration which we ought not to neglect are these three legislative alternatives, do nothing, partial ban, complete ban. So, let's confine our discussion here to the arguments in Working Paper 3a and b.

PROF. DRESSER: Okay. Well, I would like to request that a little more attention be given to the human research ethics considerations. It is briefly mentioned, safety issues, but I think a richer exploration of what we in bioethics are familiar with, the Belmont Report. There are these basic principles governing research on human subjects, and I have a lot of concerns about the ethics of studying this in humans.

Respect for persons is one of these principles, and that requires that we protect people who are incapable of making their own decisions. And even if you are someone who says that the embryo does not merit protection, if you are getting into the situation where you are talking about a child to be born, the intent is to have a child through this procedure, you know, there are real questions about what kinds of animal evidence do we need to justify this, would it ever be sufficient.

Also, respect for persons means respecting the autonomous choices of people who can make their own decisions. This requires accurate disclosure to, say, prospective parents who might want to try to use this technology. I believe there has been a lot of exaggeration about the possible success, and I believe there are distorted beliefs about how well this would work. And so, I have those concerns.

And then, beneficence is another principle which says risks to the human subject must be justified by benefits, either to the subject, or to society in general. And so, I think here is where we can talk about the value of the benefits that would flow from this.

And then, the other primary principle is justice, and here we want to talk about how would the benefits from this technology be distributed. And I guess I would also raise concerns about allocation. As I mentioned yesterday, I am concerned about allocation of scarce resources for scientific research as well as health care. Is this really something, given the many other priorities we have in scientific research as well as health care, is this something we ought to invest a lot of resources and scientific energy in. So, those are things I think are not addressed in detail here that I find important and would like to have considered.

CHAIRMAN KASS: Let me interrupt with a procedural point. I will, unless instructed otherwise, take these comments as the basis of an invitation to members of Council to go home and submit to— We have the notes, but if you would like to elaborate on that, anyone would like to, it would greatly enhance the drafting of the next materials for our discussions. So, if you would like to get us some materials on that, that would be very, very welcome.

Robby George.

PROF. GEORGE: Thanks, Leon. I just have two quick points. The first is to endorse the point that Michael Sandel made this morning, which I interpret really as a concern that the Council be willing to follow the argument wherever it leads. I think we could probably best serve the President and the nation, particularly at this point in our deliberations, (we may have to narrow things down the line), but in having a kind of Socratic attitude toward these questions, and let's just see where they go in the course of argument.

The second point is a point about the language in which the debate over cloning is framed. Commentators on contemporary moral debates ranging from assisted suicide to homosexuality, abortion, all the hot button issues, have observed that largely these debates are framed as attempts to control the language of the debate. They can produce terms that resonate with a broader public to make them work on one side of the debate or the other. Of course, that is entirely understandable, and I think not inappropriate in political debate. But it tends to obscure, when the debate becomes a debate over language, it tends to obscure the real understanding of people whose concern fundamentally is not to win, but to understand.

I say this by way of introduction of a position that I want to state on the record, and that is that I myself do not believe that there is a distinction between reproductive and therapeutic cloning. And I think that the distinction, and the use of those terms, is unfortunate. As I will argue later, and at future meetings, I think that all cloning is reproductive, and that no cloning, strictly speaking, is therapeutic. And I appreciate the fact that in the working papers the staff has been sensitive to the fact that there is a debate even over the appropriateness of the use of these terms, and has used quotation marks in a way that does not bias the question in one way or another, but simply marks the fact that people disagree about the terms, and that disagreement reflects an underlying moral disagreement on the subject of cloning.

So, I want to say that while I will cheerfully respect people's use of these terms, and will be willing to use them myself to make myself clear in the context of the debate, because reasonable people do disagree with me about this, and believe that there really is a significant moral distinction between reproductive and therapeutic cloning such that those terms and the distinction between the two are useful and make sense, I just want to put on the record in advance that I think the distinction itself is morally problematic. It is not one that I myself accept, but I am happy to carry on the debate.

CHAIRMAN KASS: Please, Elizabeth.

DR. BLACKBURN: Robby, I would like to place myself as one of those reasonable people who does disagree with you, because I think it is very important in defining what it is that therapeutic or reproductive medicine involving cloning is versus—sorry, non-reproductive versus reproductive cloning, which has the clear, stated intention of producing a child. I think that it may be very helpful for this debate if we look very carefully at what stages in human development are involved in each of these, and how we think about those stages in human development because I think that is a very important part of this debate in weighing the cost-benefit ratio of both reproductive cloning on the one hand, which I really believe is distinguishable in my mind from the kind of process that would be involved in regenerative medicine cloning.

So, I do not think it is semantics over words. I think we will need to look carefully at what it is we are dealing with in terms of the cells and material.

CHAIRMAN KASS: Michael.

PROF. SANDEL: I would just like to direct a follow-up question to Elizabeth on that. Those of us who are non-scientists would benefit from having some fuller idea whether now in a promissory way, or maybe in some future session, on what that enquiry might consist of.

DR. BLACKBURN: I think this would be a useful thing for this Council to consider, some accessible explanation which does try to go into a little bit more detail. We had a very brief outline in our working paper which I think is not sufficient to explain, perhaps, the essential issues. So, I do not know what form this would take, but I think it would be very helpful.

PROF. SANDEL: I think it would be very valuable if we could have some way, particularly for us non-scientists, because it is very abstract. We are used to these very abstract discussions about the status of embryos at different stages, but actually to have some scientists, whether through a lecture, a slide presentation, written materials, or whatever it might be, really to make more concrete what exactly the stages in human development are.

CHAIRMAN KASS: Excellent. I mean, I think the background working paper was by everyone's account simply a start on this, to give people who might be simply unfamiliar with the terms some of the basic elements. I do not think there is anything in there that is wrong. I mean, I think there might be things in there that are vastly incomplete. I do not think we have made any gross errors there on the science. But we will have the benefit of the National Academy's report on this which I am sure will have a great deal to assist us with. But I think on the basic biology, perhaps, Elizabeth, you and Dick Roblin on our staff could perhaps speak even before you leave the meeting, and we can sort of talk about ways to get this material.

DR. BLACKBURN: And I am quick to suggest perhaps other members of our Council as well might join us in this endeavor, because I know I will be beyond my own personal expertise, and so, any other volunteers would be very welcome.

DR. GAZZANIGA: Excuse me. I would like to add my voice of disagreement with your position. You know, the whole issue of this, where we get into the stem cell therapeutic cloning versus the reproductive cloning bumps up against so many sort of facts that are on the ground now, and the whole issue could be looked at in terms of transplant medicine.

So, we now have, as you all know, transplantation of organs going on. How it works is a patient is declared brain-dead by the neurologist, and the surgeons are right there harvesting the organs for transplantation, the heart, the liver, the lungs. And so, we have right now a culturally accepted way of, once we recognize someone is brain-dead, their organs are free to be used to save other lives.

In the young embryo, up to (if I have this right; I will double check) but I think it is up to the fortieth day, there are no neurons yet formed for the cerebral cortex, for the brain. Basically, you have a brainless entity. So, in some sense, the laws that govern the next-of-kin to donate the heart, the lungs, to other people from a brain-dead human, the parents of the IVF extra embryos could donate their brainless blastocysts to be used for stem cell use, and for other medical good. So, one could obviate this whole problem by casting this picture in terms of recognized transplant law, which there is laws on this and so forth, and see the problem from that point of view.

CHAIRMAN KASS: Let me— I can see where this last intervention could go, with a long discussion on that. We have noted that there is a terminological issue. One of the real contributions of this Council would be a careful exploration of those terminological matters, reaching conclusion if we can, laying out the alternatives if we cannot, but it is an important contribution.

I do not think anybody ought to be trying to win the moral argument by redefinition. I think there is too much of that that goes on. We would be irresponsible if we did not try to sort these things out, and recognizing the ambiguities, and the differences of the perspectives, try to call things by their better names rather than their worse.

But look, I have the sense that people are once again uncomfortable grabbing the nub of the question before us. The question before us is not therapeutic cloning. The question before us is what even Robby George is willing for the sake of our proceeding with the discussion to call cloning for baby-making. That is the question. That is where we have the arguments here laid out. And we have heard from Rebecca, who thinks that we have shortchanged the human research ethics aspects of this discussion, and would like to see more. And I think we would like to hear more on the merits.

Stephen, and then Jim.

PROF. CARTER: A couple of, three really, small comments. Although first I should say that if we are going that way, I am probably a reasonable or unreasonable voice who would associate myself with Robby George's position. So, I did not want him to think he was alone at the table. But that is not really the intervention I intended.

I think Rebecca raises a very good point about one aspect that we should look at very closely. However, I do think that whatever our conclusion may be, that even those of us around the table which I am willing to bet on being the majority, (but I may be wrong), who think there ought to be a ban on human reproductive cloning, should be very cautious.

Government regulation has a long and unbroken history of hitting the wrong targets, and it is not merely a matter of a chilling effect. Indeed, that is a phrase that probably gets a little bit overused. But, sometimes the direct effect is to hit a target other than the one that was planned or expected to be hit. The history, for example, of the regulation of speech is a good example of this, the regulation of speech, whether we are talking about speech codes on campus, or seditious libel 200 years ago, or other things of that sort.

And so, I think that we ought to tread very carefully when we urge the state to get into the matter of the regulation of scientific research. That is, as to the subject. When I say subject, I mean the topic of the research, or the area into which one ought to look. I am not saying for that reason that we should not endorse the ban on human cloning. I am simply saying we should be very cautious, and we should be extremely clear in our terms, and mindful of the tendency of regulation to grow vastly, and clumsily, but rapidly, beyond the original limits of those who favor it for a discrete purpose at a particular time.

CHAIRMAN KASS: Point well taken. But if I may also, it is on the topic for the next session, namely the question of the ban. Here, the question really is the moral argumentation for and against reproductive cloning. We might conclude that we do not like it, but we should try to do nothing about it, and that is a perfectly reasonable option. There are lots of things that go on in society that we do not like.

Jim Wilson, and then Mary Ann, and then Gil.

DR. WILSON: I would like to try to get the argument back to the ethics, but in the form of a question to Robert. I may have misunderstood what he said, but he expressed a concern about this distinction between regenerative cloning and reproductive cloning, and I can well understand why he would be uncomfortable with those words. But there are two implications, two somewhat different implications.

One implication is that there is a slippery slope. If you start engaging in regenerative cloning, you will wind up with full cloning, and this, I think, led Michael, properly, and others, to say let's learn more about the biology here so we can figure out how it is going. The other implication is that once a sperm enters a cell, it is a living human being, and therefore, nothing can be done, and therefore, the argument stops there.

And so, what I want to ask Robert is which of those two views is he expressing?

PROF. GEORGE: Thanks, Jim. Yes, it is the latter. It is the idea that once we have a human embryo, we have a new human being who is a subject of rights and protection, rather than an object to be manipulated. So, that is why I think it is a mistake to use the language, although for these purposes I am happy to do it, subject just to this proviso, that I think there is a problem with it. I think we can usefully, nevertheless, use it in these discussions. I am happy to do that if it will advance the debate. But I think since the clone of the new human being is not going to be the beneficiary of the procedures, it is actually not true, strictly speaking, to refer to this as therapeutic cloning. I can make a much longer—there is a much longer—

CHAIRMAN KASS: I do not want you to at this point, because I think the issue is clear, but the terminological niceties at this point are not advancing the discussion of what we are supposed to discuss, if I may be so bold.

The point is very well taken, and I think Jim's intervention helps you to clarify what the issue is, and we will meet it.

I think it was Mary Ann— You were actually going to speak to the issue, Jim, or—

DR. WILSON: No, I just wanted to clarify.

CHAIRMAN KASS: Will someone, please? Mary Ann?

PROF. GLENDON: I hope you will consider this speaking to the issue. I want to make some observations about the structure of the arguments for and against the ban. It seems to me that the observations are not only pertinent to this issue, but to many issues that may come before the Council.

The arguments for the ban are arguments in terms of limits on freedom. The arguments against the ban are in the familiar language about freedom, various kinds of freedoms. In that kind of debate between freedom and limits, one notices that when you talk about freedom, we are in a familiar, common language that is shared by Americans of all sorts. But when you start to talk about limits on freedom, that common language disappears, and if you look at each argument separately, you will find that the separate arguments may appeal to some people who believe in that particular limit, but not to people who believe in another limit. I think this is going to be a general problem for our Council, that there is a shared American vocabulary and discourse about freedom, and a lot of difficulty in finding common ground in which to talk about limits.

That relates to a second kind of problem: who decides about limits? If you do not want legislatures to decide this, then you are making a decision about probably the role of business and the market. Do we really want such issues of great gravity to be decided by market forces?

If you resort to the institution which in our constitutional structure very often has the job of working out limits to what appear to be absolute freedoms in the Constitution, but we all know they are not, then you are going to have the decisions made by judges. This whole range of questions lies beneath this argument for and against a ban. And there perhaps is (this will be my final observation) there perhaps is something to be said in a society where the great majority of people for different reasons have a deep feeling that something is morally repugnant, there is something to be said for having that decision made by the institution that, however imperfectly in the normal, democratic process, reflects the sentiments of the population.

CHAIRMAN KASS: Gil.

PROF. MEILAENDER: Yes. A comment on some of the arguments in the working papers. Let me start with the arguments against cloning. To me, in certain respects, the most powerful arguments are two that are in a lot of ways related, the one that is number 5 on page 11, manufacture and commodification, and number 7 on page 17 about family and procreation. They are linked in a lot of ways. I mean, there are different nuances, but the commodification argument talks about the sense in which reproduction in the normal way endows each new generation with the dignity and freedom that those who have come before had, and the sense in which cloning which starts with a particular kind of product in mind might change that. The other argument about the relation of the family relation talks about the normal reproductive process, acknowledging at least tacitly a certain kind of humility before what it is that results, and accepting a certain kind of limits over one's power to control the next generation. Those two arguments are related, and I think they are powerful ones, and deserve to be taken seriously.

Over against that, in terms of Working Paper #4 cloning, and I was trying to find this— Someplace in one of these working papers, it mentions it, and I could not lay my hands on it right at this moment. But there is kind of a burden of proof issue, I think, that really emerges, because to me, the most powerful argument in a sense that emerges from the Working Paper 4 cloning is not so much some single argument as it relates to what Mary Ann just said. I mean, why try to stop people from doing this? You know, it is not going to be a large number of people who do it. Can you really demonstrate that your concerns are so great that you should impinge on people's freedom here? I mean, there is kind of a— One gets worn down by that argument which is so powerful in our society, which makes me think that in some ways, really, the crucial issue is the last one that comes up in that working paper against cloning, the one that you noted in your opening remarks, the impact on society question. That is to say, is it really just a free, private choice? Are there kind of larger— Are we learning to think as a society in different ways? Even if very few of us do it, I mean, in some way or other one comes to that. But it is the burden of proof issue, I think, that is really crucial in weighing the clash between the arguments set forth in the two papers.

CHAIRMAN KASS: Good. Janet, and then Michael.

DR. ROWLEY: Well, I would like to just follow up with you, Gil, on these concerns that you have raised, particularly on manufacture. And I guess what I am trying to say here, the question is, the implication is, that reproductive cloning would replace the normal intercourse that leads to pregnancy in general. And I was wondering how you think that is going to be prevented so that reproductive cloning becomes the norm in society.

CHAIRMAN KASS: Gil, do you want to respond?

PROF. MEILAENDER: I have no desire to prevent that.

DR. ROWLEY: If you do not, then why is it even an issue? I mean, I understand, and I have been educated by the Chair that these are arguments that have appeared in various fora that are collected here for our consideration. But I think at some point it is also—it would be helpful if the Council reviewed the various fors and againsts and said this is a reasonable argument to support a position, and this is really not a reasonable argument to support a particular position. So, I just want your views on that.

PROF. MEILAENDER: It relates to what I said at the very end of my remarks relating to that impact on society issue, and in a sense, one has to decide about that. In other words, the question is whether the fact that, if it turns out to be that, that just a few people do this means that it is of very minor importance in the way a society learns to think about the children who are produced, whether produced through cloning or in the normal manner, or whether it trains us all to think in different ways. That is to say, whether it remains a rather isolated, private choice, or whether it has public effect. That is the issue one has to think about finally.

CHAIRMAN KASS: Yes, I mean, I think some arguments depend upon the scale of use as to whether it is socially important, and others might simply say a society that tolerates certain kinds of minority practices might arguably be a different society. I mean, there would not be a lot of incest, I suppose, if there were not a prohibition against it, and yet, we feel strongly to enunciate the societal view on that. I mean, I take it that is at least a question here, and I really mean it as a question, not as something settled.

I have forgotten the queue. Was it Bill, and then Michael, or Michael and then— Michael, and then Bill, and then Stephen. I am sorry, Frank. Excuse me.

PROF. SANDEL: Well, I want to address directly our Chair's question, but then also, draw from that an observation about the character of our discussion.

The direct answer is one thing that strikes me looking at the arguments for reproductive cloning is that they really, except for one or two, are not very persuasive. The only one here— Infertile couples have other ways. They can adopt children, or use other means. The only one that is weighty, really, is allowing people to have children without the risk of known genetic diseases. That is "c". And maybe "e", people who would want to have transplant donors for a desperately ill child. None of the others are really very persuasive.

One of the things that strikes me about the reproductive cloning discussion is that intellectually it is not very interesting because the arguments for it are not very compelling. The arguments against it, discussing the objections, is very interesting, and there yesterday we got into discussions of nature, of procreation, of family, of human will, mastering mysteries, strangeness, commodification, repugnance and its moral status. Those are interesting questions. But the reason they are interesting, unlike these arguments about reproductive cloning as such is that something was at stake in the discussions that we were having about how best to account for the repugnance. And the reason something was at stake, and it was intellectually interesting, and it mattered to know, is it because we worry about family, or about the asexual character, or because destroying the mystery, or because exalting the human will? The reason those were interesting is that which of those reasons were compelling and sound have consequences for other related issues. And everybody knows that. And that is why, and this is the comment on the discussion, why Leon, you have been heroically and masterfully trying to rein in wild horses who keep trying to pull this discussion in other directions. And I think the reason for that is, and you have good reason for wanting to do that, because the instinct is if we get into so-called therapeutic, so-called research cloning, and these other areas, then there are more compelling arguments for doing it than we have here. These are weak arguments on the whole for reproductive cloning. Nobody is really taken with them. The other arguments are stronger, and the counter arguments matter, which of those theories we really adopt. But the fear is that we are going to get stuck on the moral status of the embryo, and we do not want that. But I think the gravitational pull that you are very adeptly and skillfully struggling against by the Council suggests that that is where the real interest lies.

CHAIRMAN KASS: That is one possibility. The other possibility is that a bunch of professors prefer to discuss the question rather than answer it. And the meta-questions are very interesting, but if we constituted ourselves as a body that had to, on balance, having heard the arguments, or consulted our intuitions, or thought about this, come to some judgment on balance what to think about reproductive cloning—

I mean, maybe you are right, Michael. Maybe everybody in the room has already decided that reproductive cloning, who needs it? Let's talk about the other things. But if that is the case, we should hear it.

PROF. SANDEL: Well, is there any really important good that anybody thinks would be advanced by reproductive cloning? If not, let's get on to the objections, and why they are interesting, and what the consequences, which objection matters, what has for these other things. What is the human good that is advanced, does anybody think, by reproductive cloning? What is at stake? Even in the public debate, nobody really thinks it is terribly important.

CHAIRMAN KASS: Any takers?

PROF. MEILAENDER: Leon, it is the good of freedom. I mean, I am not an advocate or anything, but that is the good that people get. The particular—

(Simultaneous discussion.)

PROF. SANDEL: Yes, but that begs the question. Freedom for the sake of what end? What worthy end?

PROF. MEILAENDER: Well, you do not find, and I do not myself find that the particular examples of the kind of use of that freedom given there is reasons why people might want to do it. It is not terribly compelling. I do not disagree with you on that, but that does not alter the fact that if you are going to interfere with someone's freedom, you need a compelling reason. That is the good that is at stake.

DR. KRAUTHAMMER: In a free society, the burden of proof is on those who want to stop it. So, you do not have to have a good argument to clone; you have got to have a good argument to say why you should not.

CHAIRMAN KASS: Bill, then Frank, and Stephen. Bill, Stephen, and Frank. Excuse me.

DR. HURLBUT: I want to take up these two comments. I do not know a single scien— Well, I know one, actually. I only know one scientist who is even remotely in favor of reproductive cloning. I think on a policy level, reproductive cloning, at least for the foreseeable future is not an issue. But to me, we are losing (and this is affirming what you said) a very good opportunity to do something at the foundation of our process, on the launching pad of this whole endeavor, to think about how we do ethics.

If I look back at our working paper, on page 2 it speaks of giving a "new form to human procreation" at the bottom of page 2. And then it says, "In their desire to empower human will, they seek to break the mold of natural human limitation-and we must think of where a new standard of human behavior and dignity might come from."

Well, as a physician, I was trained that medicine was to cure disease, and alleviate suffering, and I remember Galen said, "The physician is only nature's assistant." So, I tend to look at the natural world, and I see it, as I tried to say yesterday, somehow not just creating freedom, but a context of constraint to that freedom that gives us some meaningful life. In other words, if you think of freedom as a biologically produced capacity, with both earthly, and perhaps transcendent significance, it has to be understood in a natural context. That natural context has been constraint, as well as open possibility historically. Now, our technology gives us new powers over the limitations of nature, and so, we need to ask ourselves if we move off of the frame which has formed us, and there is no question in my mind anyway that our minds have been formed by the realities of the natural world, then will we find a meaningful, full flourishing of human life in the places we may enter?

The question below all this to me is how do we do ethics in the opportunity for so much change to basic human reality? How do freedom and flourishing, full flourishing, actually coordinate in an age of biomedical technology? So, I think we should return to the fundamental questions raised in this working paper as to why some of these efforts toward reproductive cloning, however irrelevant it may be for establishing actual laws right now— I think it is a done deal. I think we are going to outlaw reproductive cloning, or at least put a long moratorium on it. But it still would be very instructive to us as to how to do ethics.

CHAIRMAN KASS: Stephen, and then Frank, I think is the way I had it.

PROF. CARTER: Again, let me try to address myself to the right question this time. Although in addressing that, part of my answer will explain why (Inaudible.) addressed the wrong question, I think.

I think it is correct that it is very hard to identify reproductive cloning as a good, and therefore, it is hard to defend it morally. So, if it is simply a moral question, it is not so much the nays are going to have it, but the nays are going to have more interesting arguments. That is why Charles is right, and Gil is right, that the good that has to be weighed is not the good of cloning, but the good of freedom. And so, the moral question. The reason why we slide over into the ban, therefore, is that if we are simply talking at the level of morality, my moral objection to something you are free to do may result simply in your turning your back, and that is where we slide over into the ban. So, that is why the burden of proof issue matters.

I do think, though, that if we want to stick with the arguments in the paper, actually I disagree with Michael on which of the arguments pro are the more powerful ones. I do agree that we can reject most of them. For example, the fact that people want to do a thing does not make it a good, does not change its moral status at all. The fact that people want to do a thing really a lot does not change it. The fact that people deeply desire and are wounded if they cannot do it, does not affect its moral status. So, the fact that people want it does not make it a good, nor does the fact that people will do it anyway make it a good. Nor does the fact that people will do it in another country make it a good. The moral aspect of a thing as a good or not a good is not affected by people's desire for it, and in most cases, except for some hormones, not by their need for it, depending on how we define need, either.

So, it strikes me that the only arguments that need to be taken seriously, I think, on the pro side are on page 4, argument g) which we rather trashed yesterday, but nevertheless, I think is actually an argument about a possible desirable good, because we could argue that maybe having these individuals of great genius is a good, in which case that would be a serious argument. But nobody thought that yesterday, not many people thought that. Or h), if not for the fact that most people seem to think that h) cuts the other way, that it allows to prepare for the unpredictable nature of the future. That is, you could imagine, for example, a future circumstance in which there had been some disease that was ruinous to the gene pool, and it turned out that only by cloning individuals could we reproduce the race at a level that would allow the race to survive. You can imagine situations like that. But there again, it is not the cloning that is the good; the cloning is the tool that allows the good to be done, if one takes that as an argument.

So, what about the negative arguments which are described as interesting? They invite our attention to these larger issues, and so on, and I suppose they do. But I have to confess that I do not find most of them very compelling. Interesting, yes. Inviting our attention to mystery, yes. But not very compelling, except really for one that is kind of buried in one of the others, and that is, the question of how reproductive cloning would affect our view of the human itself. Not of the cloned human, not of that individual. This is not the question we talked about yesterday, but whether our view of what it means to be human is affected by the use of this technology, which is a question we have confronted as a society in the past, sometimes well, sometimes badly.

For example, in the time of Darwin, for example, this was one of the arguments very fondly pressed against the widespread dissemination of Darwin's theories, precisely that it would dramatically alter our view of the human, and that was a true objection. That is, it was a fact that it would, and it did, I think, alter our view of the human. Now, the question was it altered for the better or worse is not at issue; just that it altered it.

So, having said all that, that is why I think that in the end it is the instinctive revulsion that people feel, that Mary Ann mentioned earlier. The instinctive repugnance, I think, deserves an important place in the moral debate. Not necessarily a decisive place, but sometimes there are important moral questions that it is extraordinarily difficult to reduce to argument. The enlightenment tradition teaches that it is important to be able to reduce our repugnances to arguments, but I often think that is a flaw in enlightenment tradition.

CHAIRMAN KASS: Thank you very much. I think it was you, Frank, next.

DR. KRAUTHAMMER: Could I just say one sentence, Leon? That I agree with you, Stephen, about that the repugnance is the core of the objection. But unless that repugnance is unpacked rationally, I think we will lose the argument, because in a free society the compelling imperative of freedom has to be counter-argued. If it is not—if you cannot produce a rational argument beyond repugnance, freedom wins, I think. It will win politically, and it will win, in a sense, intellectually. So, I think we need to find ways to make that repugnance understandable, transmittable, reproducible, by argument.

CHAIRMAN KASS: Frank, Mary Ann, and Paul.

PROF. FUKUYAMA: One way of thinking about the moral question is what you might call a kind of common law approach which is to look at analogous situations, and you yourself mentioned this, Leon, earlier in the case of incest. Because I think that actually of all the laws that we have on the books, the one that the cloning battle would be the most comparable to is the law prohibiting incest, which is a law that limits reproductive freedom. Brothers and sisters cannot produce children. And thinking through this, if we did not have incest laws and one came up before Congress, I am not sure it would get passed these days. But it is interesting sort of thinking why we have this law on the books, and it may help us in thinking about the cloning matter.

Now, I think that, you know, the reason that we ban incest is a combination of the yuk factor. I mean, people just instinctively do not like it. There are various medical reasons about, you know, you are more likely to transmit recessive genes, you know, on both sides of the parents. But it is also similar to the cloning ban in that there is probably not a lot of people that actually want to commit incest.

But it does seem to me that if you thought about it, there are cases you can imagine to yourself, sympathetic cases. Let's say brother and sister came from a broken family; they grew up separately; they met as adults, and it turned out that this was, you know, the one exact, perfect match for them. And why should society in that case prevent them from getting married? The medical issues could probably be dealt with. You know, at this point you could probably screen to make sure that they were not, you know, transmitting a terrible disease.

So then you ask the question, well, is this really a rational law that would prevent people in this compelling case from getting married and having children? And I think what society has decided in the case of the incest ban is— Well, actually, I do not know. I mean, that is something I think that we ought to think about. I mean, what are the reasons that we maintain this ban? Because I do not think it is simply the kind of pragmatic medical one. I think it is a combination of an instinctive, you know, dislike of the practice, the idea. And I think most people would take seriously the public argument that even if we allowed one brother/sister couple to produce children, that that somehow, you know, would be a public act that people would not like.

And the other thing that I think is important thinking through that analogy is how you balance these different competing interests. Michael, you said that you did not see any compelling interest in favor of reproductive cloning. I have a friend that e-mails me constantly because he wants to be able to clone, you know, his son. He wants a back-up copy of his son in case his son gets killed. He gets horribly indignant at the idea that anyone is going to restrict this, you know, ability of his to create this back-up copy. You know, I have run into quite a few people that are really, really extremely— I mean, and they, you know— And you can come up with reasonably sympathetic scenarios where it would be in someone's interest.

And I think, you know, in a way what we need to do is step back and think about how you balance these various different kinds of considerations. I do not think it is simply the case that even if someone has a strong interest in doing something, that you simply disregard that. I mean, in a certain way, enough strong interest, you know, amounts to a moral claim at a certain level. But I do think that the incest case does provide a certain precedent for society taking a low-probability event, and balancing both pragmatic, and you know, revulsion factor interests, and coming up with, you know, a ban that receives a fairly broad consensus.

CHAIRMAN KASS: I think that was a warm-up for you, Mary Ann.

PROF. GLENDON: I think that the incest example is very helpful here. I wanted to react to Charles's suggestion that we need to have rational arguments to support an instinctive feeling that people may have.

I am going to publicly confess I do not have instinctive revulsion about the idea. What I do have is a worry about unforeseen, unintended consequences, what happens, and how do you put that worry into a rational form.

I think in the case of reproductive cloning, as with incest, one might be able to come up with six different arguments that would have a plausible claim to being called rational, but they would not appear persuasive to every person who would sign up for one of the six. So, on the one side, the side against any ban, you have arguments that boil down, essentially, to one widely shared argument, the one you mentioned before, the argument for freedom from government regulation. That is easy. And the problem on the other side of the case is not that the arguments are not rational, but they will not be recognized as persuasive by everybody in the group, and I think that is true of incest.

St. Augustine was against incest because he thought it was natural to love people closely related to you more than you loved strangers, so that in order to spread the love around, you really had to have exogen—

(Laughter.)

I mean, you cannot concentrate it all in a selfish way. That might be persuasive to some people. It is rational. It is not an irrational argument. But not everybody who opposes incest would oppose it for that reason.

So, maybe I will come back to the idea that in a democratic society, where many people share a common position but for different reasons, the way we decide that is by voting.

CHAIRMAN KASS: Paul. Do you want to comment on this, Jim, or—?

DR. KRAUTHAMMER: Could I just make one point on that? Could I just make a one sentence response? That it is remarkable that in the Congress, the vote was unanimous against the reproductive. Not a single member of Congress. So, it means that you may have six reasons, each of which has a constituency of 70, which add them all up, and you get— But it is amazing to me that you cannot find a single person in the House who will not oppose a ban on reproductive cloning. It means that— I would infer there is a revulsion deep underneath it which would explain that incredible— If it was just lining up the rational arguments, you would expect a few people out there who would be on the other side, and there are none.

CHAIRMAN KASS: Paul McHugh, and then Jim.

DR. MCHUGH: As Frank said yesterday, sometimes you are always anticipated if you just wait long enough. And the argument though, I want to continue on this line, that is, that we should be looking for rational reasons to explain our revulsion of these behaviors, which would be the social behavior of reproductive cloning.

And by the way, it is not hard to find other examples in which we were not completely persuasive for everybody, but ultimately began to see reasons for controlling behavior, and stopping behavior. The obvious one, of course, is slavery in which we eventually had to see how corrupting it was to every sense of humankind.

But you know, we also argued the case against polygamy very powerfully, and we, I believe most of us, argue strongly against prostitution. Now, there are plenty of people in the world, I do not know "plenty", but there are enough people in the world that think polygamy might not be a bad idea, particularly if they are men, and similarly, about prostitution. Yet in all of them, coming back to what Rebecca said, the argument against all of those was the issue of the use of power over the weak. And I submit that reproductive cloning is repulsive, and primarily repulsive because our imaginations see us as using power over the weak, that is the child that will ultimately be produced for our purposes as an idea of ours, rather than from nature.

CHAIRMAN KASS: Jim.

DR. WILSON: Yes. I largely agree with what Paul said. I want to expand a bit on the incest argument, because I think it is related to what he said.

Incest is universally condemned by all cultures in the world. I do recall one poll that showed that 21 percent of New Yorkers were in favor of it, but there is no other part of the world where this can be found.

(Laughter.)

Incest has been tested in the kibbutzim of Israel. You have boys and girls growing up without parents. They dress the same, they play together, they take showers together, and by the time they reach the age of puberty, they start to withdraw from each other, and they do not get married. And so, one of the problems with sustaining the kibbutzim is they are not getting married there. I think this natural revulsion is reinforced by law. But if it is so natural, why a law? And why not have an exception, as Frank indicated, for the unusual case?

I think the reason we have the law is that there are some people who will try to violate the incest, and in the United States of America, that happens to be the fathers of attractive, young daughters. All of the cases of incest, the predominant number of incest cases we have, are fathers exploiting in a sexual way their daughters, and that is a number that can grow. And so, instead of saying we will let the judges dec— We reject the idea of having no law, because this group exists, and instead of saying the judges have the right to expand the law in suitable cases, a testimony to the faith and farseeing-ness of judges that I do not happen to share, we simply say since there is a risk here, we are going to enforce the law as a way of protecting vulnerable people.

And as Paul said, there is another group of vulnerable people here, children who are being raised to be models, copies, of some other thing without really having a chance to vote on it. So, the incest example that has been raised is, I think, very important. You can, in principle, think of an exception to it, as Frank has done. But I think when you reflect upon creating a system that would recognize the exception without undergirding its deterrent effect, the argument disappears.

CHAIRMAN KASS: Dan, Elizabeth, and Robby. We have a long queue. Let me write this down. Dan, Elizabeth—

DR. FOSTER: I have listened with great interest to the discussion yesterday and today. I have to say that some of the discussion yesterday about the meaning of procreation after sexual intercourse as having powerful ethical and moral issues was one that I did not resonate with. I understand the sacred nature of it, and I understand that one as a matter of religious faith may believe that that is true. I think the great mystery is here about the issues of life itself.

I do not know whether the moment that the sperm joins the egg, that life is created. I do not know whether that is pre-life, or life. I had many discussions with the late Jesuit moral theologian Richard McCormick about this, and he himself was unsure. Most embryos, as you know, die before, spontaneously, before they are ever born. So, I think some of these things are vested in mystery. We may proclaim with enthusiasm that this is life, but I thought that Michael's argument about the neurons and so forth— Is potential life the same thing as life? I do not know.

So, my concerns were not so much about the moral and ethical issues of the way in which a child was formed as the question, the critical question before us, about a clonal reproduction. My predominant objections at the moment precede the moral issues that are involved, although I know that Leon really wants to discuss this. He noted that the climate for moral discussion is more rich now than it has been.

I am vastly more concerned about the issues of safety, as Rebecca is. I think it is going to be a very long time. I think this is an incredibly risky procedure now, but it might not stay that way forever. But for now, that argument alone would be sufficient for me to say that I would want to ban this. There are not enough studies that have been done. I am not saying ban. I mean, to not make it— We are going to talk about that later.

The second thing I want to say is, that I think one should not ignore intuitive public opinion, the common morality, which I know there is a problem there. The problem with the Beecham-Childress model of bioethics is that it is based on a moral viewpoint that does not hold in, let's say Vietnam, or whatever. It is a way of thinking, and the principle is not what Rebecca talked about, but it does not solve specific moral problems, or that it emphasizes autonomy and non-malevolence out of things.

But I read a book one time that I thought was not a very good book, but there is an important point in it that the late C.S. Lewis said. He said that two people are getting on a bus. One is an old lady who is crippled, and one is a young, healthy person, and there is one seat in the back of the bus, and the young person jumps on the bus, and goes and takes the seat. And everybody on the bus says, "That's not fair. Get up and give her the seat." And the question is, why? Because there was an intuitive sense that the— I mean, the law of the survival of the fittest, that was perfectly right for him to do. But there was a sense that there was something wrong about that.

Now, as far as I— Unless somebody corrects me, I believe that Germany has completely forbidden the progression here. We have the document about California here. We have all sorts of polls. I mean, there is sort of an intuitive sense, as has been mentioned here, that this is not the right time to do this. It does not mean that there might never be a time that you could do—

I think one could argue, as Stephen said, if there were a bioterrorism, or a vast nuclear war, it might be worthwhile to have some clones available to do something. I mean, we did not destroy all the smallpox virus in the world, and that turns out now to be a wise decision so you can make some vaccine for bioterrorism. So, I think there are conceivable situations.

The follow-up to that might be that there are certain circumstances which might be restricted morally or legally where the cloning might be a good thing in an individual case, where you could completely ban manufactures of armies, let's say, if somebody wants to make a super-race as Charles said, and so forth, that you could ban and destroy that.

So, I would think that another healthy thing would be to say that what we decide here is now, and may have implications for the future, but it does not have to be fixed in stone. If we make a wrong decision, and other things come along that change it, either morally or ethically, you can change that.

Finally, I think there is a danger here of what I think Erik Erikson calls "pseudo-speciation", and what he meant by was for humans, or a group of humans, to project out onto all humankind that they were like the humans that were thinking. In other words, so that an American professor sitting here tends to think about how one looks at the world and people in the light of their own understanding of what are big issues.

William James once said that serious questions— I am speaking to this issue of arguing in terms of freedom or non-freedom, or restriction of freedom. William James said that serious questions have three components. They have to be momentous, not trivial, and they had to be forced, not optional. Everybody had to decide on them. And there were then lively options. I mean, we can clone, or we can not clone. There is a lively option here. It is a momentous question. But I do not think that the public, at least the sort of people that I deal with every day, are really interested in an ethical discussion of freedom and restrictions of freedom. I think they are going to decide this on much more practical and pragmatic grounds, that you can say this is not safe now, or it might be dangerous along these things. I think if you cast this argument in some sort of ethical and philosophical way, it is not going to resonate with the mass of the people that we are here to represent.

So, those are random and unlinked points, but that is where I stand about it. I think that this group has— I mean, we have a danger. I think one of the things that people always worry about is certain religious groups are so sure they know every truth, like when the world is going to end and everything else. We have to be sure that we do not act like we know all the truth about what life is, and when it begins, and all those things as well.

CHAIRMAN KASS: Thank you. One tiny thing. I would not say the question of safety is a non-moral question. The question of safety is a fact, but it translates into a serious moral concern of not doing harm. I was coming to your aid.

DR. FOSTER: Mr. Chairman, my wife tells me I need aid all the time, and I appreciate you trying to help me out. I do not believe that I said that safety was not a moral issue. I think it is a high moral issue. If I misspoke, then a synapse went wrong. I need to see Michael, and tell me that I better get a PET scan or something like that.

CHAIRMAN KASS: Elizabeth. Yes, it is Elizabeth, please.

DR. BLACKBURN: I had actually been prepared to take up that safety issue, too, and particularly in light of what is on page 5 of the Working Paper 3 at the very bottom of the page. And I think because safety— We have to look at evidence in terms of safety. And then, the next line says— Let me read you what it said in terms of—this was an argument pro the safety of human cloning, or about it. "Safety is possible without requiring overly reckless experimentation:" And I think Dan's point is that, you know, at this point in our history that is far from being the case. And then it said, "Parallel with IVF."

That, to me, is perhaps a dangerous thing to put here, because IVF really does involve sperm and egg, and the proper imprinted genomes that can function. Cloning involves the issue of, you know, potentially non-functional genomes. And so, what I am saying is that if somebody looked at this argument, they would say, "Oh, well, there is a parallel with IVF because safety is possible." And I would say we are a very long way away in practical terms from that being the case. And so, this—

CHAIRMAN KASS: Yes, I think I can explain the meaning of your point. I think I agree with you completely. I think the point is that people have argued publicly, look, IVF before it was tried, people were saying (I was one of them) this is a hazardous potential experiment on a newborn child. We were playing dice with new life. It turns out, the procedure is very safe. Nobody knew that in advance. And I think that people have said how do you know that cloning is not like that? Well, we have lots of evidence, I think, to suggest that cloning is not like that, and that evidence is very important to this discussion. But this is the way some people have been talking in the public realm. That is why I think it is put there.

Elizabeth, do you want to respond?

DR. BLACKBURN: No, no. I agree. I was just saying that as written here, we are having to unpack rational arguments, and if someone looked at this argument, I think that this would be not based on really, you know, good available evidence.

CHAIRMAN KASS: I have— Have I lost a page? I think it was Robby next, yes?

PROF. GEORGE: Leon, I think Michael wanted to get in just on this point. Could he go ahead of me?

DR. GAZZANIGA: Well, just quickly, to go back to Charles' point. There could be a long list of safety reasons spelled out as to why this is a bad idea. Cloning has been going on a long time with corn, and they have made genetically identical corn, and the agriculturalists were very happy with this. Then they planted it, and the entire corn crop would be wiped out because there was no genetic diversity when a new organism came in that would attack that particular piece of corn. So, cloning has been basically abandoned as an idea in agriculture, because it shut down genetic diversity.

And one can see this is a big problem in the cloning of animals if you read the papers carefully, and get to the back of the papers. So, the whole reason why we have bisexual reproduction is to create the genetic diversity that allows you to defeat bacterial challenges to the organism. So, one could go down quite a rational list as to why this— Seven reasons why cloning looks like a good idea sort of comes from The X-Files, and does not really come from scientists who have thought about this a lot.

CHAIRMAN KASS:We are at ten o'clock, time for a break. I am going to run over a few more minutes here; we will take a little bit longer break, because I have a list of Robby, Rebecca— Oh, my goodness. Robby, Rebecca, Stephen, Michael. You cannot all speak in five minutes. Be succincter than usual and maybe get most of them in, and we will start the next session with whoever is left over. Robby.

PROF. GEORGE: Thanks, Leon. At the appropriate time, which is not now, I would like to go back to Michael's argument about brain-death. It is an argument that has been floated and developed in some detail by the Oxford philosopher Michael Lockwood, and rebuttals have been offered by John Finnis and Patrick Lee, and I have offered one myself, and I think it is a question very much worth debating, as I say, at the appropriate time. It also might be possible for the staff to distribute the published versions of these debates. I do not know if Michael has written himself on it, but these other people have, and it might be a good thing to distribute among us. It is a very interesting argument.

I want to say a word on behalf of reproductive cloning, not because I believe in it. I do not. But I do believe in meeting the best argument for the other side, and giving it its full due. And it seems to me not to give it its full due to frame it in terms of freedom, although I acknowledge that even people who do have the pro reproductive cloning view do appeal to freedom. I think they appeal to it because it is very powerful as rhetoric in our particular political culture. But I think behind it is something more powerful, and that is the idea that the children—whether to have a child, and whether to have this child rather than that child, or a child with this set of attributes rather than those, these rather than those, profoundly affects the shape of one's own life.

When people argue for reproductive freedom, it is not simply an argument for the value of the exercise of the freedom. These arguments which I constantly contend against, these arguments are arguments for having a certain sort of course of life in my one and only future, as they suppose. And to have a child is going to profoundly affect the way my life goes. And to have a retarded child is going to very profoundly affect the way it goes. To have a really intelligent, Harvard-bound child profoundly affects the way my life will go, and darn it, I want my life to go in a certain direction, and that is not unreasonable, the argument goes. It is not unreasonable for me to want that. That is not an unreasonable want, and that is something that other people should respect, not only by way of stepping away from any kind of legal ban or prohibition, but even stepping away from any kind of moral judgment. It is just not appropriate to cast moral judgment on my judgment of how my life should go. And when one acknowledges that whether to have a child, or what kind of child to have, shapes that in a fundamental way, then it is wrong to cast a judgment, even in that direction. As I say, it is not an argument that I accept, but I think that is the argument that has got to be engaged, rather than just an abstract claim to freedom. And it is an argument which I think several of the arguments that the staff has so helpfully canvassed here on page 3 sort of gesture toward.

CHAIRMAN KASS: It is the pursuit of happiness in which you are so interested.

PROF. GEORGE: The pursuit of happiness, yes. Happiness now being the idea that I want my life to go a certain way.

DR. KRAUTHAMMER: Is not that a way of saying I want it because I want it? Well, now you are making my argument. I mean, this I think is the argument—

CHAIRMAN KASS: Charles, let's go in a queue. Rebecca, please.

PROF. DRESSER: Four brief points. I think we do need to do more than just dismiss the arguments in favor of reproductive cloning with the goal of speaking to as many people as possible. I think we need to explain why if we agree that these are not persuasive reasons, we need to do more than say, well, those are not important.

Second, I guess I take a little bit of exception with Mary Ann in that I do think there is a shared language in which we speak of limits on freedom, and that is, if freedom harms others. And then, certainly in criminal law is all about restricting people's freedom because it harms others in various ways. I do not think a lot of criminal law is all that controversial.

So then, the question here becomes, well, what kind of harm are we talking about, what is the probability of harm, is it an important enough harm, and is it likely enough that many people could agree that freedom should be limited. And so here, I think the focus would be on what is it— The harm of being a genetic copy, or nearly a genetic copy, how is that different from other kinds of harm that we can imagine visited on children had in the normal way, or any kind of assisted reproduction that is somehow not as bad, and therefore we do not interfere with people's freedom to use those techniques?

I had thought of polygamy and incest as other analogous cases, but I think we also want to think about cases that may not get the same kind of support. And at one point in our history, interracial marriage many people, probably if you had a vote, the majority of people would say, "Oh, that is repugnant. We do not want to permit that." So, I think it is very important to test these intuitions, and come up with more than just a repugnance.

That is all I want to say. Thanks.

CHAIRMAN KASS: Okay. Stephen, and then Michael.

PROF. CARTER: Thank you. I have a couple of brief points. I want to say a word about the mystery that we have spoken of a couple of times, and I also want to ask the Chair a question.

In terms of the mystery, the instinctive revulsion, and things of that nature. It does strike me that sometimes there are arguments that lose a lot in translation into the ordinary language of academic discourse, say. I think of Martin Luther King's advocacy in the civil rights movement, for example, which is often incorrectly described by historians who have read very little of it as thought it was sort of a secular, public, political campaign. Actually, it was a public ministry of one sermon after another spoken in explicitly religious terms with constant reference to the Creator or to God with occasional throwaway lines about one secular argument or another, but there were few of those. And I think this helps account for the success of the ministry, that these were arguments that resonated with a lot of people precisely because they appealed to a part of the human conscience that often cannot be reached, at least not successfully, or not reached passionately, if we restrict ourselves to the arguments that might be cast in the terms of ordinary rationality. I really do believe, and I think that King believed correctly, that there is a place in the human heart where sometimes if that place can be touched, without further argument we simply know right from wrong.

Now, one of the virtues of rationality on the other hand is it helps us sometimes sort out those instincts. That is, I do not think the fact that we cannot point to a rational argument to defend an instinct suggests that it is a bad instinct. I do think that sometimes rational argument can undo a bad instinct, so that if you take the case, for example, of, say, the bans on miscegenation, it may be the case that those bans which were instinctively felt, and very powerfully defended for a very long time, that those bans were probably undone as much with rational argument as with an appeal to passion, although it was a rational argument about passion; it was a rational argument about something that people could readily identify with as another deeply held instinct about men and women freely choosing whom to love and whom to marry.

Now, the reason I make this point about instinct is that I think that for a lot of people, the opposition that they feel to reproductive cloning, and here following Dan's advice, I am thinking about a lot of people who are not present at the table, and a lot of the reason, Charles, that you find this unanimity in Congress is not really because there are six rational arguments, and people are choosing up among them. I think a lot of it is some deeply held instinct. I am not suggesting the Council is bound by that instinct, or that it ought to control us, only that we ought not dismiss it, and that, in fact, it is something that we should consider very importantly as we consider questions both of morality and policy, without regard to whether we think we can fully explain it or even justify it.

CHAIRMAN KASS: Michael, then Bill.

PROF. SANDEL: Just a quick word about the freedom argument. In this discussion, it has fallen into the unlikely hands of Gil and Charles and Robby, otherwise capable hands.

PROF. MEILAENDER: All friends of freedom, I might add.

PROF. SANDEL: And we have run together the moral and the regulatory issues. Insofar as the freedom argument is a plausible argument in connection with cloning, it is a plausible argument against banning cloning. But it is not a plausible argument for the morality of cloning. That is the point I meant to make before. Nobody trying to decide whether making a baby by cloning is morally desirable would be helped one way or the other by being told that he is free to choose either way. That is all I meant.

CHAIRMAN KASS: Finally, Bill.

DR. HURLBUT: Picking up on what Stephen said, and returning to the issue of incest as an example of how a kind of natural morality emerges from a given biological structure of human reality. Obviously, it seems at least to me, obviously morality is in our minds and hearts and spirits because it is in the service of life. At least that seems like a good biological assumption, whatever other approach you want to take. It seems to me that when we speak of moral disgust, as I said yesterday, disgust seems related somehow to gustation, the concept of spitting out something that is poisonous. It obviously is in the service of safety. So, repugnance is deep in our minds. It is deeper in some sense, or as deep, as any reason we can come up with. So, if we try to look at the relationship, just now looking evolutionarily at the origins of spiritual, religious, and moral awareness, we would perhaps give greater weight to those things which we cannot fully articulate. Repugnance, or the so-called yuk factor, is objected to as a basis of moral thinking by some people, but those same people usually favor the parallel sub-rational reaction of compassion. The point is that something informs us deeply by the structures of our mind, and the circumstance we live in.

Now, to an example of that. Incest is a very interesting subject with regard to moral awareness. It happens that one of the great authorities on incest is in the program in human biology I teach in. Arthur Wolfe(?) has written extensively on this. So, how does incest work? It turns out, at least according to him, and he is pretty well accepted, I think, it turns out that if you take a situation like the kibbutz which was referenced earlier as a situation in which incest almost works inappropriately in making people not willing to marry people who are not genetically related to them. You understand, they grow up together, and then they do not want to marry.

Well, it turns out that in China there is something called minor marriage, where the bride is selected for the husband-to-be when they are about two years old, and they grow up together like brother and sister. It turns out that their marriages do not work out well, because they have grown up in a context where they are not attracted to each other. For some reason, there is not the mystery that flows, that is essential for normal sexual relationships to be compelling, at least. So, here the structure of natural life informs moral impulse in the service of the flourishing of life. A minor marriage shows us how in a natural setting, your natural brother and sister would not be attractive to you.

Now, there have been times in human history when incest was accepted culturally. There was a time in Egypt when one-third of marriages were between brothers and sisters. So, sometimes cultures do override these things. But for the long view, something sub-rational maybe, or a combination of rational/sub-rational seems to emerge.

Just one final point on this. Antonio DeMasio(?) has written extensively on where does our reason come from. He speaks of hot cognition, reason informed by emotion. He says the mind had to be first about the body, or it could not be. He speaks of this hot cognition as meaning we are embodied beings whose reason is not detached from the meaning of our lives, from the sense of being a someone, from having a sense of personal biography.

What I want to suggest is that the very structure of natural life is what places that reality in its— It is such a hard problem, because we know that nature is not perfect. We know that medicine and human freedom has a role in what you might call healing, remediation, hacuna lum(?), or whatever that phrase is in Hebrew, where the healing of the world is part of our mandate of freedom. But if we move off of the context of our natural flourishing, we are liable to lose the grounding of our moral instincts.

CHAIRMAN KASS: Thank you. Look, we should take a break. I want to try to pull a thread or two together on this subject, because we are going to move explicitly to the policy question without interruption.

From here, I thought this was really a very rich discussion, and lots of very, I think, relevant and interesting things were said, including the resistance to taking up the topic directly, because one learns something from that. If I am not misunderstanding the sense of the discussion, there is some feeling that one ought not to simply be dismissive of these other arguments in favor of reproductive cloning, and that they ought to be taken seriously, and the best case be made for them, but that we ought to have the responsibility of addressing them and analyzing them, that there is not a lot of enthusiasm around the room on moral grounds. I am not talking about legal or policy grounds, however to say that even those exceptional cases are fully somehow justified or override these other matters, and with respect to how to present the case against reproductive cloning insofar as we want to do that, we are exhorted not to simply override or distrust this inarticulate, sub-rational, instinctive, I do not know, intuitive sense, but that we do have some kind of an obligation to try to articulate it as best we can, and that mindful of the fact that at the end maybe it is as Charles says, there are half a dozen reasons. In this field, you do not have syllogisms, syllogistic proofs. You are only going to have plausible argumentation in any case. Some of those arguments are going to appeal to some people, some will appeal to others, but that we do ourselves a service if we try to develop the best of those arguments as we can, at least for ourselves, and to see how it goes further.

So, this is with a view to the next time we return to this topic. I would like to ask people who have spoken to develop their thoughts if they can, to submit them by e-mail, share them around. I think I also hear implied in this that while we have had an initial kind of presentation on the one hand, on the other it would be useful sometime down the road to weave together these two papers in the kind of way in which you have a kind of dialectic consideration in which points made by one side are then addressed side by side, so that we have a better chance of seeing where the argument turns out. So that people will submit things on the points that they have either made, or that on reflection they think are important that no one has made, or that someone else has made badly, but that we will strive to amend these papers, to develop them further so that they will be the basis for the next discussion on the moral question of reproductive cloning.

If there is anybody here who is an enthusiast for this, and has been too shy, feeling that we have not provided a hospitable climate, or if you think— What we also, I think, should do, if there is not an exponent of reproductive cloning here, is to try to find in the existing literature— We do not have to reinvent the wheel; there are arguments out there. We will find that literature, we will circulate it so that all of us are familiar with it.

PROF. SANDEL: Or maybe find Frank's friend.

(Laughter.)

CHAIRMAN KASS: Is that all right with respect to procedure on this? Let's take until 10:30 and reconvene.

DR. WILSON: You said their e-mail address. Do we have that?

CHAIRMAN KASS: Oh, yes. The e-mail addresses will be waiting for you when you get home, a full roster of everybody here with their addresses.

(Whereupon a brief recess was taken.)

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