Double Jeopardy

Imagine that the year is 2012. Your 80-year-old mother is suffering from Alzheimer's and your 16-year-old son desperately needs a new kidney. The good news, doctors tell you, is that there is now a cure for Alzheimer's based on cloning nerve cells, and a safe and effective way to grow a kidney that matches your son's genetic makeup. The bad news, however, is that these and similar treatments were banned in the United States in 2002. Worse still, if you take your loved ones abroad to benefit from these breakthroughs, they may be subject to criminal fines and imprisonment upon their return.

If this sounds like a scene from a science-fiction thriller, it isn't. It is what might happen if the anti-cloning bill passed by the House of Representatives, and backed by the White House, makes it through the Senate. And it illustrates why, we believe, it would be so disastrous for the United States to criminalize therapeutic cloning, which over the next decade may unlock some of the most promising medical breakthroughs in human history. The House version, the Human Cloning Prohibition Act of 2001, passed last summer. Now the Senate is considering an identical bill, introduced by Sam Brownback (R-Kan.). Both bills would rightly criminalize reproductive cloning -- the attempt to create carbon copies of human beings. But the legislation wouldn't stop there. It would also criminalize therapeutic cloning -- the process of creating embryonic stems cells in order to regenerate lost organs or repair damaged cells and tissue. The penalties would be severe: civil penalties with fines of no less than $ 1 million and a criminal penalty of up to 10 years in prison, not only for patients, but for doctors and medical researchers as well.

The repercussions of criminalizing therapeutic cloning would be nightmarish. It would be as if America's War on Drugs were duplicated by a far more intrusive War on Medicine -- a war in which the federal government hunted down and arrested ordinary Americans with treatable and curable illnesses. Not surprisingly, the Brownback legislation does not specify how its Draconian civil and criminal penalties are to be enforced. Will the DEA and FBI or some new medical law enforcement agency be kicking in doors in search of people whose only crime is that they have obtained new medicines or treatments to save their lives or those of their parents or children? Will public and private employees be subjected to intrusive mandatory tests to determine if they ever received organ or tissue transplants derived from therapeutic cloning?

Criminalizing therapeutic cloning would repeat the failed experiments of Prohibition, which barred alcohol, and of the "Comstock laws," which banned contraception. Ailing Americans would face two equally unappealing options. They could turn to what is sure to be a thriving domestic black market, in which criminal gangs would likely battle to control the lucrative illegal medical trade. Or they could go overseas for treatment. The problem with the second strategy, however, is that the Brownback legislation would make it "unlawful" for anyone to import a cloned embryo "or any product derived from such embryo." It is not at all clear how such a law would be enforced, but if the legislation succeeded in sealing U.S. borders against the importation of cloning-derived treatments, organs and tissues, the result would be a kind of exile never seen before in world history -- health exile. No one can predict, of course, just how such a law would operate and how strictly the government would interpret it. But in the worst case, hundreds of thousands of Americans could be forced to choose between their health and their homeland in order to gain access to safe and reliable treatments that our government had banned.

Criminalizing basic research on therapeutic cloning could also prove to be a considerable setback to our status as the world's leading scientific and technological nation. At the very least, it would create an immediate competitive disadvantage for our economy, our biotech and pharmaceutical sectors, and our scientific community. Already, as a result of President Bush's ill-advised plan to severely limit federal funding for stem-cell research, scientists and research programs are shifting from the United States to other countries. Criminalizing all research on therapeutic cloning would be even more damaging to science and business in the United States because such a prohibition would apply not only to federally funded research, but to private research and industry as well. And it would set a dangerous precedent for the criminalization of other medical advances that, for example, could significantly extend the human lifespan. This is not to suggest that the use of criminal penalties in regulating new medical procedures should never be considered, but rather that such penalties should be applied very selectively and reluctantly, because they risk turning well-intentioned researchers, doctors and patients into felons.

America needs to have a national conversation about how to differentiate between medical technologies that should be legalized and regulated, on the one hand, and those that should be banned and criminalized outright. Much of the debate on cloning and biotechnology has suffered from attempts to reduce complex moral issues to simplistic slogans. What is needed now is a more discriminating moral approach that weighs the overall social risks and benefits of the new medical technique, and takes into account the potential harm to third parties. Only when it can be shown that the harm to society and to the safety of individuals far outweighs any redeeming social value should a procedure be criminalized, as opposed to strictly regulated.

Developing a social calculus of this type and applying it to medical advances will often be difficult and contentious, but that has not stopped us before, nor should it in the future. Consider for example, the way we already permit a wide range of medical experiments on human beings, under strict regulatory regimes, even though there are some risks involved to the subjects. Rapid advances in biotechnology and related fields will force us to confront ever more complex social trade-offs on an ever more frequent basis, as the current public debate over reproductive and therapeutic cloning suggests. Yet despite the complexity, it remains both possible and necessary to make informed decisions over what to ban and criminalize, and what to legalize and regulate.

For instance, the vast majority of Americans and most supporters of therapeutic cloning agree that reproductive cloning should be outlawed. The case against reproductive cloning is overwhelming. First, there is no social benefit or medical rationale for producing what are, in effect, younger twins of existing people, other than the vanity of a handful of individuals. Second, there are grave risks to the cloned child: Attempts to clone animals have resulted in high rates of deformity and premature death. These considerations justify the use of criminal penalties and a ban on reproductive cloning.

By contrast, the potential social benefits of therapeutic cloning are difficult to overstate. Though still a nascent and largely unproven technology, therapeutic cloning holds significant promise for curing a wide range of debilitating illnesses, for saving lives and for reducing suffering. The use of embryos -- that would never be implanted in a woman's womb -- for research purposes is morally troubling for some. But even some staunch opponents of abortion rights, such as Sen. Orrin Hatch (R-Utah), now recognize the importance of proceeding with research on therapeutic cloning. As Hatch recently put it, "a critical part of being pro-life is to support measures that help the living."

Other advanced democracies -- such as Britain and Japan -- have been careful to draw a bright line between therapeutic and reproductive cloning, legalizing and regulating the former, while prohibiting the latter. The United States should follow suit. This more thoughtful approach is the basis for an alternative bill recently introduced by Hatch and Sen. Dianne Feinstein (D-Calif.), among others. It would legalize therapeutic cloning, but insist that such research be approved by hospital or university ethics committees and adhere to strict safety standards.

Approximately 100 million Americans suffer from diseases that are currently incurable. It is too early to tell whether and when therapeutic cloning will offer them breakthrough treatments and cures. One thing, however, is certain -- denying them the potential of lifesaving remedies by criminalizing this exceptionally promising area of research would itself be a crime.