HUMAN CLONING Since Dolly the sheep was born, controversy has swirled around the tech- nology of cloning. We recoil at the prospect of human copies, manufactured men and women, nefarious impersonators, and resurrections of the dead. Such reactions have serious legal consequences: lawmakers have banned stem cell research along with the cloning of babies. However, what if our minds have been playing tricks on us? What if everything we thought we knew about human cloning is rooted in intuition rather than fact? Human Cloning: Four Fallacies and Their Legal Consequences is a rol- licking ride through science, psychology, and the law. Drawing on sources ranging from science i ction i lms to the Congressional Record, this book unmasks the role that psychological essentialism has played in bringing about cloning bans. It explains how hidden intuitions have caused conser- vatives and liberals to act contrary to their own most cherished ideals and values. Kerry Lynn Macintosh is a member of the law and technology faculty at Santa Clara University School of Law. She received her BA from Pomona College and her JD from Stanford Law School, where she was elected to the Order of the Coif. Professor Macintosh is the author of I llegal Beings: Human Clones and the Law (2005). She has published articles in the i eld of law and technology in the Journal of Law, Technology & Policy ; Harvard Journal of Law & Technology ; Boston University Journal of Science & Technology Law ; Berkeley Technology Law Journal ; and other journals. Professor Macintosh is a member of the American Law Institute, a law reform organization. CAMBRIDGE BIOETHICS AND LAW This series of books was founded by Cambridge University Press with Alexander McCall Smith as its i rst editor in 2003. It focuses on the law’s complex and troubled relationship with medicine across both the developed and the developing worlds. In the past twenty years, we have seen in many countries increasing resort to the courts by dissatisi ed patients and a grow- ing use of the courts to attempt to resolve intractable ethical dilemmas. At the same time, legislatures across the world have struggled to address the questions posed by both the successes and the failures of modern medicine, and international organizations such as the WHO and UNESCO now regu- larly address issues of medical law. It follows that we would expect ethical and policy questions to be integral to the analysis of the legal issues discussed in this series. The series responds to the high proi le of medical law in universities, in legal and medical prac- tice, as well as in public and political affairs. We seek to rel ect the evidence that many major health-related policy debates in the United Kingdom, Europe, and the international community over the past two decades have involved a strong medical law dimension. With that in mind, we seek to address how legal analysis might have a trans-jurisdictional and interna- tional relevance. Organ retention, embryonic stem cell research, physician- assisted suicide, and the allocation of resources to fund health care are but a few examples among many. The emphasis of this series is thus on matters of public concern and/or practical signii cance. We look for books that could make a difference to the development of medical law and enhance the role of medico-legal debate in policy circles. That is not to say that we lack inter- est in the important theoretical dimensions of the subject, but we aim to ensure that theoretical debate is grounded in the realities of how the law does and should interact with medicine and health care. S eries Editors rPofessor Margaret Brazier , U niversity of Manchester Professor Graeme Laurie , U niversity of Edinburgh P rofessor R ichard A shcroft, Queen Mary, University of London Professor Eric M. Meslin , Indiana University See series list after Index Human Cloning FOUR FALLACIES AND THEIR LEGAL CONSEQUENCES Kerry Lynn M acintosh Santa Clara University School of Law c ambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sã o Paulo, Delhi, Mexico City Cambridge University Press 32 Avenue of the Americas, New York, NY 10013-2473, USA www.cambridge.org Information on this title: www.cambridge.org/9781107031852 © Kerry Lynn Macintosh 2013 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2013 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication data Macintosh, Kerry Lynn. Human cloning : four fallacies and their legal consequences / Kerry Lynn Macintosh. p. cm. – (Cambridge bioethics and law ; 21) Includes bibliographical references and index. ISBN 978-1-107-03185-2 (hardback : alk. paper) 1. Human cloning – United States. 2. Human cloning – Moral and ethical aspects – United States. 3. Human cloning – Law and legislation – United States. I. Title. QH442.2.M253 2013 176′.22–dc23 2012023251 ISBN 978-1-107-03185-2 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate. To MaryAnn Balyeat Macintosh Contents L ist of Tables page xi Acknowledgments x iii nItroduction x v PART I THE SCIENCE OF CLONING 1 1 Animals Born Through Cloning Are Ordinary Members of Their Species 7 2 Animals Born Through Cloning Are Unique Individuals and Have Their Own Lifespans 27 3 Humans Born Through Cloning Will Be Unique Individuals and Have Their Own Lifespans 43 Summary of Part I 61 PART II THE COGNITIVE PSYCHOLOGY OF CLONING 63 4 Identity and Essentialism 69 5 Artifacts and Essentialism 103 6 Impostors and Essentialism 125 7 Resurrection and Essentialism 147 Summary of Part II 165 ix