Vol. 16 No.2 (February 2006), pp.165-167
ILLEGAL BEINGS: HUMAN CLONES AND THE LAW, by Kerry Lynn Macintosh. New York: Cambridge University Press, 2005. 288pp. Hardback. £16.99/$29.95. ISBN: 0521853281.
Reviewed by Zvi H. Triger, The College of Management, School of Law, Rishon LeZion, Israel. Email: zvit [at] colman.ac.il.
Kerry Lynn Macintosh’s new book, ILLEGAL BEINGS: HUMAN CLONES AND THE LAW, offers a thorough and enlightening study of the socio-legal acceptance of reproductive human cloning. When it comes to human clones, argues Macintosh, the socio-legal reaction has been a wholesale pre-emptive rejection of the notion, based, for the most part, on misinformed notions of reproductive cloning and its social, legal and scientific ramifications.
Reproductive cloning is a form of asexual reproduction that will allow, when it becomes technologically available in humans, infertile men and women to conceive children to whom they will be genetically related. Cloning technology might be useful also for fertile men and women who carry genetic diseases and who risk passing down these diseases should they reproduce sexually.
Despite these clear benefits, cloning has already been outlawed in several states, and Congress is also considering a national ban on it. Moreover, the public seems to agree with the criminalization of this technology, feeding on science fiction and horror movie images of massive herds of zombie-clones taking over the world and destroying humankind. The modern myth of Frankenstein, argues Macintosh, plays a central role in igniting this moral panic against human reproductive cloning (for a brilliant analysis of the Frankenstein myth in our culture see Kamir 2001).
So why are we so afraid of human clones? Macintosh identifies five false notions that she believes “reinforce and inspire stereotypes about human clones:” first, that human cloning is an offence against God and nature; second, that cloning human beings objectifies and commodifies them; third, that human clones are copies of other human beings and therefore lack individuality; fourth, that being a form of asexual reproduction, cloning threatens the survival of humanity because it undermines genetic diversity; and finally, that human clones might suffer from serious birth defects and have an extremely low life expectancy.
Macintosh offers her replies to each of these notions, and in doing so, she plays, at least partially, into the hands of those whom she criticizes. Take, for example, the first argument, according to which cloning offends God and is unnatural. Instead of trying to explore the cultural meaning of this argument and its underlying ideology, Macintosh seems to struggle with the actual theological questions of whether there is a god and how, if at all, can we know what he or she thinks about cloning. She concludes that some believe that God would support cloning (for example, some [*166] Jews), while others would condemn it (Roman Catholics).
The analysis of what is “natural” is similarly problematic, since it takes on the terminology of the cloning critics instead of critically examining their ideology. In my mind, what is common to the God/nature objection to human cloning, and what is missing from Macintosh’s critique of it, is one important concept—patriarchy. In other words, the God/nature line of thought is concerned with the loss of male dominance in society. Macintosh quotes a revealing passage from the California Advisory Committee on Human Cloning (2002) which very candidly admitted this concern: “In addition, it could theoretically render males reproductively obsolete.”
But the rest of the paragraph, which Macintosh does not include, reads as follows:
All that is needed to clone a human being are human eggs, somatic cell nuclei, and uteri; and a woman can supply all of these. A system of reproduction that renders males obsolete also renders the “natural” method of human reproduction obsolete. Those opposed to human reproductive cloning on these grounds worry that the process will run counter to and even harm nature. On this view, the intent “to improve on nature” through reproductive cloning has been considered an overstepping of natural limits, human “hubris of enormous magnitude.”
In other words, the authors of this report are suggesting that “nature,” in the eyes of those who oppose human cloning on this ground, equals male involvement in and control over the reproductive process, or, in another word, patriarchy. Thus, the process through which patriarchy has become the natural human condition in our culture (Gilligan 2003) is, in my mind, the key to understanding the God/nature objection. One can see that very same cultural story in the history of the acceptance of artificial insemination, a technology that has been available since the eighteenth century, but was only legitimized in the 1930s (Bernstein 2002). One of the reasons for this prolonged delay was the belief that the doctor performing the AI and the woman being inseminated by him were committing adultery, and the need to legally overcome this notion.
The other objections to human cloning are less ideological and stem more from ignorance: Macintosh dispels them very effectively and shows that the danger of baby commodification in the context of human cloning is no more realistic than in the context of in vitro fertilization (IVF) or certain types of adoption. She also argues very persuasively that human clones are not copies and thus their individuality is not at all compromised, and, finally, a significant amount of data is quoted in order to show that we are not facing the doomsday prophecies of the end of humanity due to the demise in genetic diversity and the birth of baby clones who suffer from severe defects (as Macintosh shows, these same concerns were voiced in the late 1970s, when IVF was new).
Having discussed these objections, Macintosh turns to analyze anticloning legislation. Among the states that enacted bans against human cloning are Arkansas, Iowa, Michigan, North [*167] Dakota, and South Dakota. Macintosh argues that the various laws were inspired by the five objections analyzed in the first part of the book (and proved false). She argues that these laws are unconstitutional, because they violate the Equal Protection Clause by creating what Macintosh calls “existential segregation,” meaning “they are intended to prevent the birth and existence of human clones” (p.98).
Macintosh locates this legislation within the historical context of antimiscegenation legislation and maintains that in the same way that antimiscegenation laws tried to prevent the birth of mixed-race children, so as not to threaten racial segregation, anticloning laws have a similar effect. Nowadays, Macintosh seems to imply, the fear is directed towards non-traditional family structures: for example, single-parent or same-sex parent families. Recently such families have been able to adopt or to have children with the assistance of a surrogate mother (only in some jurisdictions), but the idea that these families might have genetically related children without outside assistance is perhaps too outrageous for some, and it is definitely too challenging for the heterosexual/patriarchal social order.
Indeed, the family structure is undergoing radical alteration, and many find these changes objectionable because they threaten their most fundamental beliefs. Reproductive technology leads many of the most controversial changes, because it transforms our notions of kinship, and challenges our imagination in previously unpredictable (and unimaginable) ways. Kerry Lynn Macintosh’s new book is a thought-provoking contribution to a fascinating conversation about one of the most fundamental institutions in our society, and the ways in which technology shapes it and allows us to re-envision and re-imagine it.
California Advisory Committee on Human Cloning. 2002. Report: “Cloning Californians?” Located at http://www.scu.edu/ethics/publications/adbdreport.html (visited February 20, 2006).
Bernstein, Gaia. 2002. “The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination.” 77 WASHINGTON LAW REVIEW 1035.
Gilligan, Carol. 2003. THE BIRTH OF PLEASURE: A NEW MAP OF LOVE. New York: Vintage Books.
Kamir, Orit. 2001. EVERY BREATH YOU TAKE: STALKING NARRATIVES AND THE LAW. Ann Arbor, Michigan: The University of Michigan Press
© Copyright 2006 by the author, Zvi H. Triger.
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