1 NATIONAL INSTITUTES OF HEALTH (NIH), STEM CELL BASICS 2, at http://stemcells.nih.gov/info/basics/StemCellBasics.pdf (last visited Mar. 1, 2005).

2 Goldstein, Carly, Dipping into Uncle Sam's Pockets: Federal Funding of Stem Cell Research: Is it Legal?, 11 B.U. Pub. Int. L.J. 229, 232 (2002)Google ScholarPubMed.

3 NIH, supra note 1, at 3.

4 Id. at 7; Goldstein, supra note 2, at 232; see also Holm, Sren, Going to the Roots of the Stem Cell Controversy, 16 Bioethics 493, 496-97 (2002)CrossRefGoogle ScholarPubMed (discussing the expected benefits from stem cell research and maintaining that the “very large and very likely benefits of stem cell research indicate that the prohibition of certain kinds of stem cell research needs strong justification”). At the same time, it should also be noted that in this very same article, Holm argues that scientists have inflated the actual potential and promise of stem cell research. Id. at 502. Holm points out that we are still a long way from stem cell research yielding any immediate therapeutic benefit, or from this research leading to routine clinical treatments. Id. He concludes, rather bluntly, that “[i]t is likely that many of the current sufferers from some of the conditions for which stem cell therapies have been promised will be long dead before the therapies actually arrive.” Id.

5 Goldstein, supra note 2, at 231.

6 NIH, supra note 1, at 1.

7 Id. at 2.

8 Id. at 3.

9 Goldstein, supra note 2, at 233.

10 NIH, supra note 1, at 2.

11 Cf. Goldstein, supra note 2, at 233.

12 NIH, supra note 1, at 4.

13 Id. at 3.

14 Id. at 3; see also Goldstein, supra note 2, at 234.

15 But it has also been written that the scientific community is debating whether embryonic stem cells do in fact have more potential than somatic stem cells isolated from fetal or adult tissue. As discussed below, recent reports suggest that it is still too early to know which type of stem cells will be of most benefit to medical research and treatment. See COMMISSION OF THE EUROPEAN COMMUNITIES (CEC), COMMISSION STAFF WORKING PAPER: REPORT ON HUMAN EMBRYONIC STEM CELL RESEARCH 30 (2003), available at http://europa.eu.int/comm/research/conferences/2003/bioethics/index_en.html [hereinafter CEC REPORT].

16 NIH, supra note 1, at 5. Although, as noted above, there is some research to indicate that adult stem cells might actually be able to differentiate into a greater number of cell types. CEC REPORT, supra note 15, at 30.

17 NIH, supra note 1, at .

18 Cf. Goldstein, supra note 2, at 233.

19 NIH, supra note 1, at 4.

20 CEC REPORT, supra note 15, at 26. It should be noted that surplus embryos exist in the first place because couples usually fertilize more eggs than can be implanted in the uterus during fertility treatments. This practice has been referred to by one author as the “hyperstimulation” regime undertaken in fertility clinics. See Green, Ronald M., Benefiting from Evil’: An Incipient Moral Problem in Human Stem Cell Research 16 Bioethics 554, 554 (2002)CrossRefGoogle ScholarPubMed.

Once fertilization is successful, or once a couple has decided to cease fertility treatment, any excess embryos will be destroyed. Green notes that 3600 embryos were legally destroyed in Great Britain in 1996, after the couples that donated their gametes revoked their authorization to preserve these embryos. Id. at 554.

Couples may also consent to the donation of the extra embryos for research purposes. These surplus embryos are kept in cold storage for later use in research. A New York Times article written by actor Michael J. Fox in 2000 reported that over 100,000 embryos were being stored in the U.S. at that time. Fox is active in working to combat Parkinson's disease, an illness with which he is diagnosed. Fox, Michael J., A Crucial Election for Medical Research, N.Y. TIMES, Nov. 1, 2000Google Scholar, at A35. See also Goldstein, supra note 2, at 234.

21 CEC REPORT, supra note 15, at 27.

22 Throughout this paper, the terms “SCNT”, “therapeutic cloning” and “research cloning”/”cloning for research” will be used to denote the scientific practice of cloning human embryos through nuclear transfer for non-reproductive purposes. However, this author is of the view that “research cloning” or “cloning for research” are the most appropriate ways to refer to this technique, since non-reproductive human cloning has not yet been proven to have therapeutic benefit. For a discussion of the problems inherent in labeling this scientific practice, see Billingsley, Barbara & Caulfield, Timothy, The Regulation of Science and the Charter of Rights: Would a Ban On Non- Reproductive Human Cloning Unjustifiably Violate Freedom of Expression?, 29 Queen'S L.J. 647, 647 n.14 (2004)Google ScholarPubMed.

23 CEC REPORT, supra note 15, at 27. The first successful creation of an embryonic stem cell line from cloned human cells occurred in February 2004, by researchers in South Korea. See generally Vogel, Gretchen, Scientists Take Step Toward Therapeutic Cloning 303 Science 937 (2004)CrossRefGoogle ScholarPubMed. Note that avoiding the risk of immune rejection has also been identified as a potential advantage of adult stem cell therapies. Extracting a patient's own stem cells, expanding them in culture and reintroducing them into the patient would have the benefit of preventing rejection and avoiding the use of immunosuppressive medication. See NIH, supra note 1, at 11.

24 CEC REPORT, supra note 15, at 27.

25 Holm, supra note 4, at 498. See also Herder, M., The UK Model: Setting the Standard for Embryonic Stem Cell Research?, 10 Health L. Rev. 14, 15 (2002)Google Scholar. But, members of The President's Council on Bioethics who argued in favour of allowing embryo creation for the purpose of research have challenged this view. They argue that the purpose for which an embryo is created does not affect the morality of using that embryo in biomedical research. Rather, the ethics of such research should be determined by the moral status of the embryo itself, more specifically, the extent to which it is perceived as being similar to a human person, and the nature and scope of the respect it is accorded. These members have further argued that the morality of creating embryos for research or for reproduction is similar since, in both scenarios, the embryos are created with the knowledge that at least some will be discarded:

“[T]he moral responsibilities for producing extra IVF embryos later used in research are not really so different [from creating embryos for use in research]. In the case of IVF and leftover embryos, the individuals who create them for reproductive purposes typically and deliberately create more embryos than they are likely to use, and therefore know in advance that some will probably be destroyed.” [emphasis in original text].

The President's Council on Bioethics, Human Cloning and Human Dignity: An Ethical Inquiry Ch. 6 (July 2002), available at http://www.bioethics.gov/reports/cloningreport/pcbe_cloning_report.pdf.

26 The utilitarian overtones of this practice would be problematic if one takes the position that the human embryo, because of its humanness, merits a degree of respect and protection.

27 It should be noted that there are various cloning techniques, among which SCNT is just one. Other techniques include parthenogenesis (described above) and blastomere separation through splitting or “twinning” a human embryo. The latter technique involves the separation of an embryo into two “blastomeres” very shortly after fertilization. Once these are separated, the cells of each are grown in culture into separate but identical embryos. If these were implanted in a human uterus, they would produce identical human clones. See Hawkins, Alexandra, Protecting Human Dignity and Individuality: The Need for Uniformity in International Cloning Legislation, 14 Transnat’L L. Rev. 243, 249-51 (2001)Google Scholar; Rhodes, Suzanne H., The Difficulty of Regulating Reproductive and Therapeutic Cloning: Can the United Stats Learn Anything from the Laws of Other Countries?, 21 Penn. St. Int’L L. Rev. 341, 345 (2003)Google Scholar.

This paper focuses on SCNT as a cloning technique, given that it has been at the heart of the controversy over embryonic stem cell research and human cloning.

28 Tanos, V. & Schenker, J.G., Reproductive Health Care Policies Around the World: Is Human Cloning Justified? 15 J. Assisted Reproduction And Genetics 1, 2 (1998)CrossRefGoogle Scholar.

29 Id.

30 Id. at 1-2.

31 Id. at 2. Since Dolly's birth, scientists have reported the successful cloning of other mammalian species using SCNT. American scientists have cloned cells from five different species, including the rhesus monkey, and several generations of mice. Japanese scientists have also successfully cloned calves. See Nixon, Coby S., Human Cloning and the Commerce Power: In Light of U.S. v. Lopez, Congress Can – But Should Not – Regulate Human Cloning, 37 Ga. L. Rev. 295, 303 (2002)Google Scholar.

32 Dolly's creation was impressive because before her birth, scientists believed that SCNT could work only if the cell taken from the donor animal was procured from an embryo. However, in Dolly's case, the somatic cell was taken from the udder of an adult sheep. Rhodes, supra note 27, at 345-46.

33 Wilmut, Ian et al., Viable Offspring Derived from Fetal and Adult Mammalian Cells, 385 Nature 810 (1997)CrossRefGoogle ScholarPubMed. See also Rhodes, supra note 27, at 346; Tanos & Schenker, supra note 30, at 2; Corsover, J.T., The Logical Next Step? An International Perspective on the Issue of Human Cloning and Genetic Technology, 4 Ilsa J. Int’L & Comp. L. 697, 702-03 (1998)Google Scholar.

34 Rhodes, supra note 27, at 346.

35 As noted above, many members of the scientific and medical communities believe that therapeutic cloning will eventually have the capacity to treat various injuries and illnesses, such as spinal cord injury, diabetes, Parkinson's disease, and heart disease. For this reason, many have argued that this practice should be legally sanctioned. See A. Daar et al., Ban Cloning, Not Its Life-Saving Cousin, THE GLOBE AND MAIL, May 9, 2002, at A21; V. Brower, Experts Question Utility of Adult Stem Cells for Transplantation, BIOTECHNOLOGY NEWSWATCH, June 3, 2002, available at LEXIS (News: BIOTEC file); Don't Criminalize this Therapeutic Research, THE GLOBE AND MAIL, May 10, 2002, at A16; Society for Woman's Health Research, Society Supports Bill Banning Human Reproductive Cloning, Allowing for Stem Cell Research (May 1, 2002), available at http://www.womens-health.org/press/releases/050102.htm.

36 More specifically, many have argued that because research cloning is so controversial, and because it is in its very early stages and has yet to be proven effective or safe, that other, less morally ambiguous techniques (such as research using adult stem cells, or research using stem cells originating from “surplus” embryos) should be attempted before SCNT is permitted. See Campbell, Angela, A Place for Criminal Law in the Regulation of Reproductive Technologies, 10 Health L.J. 77 (2002)Google Scholar; Standing Committee on Health, Assisted Human Reproduction: Building Families, at, http://www.parl.gc.ca/InfoComDoc/37/1/HEAL/Studies/Reports/healrp01/08-rap-e.htm (last visited Mar. 1, 2005); Shanner, Laura, Embryonic Stem Cell Research: Canadian Policy and Ethical Considerations. A Report for Health Canada, Policy Division 31, 36–37 (2001)Google Scholar; Francoise Baylis & Jocelyn Downie, Ban Cloning. Do You Copy?, THE GLOBE AND MAIL, July 3, 2002, at A13; Margaret Somerville, A Clone by any Other Name, THE GLOBE AND MAIL, May 15, 2002, at A19; Baylis, Francoise, Brickbats and Bouquets for the Draft Legislation on Assisted Human Reproduction 10 Health L. Rev. 3 (2001)Google ScholarPubMed.

37 Harris, Lisa H., Ethics and Politics of Embryos and Stem Cell Research: Reinscribing the Abortion Debate, 10 Women'S Health Issues 146, 146 (2000)Google Scholar.

38 Id.; George, Erin P., The Stem Cell Debate: The Legal and Ethical Issues Surrounding Federal Funding of Scientific Research, 12 Alb. L.J. Sci. & Tech. 747, 764 (2002)Google ScholarPubMed; Magill, Gerard, The Ethics Weave in Human Genomics, Embryonic Stem Cell Research, and Therapeutic Cloning: Promoting and Protecting Society's Interests, 65 Alb. L. Rev. 701, 724 (2002)Google ScholarPubMed.

39 Protection of Human Subjects, 40 Fed. Reg. 33,528 (Aug. 8, 1975).

40 Harris, supra note 38, at 146; Davison, Scott, Influencing NIH Policy over Embryonic Stem- Cell Research; An Administrative Tug-of-War between Congress and the President, 22 J. Naalj 405, 410 (2002)Google Scholar. See also Annas, et al., The Genetics Revolution: Conflicts, Challenges and Conundra – Protecting the Endangered Human: Toward an International Treaty Prohibiting Cloning and Inheritable Alterations, 28 Am. J.L. & Med. 151, 165 (2002)Google Scholar (observing that a ban on the federal funding of an area of scientific research does not, in practice, necessarily deter it from being carried out).

Id.

41 Edwards et al., The Human Pluripotent Stem Cell: Impact on Medicine and Society, FERTILITY AND STERILITY, July 2000, at 1, 2.

42 Id.

43 Id.

44 Id. at 3.

45 George, supra note 38, at 765.

46 Human Embryo Research Panel (U.S.), Report of the Human Embryo Research Panel/Ad Hoc Group of Consultants to the Advisory Committee to the Director, NIH (Bethesda, MD: National Institutes of Health, September 27, 1994)Google Scholar. See also George, supra note 38, at 765.

47 Budget of the United States Government, Pub. L. No. 104-99, Title I, § 128, 110 Stat. 26, 34 (1996). See also Davison, supra note 40, at 411; Edwards et al., supra note 41, at 4.

48 Harris, supra note 38, at 147; Edwards et al., supra note 41, at 4.. The embryo research ban followed a 1994 executive order prohibiting the federal funding of scientific pursuits involving the creation of human embryos solely for research purposes. See id.

49 NIH, supra note 1, at 1-2; Cantrell, Melissa K., International Response to Dolly: Will Scientific Freedom Get Sheared?, 13 J.L. & Health 69, 72 (1998-99)Google ScholarPubMed; Corsover, supra note,33, at 731.

50 Cantrell, supra note 49, at 74; Greene, Adam, The World After Dolly: International Regulation of Human Cloning, 33 Geo. Wash. Int’L L. Rev. 341, 348-49 (2001)Google Scholar; Hawkins, supra note 27, at 275.

51 Cantrell, supra note 49, at 75; Corsover, supra note 33, at 731-732.

52 Cantrell, supra note 49, at 75; Corsover, supra note 33, at 732.

53 Cantrell, supra note 49, at 75; Corsover, supra note 33, at 732. However, Greene points out that “[t]his may have been more rhetoric than policy” given that the 1994 embryo research ban already prohibited research that would involve embryonic cloning. Greene, supra note 50, at 348.

54 National Bioethics Advisory Commission (NBAC), Cloning Human Beings (1997); Cantrell, supra note 49, at 78-79; Corsover, supra note 33, at 732-33.

55 NBAC, supra note 54, at 109.

56 Id. at 108, 110.

57 Id. at 107-08; Cantrell, supra note 49, at 78-79.

58 NBAC, supra note 54, at 109. .

59 Id.

60 Greene, supra note 50, at 348-49; Somekh, Nati, The European Total Ban on Human Cloning: An Analysis of the Council of Europe's Action in Prohibiting Human Cloning, 17 B.U. Int’L L.J. 397, 415 (1999)Google Scholar.

61 See Greene, supra note 50, at 349-50; Somekh, supra note 60, at 415-16; Monachello, Jessica J., The Cloning For Biomedical Research Debate: Do the Promises of Medical Advances Outweigh the Ethical Concerns?, 10 Tulsa J. Comp. & Int’L. L. 591, 602-03Google Scholar; National Conference of State Legislators (NCSL), State Embryonic and Fetal Research Laws, at http://www.ncsl.org/programs/health/genetics/embfet.htm (Feb. 26, 2005).

62 See Cantrell, supra note 49, at 79-87.

63 See infra notes 80-84 and accompanying text. See also Greene, supra note 50, at 350; Monachello, supra note 61, at 604.

64 NIH, supra note 1, at 1-2.

65 See Monachello, supra note 61, at 595.

66 National Bioethics Advisory Commission (NBAC), Ethical Issues in Stem Cell Research, at 68, at http://www.georgetown.edu/research/nrcbl/nbac/pubs.html (Feb. 26, 2005).

67 Id. at 68-69; Harris, supra note 38, at 147.

68 Davison, supra note 42, at 412.

69 Harris, supra note 38. See also Goldstein, supra note 2, at 238; Davison, supra note 40, at 412-13, Magill, supra note 38, at 720.

70 Guidelines for Research Using Human Pluripotent Stem Cells, 65 Fed. Reg. 51,976, 51,979-51,981 (Aug. 25, 2000).

71 Guidelines for Research Using Human Pluripotent Stem Cells, 65 Fed. Reg. at 51,979- 51,98.

72 Magill, supra note 38, at 720-21.

73 S. 2015 106th Cong. (2000).

74 S. 2015 § 498C(a); George, supra note 38, at 767.

75 S. 2015, 106th Cong. § 498C(b) (2000), 146 CONG. REC. S150; George, supra note 38, at 780-81.

76 George, supra note 38, at 768.

77 Id.

78 Id.

79 Davison, supra note 40, at 413.

80 Id. at 413-14.

81 President George W. Bush, Remarks on Stem Cell Research, available at http://www.whitehouse.gov/news/releases/2001/08/20010809-2.html (Aug. 9, 2001) [hereinafter Remarks].

82 The NIH had discovered a total of 64 different embryonic stem cell lines obtained before August 9, 2001. It is creating an Embryonic Stem Cell Registry that will list and give details about these lines. See George, supra note 38, at 804. See also Donley Young, Cynthia, A Comparative Look at the US and British Approaches to Stem Cell Research, 65 Alb. L. Rev. 831, 846Google Scholar; Monachello, supra note 61, at 597.

83 George, supra note 38, at 804.

84 Remarks, supra note 81. See also Davison, supra note 40, at 414-15; Young, supra note 82, at 847.

85 See infra notes 152-172 and accompanying text.

86 Goldstein, supra note 2, at 240-41; Young, supra note 82, at 847; Monachello, supra note 61, at 597-98.

87 George, supra note 38, at 805.

88 Office of the Press Secretary, White House Press Release, Fact Sheet: Embryonic Stem Cell Research, at http://www.whitehouse.gov/news/releases/2001/08/print/20010809-1.html (Aug. 9, 2001).

89 The President's Council on Bioethics, supra note 25.

90 Id. at 205-17, 227.

91 Id. at 218-23, 227.

92 It should, however, be noted that the prevailing policy view in the U.S. seems to be that cloning for any purpose, regardless of whether the science is privately or publicly funded, should be prohibited. In November 2003, the U.N. General Assembly voted to delay the discussion of a treaty that would internationally ban human cloning. Countries split on the issue of whether reproductive cloning should be prohibited, or whether all forms of cloning should be banned. The U.S. and the Vatican led the side advocating a total ban on cloning. See U.N. Wire, Discussion of U.N. Treaty on Human Cloning Delayed Two Years, at http://www.geocities.com/giantfideli/art/CellNEWS_UN_cloning.html (Mar. 3, 2005).

93 George, supra note 38, at 766.

94 This remains the case even though the current and two previous presidential administrations have favoured the outright prohibition of human reproductive cloning. Although a bill known as the Human Cloning Prohibition Act was introduced in 2003 and supported by a majority of 241 to 155 in the U.S. House of Representatives, at the time of this writing it still had not passed through Senate and does yet not bear legislative force. H.R. 534, 108th Cong. (1st Sess. 2003). An earlier version of this Bill was introduced in 2001 and passed by a strong vote of 265-162 in the U.S. House of Representatives, however the Senate did not take any action in its regard. H.R. 2505, 107th Cong. (1st Sess. 2001); see Annas et al., supra note 40, at 169; Press Release, Weldon-Stupak Bill Would Ban Human Cloning, at http://www.house.gov/weldon/news/2003releases/030108.htm (Jan. 8, 2003). The Human Cloning Prohibition Act has been criticized as anti-science and anti-research, given that it would outlaw all forms of human cloning, including cloning for therapeutic and research purposes. See Coalition for the Advancement of Medical Research (CAMR), Side-by-Side Legislative Comparison: Senator Brownback and Reps. Weldon-Stupak vs. Senators Hatch-Feinstein-Specter- Kennedy-Harkin-Miller and Reps. Greenwood-Deutsch, at http://www.camradvocacy.org/fastaction/comparison.asp (Feb. 25, 2004).

95 George, supra note 38, at 766; Young, supra note 82, at 841. Indeed, it has been noted that the lack of regulation in the private sector creates loopholes in the ban on federally funding research on newly created embryonic stem cell lines. For example, privately funded scientists working with “forbidden” (i.e., new) stem cell lines may collaborate and share information with researchers who have received federal funds and are working on approved lines. This would not be prohibited under Bush's policy, even though the end result is that federally funded researchers benefit from research on stem cell lines derived after August 9, 2001. See Jeffrey Kluger & Michael D. Lemonick, And What About the Science?, TIME, Aug. 20, 2001, at 20.

96 George, supra note 38, at 766-67; Corsover supra note 33, at 735. Note, however, that practical difficulties arise from the fact that the regulation of embryonic research by the states is not uniform or consistent. See Young, supra note 82, at 842-43.

97 They are: California, Arkansas, Iowa, Michigan, Rhode Island, North Dakota, Virginia, New Jersey and South Dakota. The state of Louisiana also enacted legislation that prohibited reproductive cloning, but the law expired in July 2003. See National Conference of State Legislatures, State Human Cloning Laws, at http://www.ncsl.org/programs/health/genetics/rt-shcl.htm (last modified Mar. 12, 2004).

98 These states are: Arkansas, Iowa, Michigan, North Dakota and South Dakota. Virginia's law also may ban research cloning, but this is open to interpretation because the state's legislation does not define the term “human being,” which is used in the definition of human cloning. Id.

99 Id.

100 Id.

101 Hanna, Paul, Recognizing the Need for Uniform International Regulation of Developing Biotechnology: A Focus on Genetic Experimentation, 24 Loy. L.A. Int’L. & Comp. L. Rev. 87, 92 (2002)Google ScholarPubMed.

102 Id.

103 It should be noted that eugenics practices were carried out in other countries as well. In particular, such practices in the U.S. predated those carried out in Germany. Before 1930, 15,000 individuals in the U.S. were sterilized under laws passed in 28 states which allowed for the sterilization of those considered mentally and criminally insane. By 1939, 30,000 people in America were sterilized under eugenic policies. See id. at 93.

104 BBC News, Germany Authorises Stem Cell Imports, at http://news.bbc.co.uk/1/hi/world/europe/1791365.stm (Jan. 30, 2002) [hereinafter Germany Authorises]; Halliday, Samantha, A Comparative Approach to the Regulation of Human Embryonic Stem Cell Research in Europe, 12 Med. L. Rev. 40, 57 (2004)CrossRefGoogle Scholar.

105 See Richardt, Nicole, A Comparative Analysis of the Embryological Research Debate in Great Britain and Germany, in Social Politics 110 (Oxford Univ. Press 2003Google Scholar).

106 See generally Germany Authorises, supra note 104.

107 Annas et al., supra note 40, at 176; Corsover, supra note 33, at 721-22; Hawkins, supra note 27, at 277; Halliday, supra note 104, at 57.

108 CEC REPORT, supra note 15, at 39.

109 Annas et al., supra note 40, at 176; Corsover, supra note 33, at 722; Hawkins, supra note 27, at 277; Rhodes, supra note 27, at 354.

110 Martina Habeck, DFG Seeks to Clarify Stem Cell Rules: German Research Foundation Report Warns Professors May Leave to Adhere to Rules, Even Abroad, THE SCIENTIST, July 22, 2003, available at http://www.biomedcentral.com/news/20030722/04/.

111 Id.

112 Gesetz zur Sicherstellung des Embryonenschutzes im Zusammenhang mit Einfuhr und Verwendung menschlicher embryonaler Stammzellen (Stammzellgesetz – StZG) vom 28.6.2002, at http://www.bmbf.de/pub/stammzellgesetz.pdf (last visited Mar. 1, 2005).

113 CEC REPORT, supra note 15, at 39.

114 Germany Authorises, supra note 104.

115 See Oduncu, Fuat S., Stem Cell Research in Germany: Ethics of Healing vs. Human Dignity, 6 Med. Health Care & Phil. 5, 8 (2003)Google ScholarPubMed (providing a translation of section 1 of the Stem Cell Act, which states the purpose of the legislation as being “to principally forbid the import and use of embryonic stem cells”). For a comprehensive description of the Stem Cell Act, see Halliday, supra note 104, at 60-64.

116 Oduncu, supra note 115, at 8.

117 Oduncu, supra note 115, at 9; see also §13 StZG.

118 See §4 II StZG.

119 CEC REPORT, supra note 15, at 39.

120 This criterion is motivated by a desire on the part of German policy makers to dissuade scientists abroad from destroying any additional embryos to derive stem cells. The Act therefore only allows for the import of stem cell lines created before January 1, 2002. By permitting research on these lines only, it is maintained that German scientists will not play a role in instigating or supporting the destruction of embryos for new stem cells. See Heinemann, Thomas & Honnefelder, Ludger, Principles of Ethical Decision Making Regarding Embryonic Stem Cell Research in Germany, 16 Bioethics 530, 541-42 (2002)CrossRefGoogle ScholarPubMed.

121 CEC REPORT, supra note 15, at 39.

122 §5 I StZG.

123 §5 II StZG.

124 See §6 StZG.

125 See §6 StZG.

126 See §6 III-V StZG.

127 §6 V StZG.

128 CEC REPORT, supra note 15, at 40.

129 The Robert Koch Institute, which is the agency responsible for reviewing and deciding upon applications for stem cell research approval, reported in October 2003 that only 7 applications to carry out such research were submitted since July 2002 (just after the Stem Cell Act was adopted). This number was lower than anticipated. See Ned Stafford, Stem Cells Trickle into Germany: Only a Handful of Groups Have Applied to Import Embryonic Cells Under Stringent Rules, THE SCIENTIST, Oct. 31, 2003, available at http://www.biomedcentral.com/news/20031031/02.

130 Hawkins, supra note 27, at 277.

131 See id.

132 Annas et al., supra note 40, at 172. See also Corsover, supra note 33, at 722.

133 Annas et al., supra note 40, at 172.

134 See U.N. Wire, supra note 92and accompanying text.

135 Wendy Wright, Concerned Women for America, Countries Take Sides on U.N. Cloning Ban, at http://www.cwfa.org/printerfriendly.asp?id=4674&department+cwa&categoryid+life (Oct. 3, 2003).

136 Id.

137 Id. Germany still maintains that because therapeutic cloning is permitted by and being carried out in some countries the U.N. should not oppose it.

138 Japanese law and policy has not always been receptive to medical breakthrough. In fact, in regard to some issues, the country's policies have been quite conservative. For example, the transplant of organs harvested from brain dead patients was only permitted in 1997 and more recently, the legislation surrounding organ donation has been criticized for being far too restrictive. Gary Schaefer, Japan Rethinks Transplant Ethics as Desperate Patients Look Elsewhere for Gift of Life, S.F. CHRON., June 20, 2004, available at http://www.sfgate.com/cgi-bin/article.cgi?f=/news/archive/2004/06/20/international1330EDT0472.DTL&type=health; See Japan Set to Embrace Stem Cell Research, at http://news.bbc.co.uk/2/hi/science/nature/1468518.stm (Aug. 1, 2001) [hereinafter Japan Set to Embrace]..The first birth of a child born through a surrogacy arrangement occurred only in May 2001. Id.

139 Id.

140 Law Concerning Regulation Relating to Human Cloning Techniques and Other Similar Techniques, Law No. 146 of 2001, available at http://www.mext.go.jp/a_menu/shinkou/seimei/eclone.pdf [hereinafter Human Cloning Law].

141 Guidelines for Derivation and Utilization of Human Embryonic Stem Cells, Notification No. 155 of 2001, art. 6, available at http://www.mext.go.jp/a_menu/shinkou/seimei/2001/es/020101.pdf [hereinafter Human Embryonic Stem Cell Guidelines]. See also Japan Set to Embrace, supra note 138.

142 Human Cloning Law, supra note 140. See also Health Canada, Assisted Human Reproduction – The International Scene, at http://www.hc-sc.gc.ca/english/media/releases/2001/2001_44ebk4.htmJapan (May 2001); Annas et al., supra note 40, at 163, 174; Nudeshima, Jiro, Human Cloning Legislation in Japan, 11 Eubios J. Asian & Int’L Bioethics 2Google Scholar, available at http://www.biol.tsukuba.ac.jp/∼macer/EJ111/ej111b.htm (2001). Note also that in addition to publicly supporting human embryonic research, Japan has taken a leading role in animal cloning studies. See Japan Set to Embrace, supra note 138.

143 Japan Allows Stem Cell Research, THE AGE, Dec. 14, 2003, available at http://www.theage.com.au/articles/2003/12/14/1071336795092.html?oneclick=true.

144 Japan Approves Limited Human Cloning, at http://dsc.discovery.com/news/afp/20040621/cloning.html (Aug. 29, 2002).

145 Japan's Stem Cell Research, CELLNEWS, Aug. 29, 2002, available at http://www.geocities.com/giantfideli///CellNEWS_Japans_Stem_Cell_Research.html.

146 Id.

147 Isolation of the first domestic hESC line in Japan, CELLNEWS, June 3, 2003, available at http://www.geocities.com/giantfideli//art/CellNEWS_Japan_first_hESC.html.

148 Japan's Stem Cell Research, supra note 145. See also Matthew Herper, Japan's Stem-Cell Bid Lures U.S. Researchers, FORBES, Mar. 4, 2002, available at http://www.forbes.com/2002/03/04/0304japan_print.html.

149 Corsover, supra note 33, at 745.

150 See John Cloud, Bush's No-Win Choice: Why the President's Stem-Cell Decision Could Define his Term, TIME, July 23, 2001, at 22.

151 See Gareth Cook, U.S. Falling Behind in Stem-Cell Research: Government Policy Handcuffing Scientific Progress, Many Fear, MILWAUKEE JOURNAL SENTINEL, June 6, 2004 available at http://www.jsonline.com/alive/news/jun04/234486.asp.

152 While this discussion might suggest a blunt division between the conservative, pro-life community on the one hand, and those who have an interest in promoting stem cell research on the other, in fact, the line between these camps is often ambiguous and blurred. For example, Pope John Paul II, although living with Parkinson's disease – an illness that is believed to be susceptible to being treated effectively through stem cell research – opposes the research, stating that embryonic cells are a form of human life deserving of protection, regardless of the cost. In contrast, Strom Thurmond, a staunch antiabortionist Republican Senator, has favoured the federal funding of embryonic stem cell research, hoping that this will eventually help his diabetic daughter. Also, Nancy Reagan, wife of former Republican President Ronald Reagan, who upheld the ban on funding embryonic research maintained throughout the late 1970s and 1980s, has supported this research. She has expressed hope that it will assist future patients suffering from Alzheimer’s, a disease with which her husband was afflicted. See John Cloud et al., Bush's No-Win Choice: Why the President's Stem-Cell Decision Could Define His Term, TIME, July 23, 2001, at 22. See also Quindlen, Anna, A New Look, an Old Battle: Stem-Cell Research May Cure Diabetes. It May Teach Us How to Think About Abortion, Too, NEWSWEEK, April 9, 2001Google Scholar, at 72. In fact, just days after former President Reagan's passing, the Ronald Reagan Memorial Stem Cell Research Act of 2004, H.R. 4531, 108th Cong. 2d (2004) was introduced in the House of Representatives. This bill purports to allow federal funding for stem cell research, provided the NIH guidelines of 2000 are respected. The bill allocates funding in the amount of 87 million for such research in 2005.

153 Young, supra note 82, at 834.

154 Id. See also Schecter, David, What Drives the Voting on Abortion Policy? Investigating Partisanship and Religion in the State Legislative Arena, 23 Women & Pol. 61, 76–77 (2001)Google Scholar.

155 Young, supra note 82, at 854. See also Medoff, Marshall H., The Determinants and Impact of State Abortion Restrictions, 6 Am. J. Econ. & Soc. 481, 487, 491 (2002)Google Scholar (noting a correlation between the restrictiveness of a state's abortion policy and the percentage of Roman Catholics living in that state).

156 Young, supra note 82, at 835.

157 It is arguable, though, that the creation of embryos through SCNT is even more problematic from a religious point of view, given that this involves the creation of altogether new embryos for the sole purpose of using them in research, rather than for creating a human person.

158 Magill, supra note 38, at 722.

159 Young, supra note 82, at 854-55.

160 Id. at 854.

161 Id. at 836-37.

162 Id. at 836-37.

163 Cantrell, supra note 49, at 75.

164 Id. That said, it is also worth noting articles that caution against relying too heavily on information deriving from public surveys. They argue that since so few Americans know or have thought very much about the implications of stem cell and cloning research, their answers on public opinion polls on this issue vary widely, depending on how the questions asked are phrased. See Public Policy: Cell Division, NAT’L REV., Aug. 6, 2001 available at http://www.findarticles.com/p/articles/mi_m1282/is_15_53/ai_76638143 [hereinafter Public Policy: Cell Division]; Poll Finds Public is Still Uninformed on Stem Cell Research, 6 Stem Cell Research News 6 (2004)Google Scholar.

165 Indeed, it has also been argued that religious beliefs underlie American health policy in general, and the propriety of this has been challenged as being detrimental to national health. See Association of Reproductive Health Professionals, HHS Urged to Use Science, Not Sectarian Beliefs, to Shape Policy; Scientific Groups Petition Agency to Reserve Core Values in Science, US NEWSWIRE, Feb. 2, 3003.

166 Momeyer, Richard W., Symposium on Bioethics: Thinking About Biomedical Advances, The Role of Ethics & Law: Embryos, Stem Cells, Mortality and Public Policy: Difficult Connections, 31 Cap. U. L. Rev. 93, 102 (2003)Google Scholar.

167 Id..

168 Ryan, Kenneth J., The Politics and Ethics of Human Embryo and Stem Cell Research, 10 Women'S Health Issues 105, 109 (2000)CrossRefGoogle ScholarPubMed.

169 See id.

170 See generally Quindlen, supra note 152.

171 Id.

172 Id. In support of this contention, Quindlen notes the “defections” from the antiabortion camp to the pro-stem cell research community that have taken place, notably, those of U.S. Senators Strom Thurmond, John McCain and former Senator Connie Mack, all of whom have described themselves as conservative and pro-life, but supportive of embryonic stem cell research nonetheless. On this topic, see also supra note 152 and accompanying text.

173 I note in this respect Arthur L. Caplan's article, in which he maintains that the scientific lobby in the U.S. has not been adept at persuading legislators to adopt a pro-research agenda. See Arthur L. Caplan, Half a Loaf is Not Good Enough, THE SCIENTIST, Sept. 17, 2001, at 6. Although Caplan makes an important argument, I maintain that scientific concerns are indeed at the forefront of American policy in relation to embryonic stem cell and cloning research. While some might contend that these concerns are not as prominent as religious factors, the discussion here illustrates that science, if not as pressing as religion in the debate, bears almost as much impact.

174 Government of Canada, Summary of Public Opinion Research into Biotechnology Issues in Canada: Canada-U.S. Comparisons, at http://www.biostrategy.gc.ca/english/view.asp?x=543&mid=56 (last modified Feb. 14, 2005) [hereinafter Summary of Public Opinion Research]. See also Jack Aubry, Americans Less Suspicious of Biotechnology: Poll, THE OTTAWA CITIZEN, Oct. 12, 2003, at A1. But see Public Policy: Cell Division, supra note 164 (suggesting that a critical approach should be taken to the interpretation of results from public opinion surveys on stem cell/cloning research in the U.S.).

175 Summary of Public Opinion Research, supra note 174.

176 Id.

177 Kluger & Lemonick, supra note 95. Mitchell, Steve, Experts: Bush Stem Cell Policy Limits NIH, UNITED PRESS INT’L, Jan. 2, 2003Google Scholar, available at LEXIS (News file).

178 Kluger & Lemonick, supra note 95, Carol Ezzel, Stem Cell Showstopper? Without Cloning, They Aren't Likely to Work, SCI. AM., Dec. 2001, at 27, available at http://www.sciam.com/article.cfm?articleID=000B9916-B1F1-1C6E-84A9809EC588EF21; Caplan, supra note 173, at 6.

179 See supra note 35 and accompanying text.

180 Edwards et al., supra note 42, at 7.

181 Id.

182 Herper, supra note 148.

183 Kluger & Lemonick, supra note 95; Young, supra note 82, at 853; Monachello, supra note 61, at 624-25. In particular, there is concern that American researchers will relocate to England and parts of Asia, where the cloning of embryos for research is permitted and state sanctioned. See Gibson, Helen & Wosnitza, Regine, A Better Harvest: Looser Laws Have Helped European Scientists Seize the Lead in Life Saving Stem-Cell Therapies, TIME INT’L, Aug. 13, 2001Google Scholar, at 42.

184 Herper, supra note 148. See also supra notes 146-148 and accompanying text (discussing the creation of the CDB in Japan).

185 Herper, supra note 148.

186 Kluger & Lemonick, supra note 95. Nicholas Thompson also discusses the importance of the American government's historical support for, and trust in the scientific community. He argues that this approach to science has brought the U.S. “sustained economic progress and unquestioned scientific leadership within the global intellectual community.” See Nicholas Thompson, Science Friction: The Growing – and Dangerous – Divide Between Scientists and the GOP, WASH. MONTHLY, July/Aug. 2003, at 11. The author further maintains that the Bush compromise jeopardizes “that proud, dynamic history.” See id. at 15.

187 Mitchell, Steve, U.S. Stem Cell Policy Deters Investors, UNITED PRESS INT’L, Nov, 2, 2002Google Scholar, available at LEXIS (news file). As an example of how restrictions on stem cell research can deter investment in the U.S., see Clark, James H., Netscape Founder Withholds 60 Million Pledge to Stanford in Protest of Federal Stem Cell Policy, FUND RAISING MGMT., Oct. 2001Google Scholar, at 13. The article describes how Jim Clark, founder of Netscape withheld 60 million of his 150 pledge to Stanford University to protest Bush's restrictions on stem cell research and congressional attempts to ban human cloning, decisions which he viewed as suppressing vital biomedical research. See generally id.

188 Mitchell, supra note 18.

189 Id.

190 Momeyer, supra note 166, at 103-04.

191 Edwards et al., supra note 42, at 7; Momeyer, supra note 166, at 103-04.

192 Ryan, supra note 169, at 107.

193 See Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997).

194 In several cases dealing with the right to access contraception and abortion, the Court clearly confirmed a right not to reproduce. See Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). In an earlier case, the Court appeared to recognize a positive right to reproduce, stating that because “marriage and procreation are fundamental to the very existence and survival of the [human] race,” the mandatory sterilization law at issue was unconstitutional, as it violated “one of the basic civil rights of man”. See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).

Moreover in Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court considered whether the same right to access contraception should be granted to married and unmarried persons. Although this case was decided under the Equal Protection Clause of the Fourteenth Amendment, the Court recognized a constitutionally protected privacy right that preserves an individual's liberty to make choices fundamental to her, such as “the decision whether to bear or beget a child.” Eisenstadt, 405 U.S. at 453. Recent academic writings also recognize a constitutional right to procreative liberty in the particular context of reproductive cloning. See Elizabeth Price Foley, Human Cloning and the Right to Reproduce, 65 ALB. L. REV. 625, 627-28 (2002).

The foregoing jurisprudence has recognized reproductive autonomy as rooted in a privacy right protected by the liberty interest embedded in the Fourteenth Amendment. Although the basis of the decisions in Eisenstadt and Skinner was the Equal Protection Clause of the Fourteenth Amendment, both cases also recognized that the petitioners’ liberty interests had been subject to unlawful state interference. The Fourteenth Amendment provides.

U.S. CONST. amend. XIV, § 1.

195 See Katz, Katheryn D., The Clonal Child: Procreative Liberty and Asexual Reproduction, 8 Alb. L.J. Sci. & Tech. 1, 58 (1997)Google ScholarPubMed; and Foley, supra note 194..

196 Corsover, supra note 33, at 745-46.

197 Id.

198 Katz, supra note 195, at 58-59, Cantrell, supra note 49, at 102; ANDREA L. BONNICKSON, CRAFTING A CLONING POLICY: FROM DOLLY TO STEM CELLS 146 (2002). The First Amendment provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” U.S. CONST. amend. I.

The link between scientific freedom regarding reproductive science and freedom of expression has also been considered in the Canadian context. See Billingsley & Caulfield, supra note 22, at 659-60.

199 NBAC, supra note 54, at 107.

200 See generally Roe v. Wade, 410 U.S. 113 (1973).

201 Young, supra note 82, at 835.

202 Id.; Lori B. Andrews, State Regulation of Embryo Stem Cell Research, in NBAC, II ETHICAL ISSUES IN HUMAN STEM CELL RESEARCH: COMMISSIONED PAPERS, A4-A5 (2000), available at http://bioethics.georgetown.edu/nbac/stemcell2.pdf.

203 Young, supra note 82, at 835. See 18 U.S.C.S. § 1841 (2005).

204 Jackson Janes, Stem Cell Research: The Politics of Science in Germany and in the U.S., AICGS AT ISSUE, at http://www.aicgs.org/at-issue/ai-stemcell.shtml (last visited Jan. 14, 2005).

205 As Janes notes, “The political battle [over embryonic stem cell research in Germany and in the U.S.] may be similar in intensity but the cultural framework in which it plays out will be equally decisive in determining the choices made.” See id.

206 See id.(stating that “[t]he challenge of defining when life begins is becoming increasingly complicated as the boundaries of research are continuously expanded. In Germany, there is the added burden of the Nazi legacy casting its shadow over the debate”). See also Nippert, Irmgard, The Pros and Cons of Human Therapeutic Cloning in the Public Debate, 98 J. Biotechnology 53, 59 (2002)CrossRefGoogle ScholarPubMed.

207 John Hooper, Germany Fears a Master Race’: Moves to Change Germany's Laws on Embryo Research Have Been Met With Widespread Revulsion, Says John Hooper, THE GUARDIAN, May 22, 2001, available at http://www.guardian.co.uk/print/0,3858,4190573-105806,00.html.

208 Cf. Eric Brown, The Dilemmas of German Bioethics, THE NEW ATLANTIS; A JOURNAL OF SCIENCE AND TECHNOLOGY, Spring 2004, at 37 (indicating that “[g]ermans have been particularly sensitive to reprogenetic technologiessuch as cloning, preimplantation genetic diagnosis, and germline engineeringthat might make it possible to design our descendants or select individuals with superior’ genotypes”).

209 Hooper, supra note 207; Rhodes, supra note 27, at 354-55.

210 See generally Germany Authorises, supra note 104; see also Jane Burgermeister, Leaving Germany Behind: Exodus of High Achievers Threatens the Country's Biotech Industry, THE SCIENTIST, Oct. 10, 2003, available at http://www.biomedcentral.com/news/20031010/08/.

211 See generally Germany Authorises, supra note 104.

212 Hooper, supra note 207; Oduncu, supra note 115, at 7; Rhodes, supra note 27, at 354-55.

213 Hooper, supra note 207, Rhodes, supra note 27, at 354-55.

214 Hooper, supra note 207, Rhodes, supra note 27, at 354-55.

215 See Ned Stafford, German Cloning Clash, THE SCIENTIST, Oct. 21, 2003, available at http://www.biomedcentral.com/news/20031021/05/.

216 Hooper, supra note 207.

217 Id.; Rhodes, supra note 27, at 355.

218 Hooper, supra note 207; Rhodes, supra note 27, at 354-55.

219 See Kevin McElderry, Germany Anguishes over Embryonic Life in Cloning Debate, at http://quickstart.clari.net/qs_se/webnews/wed/bd/Qgermany-health-clone.R8gj_DOT.html (Oct. 30, 2003).

220 Richardt, supra note 105, at 92-93.

221 Having said this, Reiss reminds us that the past century affords numerous examples, not only in Germany, of deplorable scientific experimentation on human subjects. Because of this, he maintains that uncertainty and hesitance toward research on human embryos is “not just understandable but, surely, to be welcomed.” See Reiss, Michael J., Ethical Dimensions of Therapeutic Human Cloning, 98 J. Biotechnology 61, 67 (2002)CrossRefGoogle ScholarPubMed. Note also the discussion regarding historical eugenic policies in the U.S., supra note 103 and accompanying text, and in Japan, infra note 282 and accompanying text.

222 See Monachello, supra note 61, at 622, Rhodes, supra note 27, at 354.

223 George, supra note 38, at 771-72. Oduncu notes that Germans are particularly sensitive about using [embryonic stem] cells for research because of the well-known abuses of human research during the Nazi era. Many people argue that [embryonic stem] cells should be subject to constitutional human rights, and would-be researchers have been compared to Josef Mengele, who performed horrific genetic experiments at Auschwitz.

Oduncu, supra note 115, at 7.

224 Heinemann & Honnefelder, supra note 120, at 542-43.

225 Hooper, supra note 207.

226 Nippert, supra note 206, at 55.

227 Gibson & Wosnitza, supra note 183. See also Nippert, supra note 206, at 59. In addition to the interest groups mentioned here by Gibson and Wosnitza, Richardt discusses the significant impact that German feminists wielded in opposing reproductive technologies and research in that country. See Richardt, supra note 105, at 98-99.

228 Oduncu, supra note 115, at 7.

229 BARRY TANNER, THE STATESMAN's YEARBOOK 704 (2004).

230 Heinemann & Honnefelder, supra note 120, at 533.

231 Id.

232 Id.

233 Id.; Oduncu, supra note 115, at 6.

234 Oduncu, supra note 115, at 6.

235 Heinemann & Honnefelder, supra note 120, at 53.

236 Id. at 534.

237 Id.

238 Id.

239 Oduncu, supra note 115, at 7; Richardt, supra note 105, at 115.

240 Oduncu, supra note 115, at 7.

241 Heinemann & Honnefelder, supra note 120, at 534. This minority was influenced by the concern that a total ban on embryonic stem cell imports might contravene the right to freedom of research, which is protected under the German Basic Law. See infra notes 236-239 and accompanying text.

242 Nippert, supra note 206, at 55. See also Abbott, Alison, German Researchers Seek Legal Backing for Stem Cell Work, 404 Nature 424 (2000)CrossRefGoogle ScholarPubMed.

243 Halliday, supra note 104, at 64.

244 Oduncu, supra note 115, at 9.

245 Halliday notes that it was this fear that prompted Germany to allow stem cell lines to be imported for research:

Halliday, supra note 104, at 64.

246 Habeck, supra note 110; Nippert, supra note 206, at 55-56.

247 See Hooper, supra note 207 and accompanying text; see also Janes, supra note 204.

248 Germany Authorises, supra note 104; see also Jane Burgermeister, Leaving Germany Behind: Exodus of High Achievers Threatens the Country's Biotech Industry, THE SCIENTIST, Oct. 10, 2003, available at http://www.biomedcentral.com/news/20031010/08/.

249 Burgermeister, supra note 248 (noting that every seventh German holding a science doctorate leaves for the United States, and three of the four Germans who have won a Nobel Prize are currently working in the United States).

250 Halliday, supra note 104, at 58.

251 GG art. I, § 1 (stating that “[h]uman dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”).

252 Kevin McElderry, Germany Anguishes over Embryonic Life in Cloning Debate, at http://quickstart.clari.net/qs_se/webnews/wed/bd/Qgermany-health-clone.R8gj_DOT.html (Oct. 30, 2003).

253 GG art. II § 2 (providing that “[e]very person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.”).

254 Habeck, supra note 110; Heinemann & Honnefelder, supra note 120, at 536..

255 Benda, Ernst, The Protection of Human Dignity (Article 1 of the Basic Law), 53 Smu L. Rev. 443, 452-53 (2000)Google Scholar; Hawkins, supra note 27, at 276-77.

256 Cantrell, supra note 49, at 99.

257 Heinemann & Honnefelder, supra note 120, at 536.

258 Id.

259 Id. at 538.

260 Id. at 536-38. This contention is based in part on German legislation concerning abortion. German law maintains that there is no legal justification for abortion, but it may be carried out under certain circumstances. The authors point out that the legal framework governing abortion rights in Germany emphasizes that “the unborn has full human dignity” and “an inviolable right to life.” See id. at 540. See also Oduncu, supra note 115, at 13 (arguing that the embryo, because of its “innate human dignity” deserves legal protection).

261 BVerfGE 39, 1975, cited in Richardt, supra note 105, at 108.

262 Czarnowski, Gabriele, Abortion as Political Conflict in Unified Germany (Abortion, Morality, Law and Politics), 47 Parliamentary Affairs 252, 267 (1994)Google Scholar.

263 But see Halliday, supra note 104, at 59 (contending that “the intentional destruction of embryos, resulting from human embryonic stem cell research, would contravene neither the constitutionally protected right to life nor respect for human dignity”).

264 Richardt, supra note 105, at 112.

265 See id. at 112.

266 Id.

267 Id. at 116. See also Gretchen Vogel, German Panel Splits on Cloning Issue, SCIENCE NOW Sept. 14, 2004, available at http://sciencenow.sciencemag.org/cgi/content/full/2004/914/2 (pointing to further recent evidence of a relaxation of this hard line policy against research cloning by the German National Bioethics Council (GNBC), an independent body created by the federal government). On September 13, 2004, the GNBC voted as follows: 5 members argued that research cloning is morally unjustified and should be prohibited, 12 members argued that research cloning should be allowed under strict rules, and 5 members maintained that research cloning should remain prohibited at the present time, and if ways are developed to reprogram adult cells into embryonic stem cells without having to clone an embryo, these alternate research methods should be supported. Three members did not support any of these opinions. It is noted, however, that although this apparently suggests a majority in favour of allowing research cloning, the GNBC's report concludes with a statement that Germany's moratorium on the practice should stay in place.

268 See infra p. 18. But Wright also reports that Germans were surprised to learn that their government advocated for the acceptance of therapeutic cloning before the U.N., and in February 2003, the German parliament passed a motion calling on the government to end its efforts to restrict the U.N. prohibition to reproductive cloning, but not therapeutic cloning. See Wright, supra note 137.

269 Indeed, Monachello makes the interesting point that the Stem Cell Act has actually had the effect of limiting embryonic stem cell research further, even though it is generally perceived as advancing this area of science. Prior to the Stem Cell Act, there were no prohibitions or regulations concerning the importation of stem cell lines, whereas once the statute was in place, this practice became quite circumscribed. See Monachello, supra note 61, at 622.

270 See supra notes 128-129 and accompanying text.

271 See Mitchell, supra note 187.

272 See Goldstein, supra note 2, at 259. As Goldstein argues, “Without federal funding of embryonic stem cell research, the realm of possibilities for the future of modern medicine will stagnate.” Id. Further, “Without the support of the government, scientists will be forced to turn to private funding to continue their research. Private funding alone is not nearly enough to sustain the research. A lack of federal funds will unnecessarily prolong success in finding a cure to many diseases mentioned above.” Id. Indeed, this argument appears logical in view of the fact that the NIH's funding in 2003 was more than 27 billion, and this budget is applied to support scientific studies at universities and research institutions throughout the U.S. National Institutes of Health (NIH), About the National Institutes of Health (NIH), at http://www.nih.gov/about/ (Nov. 29, 2004).

273 See infra pp. 18-19.

274 See Japan Approves Limited Human Cloning, supra note 144.

275 See supra notes 3-4 and accompanying text.

276 See DeTrizio, Ella & Brennan, Christopher S., The Business of Human Embryonic Stem Cell Research and an International Analysis of Relevant Laws, 7 J. Biolaw & Bus. 1, 1 (2004)Google Scholar.

277 See Herper, supra note 148.

278 See Hitonikansurukurngijutsu-tnokiseinikansuruhritsu [The Law Concerning Regulation Relating to Human Cloning Techniques and Other Similar Techniques], Law No. 146 of 2000.

279 Morioka, Masahiro, Commentary on Nudeshima, 11 Eubios J. Asian & Int’L Bioethics 2 (2001)Google Scholar, available at http://www.biol.tsukuba.ac.jp/macer/EJ111/ej111b.htm.

280 Herper, supra note 148.

281 Id.

282 However, as in Germany, Japan's historical experiences might have generated skepticism and pessimism in regard to reproductive science. In the postwar period, the Japanese government adopted a eugenics policy, and enacted the Eugenic Protection Law of 1948. This statute was a modification of Germany's eugenics legislation, mandating sterilization for those with certain hereditary illnesses. See Shangawa, Shinryo N., A Short History of Reproductive Medical Problems in Japan, 6 Eubios J. Asian & Int’L Bioethics 158 (1996)Google Scholar, available at http://www.biol.tsukuba.ac.jp/macer/EJ66/EJ66D.html; Yoko Matsubara, The Making of the Eugenic Protection Law of 1948: Reinforcing Eugenic Policy After WWII, available at http://www.aasianst.org/absts/1999abst/japan/j-32.htm (last visited Mar. 1, 2005); Wardle, Lynn D., “Crying Stones”: A Comparison of Abortion in Japan and the United States, 14 N.Y.L. Sch. J. Int’L & Comp. L. 183, 195 (1993)Google ScholarPubMed.

283 Inaba, Masakazu & Macer, Darryl, Attitudes to Biotechnology in Japan in 2003, 13 Eubios J. Asian & Int’L Bioethics 78 (2003)Google Scholar, available at http://www.biol.tsukuba.ac.jp/macer/EJ133/ej133b.htm.

284 Id.

285 Id.

286 Id.

287 Id.

288 Id.

289 Id.

290 Id.

291 Id.

292 Id.

293 Id. Note, however, that Morioka maintains that Japanese society in fact might have been more critical about cloning regulations if there had been greater public debate about this topic. See Morioka, supra note 279.

294 Human Cloning Law, supra note 142, art. 1.

295 Id.

296 See Rhodes, supra note 27, at 352-54.

297 Morioka, supra note 27.

298 Id. Morioka's hypothesis appears to be supported by the work of Adam Green, which reflects the important premium the Japanese place on human dignity and an awareness of its vulnerability in the face of human cloning technology. In a poll conducted in 1998, Japanese doctors and academics were questioned about their views on human cloning. Their responses revealed a staunch opposition (94 percent) to reproductive cloning. The primary justification given for this view was the perception that this technique affronted human dignity. Greene, supra note 50, at 354-5.

299 Reiss, supra note 221, at 68.

300 We should, however, note that Reiss cautions against interpreting mizuko kuyo as a representation of reverence for the aborted fetus. Some suggest that it is a means of exploiting women financially, or of helping women relieve feelings of guilt associated with abortion. See id.

301 McElmeel, Evy F., Legalization of the Birth Control Pill in Japan Will Reduce Reliance on Abortion as the Primary Method of Birth Control, 8 Pac. Rim L. & Pol’Y 681, 684-85 (1999)Google Scholar.

302 Wardle, supra note 282, at 195-96.

303 Id. at 196; McElmeel, supra note 301, at 686.

304 McElmeel, supra note 301, at 686.

305 See supra note 282 and accompanying text.

306 See supra notes 296-297 and accompanying text.