Order Code RS21517
Updated May 14, 2003
CRS Report for Congress
Received through the CRS Web
State Laws on Human Cloning
Jody Feder
Legislative Attorney
American Law Division
Summary
Although numerous human cloning bills have been introduced in the 108th
Congress and one — H.R. 534 — has passed in the House of Representatives, cloning
legislation has yet to be enacted at the federal level. In the absence of federal legislation,
state laws provide the only existing framework for regulating human cloning activity.
Currently, nine states have enacted laws that expressly regulate cloning. This report
provides a summary and comparison of existing state laws on human cloning, as well
as a brief discussion of similar legislation currently under consideration in Congress. For
related reports, see CRS Report RL31358,
Human Cloning; CRS Report RL31211,
Cloning: A Select Chronology, 1997-2003; and CRS Report RL31422,
Substantive Due
Process and a Right to Clone.
Background
In 1997, scientists announced that they had successfully cloned a sheep, whom they
named Dolly. Fearing that scientists would next seek to clone a human being, President
Clinton quickly issued an executive memorandum banning the use of federal funds for
purposes of cloning.1 This ban continues to remain in force today. Meanwhile,
legislators at the state and federal level have sought to enact legislation that would
regulate human cloning specifically, regardless of funding source.2 In 2002, Clonaid, an
organization affiliated with the Raelian sect, added urgency to this pursuit when it
announced, in an unsubstantiated claim, that the world’s first cloned baby had been born.
1 Memorandum on the Prohibition on Federal Funding for Cloning of Human Beings, 33 Weekly
Comp. Pres. Doc. 281 (March 4, 1997).
2 Although many states have laws that regulate research or experimentation on embryos and
fetuses and although these laws may be broad enough to include embryos in the early stages of
development, it is unlikely that courts would construe these laws to apply to cloned embryos. Lori
B. Andrews,
The Current and Future Legal Status of Cloning, in Cloning Human Beings, Vol.
II at F-5 (National Bioethics Advisory Commission, June 1997). As a result, this report focuses
exclusively on state laws that regulate cloning specifically.
Congressional Research Service ˜
The Library of Congress
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Since these events, numerous human cloning bills have been introduced in
Congress. Although one bill — H.R. 534 — has passed in the House of Representatives,
cloning legislation has yet to be enacted at the federal level. In the absence of federal
legislation, state laws provide the only existing framework for regulating human cloning
activity. Currently, nine states have enacted laws that expressly regulate cloning. This
report provides a summary and comparison of existing state laws on human cloning, as
well as a brief discussion of similar legislation currently under consideration in
Congress.
What Is Cloning?
Cloning has several meanings. As used in this report, it refers to a process in which
cellular material from a DNA donor is transferred to an egg whose own DNA has been
removed. When stimulated, the egg begins to divide. The resulting embryo is genetically
identical to the DNA of the original cell donor.3
Human cloning may be divided into two categories: reproductive cloning and
therapeutic cloning. In reproductive cloning, the cloned embryo is implanted in a
woman’s uterus, where it potentially results in pregnancy and the birth of a cloned
human being. Therapeutic cloning, on the other hand, allows scientists to create an
abundant source of stem-cells for research purposes.4
In general, there is a consensus among legislators and scientists that reproductive
cloning, which poses a large number of safety and ethical concerns, should be banned.
Far less agreement, however, exists where therapeutic cloning is concerned. Proponents
of therapeutic cloning contend that the process of extracting stem cells from cloned
human embryos is essential for researching new therapies and developing cures for
debilitating or life-threatening diseases like Alzheimer’s and Parkinson’s disease.
Opponents, however, argue that creating cloned human embryos for research purposes
unethically treats human life as a commodity and contend that destroying embryos in
order to extract stem cells is tantamount to murder.5
Partly as a result of this debate, the manner in which states have chosen to regulate
human cloning varies widely, but state laws generally fall into one or more of several
categories, including laws that ban reproductive cloning, therapeutic cloning, and/or the
use of state funds for cloning activities. In addition, state laws may also be categorized
according to the type of penalties — civil, criminal, or administrative — that they
impose for human cloning violations. In addition to the nine states that have enacted
human cloning legislation, another twenty-two states have cloning bills pending before
3 Alissa Johnson, National Conference of State Legislatures,
Human Cloning (June 2002),
[http://www.ncsl.org/programs/health/genetics/Humancloning.pdf].
4
Id.
5 Mary Agnes Carey,
Cloning Debate Undiminished Despite House-Passed Ban, CQ Weekly,
March 1, 2003, at 508.
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their state legislatures.6 Each of the state cloning laws currently in force is detailed
below.
State Human Cloning Laws
Many of the states that have enacted legislation prohibiting human cloning have
distinguished between reproductive and therapeutic cloning. Although some state laws
prohibit both types of cloning, other states have opted to ban reproductive cloning but
to allow therapeutic cloning. Of the nine states that currently have human cloning
legislation in place, four states — Arkansas, Iowa, Michigan, and North Dakota —
prohibit both reproductive and therapeutic cloning, while three states — California,
Louisiana, and Rhode Island — ban reproductive cloning but permit therapeutic cloning.
Of the remaining two states, Missouri forbids the use of state funds to conduct
reproductive cloning but allows therapeutic cloning, while Virginia law clearly bans
reproductive cloning but is unclear with regard to therapeutic cloning. Beginning with
the states that prohibit both types of human cloning, each of the state laws is discussed
in detail below.
In Arkansas, both reproductive and therapeutic cloning are banned, as is the
shipment or transfer of any cloned human embryo. Violations of the ban on cloning are
a felony, while violations of the shipment provision are a misdemeanor. In addition to
imposing criminal liability for violations of the statute, the Arkansas statute levies a fine
of the greater of $250,000 or twice the amount of any profit gained through illegal
cloning activity.7 Similarly, both reproductive and therapeutic cloning are banned in
Iowa, where the transfer or receipt of a cloned human embryo is also banned. Violations
of the prohibition against cloning are punishable as a felony, while violations of the
transfer prohibition are considered to be an aggravated misdemeanor. As in Arkansas,
any person who gains financially from cloning activity is subject to a civil penalty in an
amount that is twice the financial gain. Finally, violations of Iowa’s human cloning
statute are also punishable with the denial or revocation of any license, permit, or
certification required to practice a trade, occupation, or profession regulated by the
state.8
Like Arkansas and Iowa, Michigan forbids reproductive and therapeutic cloning.
Violations of this prohibition give rise to administrative sanctions imposed by the health
department, civil penalties of $10 million, or felony criminal charges punishable by up
to 10 years of imprisonment. In addition, Michigan bars the use of state funds for
purposes of human cloning and prohibits health facilities or agencies from permitting
individuals to engage in cloning activity.9 Finally, North Dakota state law also prohibits
both types of human cloning, as well as the transfer or receipt of any product of human
cloning. Under state law, criminal sanctions are imposed for violations of the statute,
6 For detailed information about proposed cloning legislation in the states, see National
Conference of State Legislatures,
2003 Legislative Activity Human Cloning (April 24, 2003),
[http://www.ncsl.org/programs/health/Genetics/03clone.htm].
7 2003 Ark. SB 185.
8 Iowa Code § 707B.1-4.
9 MCLS §§ 333.16274-16275, 333.20197, 333.26401-26406, 750.430a.
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with violations of the cloning provisions punishable as a felony and violations of the
transfer provision punishable as a misdemeanor.10
In contrast to the four states described above, California, Louisiana, and Rhode
Island prohibit reproductive cloning but permit therapeutic cloning. In California,
violations of the ban on reproductive cloning give rise to civil but not criminal charges.
A violator who is a corporation, firm, clinic, hospital, laboratory, or research facility is
liable for a fine of up to $1 million, while a violator who is an individual is liable for a
fine of up to $250,000. However, any violator who profits from his illegal activity is
liable for twice the amount of his financial gain.11 In addition to these civil penalties, a
violation of the cloning statute constitutes unprofessional conduct and is grounds for the
revocation of a business license.12
Like California, Louisiana prohibits reproductive cloning but allows therapeutic
cloning. Violations of the ban on reproductive cloning give rise to criminal penalties
leading to up to ten years in prison or civil penalties of up to $5 million for individuals
and up to $10 million for corporations, firms, clinics, hospitals, laboratories, or research
facilities. However, violators who profit from their illegal activities are liable for twice
the amount of their financial gain. In addition, violations of Louisiana’s cloning law
constitute unprofessional conduct and are grounds for denying or revoking any state-
issued license, certification, or permit required to practice a trade, occupation, or
profession.13 Finally, Rhode Island also prohibits reproductive cloning but permits
therapeutic cloning. Like California, Rhode Island imposes civil but not criminal
penalties for violations of the statute; these penalties are identical in amount and
structure to the fines imposed in California. Currently, Rhode Island’s ban on
reproductive cloning is set to expire in 2010.14
Of the remaining two states with laws that regulate human cloning, Missouri’s law
is the most straightforward. Under Missouri law, no state funds may be used for research
with respect to the cloning of a human being. The statute is silent with respect to cloning
activities conducted using private funds.15 Virginia law is somewhat more complicated,
for although it is clear that state law prohibits reproductive cloning, it is unclear whether
or not the ban extends to therapeutic cloning. Despite this confusion, Virginia law
clearly imposes a civil penalty of up to $50,000 for each violation of the cloning
statute.16
As noted above, another 22 states are currently considering various bills that would
regulate human cloning. In addition, federal legislators are considering certain cloning
10 2003 N.D. HB 1424.
11 Cal. Health & Saf. Code §§ 24185-87, 24189.
12 Cal. Bus. & Prof. Code §§ 2260.5, 16004, 16105.
13 La. R.S. 40:1299.36-36.6.
14 R.I. Gen. Laws §§ 23-16.4-1-4.
15 § 1.217 R.S.Mo.
16 Va. Code Ann. §§ 32.1-162.21-22.
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bills pending before the United States Congress. These congressional bills are described
in the following section.
Human Cloning Bills in Congress
In February, the House of Representatives passed H.R. 534, the Human Cloning
Prohibition Act of 2003. The bill, which is awaiting consideration by the Senate, would
forbid both reproductive and therapeutic cloning, as well as prohibit the shipment,
receipt, or importation of any embryo produced by human cloning or and product of such
embryo. The bill would impose both civil and criminal penalties for violations of the
cloning prohibition. Under the legislation, criminal penalties could result in up to ten
years in prison, while any violator who profits from illegal cloning activity would be
fined the greater of $1 million or twice the amount of financial gain. In enacting H.R.
534, the House of Representatives rejected an alternative bill — H.R. 801 — that would
have prohibited reproductive cloning but permitted therapeutic cloning.
Despite winning substantial support in the House, H.R. 534 faces an uncertain
future in the Senate. In the 107th Congress, a similar measure passed the House but failed
to reach a floor vote in the Senate. Currently, the Senate version of the bill — S. 245,
sponsored by Senator Brownback — does not appear to have enough backers to
withstand a filibuster.17 Furthermore, Brownback’s bill faces competition from another
human cloning bill — S. 303, sponsored by Senator Hatch — that would prohibit
reproductive cloning but allow therapeutic cloning for the purpose of conducting stem
cell research. Although President Bush has expressed his support for a comprehensive
ban on human cloning that would bar both reproductive and therapeutic cloning,
prospects for such legislation currently remain unclear due to the dispute in the Senate.
As a result, the states are likely to continue their role as groundbreakers in enacting
legislation to regulate human cloning.
17 Mary Agnes Carey,
Cloning Debate Undiminished Despite House-Passed Ban, CQ Weekly,
March 1, 2003, at 508.