Screeds
Sunday, September 26, 2004
Attack On The Clones
April 13, 2002
"The trouble with the world is that the damned fools are all so certain, while the wise men are all so full of doubts."—Bertrand Russell.
The controversy over human cloning, now heading for a boil, has provoked a fascinating debate over the practice, its implications, and its relation to other contentious subjects, most notably abortion. In particular, libertarian-oriented thinkers, who are normally quick to dismiss majority opinion as a source of guidance, are invoking it in support of their position that research into therapeutic cloning ought to be legal. A Reason symposium featuring Virginia Postrel and others was gigged for this in a recent Ramesh Ponnuru column at National Review. Mr. Ponnuru opines that, as with abortion, legal intervention to ban cloning can be justified on moral grounds, even though there is no consensus on the moral postulates he might invoke as his basis.
Trouble is coming, and not merely because of a difference of opinion. This subject promises to be a second abortion controversy, worse than the first. The abortion debate revolves around the question of whether the State can and should compel a mother-to-be to bear an unwanted baby. Therapeutic cloning would involve the deliberate creation of new human embryos, which are then sacrificed to the well-being of others.
Even people with pro-choice views are uneasy about this. Human zygotes are being created deliberately. If allowed to develop, they would become human beings generally recognized as rights possessors. They are not given the chance—not because they’re unwanted, but because they were created to be consumed.
In the technologies, when we remove parts from machine A and use them to repair machine B, we say that machine A has been cannibalized. It’s an ugly term, but it fits the application.
But in a country so permissive about abortion that killing a baby about to be born, whole and sound, is regarded as legal as long as the baby’s head has not passed through the birth canal, we are unlikely to see a movement for the rights of zygotes consisting of a few hundred cells.
We have yet to settle the question of how to determine whether a creature possesses rights. Opinions are many, and have few common premises and little common logic. Though I belong to a particular school of thought, I cannot sincerely maintain that I’m certain we’re right. In practice, establishing a consensus about such a thing is a precondition for legislating on it.
This is not the only difficulty that bears on therapeutic cloning.
There was a time, of less knowledge but greater wisdom, when one of the guides for lawmaking was respect for the consequences attending enforcement. Legislators and judges refrained from asserting their authority beyond practical bounds. A proposed law could be entirely wholesome in intention and could address a problem whose seriousness commanded near-universal assent, yet prove disastrous in practice, either because of its low enforceability, or because of what its enforcement would entail.
The various laws against abortion that stood before the notorious 1973 Roe v. Wade decision had an enforceability problem. It was too easy to induce an abortion, too many women wanted them, and the confidentiality interests of the parties to the event dovetailed too neatly for enforcement to have a chance. A contemporary comparison is available. Brazil’s laws equate abortion with murder, yet an estimated 700,000 abortions are performed there each year.
Today, cloning research is a high-profile activity. The work involves big bucks, big buildings, and big brains. But that was true of computers, in their early years. Today, hobbyists build computers out of parts from their basements. The rate of biotechnological advance suggests that that point could soon arrive in the life sciences.
The anti-cloners might adduce this as an argument to act now, in the hope of halting that advance while there’s still a chance. But would that be the result? Banning recreational drugs provided a new and powerful impetus to the efforts to create them in bulk, in concentrated forms, with very modest capital and technology. If there is a strong enough demand for the fruits of cloning, it could experience the same effect.
My sympathies are with the anti-cloners. But my sympathies are also with the anti-abortion and anti-drug activists. The political campaign to re-outlaw abortion has gained little. The War on Drugs has produced huge costs and no positive results.
A ban on human cloning might produce results less perverse than the War on Drugs, possibly no worse than the days of illegal abortion, when several hundred thousand women per year defied the law, and another few hundred thousand went to Canada, but few or no partial-birth abortions were performed. Many would regard that as a huge gain for the cause of life, well worth the costs.
Yet two other factors command attention. The first is the weakening effect of an unenforceable (or unenforced) law on the public’s respect for all law, and its displacement by personal moral standards. This is a well established phenomenon. While no one would decry personal moral standards, anyone can see the damage that will arise when enough people’s standards diverge sufficiently from public law. Thus, if a cloning ban were to prove unenforceable, it should be rescinded in full, regardless of majority consensus.
The second factor is the profitability of legislation. Once we shift our focus from moral absolutes to relative gains, it behooves us to think widely—to consider whether larger gains or lesser costs might be available from other approaches. For example, the nineteenth century’s anti-intoxication campaign, pursued by private means and "enforced" by disapproval and ostracism, reduced American alcohol consumption by more than 70%: a "main effect" not remotely approached by Prohibition or the War on Drugs. That effort relied upon an emergent national consensus that drunkenness was indecent. The costs and possible gains from building a similar consensus in a similar manner should be studied before we invest too optimistically in legislation.
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