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«\\jciprod01\productn\M\MIA\68-1\MIA101.txt unknown Seq: 1 13-NOV-13 8:14 FUTURLAWMA: 21st Century Solutions to 31st Century Problems JUSTIN S. WALES1 ...»

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If not, then Catherine must seek to secure her estate scheme through the use of a trust instrument.61 “Personal Revival Trusts,”62 as coined by Igor Levenberg in an article penned for the St. John’s Law Review, would allow, in theory, for Catherine, or those in similar positions, to achieve their estate planning goals, but the law and the legislature may forestall such instruments for other, practical reasons. Maintaining a trust until science catches up with science fiction would not only be expensive, but could also potentially place holds on large sums of wealth for hundreds of years. Such use, or rather nonuse, of wealth may be deemed against public policy, and with the ever-increasing uncertainty of the value of U.S. currency, coupled with inflationary concerns, the creation of such a trust may not, in reality, be a viable option for cryogenically frozen patients.




In addition to estate planning problems, there are a host of other issues that arise from the questionable status of a cryogenically preserved person. A full review of such dilemmas is beyond this author’s imagination, but to illustrate how complicated life and the law could become in a futuristic world, consider how age-dependent restrictions, duties, or benefits would vary based on what would necessarily be a new concept of age. Assume that our forty-year-old Catherine was remarkably reanimated a mere fifty years after being frozen. Assume also that her daughter, age eleven, was also frozen at the same time because of her own health issues. May Catherine, who upon reanimation is legally ninety years old, collect Social Security Benefits?64 May her daughter, legally aged sixty-one, go to a bar for an alcoholic drink? Would coital relations with a man she met at the bar be considered a sexual offense?

60. See Levenberg, supra note 56, at 1478.

61. See generally Levenberg, supra note 56.

62. Id.

63. Futurama: Law and Oracle, supra note 54.

64. It may be science fiction to assume for this hypothetical that Social Security Benefits will be available in 50 years.

\\jciprod01\productn\M\MIA\68-1\MIA101.txt unknown Seq: 11 13-NOV-13 8:14 2013] FUTURLAWMA 97 If the daughter murdered this man after a tryst, would the daughter be tried as an adult?65 Such questions are innumerable. I challenge my readers to spend a few minutes in thought to come up with their own absurd results of such technologies. No matter what question the reader poses, the answer is undoubtedly unanswerable. Differentiating between legal, biological, mental, and social ages creates a quandary that will, if such technology ever becomes viable, undoubtedly be the bane of future generations of legislatures. However unlikely such technology’s existence becomes, nevertheless, we should not fail to ponder the results. After all, to paraphrase the words of Professor Farnsworth: Nothing is impossible! Not if you believe in it. That’s what science is all about!66

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As a scientific reality, cryonics is in its infancy. Though accepted in some scientific circles, the idea of bringing a person from a lengthy state of “not-living” to a state of “living” is, with respect to Dr. Ettinger, at this point still science fiction. The same cannot be said about its theoretical polar, cloning. Cloning is the scientific creation and reproduction of an organism, and, unlike cryonics, which implicates principles that are unknown to mere mortals—such as what, exactly, happens to “us” when we pass—cloning deals almost entirely with the genetic creation of life, a topic well understood by the medical and scientific communities.

As a basic primer, humans are made up of a unique set of deoxyribonucleic acid, or DNA.68 When a male’s sperm cell enters a female’s unfertilized egg, chromosomes from each are transmitted in equal parts to the newly fertilized egg, or zygote.69 That zygote eventually forms an embryo, which, you guessed it, contains genes in equal portion from both its father’s sperm cell and mother’s egg.70 For our purposes,71 clonIn my home state of Florida, the answer is likely yes, either way.

66. Futurama: A Clone of My Own (FOX television broadcast Apr. 9, 2000).

67. Id.

68. See Lowell Ben Krahn, Comment, Cloning, Public Policy and the Constitution, 21 J.

MARSHALL J. COMPUTER & INFO. L. 271, 273 (2003).

69. Id.


71. Reproductive cloning is not the only type of cloning being researched, studied, and attempted by modern science. Therapeutic cloning, for example, is the process of creating clusters of blastocyst cells through the replacement of the nucleus of an egg with DNA taken from a somatic cell in order to grow or repair tissues or other organs. Thus, the goal, rather than create a \\jciprod01\productn\M\MIA\68-1\MIA101.txt unknown Seq: 12 13-NOV-13 8:14


ing describes “reproductive cloning,” or the artificial replication of conception. Reproductive cloning allows scientists, through a process called somatic cell nuclear transfer, or “SCNT,” to “take a newly fertilized egg and inject it with DNA from a somatic cell (a cell other than a sperm or egg) and thus produce a clone.”72 Through chemical or electrical stimulation, the reconstructed egg divides, and is then transferred to a female host’s uterus, where it incubates until birth.73 The result of this process is the creation of an organism that is genetically identical to its donor, creating a child that is, technically, the twin of its donor.74 Though controversial, this process has netted positive scientific results. Since 1997, scientists have successfully been able to clone animals such as sheep, pigs, cows, mice, cats, and rabbits.75 Using these same principles, scientists are currently researching and, in some cases, actively attempting, human cloning.76 With breakthroughs in the fields of genetics and reproductive technologies bringing us closer and closer to the reality of human cloning, we must reexamine the laws, ethics, and philosophies implicit to the creation of human life and the ownership of one’s genetic materials.77 Cubert J. Farnsworth, the fictional, cloned Futurama character, may provide an accurate illustration of what such scientific advancements could mean for society, ethics, and the law. As the self-described greatest invention of Professor Hubert J. Farnsworth, Cubert was formed from cells taken from one of the 159-year-old Professor’s “shapelier growths on [his] back.”78 Twelve-year-old Cubert is unique to Professor Farnsworth in both appearance and intellect, and possesses none of the sterile or robotic characteristics so often imagined when human cloning genetically identical organism, is to create cells, tissues, or other materials that contain the same genetic identity of a host. This would make it possible for organ transplantation and other therapeutic treatments that pose the risk of a body’s rejection of outside material to be much more efficient and likely of success, as the transplanted organ or material would be identical to the host.

A discussion regarding the legal and moral implications of such type of cloning is not within the scope of this paper and will not be contemplated further. For more information, see PRINCIPLES OF CLONING (Jose Cibelli, et al. eds., 2002).

72. Krahn, supra note 68, at 273.

73. Id.

74. Learn.Genetics, What is Cloning? UNIV. OF UTAH, http://learn.genetics.utah.edu/content/ tech/cloning/whatiscloning/ (last visited Sept. 9, 2013).

75. Krahn, supra note 68, at 274.

76. Maverick Doctor Claims to Have Implanted Women with Cloned Human Embryos, THE TELEGRAPH (Apr. 22, 2009 6:33 AM), http://www.telegraph.co.uk/news/uknews/5197424/ Maverick-doctor-claims-to-have-implanted-women-with-cloned-human-embryos.html (last visited Apr. 1, 2013).

77. For a recent Supreme Court opinion about the ownership of genetic material that will surely be the subject of much debate, see Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (2013).

78. Futurama: A Clone of My Own, supra note 66.

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is discussed.79 Through Cubert, the professor is provided with not only an heir to the Planet Express fortune, but also the emotional fulfillments of fatherhood, as well as a viable source of organs, if needed.80 “Illegal copies never hurt anybody”81 A.

In the Futurama universe, cloning is a seemingly legal and, if not mundane, certainly uncontroversial activity.82 The same cannot be said in our modern era, where the legality of human cloning is not necessarily clear and certainly not uncontroversial. Human cloning implicates matters of religion, privacy, reproductive rights, and access to scientific research, among others, and, as such, it is unsurprising that a consensus on the issue has not been reached among the States and Federal Government.83 At the time of this writing, no federal legislation has been passed that would directly prohibit scientists from attempting or researching human cloning.84 Legislation that would impose such a ban, however, has been introduced in the past. In 2003, for instance, The Human Cloning Prohibition Act of 2003 was introduced, and approved, by the House of Representatives.85 Openly supported by then President Bush, the Bill proposed to ban all human cloning “either to bring [a] child to live birth or to use [a] cloned human embryo for experimental research that necessarily results in the death of the young embryo.”86 Despite strong support by House Conservatives, the 2003 Bill failed to gain support in the more centrist Senate and was never put to a vote.87 In 2007, another Bill, The Human Cloning Prohibition Act of 2007,

79. See, e.g., THE STEPFORD WIVES (Paramount Pictures 2004); STAR WARS: EPISODE II ATTACK OF THE CLONES (20th Century FOX 2002); INVASION OF THE BODY SNATCHERS (United Artists 1978).

80. Futurama: A Clone of My Own, supra note 66.

81. Futurama: I Dated a Robot (FOX television broadcast May 13, 2001).

82. Futurama: Rebirth (Comedy Central television broadcast June 24, 2010).

Fry: Fetal stem cells? Aren’t those controversial?

Professor Farnsworth: In your time, yes, but nowadays, shut up! Besides, these are adult stem cells, harvested from perfectly healthy adults, whom I killed for their stems cells.

83. Susan K. Kendall, Laws and Public Policy about Cloning, MICH. STATE UNIV. LIBRARY, http://staff.lib.msu.edu/skendall/cloning/laws.htm (last visited Apr. 1, 2013).

84. While the Federal Government has never outright prohibited stem cell research, a Bush directive prohibited the use of federal funds to support stem cell research in 2001. In 2009, President Obama changed course, announcing that he and his administration “will vigorously support scientists who pursue this research.” See Obama Ends Stem Cell Research Ban, CBS NEWS (June 18, 2009, 6:27 PM), http://www.cbsnews.com/2100-503767_162-4853385.html.

85. Kendall, supra note 83.

86. Human Cloning Prohibition Act, NCHLA.ORG, http://www.nchla.org/datasource/idocu ments/hr534.pdf (last visited Apr. 1, 2013).

87. Kendall, supra note 83.

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was introduced in the House.88 Unlike its 2003 counterpart, however, the 2007 version was rejected by House members who feared the Bill only placed a “phony ban” on human cloning and would not, in actuality, prohibit all forms of cloning, such as therapeutic cloning related to stem cell research.89 At the state level, only fifteen states have passed legislation regarding the legality of reproductive cloning.90 Of the fifteen, thirteen states, California, Rhode Island, Massachusetts, New Jersey, Connecticut, Arkansas, Indiana, Iowa, Maryland, Michigan, North Dakota, South Dakota, and Virginia currently have placed bans on reproductive cloning.91 Two states, Arizona and Missouri, allow reproductive human cloning, but prohibit the use of state funds to finance research that seeks to develop human embryotic production.92 Six states, California, Connecticut, Maryland, Massachusetts, Missouri, and New Jersey, permit cloning for the limited purpose of scientific research.93 Rhode Island passed legislation prohibiting human cloning, but it lapsed in 2010.94 Evidently, because the states’ laws vary as to what exactly is permitted in terms of human embryotic cloning, the legality of this process is largely dependent upon where the creation of the cloned embryo takes place. Because there currently exists a schema in at least some states that places regulations on the right to artificially conceive a cloned child, and because the Federal Government has previously tried to place an outright ban on such activity, we must analyze whether either an outright or even a limited ban on reproductive cloning is permissible under the U.S.


B. “I happen to know a place where the Constitution doesn’t mean squat!”95 The Supreme Court has declared there to be a protected, fundamental right of an individual’s privacy in matters of procreation, contraception, and family.96 Guaranteed under the Due Process Clause of the Fifth and Fourteenth Amendments, neither the state nor the Federal Government may deprive an individual of “life, liberty, or property without due

88. Id.

89. House Turns Back ‘Phony’ Cloning Ban, BAPTIST PRESS (Jan. 7, 2007), http://www.bp news.net/bpnews.asp?id=25810.

90. Human Cloning Laws, NCSL.ORG, http://www.ncsl.org/issues-research/health/humancloning-laws.aspx (last updated Jan. 2008).

91. Id.

92. Id.

93. Id.

94. Id.

95. Futurama: A Taste of Freedom (FOX television broadcast Dec. 22, 2002).

96. Roe v. Wade, 410 U.S. 113, 152 (1973). See also Krahn, supra note 68, at 288.

\\jciprod01\productn\M\MIA\68-1\MIA101.txt unknown Seq: 15 13-NOV-13 8:14 2013] FUTURLAWMA 101 process of law.”97 As the Supreme Court explained in Eisenstadt v.

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