Cloning. For some, it represents the magnificent progress of science and the seemingly endless progression of human ingenuity. For others, however, the thought of reproducing the same organism over and over again through artificial mechanisms lacks something natural, and most importantly, moral. As scientists come ever closer to cloning the human organism, the debate over its potential use as a means of human reproduction grows more heated.

While the National Bioethics Committee recently concluded its deliberations over the moral problems surrounding human cloning, little has been said about the possible legal battle that could erupt in this nation if human cloning ever became a realistic choice for desperate parents. What if someone eventually claimed that he or she had a right to be cloned - a right protected under the Fourteenth Amendment of the United States Constitution? Could that person, taking his or her cries for justice and reproductive freedom all the way to the Supreme Court, unearth enough legal precedent to obtain a legal right to utilize cloning in opposition to President Clinton's recent federal ban on human cloning?

When determining an individual's "right" to be cloned, the Supreme Court will have to consider two lines of argument. The first asks whether or not the same "penumbras" and "emanations" surrounding the Ninth and Fourteenth Amendments, first described by the Court in Griswold v. Connecticut, that recognize a zone of individual privacy including marriage, the use of contraceptives, and abortion, are also broad enough to permit noncoital (not involving sexual intercourse) reproduction through cloning.¹ The second line of reasoning asks whether or not there is enough of a compelling state interest against the practice of cloning so as to override an individual's right to clone himself or herself through the Free Exercise Clause of the First Amendment of the Constitution .

I propose here that, while compelling state interest should be taken into account, the body of case law surrounding the right to procreative liberty, and the "substantive due process" utilized to get there, is broad enough to encompass the right to have oneself cloned. Otherwise, a violation of personal liberty under the equal protection clause of the Fourteenth Amendment occurs. Since this right is not explicit, however, it should not be considered absolute, and states should still be allowed some power of regulation.

Justice Blackmun points out in Roe v. Wade that "[t]he Constitution does not explicitly mention any right of privacy."² The entire body of case law involving rights that fall within the right to privacy, such as procreative autonomy, has developed as an expansion upon the rights explicitly stated within the Bill of Rights.

As Blackmun further comments, "In a line of decisions . . . going back perhaps as far as Union Pacific R. Co. v. Botsford 141 US 250 (1891)³, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution."⁴ Griswold v. Connecticut recognized that such a right to privacy emerges out of a number of Amendments⁵, but the Court eventually came to rely upon the Ninth Amendment as guaranteeing the right.

This amendment provided that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."⁶ Justice Goldberg further explained that:

These "additional fundamental rights" can be found in "the concept of personal 'liberty' embodied in the Fourteenth Amendment's Due Process Clause," as readily as they are in the "personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras."⁸ This personal liberty allows the individual the right to develop a conception of reality that cannot be touched by state regulation. Justice O'Connor elucidates this principle in this regard when she states in Planned Parenthood v. Casey:

The Court recognizes, then, that included among these "additional fundamental rights" that comprise "one's own concept of existence" is a right to procreative autonomy or procreative liberty. ¹⁰

While a right to procreative autonomy might arise from out of Griswold's penumbras, the Supreme Court has recognized that rights such as these are not absolute and are subject to limitation when a compelling state interest is demonstrated.¹¹ This is where we must briefly take up the issue of substantive due process, for, understanding that "legislative enactments must be narrowly drawn to express only the legitimate state interests at stake," the question that then arises is whether the compelling state interest is compelling enough to warrant legal infringement upon such a right. ¹² As Rehnquist points out in his dissent to Roe v. Wade, liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law.

Furthermore, one must ask whether or not procreative liberty even includes cloning. Normative analysis of the legal structure of the new reproduction technique of cloning begins with this overall discussion of procreative liberty. Since legal restrictions on the use of noncoital reproductive techniques might preclude persons from the only reproduction possible for them, their procreative liberty would be limited significantly. Yet all liberty can be limited when its exercise substantially burdens others, and due process in this case tells us that the moral and ethical issues surrounding the issue would create such a burden.

The Supreme Court on numerous occasions has recognized a married couple's right to procreate in language broad enough to encompass coital, and most noncoital, forms of reproduction. In Meyer v. Nebraska, for example, the Court stated that constitutional liberty included the right of an individual "to marry, establish a home and bring up children."¹³

In striking down a mandatory sterilization law for habitual criminals in Skinner v. Oklahoma, the Court noted that the law interfered with marriage and procreation, which were among "the basic civil rights of man."^{14 15}

In Stanley v. Illinois the Court observed that "[t]he rights to conceive and raise one's children have been deemed 'essential,' 'basic civil rights of man,' and '[r]ights far more precious . . . than property rights.'"¹⁶

The Court has noted that "freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment."¹⁷ An especially explicit statement of the right to procreate appeared in Justice Brennan's opinion in Eisenstadt v. Baird:

While the subsequent argument for the right of single persons to reproduce coitally, be it through in-vitro fertilization or cloning, persuades many persons, it is not clear that it would be accepted by the Supreme Court. The single person's right to use contraception and to continue a pregnancy once begun does not necessarily entail a right to conceive in the first place.

Preventing conception and pregnancy by requiring contraception and abortion interferes with bodily integrity in a way that preventing conception in the first place -- by preventing access to the needed means -- does not.¹⁹

Like the distinction between reading pornography in the home and purchasing it to bring home, these distinctions might be appealing to a Supreme Court not disposed to extend the list of fundamental rights.

While traditions of family and of reproduction within marriage make it difficult for the Court to deny the procreative liberty of married persons, it may be less willing to recognize the right of single persons to reproduce, especially through such a radical technique as cloning.

For example, the Supreme Court has not yet held that fornication laws violate an unmarried person's right of privacy. In any event, if the right of single persons to reproduce coitally is recognized, then they too should have the right to reproduce through various forms of noncoital reproduction, such as cloning.

Many take issue with such an analysis of procreative freedom on the part of the individual. The Court set up protection for procreative rights within marriage, not unlimited reproductive rights. The creation of new life in these cases has always been recognized as occurring in a traditional, sexual manner.

Even with the aid of reproductive technology such as in-vitro fertilization there still occurs a recognized union of two separate genetic codes through the consent of a male and female human being.²⁰

How can cloning be lumped into the same category as methods of conception which involve the union of two separate genetic codes and the creation of a genetically unique individual(s)?

Should the method of conception, however, make the life produced any less unique or valuable? Just because identical DNA is shared between the parent and offspring, that does not ipso facto make the technique used to bring about this offspring less worthy of being utilized, for there are also similar moral and ethical issues that arise when using other noncoital techniques.

While the offspring is not a naturally occurring clone, or twin, it is nonetheless a type of person that can exist naturally through normal egg division during conception. The life produced is as unique as that of a twin and its counterpart. Are naturally occurring twins to be considered any less human, or the same person, simply because they share the same genetic code?

Environment makes each twin a unique individual personality-wise, demonstrating that genetic uniqueness is not the sole factor in determining personhood.

Since a clone can be considered a unique person, just as twins can, then cloning should be judged as simply another non-coital reproductive technique that produces a twin of the parent capable of leading a unique life separate from that parent, even if the genetic codes of parent and progeny are the same.

To then differentiate between various methods of non-coital reproduction and discriminate on the basis of from where the genetic material for the offspring comes could be considered a violation of the equal protection clause under the Fourteenth Amendment.

If the foregoing analysis seems startling, it may be because we are unpacking the implications of a right that never, because of technology, had to be unpacked.

If procreative liberty protects a wider swath of reproductive activities than one might have thought, limits on reproductive choice might nevertheless exist, because valid state interests justify limiting the right.

Noncoital reproduction through cloning does raise the possibility of symbolic harm. Its main impact may be on moral or religious notions about sexuality, reproduction, family, and similar value-laden concerns. Such concerns are of immense importance to many.

In choosing values, persons and societies understand themselves as possessing particular ethical or moral beliefs. Because these choices are so fundamental, individuals may vary widely in their choice of and commitment to such values. It is no surprise that activities that carry such symbolic weight are controversial and lead to efforts to enlist legal institutions to enforce one's views of the matter.

Constitutional protection for noncoital reproduction thus has enormous importance, for symbolic concerns without direct, tangible harm to others are usually insufficient to justify infringing the fundamental rights of persons with different views.²¹ Views of the rightness or wrongness of particular means of conception might properly animate individual choices to avoid, seek, or provide such services. They also permit the state to refrain from funding or subsidizing the activity. But they generally do not justify public action that interferes with the exercise of the right.

Due to this fuzzy moral/ethical ground in which the cloning debate finds itself within the traditional debate over reproductive freedoms, some form of regulation must be left to the states. Justice Douglas warns in Griswold, "[The Supreme Court does] not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch . . . social conditions."²²

To make an absolute decision either in favor of all cloning or against all cloning would set a bad precedent for other genetic practices. Some say leave the decision totally up to the legislature to avoid "an improvident and extravagant exercise of the power of judicial review."²³ Such individuals believe it is not the court's place to create a right where a) none previously existed and b) there is such a divisive ethical debate. In other words, let the people decide the fate of cloning through their legislatures,²⁴ for as Bowers v. Hardwick explains, "The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution."²⁵

Recognizing the right of one to utilize cloning as a method of reproduction does not, however, grant the Court inappropriate legislative powers.²⁶ It simply recognizes that the Constitution does not permit an absolute ban on the process, even if there are strong moral feelings about the issue. If the moral views of a majority over a minority were to take precedence, or vice versa, then the right to equal protection be violated.

While the state interest here is not compelling enough, due to its wholly ethical nature, to justify a complete ban, as in the abortion cases, such interest should at least allow limited regulation.

The Court needs to follow a similar line of reasoning as Planned Parenthood v. Casey, allowing a regulated freedom of cloning to occur. Such regulation might come to deny certain members of society the right of procreative autonomy involving cloning under particular conditions, but first off the Court must permit its existence.

While the social implications of such a ruling might be deemed questionable, any kind of absolute federal ban must be recognized as unconstitutional.

Now let's take our "what if?" exercise even further. Suppose this same individual of the future, claiming protection under the Fourteenth Amendment, also claims cloning is an inviolable matter of faith.²⁷

Could an equally strong argument for a right to human cloning be made on religious grounds? What are we to make of the freedom of religious expression line of reasoning now that we have recognized a qualified right to cloning does exist?

Just as there is not an absolute right to procreative autonomy, so too is there no absolute guarantee of religious expression. A law may not discriminate on the basis of religion or have a religious purpose (the state must be neutral), but it may infringe upon religious expression if the intent of the law is not religious in origin.²⁸

Justice Harlan emphasizes, in his dissent to Sherbert v. Verner, that if the state is not discriminating on the basis of religious belief, it can still regulate the action that represents an expression of this inner creed.

As Justices O'Connor and Black recognize, "the freedom to act, unlike the freedom to believe, cannot be absolute,"²⁹ for "[n]o well ordered society can leave to the individual an absolute right to make final decisions, unassailable by the State, as to everything they will or will not do."³⁰

Justice Scalia and his supporters would be against allowing a person to clone himself or herself for religious purposes alone. In Employment Division v. Smith, Scalia emphasized the fact that religious beliefs do not necessarily excuse an individual from compliance with a generally applicable law, such as that against the use of peyote.

If a person relied entirely upon his or her religious rights and never touched upon the debate over reproductive freedoms, that individual would not get very far due to stare decisis.

Unlike Wisconsin v Yoder, the Court would not be willing to create a hybrid classification for a human cloning case, for while an argument could be made for combining the Free Exercise Clause with reproductive freedom, the Court would not see the state interest in this situation nearly as weak as that involved with the well-being of Amish schoolchildren due to cloning's serious ethical/moral dimensions.

We have already recognized, however, that a person does have a right to clone himself or herself, which would appear to make the issue a moot point.

The line of reasoning adhered to by Justice Burger in Wisconsin v. Yoder appears most attractive for our purposes, then, for while "the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests," the fact remains that "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."³²

The interest here, due to our previous analysis of the issue, would not qualify as an interest of the "highest order," for we have already recognized that, while the right to clone oneself is not an absolute, it must nevertheless be permitted.

Denying a person this form of religious expression would infringe too heavily upon his or her First Amendment rights, for the action being denied is not itself so abhorrent as to bring about total restriction of its occurrence.

As Justice Blackmun points out in his dissent to Employment Division v. Smith, "The State's interest in enforcing its prohibition, in order to be sufficiently compelling to outweigh a free exercise claim, cannot be merely abstract or symbolic."³³

Here such enforced prohibition would be due to purely abstract and symbolic concerns over the ethical nature of cloning and, subsequently, not hold up to the strict scrutiny this case requires. A person's right to freedom of religious expression under the First Amendment, then, like a person's right to procreation through cloning, should be upheld in light of the purely ethical nature of the objections made to its utilization.

The Supreme Court, then, could very well recognize a person's right to have himself or herself cloned due to the unconstitutional nature of Clinton's absolute federal ban on cloning and, in an imaginative variation, his or her subsequent right to freedom of religious expression.

It would still remain the place of individual states to regulate cloning as they see fit, just as they would any other form of noncoital reproduction such as in-vitro fertilization, for we cannot comfortably ignore all the moral and ethical objections to cloning. While equal protection arguments might abound when attempting to treat cloning differently than other artificial reproductive methods, the fact remains that the judicially-created nature of such a right does not allow it the same protection as other, absolutely recognized rights.

Cloning, however, should remain one of a number of reproductive options legally open to anyone who believes he or she must resort to it as an alternative means of reproduction due to extenuating circumstances, especially if such circumstances develop out of an adherence to religious beliefs.