Legal experts agree that New Jersey would become first state to have human clones born

January 7, 2003

Marie Tasy
Director of Public & Legislative Affairs
New Jersey Right to Life
49 Alden St
Cranford, NJ 07016

Dear Ms. Tasy:

Thank you for forwarding to me copies of the proposed New Jersey cloning laws, S1909/A2840. It is my privilege to provide to you the following legal analysis of them.

As I believe you know, I have taught constitutional law for twenty years. My scholarly articles have appeared in dozens of journals. I have testified many times in Congress as a constitutional expert concerning human life issues, including testimony on federal cloning legislation.

My analysis is brief, and leaves aside evaluation. I describe below some certain effects of the proposed legislation. Those effects are breathtaking, unprecedented, and widely regarded as morally disastrous. These effects include, most notably, a commercial market in the body parts of fetuses, and the birth of an unlimited number of “cloned” babies.

First, the market in what the legislation calls “cadaveric fetal tissue.” The bills may appear to outlaw such traffic; at least, they ban certain transactions for “valuable consideration.” But the stipulated definition of “valuable consideration” – “financial gain or advantage” excluding “reasonable payment” for “removal, processing, disposal, preservation, quality control, storage, transplantation, or implantation of embryonic or cadaveric fetal tissue” – renders the ban toothless. There is no meaningful difference between “valuable consideration” and “reasonable payment” for such varied services having no objective market value.

In fact, the legislation authorizes commercial traffic in the body parts of human beings “cultivated” (the bills’ word) up to the moment of birth. The bills explicitly authorize the creation of human embryos by genetic replication, or cloning. They authorize “cultivation” of such embryos at least until birth. Since the only way to “cultivate” embryos so long is by implantation in a woman’s womb, the bills expressly authorize payment for “implantation” and “transplantation” of embryos. Presumably, contracts between cloning entrepreneurs and gestating women will specify the stage of pregnancy at which the woman agrees to have an abortion, and then turn over “fetal cadaveric tissue” to the entrepreneur. The bills impose no subsequent limits upon the entrepreneur’s liberty to dissect, dismember, and otherwise repackage the remains. The bills set no limit upon his liberty to market the remains for research purposes, save for the meaningless “valuable consideration” proviso.

I turn to another certain effect of the law, the birth of cloned human beings.

The bills make “cloning” a crime of the first degree. “Cloning” is defined in the proposed legislation, however, in an unprecedented fashion: “cultivating” the cell “through the egg, embryo, fetal and newborn stages into a new human individual.” [Emphasis added.] Putting aside the shocking suggestion that New Jersey law will not recognize someone as a human individual until after he or she survives “the newborn stages,” this definition means that “cloning” would not occur, and no crime would be committed, before the child was “through” – that is past or beyond or done with – the “newborn stage.” “Newborn” is not a legal term of art, and the bills provide no definition of it. “Newborn” is by itself a vague term, admitting a range of reasonable definitions, especially when coupled with the term “stages.” So, because the proposals establish “knowingly” as an element of the crime, “cloning” would be committed only where a prosecutor proved, beyond a reasonable doubt, that a defendant knew a child was past any reasonable definition of “newborn.” The crime of “cloning,” according to S1909/A2840, would not occur until a child was weeks, or months, old.

To avoid the crime of “cloning,” a putative defendant would have to kill the child in the first weeks (or months) after birth. But this would be murder. See State v. Anderson, 135 N.J. Super. 423, 343 A.2d 505 (L. Div. 1975), aff’d, 173 N.J. Super. 75, 413 A.2d 611 (App. Div.), certification denied, 85 N.J. 124, 425 A.2d 282 (1980). Since no one may be convicted for conduct avoidable only by committing murder, the crime of “cloning” is therefore non-existent. By authorizing genetic replication in the first place, and by thus defining the crime of “cloning,” these bills effectively authorize the creation of new people through cloning.

It might be said that few, if any replicated individuals will be “cultivated” all the way through to birth. It might be said that the common pattern will be to “cultivate” new individuals for a limited time in the wombs of willing host women, who will have agreed to abortions before the onset of the “newborn stage.” In other words, the whole idea is to create a market in fetal body parts. Thus there need be no concern, it might be said, about cloned infants being protected by the homicide laws.

The problem with this response is that agreements to abort are absolutely unenforceable. The right to choose to have a baby or not is guaranteed to the individual pregnant woman – and to her alone – by Roe v. Wade and even more so by the New Jersey Constitution, as the New Jersey Supreme Court recently emphasized in Planned Parenthood v. Farmer, 165 N.J. 609, 762 A.2d 620 (2000). This right is inalienable, and exercisable up to the moment of birth. As is made clear by precedents such as the New Jersey Supreme Court’s famous decision in Matter of Baby M, 109 N.J. 396, 537 A.2d 1227 (1988), there is no chance whatsoever that any court would order specific performance of a contract requiring an abortion, or that any other enforcement agency would force a woman to have an abortion. Doing so would amount to a government assault upon the woman, and to state-mandated feticide as well. Once any cloned embryo is implanted in any women, the law is utterly powerless to prevent the birth of that child. To a statistical certainty some number – in principle, unlimited – of implanted cloned embryos will be born, notwithstanding any contract or stated public policy of New Jersey.

Make no mistake about it: S1909/A2840 sets New Jersey on course to be the first jurisdiction in the world to count cloned babies among its inhabitants.

Ms. Tasy, you have my permission to publish and otherwise circulate this legal opinion. If you wish, you may seek additional signatories.

Respectfully submitted,

Gerard V. Bradley
Professor of Law
University of Notre Dame

The following concur with the foregoing opinion of Professor Gerald V. Bradley regarding NJ Bills S1909/A2840.

Teresa S. Collett
Professor of Law
South Texas College of Law
Houston, Texas

Lynn D. Wardle
Professor of Law
J. Reuben Clark Law School
Brigham Young University
Provo, Utah

David K. DeWolf
Professor of Law
Gonzaga Law School
Spokane, Washington

Dwight G. Duncan
Associate Professor of Law
Southern New England School of Law
North Dartmouth, MA

Michael Scaperlanda
Gene & Elaine Edwards Family Chair in Law
University of Oklahoma College of Law
300 West Timberdell Road
Norman, Oklahoma 73019

Robert A. Destro
Professor of Law & Co-Director, Interdisciplinary Program in Law & Religion
Columbus School of Law
The Catholic University of America
Washington, D.C. 20064


The views expressed by these professors are their own and do not necessarily represent those of their respective institutions, which are listed above for information purposes only.