Is there a constitutional right to clone?

Recent scientific innovations, and proposed legislation, have raised questions about the nature of the constitutional right to reproductive freedom, and in particular about whether there is a constitutional “right to clone.” This essay urges that as a matter of substantive due process, rationality review is probably appropriate, and that restrictions on both reproductive and therapeutic cloning would and should survive constitutional scrutiny. At the same time, many of the arguments for banning both forms of cloning are based on ignorance, myths, and speculation. It is extremely important to distinguish between reproductive and nonreproductive cloning, and it is equally important to distinguish among the various rationales for banning each. Some of those rationales have some, but others, including some of the most influential, are exceedingly weak. As currently interpreted, the Constitution protects a range of rights involving marriage, bodily integrity, and reproduction. Does the Constitution guarantee the right to clone? The question is not as fanciful as it might appear. Cloning is a possible method for “reproduction.” For some people, cloning would undoubtedly be the preferred choice. Among this group, some would choose cloning on the ground that it is the only way to produce children with some genetic connection to them. For such people, the potential value of cloning should not be understated. And because reproduction is involved, the individual right to choose might well be thought to fall within the doctrinal protection given by Roe v. Wade and other cases. At the same time, it is not clear that the government can offer constitutionally adequate grounds for interfering with a presumptively protected right. Some of the most common justifications seem ignorant or speculative, and others could be taken care of through narrower means, falling short of a flat ban on cloning. Indeed, the justifications for banning cloning might well seem, at first glance, to be weaker than the justifications for banning abortion, which involves the intentional destruction of what many people consider innocent human life. If government cannot ban the intentional destruction of * Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, Law School and Department of Political Science, University of Chicago. This essay is a written version of the keynote luncheon address for the Hastings Law Journal symposium on human cloning, held in January 2002. 1 See John Robertson, Liberty, Identity, and Human Cloning, 76 Tex. L. Rev. 1371, 1441-42 (1998). 2 410 U.S. 113 (1973). 3 See, e.g., Griswold v. Connecticut, 381 US 479 (1965); Eisenstadt v. Baird, 405 US 438 (1972); Carey v. Population Servs.. 431 US 113 (1973).