Part IV: The International Situation
3. The United States

The United States has yet to pass federal legislation of the type that governs embryo research and cloning in Great Britain and Canada. Since August 2001, when President George W. Bush decided to limit federally funded research to that conducted on embryonic stem cell lines created before August 2001, a number of attempts have been made and failed at the federal level.

While there is no federal law banning the creation of cloned embryos, federal funding of research involving cloning “for the purpose of reproduction or research” is prohibited. The federal Food and Drug Administration (FDA) has claimed authority over the regulation of human cloning technology as an investigational new drug and stated that they would not approve any projects involving human cloning for safety reasons. Congress has not passed legislation confirming the FDA's authority to prohibit cloning.

The necessity of accurate scientific definitions has become clear with state legislation that allows cloning, beginning in New Jersey, while at the same time claiming to prohibit it. Such legislation has been called “clone-and-kill” bills by pro-life observers in the US. Typically, clone-and-kill legislation is that which allows the creation of embryos by cloning but specifies that the resulting embryo must be killed before a certain point, usually 14 days[1]. Clone-and-kill legislation usually claims to be “ethical” by the standards of secular bioethics[2], because it prohibits any attempt to bring the clone to full gestational age[3] (“reproductive cloning”). Usually there is an attempt by supporting legislators to convince the public that the legislation is a prohibition of cloning, generally by use of misleading or vague terminology. The language used in these bills can serve as an education in what one EU legislator called the “linguistic sleight of hand” that is being employed “to erode the moral significance of human cloning”.

At the state level, however, the legislative situation varies widely. Generally, statutes in California, Connecticut, Maryland, Massachusetts and New Jersey and an Executive Order in Illinois and Missouri encourage embryonic stem cell research. South Dakota strictly forbids research on any embryos.

Virginia's law may ban research on cloned embryos, but the statute may leave room for interpretation because human being is not defined.

Louisiana is the only state that specifically prohibits research on in vitro fertilized (IVF) embryos. Illinois and Michigan also prohibit research on live embryos. Finally, Arkansas, Indiana, Iowa, Michigan, North Dakota and South Dakota prohibit research on cloned embryos.

State-by-state overview [4]

Arizona: bans the use of public monies for “reproductive” or therapeutic cloning.

Arkansas: Prohibits therapeutic and “reproductive” cloning; may not ship, transfer or receive the product of human cloning; human cloning is punishable as a Class C felony and by a fine of not less than $250,000 or twice the amount of pecuniary gain that is received by the person or entity, which ever is greater

California: Prohibits “reproductive” cloning; permits cloning for research; provides for the revocation of licenses issued to businesses for violations relating to human cloning; prohibits the purchase or sale of ovum, zygote, embryo, or fetus for the purpose of cloning human beings; establishes civil penalties.

Connecticut: Prohibits “reproductive” cloning, permits cloning for research; punishable by not more than one hundred thousand dollars or imprisonment for not more than ten years, or both.

Indiana: Prohibits “reproductive” and therapeutic cloning; allows for the revocation of a hospital's license involved in cloning; specifies that public funds may not be used for cloning; prohibits the sale of a human ovum, zygote, embryo or fetus.

Iowa: Prohibits human cloning for any purpose; prohibits transfer or receipt of a cloned human embryo for any purpose, or of any oocyte, human embryo, fetus, or human somatic cell, for the purpose of human cloning; human cloning punishable as Class C felony; shipping or receiving punishable as aggravated misdemeanor; if violation of the law results in pecuniary gain, then the individual is liable for twice the amount of gross gain; a violation is grounds for revoking licensure or denying or revoking certification for a trade or occupation.

Maryland: Prohibits “reproductive” cloning; prohibits donation of oocytes for state-funded stem cell research but specificies that the law should not be construed to prohibit therapeutic cloning; prohibits purchase, sale, transfer or obtaining unused material created for in vitro fertilization that is donated to research; prohibits giving valuable consideration to another person to encourage the creation of in vitro fertilization materials solely for the purpose of research; punishable by up to three years in prison; a maximum fine of $50,000 or both.

Massachusetts: Prohibits “reproductive” cloning; permits cloning for research; prohibits a person from purchasing, selling, transfering, or obtaining a human embryonic, gametic or cadaveric tissue for “reproductive” cloning; punishable by imprisonment in jail or correctional facility for not less than five years or more than ten years or by or by imprisonment in state prison for not more than ten year or by a fine of up to one million dollars; in addition a person who performs “reproductive” cloning and derives financial profit may be ordered to pay profits to Commonwealth.

Michigan: Prohibits human cloning for any purpose and prohibits the use of state funds for human cloning; establishes civil and criminal penalties.

Missouri: Missouri Amendment Two amended the Missouri Constitution to allow researchers to conduct any research permitted under federal law without any interference from the state legislature. It was approved by a ballot measure in the mid-term elections on November 7, 2006.

New Jersey: Permits cloning for research; prohibits “reproductive” cloning, which is punishable as a crime in the first degree; prohibits sale or purchase, but not donation, or embryonic or fetal tissue, which is punishable as a crime in the third degree and a fine of up to $50,000.

North Dakota: Prohibits “reproductive” and therapeutic cloning; transfer or receipt of the product of human cloning; transfer or receipt, in whole or in part, any oocyte, human embryo, human fetus, or human somatic cell, for the purpose of human cloning; cloning or attempt to clone punishable as a class C felony; shipping or receiving violations punishable as class A misdemeanor.

Rhode Island: Prohibits human cloning for the purpose of initiating a pregnancy; for a corporation, firm, clinic, hospital, laboratory, or research facility, punishable by a civil penalty punishable by fine of not more than $1,000,000, or in the event of pecuniary gain, twice the amount of gross gain, whichever is greater; for an individual or an employee of the firm, clinic, hospital, laboratory, or research facility acting without the authorization of the firm, clinic, hospital, or research facility, punishable by a civil penalty punishable by fine of not more than $250,000, or in the event of pecuniary gain, twice the amount of gross gain, whichever is greater.

South Dakota: Prohibits “reproductive” and therapeutic cloning; transfer or receipt of the product of human cloning; transfer or receipt, in whole or in part, any oocyte, human embryo, human fetus, or human somatic cell, for the purpose of human cloning; cloning or attempt to clone is punishable as a felony and a civil penalty of two thousand dollars or twice the amount of gross gain.

Virginia: Prohibits “reproductive” cloning; may prohibit therapeutic cloning but it is unclear because human being is not defined in the definition of human cloning; human cloning defined as the creation of or attempt to create a human being by transferring the nucleus from a human cell from whatever source into an oocyte from which the nucleus has been removed; also prohibits the implantation or attempted implantation of the product of somatic cell nuclear transfer into an uterine environment so as to initiate a pregnancy; the possession of the product of human cloning; and the shipping or receiving of the product of a somatic cell nuclear transfer in commerce for the purpose of implantation of such product into an uterine environment so as to initiate a pregnancy. The law establishes civil penalty not to exceed $50,000 for each incident.

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[1] “14 days” - The ubiquity in legislation around the world of the 14 day cut-off for cloning and embryo research is evidence that the same bioethicists, who have admitted that the limit is arbitrary, have, through international conferences, been the primary influence in the creation of laws governing embryo research. The 14-day limit is usually connected to the presumed point at which the embryo develops the “primitive streak” that is the beginning of development of the spinal structures. The development of the primitive streak is taken by bioethicists to signify the beginning of a unique, “potential” human being. This presumption is one developed for the purpose of finding an “ethical framework” that would allow embryo research, and is vigorously denied by experts and texts in human embryology.

[2] See Glossary of Philosophical Terms: “Principlism”

[3] For more on the false distinction between “reproductive” and “therapeutic” cloning, see Part II section 3 of this text: “Misdirections and Evasions: Common Media and Bioethics Euphemisms and Red Herrings”

[4] Information in this section has been taken from summaries provided by the National Conference of State Legislatures, a bipartisan organization that provides legislators with research, and technical assistance on pressing state issues. The information presented here is dated January 2007. http://www.ncsl.org/programs/health/genetics/embfet.htm