Protecting the unborn clone: can law and science evolve together?
Medicine and Law: World Association for Medical Law 2005 September; 24(3): 561-574
The courts have treated the unborn child as neither person nor property. Human cloning will challenge this legal principle. Human cloning provides options for future scientific development and treatment of disease and infertility. However, cloning gives rise to issues not yet considered, in law, let alone resolved. These issues are not present in the context of normal human birth. At present, the common law restricts its scope to normal human birth. Does the donor "own" their unborn clone? Who makes decisions on behalf of the unborn clone? The gap between science and law is too large in human cloning research. Law lags behind in adapting to new technologies. This paper will address legal issues in relation to the unborn clone. Cloning will challenge the law in its current state. Decision-making and control of the unborn child are vital issues, to be determined before human cloning can be permitted to take place. The individuals who might have an interest in the unborn clone include the donor, the scientist, who either developed the finished clone or stored the clone prior to implantation, and the surrogate mother. Claims or conflicts might arise in many areas of medicine and law. Does the scientist have an intellectual property right? Can the surrogate mother terminate the pregnancy at will? If the unborn clone is not aborted, what measures are required to protect the fetus? Can the surrogate mother be liable for neglect? Who decides about disclosure of information and knowledge or choice regarding fetal diagnosis and treatment? Who has custody of the unborn clone? In this paper, the concepts of trusts are explored to develop a means of resolving conflicts among the individuals who might claim an interest in the unborn clone. The trust doctrine is flexible and may be useful in resolving claims or conflicts.
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