Legal Analysis of Cloning in Massachusetts

Memorandum

This memorandum analyzes Senate Bills 1794 and 1808/1809 regarding human cloning and considers the question of the legal status of cloned human embryos under present Massachusetts law. The memorandum concludes that: 1) these bills do not clearly prohibit all forms of human cloning, and 2) cloned human embryos are protected under the homicide and tort laws of the Commonwealth.

Legal Analysis of S.B. 1794 & S.B.1808/1809 (identical version).

Both versions would ban cloning resulting in the creation of either a "complete" or an "entire" human being, while permitting the "cloning [of] portions of human DNA . . . , human organs, or human functions" or "the cloning of human cells, human tissue, or human organs". The bans would be temporary, lasting until Jan. 1, 2004, or Jan. 1, 2008.

The terms "complete" and "entire" suggest that "incomplete" or "partial" human beings could still be cloned. The bills do not specify in which sense these terms are to be taken, thus raising substantial questions about the scope of the bills’ actual effect. Are "complete" human beings only those who have developed completely? Are "entire" human beings only those who have all of their organs or extremities?

In the November 26 report announcing their cloning experiments, the researchers of Advanced Cell Technology in Worcester wrote that "[u]nlike reproductive cloning (which aims to produce an entire organism), human therapeutic cloning does not seek to take development beyond the earliest preimplantation stage." Jose B. Cibelli et al., Rapid Communication: Somatic Cell Transfer in Humans: Pronuclear and Early Embryonic Development, 2 J. Regenerative Med. 25, 30 (2001) (hereinafter E-biomed Report) (emphasis added). By disavowing any intent to create "an entire organism", but yet also admitting that their experiments are intended to result "in the generation of early stage-embryos for the purpose of stem cell isolation" (id. at 25), the ACT researchers would be advantaged by the unclear meaning of "entire" or "complete" if applied to their work on pre-implantation human embryos. From the ACT researchers’ perspective, an early embryo is not an "entire" human being, and would remain incomplete as long as the embryo remains unimplanted. Nothing in Senate Bill 1794 language would preclude this interpretation. While Senate Bills 1808/1809 contain language referring to "producing an embryo (including a preimplantation embryo)", they add in the last paragraph the proviso that the ban would not apply to cloning "that would not result in the replication of an entire human being".

If the word "entire" were removed from this paragraph, then any possible confusion about the actual scope of the ban would be eliminated and Senate Bills 1808/1809 would be more acceptable to the Conference. However, these two bills still limit themselves to "human somatic cell nuclear transfer technology", and thus would not address the second type of cloning attempted by ACT: parthenogenesis, a process involving no transfer of nuclear material but instead manipulating an oocyte with a full chromosome set into dividing and growing into an embryo. See E-Biomed Report.

Moreover, other researchers seeking to bring cloned human beings to term could likewise avoid all of the bills’ strictures against so-called "reproductive" cloning (a redundant phrasing, in our view, since all cloning is reproductive). The scientists could circumvent regulation by genetically designing the cloned individual in such a way as to force the clone to develop pre- and post-implantation without a full set of organs or extremities. In this instance, researchers could still claim that their cloning research was not intended to create complete or entire human beings.

The Conference opposes all forms of cloning resulting in the creation of a human embryo, and thus would support a bill that bans all such cloning. It is too early in the legislative process for the Conference to make any commitment or determination regarding hypothetical scenarios involving bills that accomplish less than a total ban.

The Legal Status of Cloned Human Embryos in Massachusetts

The ACT researchers reported that their efforts resulted in "to our knowledge, the first human embryos using the technique of nuclear transplantation, otherwise known as cloning." Jose B. Cibelli et al., The First Human Cloned Embryo, Scientific American, Nov. 24, 2001 (online version). Would "cloned human embryos" (id.) qualify for protection under Massachusetts law governing homicide and personal injury?

The Massachusetts General Court and the state courts define murder as "The killing of a human being, with malice aforethought."[1] Similarly, "[t]he crime of manslaughter imports the taking of human life by an act not justified in law, but without malice aforethought which is necessary to constitute murder."[2] When assessing the scope of the homicide law, the Supreme Judicial Court has determined that "[a]n offspring of human parents cannot reasonably be considered to be other than a human being, and therefore a person, first within, and then in normal course outside, the womb."[3] Thus, if the embryos cloned by ACT are human and alive, then they qualify as protectable human offspring.

The stages of human development cannot be used as the basis for making "arbitrary" distinctions justifying the protection of some, but not all, independently existing human beings, according to the SJC.[4] In personal injury cases, "if the tortious conduct and the legal causation can be satisfactorily established, there may be recovery for any injury at any time after conception."[5] Thus, the courts must count even a nonviable human being as a "person" protectable under the wrongful death statute.[6] For purposes of both the homicide and tort law, a premature human being must have lived outside the womb, however briefly, either after he or she sustains an injury or before death occurs consequently.[7]

In light of this jurisprudence, two important principles should apply to the determination of the legal status in Massachusetts of cloned embryos existing ex utero and before implantation in the womb. First, the concept of "person" must be broadly construed, embracing any "human being" or "human life" regardless of developmental stage. Second, living human beings capable of an "independent existence", regardless of ability to survive to term or maturity, are subjects of rights and protections in Massachusetts.

The courts have not yet dealt with a homicide case involving a nonviable human being living an independent existence at the time of a deliberately caused fatal injury.[8] Nonetheless, Massachusetts wrongful death precedents granting recovery for fatal injuries caused by neglect to premature and nonviable infants dictate that the intentional taking of an human embryo’s life ex utero should be treated as homicide and wrongful death in the Commonwealth.

The SJC’s contract law decision in A.Z. v. B.Z.[9] does not alter this analysis.[10] The question before the Supreme Judicial Court in A.Z. concerned the validity of a contract between a fertility clinic and a husband and wife that authorized the implantation of human embryos that the couple created by in vitro fertilization. The Court ruled that the wife could not rely on the contract and implant the embryos over the husband’s subsequent objections.[11]

The Court was careful to limit its ruling: "We express no view regarding whether an unambiguous agreement between two donors concerning the disposition of frozen preembryos could be enforced over the contemporaneous objection of one of the donors, when such agreement contemplated destruction or donation of the preembryos either for research or implantation in a surrogate."[12]

ACT conducted its experiments precisely to create and then destroy human embryos.[13] Moreover, the embryos at issue in A.Z. were frozen at the four-to-eight cell stage[14] while ACT plans to destroy any cloned embryos that survive to the 100 cell blastocyst stage.[15] These factual differences alone prevent any reasonable application of A.Z. to the question of whether cloned embryos may be destroyed as planned by ACT.

The Court’s use in a contracts case of the term "preembryo" to refer to the 4-to-8 cell stage of embryonic development itself should not alter the thrust of the earlier homicide and personal injury cases involving nonviable human beings. Those decisions are marked by the Court’s repeated insistence that arbitrary distinctions based on stages of development cannot limit the homicide and personal injury law’s protective scope. Moreover, the fertility industry invented the term "preembryo" for political purposes[16] and the larger scientific community has abandoned it as medically inaccurate.[17] Since the Court failed to discuss any legal reasons for using the term in A.Z. beyond noting simply that the fertility industry used it,[18] it’s likely that the Court was unaware of the larger scientific community’s rejection of the term.

Ultimately, to read A.Z. as somehow controlling here would create an inexplicable conundrum in Massachusetts jurisprudence governing homicide and personal injury. The aforementioned precedents require a showing of independent existence by a living human being outside the womb before legal protection against homicide, wrongful injury, or wrongful death would apply. The ruling in A.Z. neglected to consider the newly fertilized human lives as parties to a private contract controlling their disposition precisely because and so long as the lives were forced, by the failure of the husband to consent to their implantation, to continue a separate existence outside the wife’s womb. Thus, in one line of cases, proof of independent existence triggered the criminal and tort law’s protection while in A.Z. the same status of independent existence barred the embryos’ contractual cognizance. When compared to the more extensive, and more carefully reasoned line of cases expanding the homicide and personal injury law’s protection to nonviable human lives, the A.Z. decision is best interpreted as narrowly limited to contract disputes of the sort encountered in that case.

In sum, notwithstanding the ruling in A.Z., Massachusetts law overwhelmingly favors the view that nascent human life in existence outside the womb (whether before implantation or after birth) is protected against homicide, wrongful death, and wrongful injury from the moment that the unique human being’s existence begins.[19]

Any bill that would permit cloning for the purpose of destroying an embryonic human being in order to obtain stem cells would conflict with the prevailing case law on homicide as just described. Any bill that would permit cloning for the purpose of bringing a cloned human being to term would, given the substantial likelihood of technical error and resulting developmental injuries to the clone, implicate personal injury law.[20]

A Reasonable Approach to Determining the Status of Cloned Human Embryos

The question remains as to whether the cloned embryos that ACT (or any others) intend to create would fall within the protection provided by Massachusetts law on homicide and personal injury. It is beyond the purposes of this memorandum to resolve this question, given the necessary scientific and philosophical data that must be supplied. However, a word about the approach to be taken is in order.

Typically in life or death cases the party seeking authority to act in a manner that possibly involves the loss of human life bears the burden of proving that life is not threatened. As long as some credible evidence gives rise to the possibility that human life is at stake, then a presumption favoring that view should apply. Proof of absolute certainty or complete consensus among scientists or in society should not be demanded of those who argue that life will be threatened by destructive research on cloned human embryos. An obligation to produce that kind of proof instead falls on the shoulders of those whose plans might very well be threatening life. This common sense approach stems from the uncontroversial premise that the mistaken loss of life is a much greater evil to be avoided than the mistaken protection of non-life.

Proponents of the view that fertilization marks the beginning of a human being’s life point to the unique genetic constitution and the integrated organic functioning of the new entity, biological qualities that exist from fertilization or embryonic fusion in the case of cloning. Opponents of this view refer to the phenomena of twinning and to the related ability of zygotic and embryonic cells to shift their development from one function to another function within an embryo, and even to develop into separate embryos, a feature called "totipotency". The opponents thus claim that until an embryo’s cells become biologically fixed to one destiny, and until the possibility passes that one embryo will split into two or more separate embryos, the entity cannot be identified as an individual human being.

Packed into this dispute are contrasting philosophical definitions of "being" and "individual" and differing moral interpretations of the biological data. It is beyond the objective of this memorandum to explore in any depth the nature of this dispute or to provide extensive biological and philosophical documentation. However, framing in only the most general of terms the case for identifying the entity created at fertilization as an individual human being can serve two purposes. It demonstrates the reasonableness of the case for using fertilization rather than some other point to mark a human being’s beginning and it provides a map indicating the questions and relevant evidence the legislature could pursue in an even more in-depth inquiry to substantiate (or disprove) this argument.[21]

The argument responding to the "twinning" and "totipotency" objections proceeds as follows:

1. The organic integration and biological growth of the zygote and embryo demonstrate a unity such as to constitute "one" life in being that is separate from other lives and other objects in being. This is the classic understanding of "individual", a reasonable conceptualization that nonetheless differs from the alternative claim raised by supporters of embryo research that an individual is an entity that is physically indivisible, i.e., lacks the potential for dividing into two or more individuals. This alternative and more controversial claim fails to account for the occurrence of natural cloning (see below) and the apparent possibility of experimental cloning using adult stem cells. The fact that cells from an adult human being might be used to clone another human being cannot mean that the original adult fails to exist as an individual.
2. Any switching in functions within the embryo on the part of any one stem cell occurs only as a result of injury or death to other cells, or as a result of experimental intervention, and such switching is not usual or ordinarily in the course of the embryo’s development. When occurring naturally, such shifting works to maintain the embryo’s separate, distinct, and unified existence. To talk as if every cell is naturally and always "undetermined" in every embryo overstates the biological evidence.
3. Monozygotic twinning, where two or more individuals emerge from one embryo, can be explained in ways that are consistent with the observed biological phenomenon and that still permits the original embryo, as a philosophical matter, to be identified before twinning as an individual human being. First, the being in existence at fertilization could continue to exist through and after the point of twinning, and by a process of natural cloning, a new being comes into existence. Second, the being in existence from fertilization dies in the process of twinning and two or more new, separate, and internally unified individuals come into existence.[22]
4. Monozygotic twinning is extremely rare. The chances that any one particular zygote or embryo is actually living an indeterminate, non-individuated existence would be too small a basis on which to proceed with any confidence that experimentation in any one case will not destroy an individual living being.

In sum, the debate about the status of cloned human embryos and how they should be treated necessarily is guided by present Massachusetts law governing homicide and personal injury. The state courts in particular have recognized the need for scientific evidence indicating that a "living being" was alive at the time a destructive act took place and existed independently outside the womb before dying as a result of the trauma. The state courts have not required evidence of long-term viability, the victim’s capacity to think, feel, or interact, or other social qualities deemed essential to some or another segment of society. Nor should the legislature. Until disproved by irrefutable evidence, the reasonable presumption should prevail that cloned human embryos are members of the human community and thus deserve equal and full protection.

NOTES

[1] Emphasis added. See M.G.L. Chap. 277, § 39 (determining the construction of words used in indictments); Commonwealth v. Campbell, 375 Mass. 308, 312 (1978) (incorporating identical definition); Commonwealth v. McCauley, 355 Mass. 554, 559 (1969) (same); Commonwealth v. Gricus, 317 Mass. 403, 411 (1944) (observing that when a felony "causes the death of a human being, the killing is with malice aforethought and is murder"). See also Porter v. Sorell, 280 Mass. 457, 461 (1932) construing the Massachusetts wrongful death statutes as civil measures intended "to punish those who through [noncriminal] negligence cause the death of a human being").

[2] Commonwealth v. Demboski, 283 Mass. 315, 322 (1933) (emphasis added). See also Commonwealth v. Simpson, 434 Mass. 570, 590 (2001) (defining involuntary manslaughter as "an unlawful homicide (1) where wanton and reckless conduct causes death, or (2) where an unintentional killing ‘result[s] from a battery not amounting to a felony which the defendant knew or should have known endangered human life’") (citation omitted) & Commonwealth v. Jackson, 432 Mass. 82, 89 (2000) (referring to felonious conduct "inherently dangerous to human life").

[21] The argument is distilled from the following books and articles, all of which provide careful and compelling documentation identifying the human embryo as an individual member of the human community: the entire Spring 2001 issue of the National Catholic Bioethics Quarterly on Respect for the Human Embryo; The Identity and Status of the Human Embryo: Proceedings of Third Assembly of the Pontifical Academy for Life (Juan de Dios Vial Correa & Elio Sgreccia, eds. 1999); Benedict Ashley & Albert S. Moraczewski, Is the Biological Subject of Human Rights Present From Conception?, in The Fetal Tissue Issue: Medical and Ethical Aspects (Peter J. Cataldo & Albert S. Moraczewski eds. 1994); Mark Johnson, Quaestio Disputata: Delayed Hominization, Reflections on Some Recent Catholic Claims for Delayed Hominization, 56 Theological Studies 743 (1995); Mark Johnson, Quaestio Disputata: Delayed Hominization, A Rejoinder to Thomas Shannon, 58 Theological Studies 708 (1997); Dianne N. Irving, The Woman and the Physician Facing Abortion: The Role of Correct Science in the Formation of Conscience and the Moral Decision Making Process, Linacre Quarterly, Nov. 2000, at 21; Dianne N. Irving, When Do Human Beings Begin? "Scientific" Myths and Scientific Facts, 19 International Journal of Sociology and Social Policy 22 (1999); W. Jerome Bracken, Is the Early Embryo a Person?, Linacre Quarterly, Feb. 2001, at 49.

[22] The phenomenon of chimeras, where two or more living beings combine together is susceptible to the same explanation but in reverse: the combination could destroy all but one of the beings, or result in the creation of an entirely new human life after the deaths of the previously existing beings.