Unreasonable Fears, Slippery Slopes, and Unnecessary Legislation

 

Prof. John Robertson

School of Law

University of Texas

 

            Reliance on slippery slope arguments often indicates that other arguments are weak.  Francis Fukuyama's call for laws to ban reproductive cloning, creating embryos and fetuses for research, and other things he finds repugnant illustrates the point.

Take his call for a federal law against reproductive cloning.  He thinks that the Korean report of creating cloned embryos from cumulus cells has moved us "closer to the day when a cloned baby will be born," and therefore should be a wake-up call to get such a ban on the books.  But the fact that an event has "moved us closer to the day" that cloning occurs doesn't tell us when in the future that will be, much less why it would be so bad.

That day appears still to be very far off.  The Koreans haven't shown that cloned embryos will implant, much less that they would be born without the many physical and developmental problems that reputable scientists think are endemic to cloning.  Much more research will be needed before research embryos are easily cloned, and even more work with mammalian species will be needed to establish that cloned human embryos could produce children without the epigenetic and imprinting problems that now appear to be an inevitable feature of reproductive cloning.

Yet until there is firm evidence that cloning is safe and effective, very few people will be interested in trying it.  No one wants a child with a high risk of severe physical and mental problems, even if they have no other way to reproduce, and few physicians or scientists will be willing to participate in such unsafe endeavors.  The threat of wrongful birth suits and professional opprobrium will also dampen access.

But what about the crazies and the irresponsible scientists--the Raelians, the Zavoses and Antinoris-- who say that they are ready to clone now?  But let us not be misled into bad public policy by charlatans who have seized on cloning to garner attention and headlines.  They have no scientific credibility and apparently lack the skills to produce even cloned embryos.  Very few people will be interested in using untested and unreliable techniques to have a child who may have very serious physical problems,and very few skilled scientists will be willing to meet such irresponsible requests.

Gearing up the machinery of federal legislation to stop the hypothetical fear that a few irresponsible persons will try to clone a child doesn't make sense and carries real risks.  Such legislation is likely to be used as a vehicle to ban research cloning and other activities that have a real impact on science, as the Brownback bill before the U.S. Senate has shown. 

A second risk is that if cloning is ever shown to be safe and effective, some uses might serve important needs that can't be met with other techniques.  Few people who are otherwise sexually fertile will be interested in reproductive cloning.  Nor would they have a defensible claim of procreative liberty to do so.[1] Yet the gametically infertile who have no other way to have genetically related children might reasonably choose cloning over donor gametes or adoption.  Given the importance of enivronment and rearing, the child would not be an exact copy of the person whose DNA was used.  Nor, as Dan Brock, Ruth Macklin, Susan Wolf and other respected bioethicists have noted, would there be other strong arguments against reproductive cloning once safety has been established.

A similar analysis applies to Fukuyama's concerns about creating research embryos and fetuses, embryo fusion, and other techniques that he finds repugnant.  He claims to be less concerned about the morality of embryo destruction, which has fueled most of the opposition in this area, than about the slippery slopes to which embryo research could lead.  Here he cites the fears of developing fetuses to get organs or tissues for research or transplant, or the "unsavory possibilities of fusing embryos, gestation in animals, use of animal gametes, etc. 

Professor Fukuyama may not be aware that a 1992 federal law already criminalizes abortions done to get tissue and organs for transplant, punishable by five years in prison.  Although that law does not bar abortions to get tissue for research, it is hard to see what realistic situations would arise in which women would abort solely to produce tissue for research, particularly if embryonic stem cell research is occurring.

Nor is there a need now to ban embryo fusion, use of animal oocytes, or other techniques that he finds so threatening.  There is almost no active research in this area, and no one is clamoring to use it.  Nor has there been a careful investigation of what scientific or other purposes those techniques might serve or what their harms would be. The President's Bioethics Council has called for a federal ban on such actions to "protect the dignity of human procreation," but most of what it would ban is not directly reproductive, much less likely to appeal to persons interested in having healthy offspring.  As with reproductive cloning, there is a near-manic rush to legislate against something that is still largely hypothetical and speculative, and which, if ever practically feasible, might or might not serve important needs.

Finally, Professor Fukuyama thinks that a strict regulatory framework for embryo research akin to the Human Fertilisation and Embryology Authority in the United Kingdom is needed to protect against such hypothetical threats.  It is well-recognized that the United States system of regulating human subjects research could be improved in several areas. The most pressing need is to have all research, not just federally funded research, done with institutional review of the adequacy of consent and risk/benefit ratios.

But the need to improve the IRB system doesn't translate into a need to create a new federal agency to track every embryo generated in IVF clinics and approve what is done with them. The highly decentralized U.S. system of assisted reproduction lacks the neatness of the U.K.'s centralized command-and-control approach, but a variety of reporting, regulatory, and liability constraints have helped the system on the whole to function well.  It has, for example, avoided the U.K. debacle of a directive from on high ordering the destruction of thousands of  embryos that were stored beyond a government-decreed five years.

In sum, the threats that animate Professor Fukuyama seem greatly exaggerated and invariably highly speculative.  There are dangers in legislating too early in the cycle of research, development, and social assessment.  The dangers are all the greater when the grounds for the regulation are largely symbolic, as they appear to be in most of the instances that concern Fukuyama, or rest on such highly contested notions as "protecting the dignity of human procreation."  I don't want the federal government telling me or others what procreative dignity is, especially if its doing so occurs long before we have a clearer idea of what the real risks and benefits of particular procedures are.



[1] John A. Robertson, "Procreative Liberty in the Era of Genomics, " 29 Amer. J. Law & Med. 439-487 (2003).                    (http://www.utexas.edu/law/faculty/jrobertson/procreative.pdf)