1 Cloning is first and foremost, the genetic replication of a molecule, cell or full being. In other words, cloning consists of asexual “copying.”

2 The biological discussion below will refer mainly to human embryological development, however much of it also applies to the embryological development of other mammalian organisms.

3 Muscati, Sina Ali, “Legislation Limits on Human Embryonic Stem Cell Research” (2003) 4 J. Tech. L. & Pol'y 1, 3 Google Scholar.

4 At this point, the embryo is approximately a 32 celled morula. Niemi, William D., “Overview: Stem Cells From a Biological Perspective” (2002) 65 Alb. L. Rev. 587, at 588 Google Scholar.

5 Mariani, Meredith, “Note: Stem Cell Legislation: An International and Comparative Discussion” (2002) 28 J. of Legislation 379, at 382 Google Scholar; Stevens, Denise, “Comment: Embryonic Stem Cell Research” (2003) 25 Hous. J. Int'l L. 623, at 628 Google Scholar.

6 “Some stem cells halt their differentiation midstream and reside in the adult body as pools of ‘committed’ stem cells” Niemi, supra n. 4, at 589. These stem cells will be discussed below.

7 Stem Cell Research: Hearing Before the Senate Appropriations Subcommittee on Labor, Health and Human Services, Education and Related Agencies (Sept. 7, 2000) (statements of Gerald D. Fisched. Bach, M.D., Director, Nat'l Institute of Neurological Disorders and Stroke and Allen M. Spiegel, M.D., Director, Nat'l Institute of Diabetes and Digestive and Kidney Diseases) http://www.hhs.gov; See: Ayer, Allison C., “Comment: Stem Cell Research: The Laws of Nations and a Proposal for International Guidelines” (2002) 17 Conn. J. Int'l L. 393, at 397 Google Scholar.

8 Janosky, Valene, “Stem Cells: Potential Cures or Abortion Lures” (2002) 6 DePaul J. of H.C. 111, at 117 Google ScholarPubMed. Parkinson's specifically affects the neurological cells which produce dopamine, a neurotransmitter, which controls movement, emotional response, and ability to experience pleasure and pain.

9 Ibid.

10 Ethical Issues in Human Stem Cell Research, Vol. 1, Report and Recommendations of the National Bioethics Advisory Commission, Rockville, Maryland, Sept. 1999.

11 The healthy neurological tissue in this particular study was not derived from manipulated stem cells, however scientists have successfully directed stem cells to create dopamine, thus in the future they may provide a viable alternative to the original dopamineproducing neurological cells. See NBAC Report, ibid.

12 “One study showed that as much as 3% of the mouse heart tissue that had been artificially cultured from stem cells became malignant after transplantation into mice.” Muscati, supra n. 3.

13 Young, Cynthia Donley, “Comment: A Comparative Look at the US and British Approaches to Stem Cell Research” (2002) 65 Alb. L. Rev. 831 Google Scholar.

14 Wherein, as stated above, “the cell can reproduce infinitely, but only into a very limited amount of cell types.”

15 Mariani, supra n. 5, 383.

16 Thus, in tissues such as brain tissues – which lack adult stem cells, or wherein such cells are at least inactive – any damage to cells cannot be repaired since cells are not replaced, causing a variety of degenerative diseases.

17 Niemi, supra n. 4, at 590.

18 Research has shown that some adult stem cells, when transferred to another tissue, take on characteristics of that tissue. This has been found in the reciprocal transfer between bone marrow and muscular cells, and between bone marrow and neurological cells (in mice). Niemi, supra n. 4, at 590.

19 Adult tissue does not refer to tissue, which is found only in an adult body, but rather in any pot-embryonic cellular tissue.

20 Enmon, Jennifer L., “Stem Cell Research: Is the Law Preventing Progress?” (2002) Utah L. Rev. 621, at 623 Google Scholar.

21 McMahan, Jeff, “Cloning, Killing and Identity” (1999) Jour. of Med. Eth. 77 CrossRefGoogle ScholarPubMed.

22 In February of 1997, Dr. Ian Wilmut and his colleagues announced that they had successfully cloned an adult mammal. Gina Kolata, Scientist Reports First Cloning Ever of Adult Mammal, N.Y. Times, February 23, 1997; Thomas H. Maugh, II, Scientists Report Cloning Adult Mammal, L.A. Times, February 23, 1997; Scientists Succeed in Cloning a Sheep, St. Louis Post-Dispatch, February 24, 1997.

23 After “fertilization” her embryo was implanted into the womb of a hormonally prepared female sheep, brought to term like and born naturally.

24 I understand the naivety involved in such a claim since therapeutic cloning is a necessary step in the way of reproduction cloning, and such techniques may be used to any ends, regardless of original intentions. However, it is significant that reproduction is not the goal of therapeutic cloning. All scientific advancement potentially offers as much harm as it does help. It is our responsibility to decide what risks we are willing to take in order to achieve positive advancements, while taking all measures necessary to prevent harm. (Additionally, although not discussed herein, I do not believe that even reproductive cloning is so decisively negative that it ought to be deprived of the opportunity to defend itself in biological, ethical and legal arenas).

25 It is important to note that the cloned embryo is not necessarily a perfect clone of its “mother”. Although almost all of our DNA is present in the nucleus, a small amount of DNA exists in the ribosomes, which are located in the cytoplasm of the cell. Thus, the cloned embryo is affected by the ribosomal DNA found in the cytoplasm of the oocyte. Therefore, only females can be perfectly cloned through this technique. Nevertheless, the currently known effect of the ribosomal DNA is minor, and should hopefully not be substantial enough to induce rejection.

26 November 26^th, 2001.

27 Early Catholic theologian Thomas Aquinas (following Aristotle who based himself upon Talmudic scholars) stated that at “quickening” (when the fetus begins to move about 40 days post-fertilization) there is “ensoulment”, which is in essence the beginning of “personhood”. In 1827, after the discovery of ova/male sperm fertilization, Pope Pius IX declared that ensoulment begins at fertilization – McMahan, supra n. 21; Balint, John A., “Ethical Issues in Stem Cell Research” (2002) 65 Alb. Law Rev. 729, at 734–735 Google ScholarPubMed.

28 Singer goes on from here to explain the difference between killing a healthy infant and a killing a mentally disabled, and continuing that same distinction into adulthood. Peter Singer, at http://www.petersingerlinks.com/taking.htm.

29 “In both the blastocyst and the zygote we face a mysterious and awesome power that is governed by an imminent plan that may produce an indisputably and fully human being. Thus, the embryo deserves respect because of what it is…”. Doody, Cathleen, “Comment: The Moral Ethical and Legal Controversy Surrounding Pluripotent Stem Cell Research” 48 Loy. L. Rev. 267, at 314 Google Scholar.

30 Instruction Donum Vitae, issued by the Vatican's Congregation for the Doctrine of Faith in 1987; from Lauritzen, Paul, “Neither Person Nor Property: Embryo Research and the Status of the Early Embryo” America for March 26^th, 2001, (c) American Press: http://www.americamagazine.org gettext.cfm?articleTypeID=1&textID=1781&issueID=332 Google Scholar.

31 Balint, supra n. 27, at 737.

32 Stevens, supra n. 5, at 631.

33 With respect to Judaism, it is not that no respect is accorded to the embryo, but rather that the measure of respect it deserves is no different than the respect which should be awarded to any human cells.

34 In other words, the human embryo may still divide into monozygotic twins. Lanza, Robert P., Cibelli, Jose B. and West, Michael D., “Human Therapeutic Cloning” (1999) 5(9) Nat. Med. 975.CrossRefGoogle ScholarPubMed

35 It has been suggested that this reasoning is weakened in the case of SCNT. Here, the artificial manner of producing the cloned embryo, absent the normal genetic integration involved in sexual reproduction, renders the embryo product of SCNT less human than other embryos. Smolin, David M., “Bioethics Symposium: Should ABan on Reproductive Cloning Include a Ban on Cloning for Purposes of Research or Therapy” (2001–2002) 32 Cumb. L. Rev. 487, at 500 Google ScholarPubMed.

36 President Bush, George W., Address to the Nation on Stem Cell Research from Crawford, Texas (August 9, 2001), in 37 Pub. Papers 32 Google Scholar (August 13, 2001), from Stevens, supra n. 5, 631.

37 George Annas argues that “for most people, it is the intention of creating a child that makes the creating of an embryo a moral act” – Annas, George, “The Politics of Human Embryo Research – Avoiding Ethical Gridlock” (1996) 554 (20) New Eng. J. of Med. 1331 Google Scholar; from Doody, supra n. 29, at 308.

38 Against this opinion, the claim has been brought that it is not merely symbolic; that to subvert the development of a potential human being is morally objectionable. However, this is not actually the case. In the case of in vitro fertilization – which is used in stem cell research – human intervention is not what stops the development of the human organism; rather, it is actually a necessity in order to alow for the continuation of development. As opposed to the case of natural conception, in this case, without human intervention, the embryo would eventually die.

39 Balint, supra n. 27, at 737; http://www.courses.fas.harvard.edu/~hscil58v/stemcell/sarah/Doerflinger.html.

40 Smolin, supra n. 35, at 489.

41 Ibid., at 490.

42 Pellegrino, Edmund D., “Article: Balancing science Ethics and Politics: Stem Cell Research, A Paradigm Case” (2002) 18 J. Contemp. Health & Pol. 591 Google ScholarPubMed.

43 (At the time of its enactment, the act did not include practices which created embryos through any means other than “natural” fertilization, such as SCNT, simply because Parliament was not aware of such techniques). In addition, the law does not regulate experimentation on stem cells post-derivation, or on non-embryonic stem cells. Mariani supra n. 5, at 386.

44 Articles 5–8. This field is also under the supervision of a registrar, which has a registry of all the embryos created in vitro in England and all of the stem cell lines, which exist in the country.

45 “… Or, for such other purposes as may be specified in regulations.”

46 Stevens, supra n. 5, at 639; Janosky, supra n. 8, at 133.

47 Article 3(2) of schedule 2 of the Act.

48 Price, David, “From Cosmos and Damian to Van Velzen: The Human Tissue Saga Continues” (2003) 11(1) Med. Law Rev. CrossRefGoogle Scholar

49 The Queen on the application of Quintavalle v. Secretary of State for Health [2002] EWCA Civ. 29; [2002] 2 WLR 550.

50 The Queen on the application of Quintavalle v. Secretary of State for Health [2001] EWHC Admin. 918, [2001] 4 ALL ER 1013.

51 Jonathan Herring, “Case Commentary: Are Cloned Embryos Embyos: The Queen on the Application of Quintavalle v. The Secretary of State For Health, (2002) 14(3) Child and Fam. Law. Quarterly 315.

52 Passed, Nov. 21, 2001.

53 Section 1(1) of the statute.

54 Continuing this assertion he explained “When considering that question, the court has to ask, not what would Parliament have enacted if it had foreseen the creation of embryos by cell nuclear replacement, but do such embryos plainly fall within the genus covered by the legislation and will the clear purpose of the legislation be defeated if the extension is not made?” – Quintavalle, supra n. 49, at par. 27 – from Jonathan Herring, supra n. 51.

55 This train of thought is acutely criticized by Jonathan Herring in his article, ibid. He attacks the conclusion on two fronts. First, as stated by Justice Crane in the first instance, the wording of the provision does not allow for such an interpretation. Second, Parliament chose to define “embryo” by the process of its creation and not by its human potential, therefore it would be inaccurate to claim that the human potential was in fact the significant element.

56 Boonstra, Heather, “Human Embryo and Fetal Research: Medical Support and Political Controversy” (2001) 4(1) The Guttmacher Report on Public Policy Google Scholar.

57 Janosky, supra n. 8, at 128.

58 Doody, supra n. 29, at 294.

59 Rider to the Omnibus Consolidated Appropriations Act, Public Law 108–7, sec. 510, which was the DHHS appropriations bill for 1995.

60 The rider has been annually reattached and currently remains valid today.

61 “In 1998, two research teams figured out how to isolate and culture stem cells from human embryos. John Gearhart, a professor of obstetrics/gynecology and physiology at Johns Hopkins University led one team, which obtained its stem cells from the gonad tissue of aborted fetuses. James A. Thomson, a University of Wisconsin-Madison developmental biologist, led the other team, which extracted stem cells from excess embryos created by In Vitro Fertilization (IVF) clinics. This team published its results first, and ignited a “firestorm of controversy”. Konsen, Alo H., “Note: Are We Killing the Weak to Heal the Sick?: Federally Funded Embryonic Stem Cell Research” (2002) 12 Health Matrix: Jour. of L. and Eth. 507, at 508 Google Scholar.

62 Boonstra, supra n. 56.

63 Lanza, supra n. 34.

64 This was their conclusion, “primarily because research funded solely by private companies would not generate the knowledge and potential therapies that the public could otherwise gain”. Dan Ferber, , “Ethicist Divided Over Human Embryo Research” Web Med. Health, Feb. 22nd, 2000 Google Scholar.

65 Boonstra, supra n. 56, “The NIH proposal to fund stem cell research is trying to circumvent that ban by saying that it will not fund the actual destruction of the embryos, but only the research that follows.” Janosky, supra n. 8, at 134.

66 Carlson, Russel W.,, “Objections to the Use of Human Embryos for Stem Cell Research”, (Presented to Christian Faculty Forum on Mar. 27, 2002) at www.uga.edu/cff/carlson_2002.pdf Google Scholar.

67 Janosky, supra n. 8, at 134.

68 These criteria include that the embryo must have been created to treat infertility and must have been donated to medical science with the informed consent of the donors. Enmon, supra n. 20, at 628. Research conducted on adult stem cells and extracted from umbilical and placental tissue is fully funded under Bush's policy. Mariani, supra n. 5, at 395.

69 This is generally attributed to its origins as a region, which was purchased from France and was thus mainly populated by Catholics for centuries.

70 Enmon, supra n. 20, at 637.

71 Minnesota and South Dakota have banned the destruction of human embryos, thus altogether preventing the creation of embryonic stem cell lines. South Dakota has gone so far as to ban the use of tissue derived subsequent to embryo destruction, thus preventing experimentation even on those stem cell lines, which may be used in research according to Bush's exclusive policy.

72 In fact, to my knowledge, there is almost no country in the world, which positively approves of reproductive cloning. Enmon, supra n. 20.

73 Mclean, Margret R., “Symposium: Conceiving a Code for Creation: The Legal Debate Surrounding Human Cloning: What's in a Name? ‘Nuclear Transplantation’ and the Ethics of Stem Cell Research” (2002) 53 Hast L. J. 1017, at 1017 Google Scholar.

74 Monachello, Jessica J., “Comment: The Cloning For Biomedical Research Debate” (2003) 10 Tulsa J. Comm. & Int'l L. 591, at 604 Google Scholar.

75 “California Approves Stem Cell Research” (2002) 10(5) Health Law Litigation Reporter 10; http://www.bakeru.edu/library/reserves/la401/miller/AliciaRJ.pdf Google Scholar.

76 Report of the Bioethics Advisory Committee of the Israel Academy of Sciences and Humanities, August 2001, under the direction of Chairman Prof. Michel Revel.

77 Barak, Aharon, Constitutional Interpretation, (Tel Aviv, Nevo Publising, 1994)Google Scholar.

78 Ibid., at 436–437.

79 Cohen, Haim, “The Values of a Jewish, Democratic State: A Look into the Basic Law: Human Liberty and Dignity” (1994) Hapraklit Jubilee Volume, 9, at 27–28 Google Scholar [in Hebrew].

80 A direct analogy between the case of abortion and stem cell research, however, should not be drawn, as on the one hand, the benefit in the case medical science is only indirect and there is no head-on collision between the rights of two individuals, while on the other hand, a less than two week old, in vitro, pre-embryo may not have the same moral status as the growing, in vivo, fetus.

81 This statement assumes, broadly, that Section 33 applies to embryos. However, the Hebrew term for both an embryo and a fetus is identical, therefore, it may even be argued, that this provision only applies to the in vivo fetus, and does not afford protection to the unimplanted embryo.

82 C.A. 9/74 Rachl Insel v. Dora Koglems P.D. 29(1) 663; C.C. 4570/98 (TA) Jane Doe v. Attorney General, Dinim Mishpacha, vol. 1, 45; C.A. 413/80 Jane Doe v. John Doe P.D. 35(3) 57.

83 Note, that if the embryo is considered a “person”, the fields of stem cell research and therapeutic cloning will have to overcome the additional obstacle of complying with the laws which deal with human experimentation, including the guidelines of the Helsinki Statement. For further information, see Shalev, Carmel, Women's Status in Israeli Law and Society (Tel Aviv, Schocken, 1995), at 522 Google Scholar.

84 In terms of the Basic Law, such would then constitute a violation of a human right. Pursuant to this law, one may violate such rights if a constitutional law permits such activities. As stated, no law has yet been legislated which protects the activities involved in embryonic stem cell research.

85 Report of the Bioethics Advisory Committee, supra n. 76.

86 This committee was established in the Public Health (Scientific Experiments on Human Persons) Regulations–1980, and acts in accordance with the Helsinki Declaration of 1964. It published this report within its authority under the Anti-Genetic Intervention Law, which provides that the Committee shall submit annual reports to the Minister of Health regarding developments in the field.

87 Ibid., sections 5–8 of the recommendations.

88 The report of the IBC on the ethical aspects of human embryonic stem cell research, Apr. 6, 2000, at http://portal.unesco.org/shs/en/file_download.php/64b74abda57372bdc22570b42c1718f1StemCells_en. pdf. See Mariani, supra n. 5, at 407.

89 Ibid.

90 http://www.un.org/documents/ga/docs/56/a56192.pdf.

91 Ben-Or, Gali, “Genetic Cloning and In-Vitro Fertilization Techniques – Regulation in Israel and the World” (1998) 16 Assia 10 Google Scholar.

92 Mariani, supra n. 5, at 410.

93 Monachello, supra n. 74.

94 Article 18(1) of the Convention.

95 This section does not include any actual Jewish law rulings on the issues at hand, since to my knowledge, no such decisive rulings have been published. It is merely a theoretical discussion of the possible issues whish may arise in connection to such a ruling.

96 This train of thought is not necessarily true, since the prohibitions involved in abortion are not necessarily the same prohibitions, which Jewish law may apply to the issues at hand.

97 Masechet Yebamot 69(b); Nida 3.7, 30(b).

98 Rabbi Elliot Dorff has asserted that “genetic materials outside the uterus have no legal status in Jewish law, for they are not even part of a human being until implanted in a woman's womb and even then, during the first 40 days of gestation, their status is as if they were water.” Thus, here concludes that embryos may be disposed of for reasonable purposes, as may stem cells be derived from them. Ethical Issues Report, supra n. 10. Note: Rabbi Elliot Dorff is a Conservative Rabbi.

99 Genesis 9:6.

100 Sanhedrin 57(b). Murder does not even occur at this stage. Murder can only occur after birth.

101 Stienberg, Avraham, “Stem Cells: Medical, Ethical and Halachik Aspects” (2003) 23 Tchumin 241 Google Scholar [in Hebrew].

102 As we have stated, for any activity to be banned it must fall under the category of a core prohibition. Some Jewish scholars have diverged from the above explained passages and ruled that abortion is not permitted since it constitutes “ibud nefesh”, the loss of a soul/person, and should thus be considered murder. Such a view would undermine the above legitimization of stem cell research, and open up the possibility that embryonic destruction may also constitute murder. However, this is not a generally accepted view Ellenson, David, “Artificial Fertilization and Procreative Autonomy: In Light of Two Contemporary Israeli Responsa” in Jacobs, Walter and Zemer, Moshe, eds. The Fetus and Fertility in Jewish Law, (Tel Aviv, Rodef Shalom Press, 1995)Google Scholar.

103 Ellenson, ibid.

104 Additionally, where abortion of the fetus is prohibited, the baby will be carried to term, while where the destruction of the embryo is prohibited, it may very well be meaninglessly disposed of.

105 It should be noted that even where more conservative Rabbis prohibit abortion during the first 40 days, the very same Rabbis permit abortion in the same circumstances when the parties involved are not Jewish. Thus, using an embryo which is halachically not Jewish in stem cell research is less problematic. Jacobs, Walter, “Test Tube Baby” in Jacobs, Wlater and Zemer, Moshe, eds. The Fetus and Fertility in Jewish Law, (Tel Aviv, Rodef Shalom Press, 1995) 204 Google Scholar.

106 Stienberg, supra n. 101.

107 Jacobs, supra n. 104, 199. It should be noted that these words were said in the context of abortion, where it is necessary to abort the fetus in order to save the mother. Thus, it may not be accurate to bring these words in the context of a different debate.

108 Stienberg, supra n. 101.

109 I have found no halachik basis for this approach, however it struck me as possible during the course of my research.

110 Sanhedrin 108(b); Nida 13(a); R.H. 12(a); Yad Hil. Issurei Biah 21 – From, Ellenson, supra n. 102.

111 Tzitz Eliezer 15(45).

112 The prohibition against spilling seed only applies to Jews. Thus using the products of IVF, or intentionally created for research purposes does not seem to present a problem from this point of view.

113 IVF has been approved of, for example, by Fienstien, Rav Moshe, Igrot Moshe, Even Haezer 10 Google Scholar; See Ellenson, supra n. 102.

114 This ruling was based on the ruling that abortion is not murder, and not on an in-depth consideration of IVF itself. See Maayan Hayyim, 61; From Ellenson, supra n. 102.

115 Rambam, , Morah Nevuchim, 3: 37 Google Scholar.

116 Stienberg, supra n. 101.

117 Substantiated in the writings of the Meiri on Sanhedrin 67(b): “Anything done in a natural action is in no way witchery, even knowing how to create beings not through sexual mating…”.

118 YigalShafran, Rav, “Genetic Cloning” (1998) 18 Tchumin 150 Google Scholar [translated]; Stienberg, Avraham, “Copying/Cloning Humans – Scientific, Ethical and Jewish Aspects” (1998) 18 Tchumin 27 Google Scholar [translated].

119 Erez, Uri, “There is no Halachik Problem With Genetic Cloning For Medical Purposes” (2003) Hatzofeh, March 17, 2003 Google Scholar [translated].

120 Note: The field of therapeutic cloning could very well be prohibited if reproductive cloning is found to be prohibited by Jewish law. Jewish law's attitude to reproductive cloning, however, is not discussed in this paper.

121 Stienberg, supra n. 118.

122 The fact that stem cell research has not yet produced such cures, and that such is not expected to occur for quite some time, weakens the force of this right, and may even render this right more theoretical than practical.

123 This argument may be challenged by focusing on the purpose of IVF. Unlike stem cell research, the actual aim of this procedure is to bring the embryo to life. Aiding the creation of human life is the highest expression of respect of human life. Thus, the fact that the potential to become human life is not realized with regard to all of the embryos, is justified. However, I do not think that the goal of prolonging or improving the lives of the sick is any less significant.

124 Smolin, supra n. 35, at 496.

125 The issue of whether an embryo should be considered property, and other points of connection between stem cell research and property law is the subject of much debate today. For purposes of brevity I have not included the issue in this paper.

126 Stevens, supra n. 5, at 633.

127 Kristen Philipkoski, “Definitions Impede Stem Cell Work,” at

http://www.wired.com/news/medtech/0,1286,60546,00.html.

128 Proceedings of the National Academy of Sciences; Non-primate Parthenogetic Stem Cells, Colloquium, September 22, 2003.

This is despite the fact that scientifically, it has been noted that: “if an egg happens to double itself, what develops is not an embryo, but a benigngrowth of disorganized tissues called a teratoma.” Ricki Lewis, “A Human Perthenogenote,” at:

http://www.mhhe.com/biosci/genbio/life/articles/article13.mhtml.

129 A similar technology known as “reprogrammation” is also being attempted by scientists. It has been suggested that it “may eventually be possible to modify the genome of the patient's cell (through targeted gene alterations or engineered chromosomes) before the nuclear transfer procedure, so that after the ‘reprogrammation’, the clones develop into groups of specialized cells and tissues, rather than into a whole organism…” – Lanza, supra n. 34.

130 Muscati, supra n. 3.

131 Ayer, supra n. 7, at 398.

132 Russel, supra n. 66.