Human
Cloning
Legal
problems arising from patent policy
Abu
Hena Mostofa Kamal
Cloning first smack
the front page of news papers when scientists at the Roslin Laboratories
(near Edinburgh) cloned Dolly a lamb by using the nucleus of a cell
from her mother's body. But even before then, human cloning has caught
the public imagination. Many prominent writers used the idea of human
cloning in their science fictions in last hundred years. In simple terms,
human cloning is processes of producing genetically identical human
beings i.e. the process of designing people with known pedigree. ÊIn
general biological terms, human cloning is defined as "the asexual
replication of an existing genome or individual, or 'a replica of a
DNA sequence, such as a gene, produced by genetic engineering."
Cloning of human embryos has already been achieved. Though successful
cloning of humans has not been yet proven (In November 2001, Advanced
Cell Technology (ACT), a company specializing in biotechnology, revealed
that it had cloned a human embryo. More recently, on December 27, 2002,
Clonaid, a biotech corporation, claimed it had facilitated the birth
of the world's first human clone).Ê
Cloning
law at a glance
On an international level, a global comprehensive treaty banning human
cloning is not yet received universal acceptance. Ex- President Clinton
in the United States of America (USA) in 1995 nominated a National Committee
of Bioethics in order to scrutinize the legal aspects of human cloning.
In June 1997 the Committee reached a decision against human cloning
and thus bills were rushed into both the US Senate and House of Representatives
aimed at banning the cloning of human beings. In July 2001 USA tried
to ban human cloning permanently by passing The Human Cloning Prohibition
Act of 2001 (HCPA 2001).The proposed measure mandated civil and criminal
penalties for anyone who performed, attempted to perform, or participated
in an attempt to perform human cloning. But unfortunately, the HCPA
2001 died on the Senate floor and it has been revived in the form of
the Human Cloning Prohibition Act of 2003 later. The Human Cloning Ban
and Stem Cell Research Protection Act 2003 is another bill addressing
the issue of human cloning was introduced on February, 2003. This Act,
"would make human reproductive cloning punishable by up to ten
years in prison," but would allow the use of SCNT (Somatic cell
nuclear transfer) to create stem cells for research under limited circumstances.
However, Arkansas, Iowa, Michigan, North Dakota and South Dakota laws
extend their prohibitions to therapeutic cloning, or cloning for research
purposes. Virginia's law also may ban human cloning for any purpose.
Rhode Island law does not prohibit cloning for research and California
and New Jersey human cloning laws specifically permit cloning for the
purpose of research.
Recently,
the Canadian Parliament passed legislation permitting research on stem
cells from embryos under specific conditions. The law bans human cloning
and prohibits the sale of sperm and payments to egg donors and surrogate
mothers. Cloning for reproductive and research purposes have been prohibited
in most of Europe by the 1997 Council of Europe Convention on Human
Rights. In 1998 the Commission of the European Convention in Paris ratified
a Protocol signed by the leaders of 24 countries. This Protocol prohibits
all those methods that can create identical human beings. Unfortunately,
not all countries have signed the protocol. For instance, Germany refused
to sign it because it did not ban all research on human embryos. On
the other hand, Britain did not sign Paris Protocol because they felt
that it was too restrictive. But Britain explicitly disallowed human
cloning by incorporating the article 3-3-d/1990 in English Law. Similarly,
Spain also banned human cloning (article 2B of the Spanish Law 35/1988).
But there are many countries who still impliedly encourages human cloning
.Greek legislation is one of them .No legal framework exists to prohibit
human cloning under current Greek Law. In the Greek legal system, no
statute exists against cloning of human beings. Cloning prohibitions
are also not strong in Asia. Although Japan enacted a law that bans
human reproductive cloning and penalizes violators for up to ten years
in prison, stem cell research is allowed. Other Asian countries, such
as China, Singapore, and South Korea, also allow experimentation with
stem cell research. In Bangladesh still cloning prohibition law is absent.
Legislators should take proper steps to provide guidance regarding the
human cloning.
As we said earlier,
some counties prohibits human cloning and few others allows it .This
made 'an unparalleled inconsistency' to spout in transboundary legal
world .For instance, America has strong laws against human cloning but
Italy did not show her reluctance against the Reproductive Cloning of
Human Beings. So, what is illegal in USA, is legal in Italy. A corrupt
scientist can use this legal loophole easily .For this reason, scholars
are demanding a unilateral transnational law forbidding Cloning of Human
Beings. The United Nations "decided . . . to include in the provisional
agenda of its 58th session the item entitled "International Convention
Against the Reproductive Cloning of Human Beings," which could
lead to an universal comprehensive agreement banning human cloning.
Patient
law and ambiguities arising from it
To promote scientific advancement, the lawyers drafted the Patent Clause
as a means of rewarding the labour of inventors. In exchange for disclosure
of the details of an invention, an inventor receives a patent from the
government. Depending on the patent, a patent grants its holder a 14
or 20 years right to exclude others from making, using, or selling the
patented invention. If the invention is a process, the patent also grants
its holder the right to exclude others from making, using, or selling
the products of the patented invention. With increasing advancements
in the field of embryonic research, Biotechnology companies continue
to submit various patent applications for the process of human cloning
and for the resulting human clones. Seeking to avoid the debate on patenting
embryos, the U.S. Patent & Trademark Office (PTO) stated that it
"does not issue patents drawn to human beings" because the
Thirteenth Amendment prohibits such patents.
In
1980, the US Supreme Court reviewed this decision of U.S. Patent &
Trademark Office in Diamond v. Chakrabarty (447 U.S. at 309 (quoting
Committee Reports on the Patent Act of 1952, S. Rep. No. 82-1979, at
5 (1952); H.R. Rep. No. 82-1923, at 6 (1952)).In this case it was held
that an organism could be a "manufacture" or "composition
of matter" .The Court reasoned that "the relevant distinction
[is] not between living and inanimate things, but between products of
nature, whether living or not, and human-made inventions." The
Court stated that the statutory subject matter "include[s] anything
under the sun that is made by man." Thereafter, relying on its
interpretation of the Chakrabarty decision, the patent authorities in
USA announced that it would consider "non-naturally occurring,
nonhuman multicellular living organisms, including animals, to be patentable
subject matter within the scope of prevailing law." It should be
remembered, until Chakrabarty, living organisms were not considered
patentable and after Chakrabarty, life forms became patentable if it
is created by genetic or artificial manipulation. In Chakrabarty, the
Court by stating that "anything under the sun that is made by man
can be patented" made an absolute statement, presumably exempting
nothing from cloning. Human beings would seem to fall within the ambit
of Court's decision. Human embryos can be man-made through genetic manipulation.
As we discussed
earlier in this article, in accordance with the patent law, the patent
holder has the right to reproduce, or clone, the human being and to
exclude others from cloning that human being. For example, presently,
cloning is legal in the Bangladesh (as there is no law against cloning).
Therefore, each human being in Bangladesh presumably "owns"
the right to clone himself and to exclude others from cloning himself.
A patent in a human being takes that right away from the human being
and gives it to the patent holder, thus giving the patent holder ownership
in the human being. It means (one) a patent holder has the right to
control the cloned human being's activities and to prevent others from
interacting with the human being or (two) a patent holder has the right
to contract out, or sell, the cloned human being and his services. Our
constitution forbids such use of human beings. Therefore, the patent
gives a right forbidden by the constitution. Furthermore, the patent
gives the patent holder the right to forbid the patented human being
from "selling" himself (i.e., contracting for employment).
This rule also goes against of the main spirit of our fundamental rights.
Moreover, if patent law implemented on a cloned human, he may not enjoy
the right of reproduction i.e. he may be prevented from having son or
daughter which is also against our fundamental rights. The issue relating
to 'the right of the reproductive freedom' is vividly discussed in two
famous cases. In Skinner v. Oklahoma, [316 U.S. 535.], a plaintiff challenged
an Oklahoma statute that required sterilization of repeat felons convicted
of moral turpitude crimes. The Supreme Court applied strict scrutiny
in ruling that the state statute violated the Due Process Clause of
the Fourteenth Amendment, confirming that "[m]arriage and procreation
are fundamental to the very existence and survival of the [human] race."
The right to reproductive
freedom was further extended in Einstadt v. Baird [405 U.S. 438, 453
(1971)] The Supreme Court held in this case that "the right of
the individual, married or single, to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child." For various reasons, infertile
couples who seek to have a child may choose to use the cloning process
as a method of reproduction. Since this would entail a reproductive
choice, it would involve the right to reproductive freedom. As such,
the cloning process could properly be designated as a right protected
by the Constitution.
Author
is a student, Bar Vocational Course, Northumbria University, UK
