Human cloning and the right to reproduce.

INTRODUCTION Since the birth of "Dolly the sheep" in July 1996, (1) cloning via the nuclear transfer of differentiated cells (2) has been successfully expanded to numerous and varied animal species, (3) including pigs, (4) mice, (5) goats, (6) and cows. (7) Applying cloning techniques to humans, it seems, is only a matter of time. (8) Indeed, in late November 2001, researchers at Massachusetts-based Advanced Cell Technology announced that they had used somatic cell nuclear transfer to create three human embryos. (9) Specifically, the researchers harvested human eggs from seven volunteers, removed the nucleus from each egg, and re-nucleated the eggs with cells taken from an adult human donor. (10) In all, nineteen human eggs were successfully re-nucleated using the nuclear transfer technique. (11) Eleven of the nineteen eggs were re-nucleated with cells taken from the skin of a human donor the other eight eggs were re-nucleated with cumulus cells taken from a human donor. (12) None of the eggs that were re-nucleated with the skin cells were able to begin the process of cell division, but three of the eight eggs that were re-nucleated with cumulus cells did begin dividing, with one surviving to the two-cell stage, one surviving to the four-cell stage, and the third surviving to the six-cell stage before dying. (13) Although some in the scientific community have downplayed the significance of these experiments because the embryos did not survive to the blastocyst stage, (14) it is clear that the use of nuclear transfer cloning techniques on humans has begun. Recognizing the inevitability of successful human cloning, numerous states (15) and countries (16) have enacted prophylactic bans on the technique. The United States Congress, although threatening on numerous occasions to enact a federal ban, (17) has not yet followed suit. Laws prohibiting cloning that have been enacted thus far by the states have raised an important legal question: namely, whether the constitutional right to reproduce protects an individual's right to produce a child using cloning techniques and, if so, under what circumstances may this right be exercised? I. IS THERE A POSITIVE RIGHT TO REPRODUCE? In order to assess whether or to what extent reproductive human cloning is constitutionally protected, one must first delineate the contours of the constitutional right to reproduce. The United States Supreme Court has clearly indicated that humans have the right not to reproduce, as evidenced by contraceptive cases such as Griswold v. Connecticut (18) and abortion cases such as Roe v. Wade (19) and Planned Parenthood of Southeastern Pennsylvania v. Casey. (20) Whether the Constitution also provides an affirmative, or positive, right to reproduce is less clear because the government has rarely acted to prevent individuals from procreating; hence, there has not been much litigation directly on point. Nonetheless, the vast majority of academic writing in this area acknowledges that a positive right to reproduce may be implied from extant case law. One of the earliest cases from which a positive right of reproduction may be inferred is the Supreme Court's 1923 decision in Meyer v. Nebraska. (21) In Meyer, the Court invalidated a Nebraska law prohibiting the teaching of any language other than English to children prior to the eighth grade, stating in dicta, "[w]ithout doubt, [the liberty interest of the Due Process Clause of the Fourteenth Amendment] denotes not merely freedom from bodily restraint but also the right of the individual ... to marry, establish a home and bring up children." (22) An affirmative right to reproduce was more specifically addressed by the Court's 1942 decision in Skinner v. Oklahoma, (23) which struck down an Oklahoma statute mandating sterilization for repeat felons convicted of crimes involving moral turpitude. (24) In invalidating the law, the Court invoked strict scrutiny (25) and concluded that, because "[m]arriage and procreation are fundamental to the very existence and survival of the [human] race," (26) the mandatory sterilization law violated "one of the basic civil rights of man. …