Brave new world? – The legislative response to human cloning
In brief: Lawyer Caroline Ryan discusses Queensland's Cloning of Humans (Prohibition) Bill 2001, which prohibits human reproductive cloning. The Bill proposes to implement a recent agreement of the Council of Australian Governments, and is timely given the recent worldwide debate about human cloning generally.
Advanced Cell Technology (Advanced Cell), a company based in Massachusetts, announced on 25 November 2001 that it had created the first cloned human embryos. Despite the consensus that Advanced Cell's announcement was somewhat premature in light of the actual results, the claims created an international furore as to the practical and ethical impact of what is undoubtedly biotechnology's most controversial technology to date.
On 27 November 2001, the Cloning of Humans (Prohibition) Bill 2001 (the Bill) was introduced into the Queensland Parliament. Queensland is now the fourth state (joining Victoria, South Australia and Western Australia) to introduce laws making human cloning a criminal act punishable by fines and 10 years imprisonment. The Bill seeks to implement Queensland's obligations, as agreed to in June by the Council of Australian Governments and the various Health Ministers, that each State and Territory jurisdiction should pursue a ban on human reproductive cloning.
The debate
Most of the scientific community accept that the successful creation of a human clone is only a matter of time and funding. While some politicians have publicly condemned the use of cloning technology as a whole, the debate has lead to a distinction between two forms of cloning, reproductive and therapeutic. The drafting of the new Queensland Bill reflects this distinction in so far as it prohibits only reproductive cloning.
Reproductive cloning is the term given to the technology that was used to create Dolly the sheep, and could theoretically be used to clone a human being. With a few notable exceptions, the general consensus of the scientific community is that the technology that brought us Dolly is still too dangerous to be attempted on humans. Experiments on animals have resulted in the majority of embryos being aborted with fatal abnormalities and few reaching full term.
Therapeutic cloning is the term given to the technology of cloning embryos to produce stem cells for the treatment of such illnesses as strokes, cancer, AIDS and spinal damage. Stem cells are the undifferentiated cells which can, in theory, grow into any kind of human cell. Many scientists believe that if a way can be found to cultivate, specialise and harvest the versatile cells, they could be transplanted into patients to treat a number of currently incurable diseases. As the cells would be the patient's own cells, the technique would overcome the main obstacle in organ transplants and cell replacement based treatment - rejection of the tissue by the patient's immune system.
The legislation
As international legislators grapple with the technology and the numerous associated ethical issues, few have managed to arrive at a workable consensus. In the United States, the House of Representatives passed legislation in July banning both therapeutic and reproductive cloning, but the bill was subsequently rejected in the Senate out of concern that such a hasty ban could stifle the promising medical research into stem cell technology.
In January, the United Kingdom passed a law to permit therapeutic cloning, assuming that reproductive cloning was illegal under the Human Fertilisation & Embryology Act 1990. The High Court's interpretation of the legislative definition of embryo in the Pro-Life Alliance decision on 15 November 2001 has, however, revealed a loop hole in the legislation, resulting in the United Kingdom Parliament currently attempting to rush through the one page Human Reproductive Cloning Bill in an attempt to block any human cloning experiments.
In Australia, the cloning of a whole human being is currently prohibited by section 192B of the Commonwealth Gene Technology Act 2000. However, the legislation relies on the Commonwealth corporations power under the Constitution and does not apply to individuals. Human cloning is banned under State legislation in Victoria, South Australia and Western Australia but the laws are far from uniform. In Victoria, the Infertility Treatment Act 1995 prohibits the formation (outside of the human body) of a human embryo that is genetically identical to another human embryo or person. In Western Australia, the Human Reproductive Technology Act 1991 prohibits cloning using reproductive technology for the purpose of producing duplicates or descendants that are genetically identical. In South Australia, the Regulations to the Reproductive Technology Act 1988 prohibits any procedure directed at producing two or more genetically identical embryos from the division of one embryo for reproductive purposes.
Under the new Queensland Bill, any person that clones, or attempts to clone a human by technological or other artificial process will face fines of up to $1.5 million for a corporation and $300,000 and 10 years imprisonment for individuals. It is an additional offence to cause a human embryo clone to be placed into the body of a human or animal for any period of gestation. Whether the clone or embryo survived is immaterial. Proof that a human or a human embryo is a clone is demonstrated by proof that the nuclear genes have been copied. It is not necessary to prove that the copy is an identical genetic copy.
The Bill's aim to prohibit only reproductive cloning reflects the Queensland Government's push to develop biotechnology research and its associated industry potential in Queensland. On 26 November 2001, Premier Beattie stated his aim to develop Queensland as a leading centre for research into the therapeutic use of adult stem cells, citing the University of Queensland research into reprogramming bone marrow cells as evidence of the State's potential to be a leader in stem cell research. New federal Minister for Science, Brendan Nelson, has subsequently announced he will be examining the need for uniform national laws on cloning
The future?
Despite the response from national legislators, many believe that the only way to regulate the cloning of humans is to outlaw reproductive techniques by international rules. France and Germany have lobbied for an international convention banning human cloning since June this year, and the United Nations have responded by tabling the topic for discussion this year. AAR will continue to monitor both the national and international developments in relation to this issue.