«\\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 ...»
Baird, the constitutional guarantee of privacy as related to matters of procreation and family planning, protects “the right of [an] 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.”98 This is because, as the Court said in Skinner v. Oklahoma—where the Court declared a law requiring the mandatory sterilization of certain felons unconstitutional—“[m]arriage and procreation are fundamental to the very existence and survival of the race.”99 The Court has never directly addressed whether the rights guaranteed under the Constitution or Bill of Rights to “bear or beget a child” exclude such “artificial methods” as cloning. It is likely, however, that the Court’s precedent is not intended to be construed as such. Absent from any of the Court’s decisions interpreting the right to procreate is language that would act to limit or directly omit human reproductive cloning, or other “unnatural” forms of procreation, from constitutional protection.100 Although legal commentators are not in agreement as to whether the Court has implicitly given scientists and would-be-donors the green light when it comes to such artificial means of genetic replication,101 distinguishing such fundamental constitutional rights based on the medical process involved might be contrary to the very guarantees recognized by the Court.
It is the opinion of this author that, if the time comes, the Court will hold that the right to have and raise a child is not dependent on whether the child was conceived by natural or artificial means. Regardless of any decision by the courts, there very well may come a day where, because either (a) the right to reproductive cloning was constitutionally upheld;
(b) clones were produced in the United States illegally; or (c) clones created internationally were brought or moved to the United States, that the law and society may be forced to deal with the consequences of having such “individuals” among us.
97. US CONST. amends. V, XIV.
98. 405 U.S. 438, 453 (1972).
99. 316 U.S. 535, 541 (1942).
100. Krahn, supra note 68, at 292. See also Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833 (1992); Stanley v. Illinois, 405 U.S. 645 (1972).
101. See, e.g., Clark D. Forsythe, Human Cloning and the Constitution, 32 VAL. U. L. REV.
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102 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 68:87
C. “My little clone”102 As addressed in Part II, a complete discussion of a technological advancement’s—in this case, human cloning—impact on modern society is unfathomable. As such, this section is intended to serve more as the start of a discussion about cloning’s consequences on law and society, rather than a comprehensive dialogue.
To begin this analysis, let us consider Cubert and set up some basic parameters for our discussion. Cubert, like all children, is an individual with rights and responsibilities. In other words, he is autonomous and his freedom is protected just as any other individual’s freedom is protected under the U.S. Constitution. We are, therefore, not contemplating the possibility that our society will somehow view clones as, in any way, the “property” of their donor. As such, our notions of individuality and autonomy will remain unchanged on a legal level, though perhaps not on a philosophical level.103 I hypothesize that a clone will be, for all intents and purposes, viewed by society and the law as the child of its donor, and its donor will be responsible for his or her clone in the same way parents are responsible for their children.104 Under this rubric, and allowing the assumption that clones are entitled to the same constitutional protections and rights to life, liberty, and the pursuit of happiness that all individuals are entitled to, the more absurd implications of human cloning are avoided. A donor will not be permitted to create an army of slaves from his or her genetic material,105 will be unable to use clones as a source of forced organ donation, and will not, as described in the Futurama episode “Overclockwise,” be able to escape criminal liability under principles of Double Jeopardy.106 The impact of human cloning, I suggest, rather than affecting a societal understanding of individuality and freedom, will force practical changes in how society and the law address issues related to fertility, parenthood, and heirdom.107
102. Futurama: A Clone of My Own, supra note 66.
103. The author imagines it would be quite an identity crisis to realize that you are— biologically, at least—not unique. As a society we tend to believe that our existence was predetermined and that we, individually, are special. Biological reproduction serves to enforce this notion. If not for the two individuals that happen to be our parents meeting and getting together, we would not exist. The odds in favor of our existence, in such a view, are astronomical. If it were discovered that the exact genetic makeup of what makes us “us” were not only predetermined, but also concocted in a lab, one may begin to question the value of his or her life. Such a discovery is a commonly used plot device in science fiction. For my favorite example, see MOON (Stage 6 Films 2009).
104. As discussed below, however, such a postulation creates its own practical problems.
105. No more so than any parent has the right to control his or her minor child.
106. Futurama: Overclockwise (Comedy Central television broadcast Sept. 1, 2011).
107. The implications of cloning may be far more reaching than this author can imagine;
however, for this article, I will limit cloning’s implications to the boundaries of my imagination.
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Whether the desire to procreate is solely or partially the result of evolutionary biology, societal pressure, or religious mandates, human cloning will, at its most basic level, help people achieve this goal. As a reproductive technology, human cloning would allow those traditionally shut out of parenthood to not only become parents, but biological parents.109 Political debates concerning the make-up of the ideal family aside, for many, because of infertility, sexuality, or the desire to raise a child without a partner, the current available parenting options may not be ideal.
With the availability of new procreative technologies, however, come new concerns regarding parental rights and responsibilities. Biological procreation has a physical barrier to entry, and requires at least some active participation by would-be parents. This required participation makes the current schema of, let’s call it, “no-fault parenthood” possible. Whether a couple intends to become pregnant or not is of no concern to modern courts when determining parental responsibility. The mere act of sexual intercourse creates the possibility that a child may be conceived, and as modern society cannot punish the child for the unintended consequences of his or her parents’ intended actions, responsibility flows, uncontroversially, from biology. However, with the advent of human cloning, a person can parent a child biologically without any participation in the child’s procreation.
As humans we discard our DNA with abandon. Unintended, we shed hair and skin cells, and leave saliva and other forms of genetic materials around our inhabited world. From a theoretical standpoint, any of these discarded forms of DNA could, if properly preserved, be used to produce a human clone. This potentially leaves the entire population subject to parental extortion. As such, the regularly used means of determining paternity—a DNA test—may not be the best means of delegating parental responsibility in the future. As a society we must attempt to find a solution that allows children to be provided for, regardless of whether their birth was planned by their parents, but also protects parents from being financially responsible for children they created due to no other reason than their discarded DNA was targeted for nefarious purposes.
What the solution to this problem is, this author cannot contemplate. The concept of bastard children, not recognized under the law, has
108. Futurama: Kif Gets Knocked Up a Notch (FOX television broadcast Jan. 12, 2003).
109. See PRINCIPLES OF CLONING, supra note 71, at 478.
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long been abandoned, and treating illegitimate children differently from their legitimate siblings has been found to violate the Equal Protection Clause.110 However, to not recognize the passive nature of such children’s conception, and to allow these children to demand support, and possibly an intestate share of their biological parent’s estate, seems unfair to not only their biological parent, but also to the other benefactors of their parent’s estate.
IV. CONCLUSION: A BIG WARNINGGood science fiction should leave its reader with more questions than answers. Such is the nature of a genre that attempts to address moral and ethical quandaries realistically through plot devices that are intended to be otherworldly, futuristic, or decidedly unrealistic. In keeping with theme, therefore, it is this author’s hope that his readers feel, at least a little, unfulfilled. The topics dealt with in this article—cryonics and cloning—are fantastical in nature, but are being studied by serious minds in the hope that such technologies become realities. As they are not realities, discussions concerning the consequences of such technologies are, in a sense, hyperbolic. That the problems may be exaggerated, however, does not mean there is no value or fun in contemplating solutions.
Literature and research regarding the hypothetical eventualities of scientific discoveries are necessary for if or when such discoveries become realities and the government and society have to address the changing realities of modern life. That this paper was centered on Matt Groening’s Futurama, a ridiculous little cartoon about the 31st Century, is of little consequence. The show is merely a framing device used to present topics generally not discussed in modern society.111 The discussion is by no means complete, and undoubtedly, will never be complete.
I urge likeminded readers to continue to explore the annals of science fiction and contemplate what they see as the possible results of their own favorite authors or creators. How useful such exercise will be, and in fact, this exercise has been, will be determined by future generations.
But “[w]ith a warning label this big, you know they gotta be fun.”112
110. See generally Lili Mostofi, Legitimizing the Bastard: The Supreme Court’s Treatment of the Illegitimate Child, 14 J. CONTEMP. LEGAL ISSUES 453 (2004).
111. Also, a not-so-unintended consequence of using Futurama as a framing device for a law review article was that it became a convenient way for me, an adult with a graduate degree, to justify spending hundreds of dollars and hours on and watching DVDs of a cartoon.