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Negotiating the UN Declaration on Human Cloning

  • Mahnoush H. Arsanjani (a1)

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On March 8, 2005, the General Assembly of the United Nations adopted a declaration on human cloning (the Declaration) by a recorded vote of 84 to 34, with 37 abstentions.1 The Declaration culminated an effort that had commenced in 2001 with a proposal by France and Germany for a convention against reproductive cloning of human beings. The three-and-ahalf- year negotiation that followed was intense and emotionally charged with religious and cultural overtones; at times, participants seemed to feel hopelessly mired. The Declaration that was ultimately adopted was often referred to as a “political declaration,” apparently as a way of emphasizing the degree of compromise reflected in the text, and also as away of minimizing its normative value. The negotiation, which had originally been understood as limited to the narrow bioethics issue of prohibiting the making of cloned babies, led to profound discussions on human rights, cultural and religious diversities, and their interaction and priorities in case of conflict. Ultimately, neither the Declaration nor its negotiating history answered these difficult questions. But they provided a glimpse of the difficulties and impasses international lawmaking will confront when negotiations lose a secular tone.

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1 United Nations Declaration on Human Cloning, GA Res. 59/280, annex (Mar. 8, 2005) [hereinafter Declaration] . The following states voted in favor: Afghanistan, Albania, Andorra, Australia, Austria, Bahrain, Bangladesh, Belize, Benin, Bolivia, Bosnia and Herzegovina, Brunei Darussalam, Burundi, Chile, Comoros, Costa Rica, Cote d’Ivoire, Croatia, Democratic Republic of the Congo, Djibouti, Dominican Republic, Ecuador, El Salvador, Equatorial Guinea, Eritrea, Ethiopia, Georgia, Germany, Grenada, Guatemala, Guyana, Haiti, Honduras, Hungary, Iraq, Ireland, Italy, Kazakhstan, Kenya, Kuwait, Lesotho, Liberia, Liechtenstein, Madagascar, Malta, Marshall Islands, Mauritius, Mexico, Micronesia (Federated States of), Monaco, Morocco, Nicaragua, Palau, Panama, Paraguay, Philippines, Poland, Portugal, Qatar, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, San Marino, São Tomé and Principe, Saudi Arabia, Sierra Leone, Slovakia, Slovenia, Solomon Islands, Sudan, Suriname, Switzerland, Tajikistan, the former Yugoslav Republic of Macedonia, Timor-Leste, Trinidad and Tobago, Uganda, United Arab Emirates, United Republic of Tanzania, United States of America, Uzbekistan, and Zambia.

The following states voted against: Belarus, Belgium, Brazil, Bulgaria, Cambodia, Canada, China, Cuba, Cyprus, Czech Republic, Democratic People’s Republic of Korea, Denmark, Estonia, Finland, France, Gabon, Iceland, India, Jamaica, Japan, Lao People’s Democratic Republic, Latvia, Lithuania, Luxembourg, Netherlands, New Zealand, Norway, Republic of Korea, Singapore, Spain, Sweden, Thailand, Tonga, and United Kingdom of Great Britain and Northern Ireland.

The following states abstained: Algeria, Angola, Argentina, Azerbaijan, Bahamas, Barbados, Burkina Faso, Cameroon, Cape Verde, Colombia, Egypt, Indonesia, Iran (Islamic Republic of), Israel, Jordan, Lebanon, Malaysia, Maldives, Mongolia, Myanmar, Namibia, Nepal, Oman, Pakistan, Republic of Moldova, Romania, Serbia and Montenegro, Somalia, South Africa, Sri Lanka, Syrian Arab Republic, Tunisia, Turkey, Ukraine, Uruguay, Yemen, Zimbabwe.

Subsequently, the delegations of Antigua and Barbuda, The Gambia, Kyrgyzstan, the Libyan Arab Jamahiriya, Nigeria, Peru, and the Russian Federation informed the UN Secretariat that they had intended to vote in favor; the delegation of Greece informed the Secretariat that it had intended to vote against; and the delegations of Botswana and Mali informed the Secretariat that they had intended to abstain. UN Doc. A/59/PV.82, at 2-3 (2005).

2 Cloning and stem cell research are defined by the InterAcademy Panel as follows:

Cloning of an organism commonly involves a technique called somatic cell nuclear transfer, where the nucleus of an egg cell (containing its genetic material) is removed and replaced with the nucleus of a somatic cell taken from the body of an adult. If the reconstructed egg cell is then stimulated successfully to divide, it may develop to the preimplantation blastocyst stage. In reproductive cloning, the cloned blastocyst is then implanted in the uterus of a female and allowed to continue its development until birth. However, in cloning for research or therapeutic purposes, instead of being implanted in the uterus the cloned blastocyst is converted into a tissue culture to make a stem cell line for research or clinical applications.

InterAcademy Panel on International Issues, Statement on Human Cloning (Trieste, Italy, Sept. 22, 2003) (on file with author).

While pioneer cloning experimentation goes back to the early 1950s, it was in the 1970s that it acquired its contemporary meaning, namely, “any artificial, identical genetic copy of an existing life form.” Unesco, Human Cloning: Ethical Issues 7 (2d rev. ed. 2005), available at <http://unesdoc.unesco.org/uIis/index.html>. The early experiments with cloning were on amphibians. Experiments on mammals involved more complicated techniques and took much longer. In 1996 Dr. Ian Wilmut of the Roslin Institute in Scotland, a veterinary researcher, was able to engineer the birth of Dolly, a lamb cloned from an adult sheep. Since then several other species of mammals, such as pigs, cows, cats, rodents, and more recently a mule, have been successfully cloned. For a brief history of cloning experiments, see id. at 7-10.

3 UN Doc. A/56/192 (2001).

4 Id., Annex I.

5 UN Doc. A/C.6/56/SR.27, para. 5 (2001) (statement of delegate of Germany).

6 Id.

7 Unrestricted reproduction experimentation had been conducted for some time and had led to the creation of the first human embryos by in vitro fertilization at the University of Bologna in 1961, seventeen years before the first “test-tube baby” was born. The Italian embryologist, Severino Antinori, who in 1994 helped a sixty-three-year-old woman give birth to a healthy baby using a donated egg and artificial hormones, later stated that he planned to clone a human being. Robert, L. Paarlberg The Great Stem Cell Race, Foreign Pol’y, May/June 2005, at 43, 46.

8 The Council of Europe adopted the Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, Apr. 4, 1997, Europ. TS No. 164. Article 13 of the Convention provides: “An intervention seeking to modify the human genome may only be undertaken for preventive, diagnostic or therapeutic purposes and only if its aim is not to introduce any modification in the genome of any descendants.” Article 18 provides: “ 1. Where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo. 2. The creation of human embryos for research purposes is prohibited.”

A year later, the Council of Europe adopted the Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings, Jan. 12, 1998, Europ. TS No. 168. Article 1 of the Protocol prohibits reproductive cloning of human beings:

  • 1.

    1. Any intervention seeking to create a human being genetically identical to another human being, whether living or dead, is prohibited.

  • 2.

    2. For the purpose of this article, the term human being “genetically identical” to another human being means a human being sharing with another the same nuclear gene set.

Council of Europe conventions are available online at <http://conventions.coe.int>.

9 UNESCO adopted the Universal Declaration on the Human Genome and Human Rights on November 11, 1997, available at <http://www.unesco.org>. It calls, in Article 11, for banning reproductive cloning of human beings:

Practices which are contrary to human dignity, such as reproductive cloning of human beings, shall not be permitted. States and competent international organizations are invited to co-operate in identifying such practices and in taking, at national or international level, the measures necessary to ensure that the principles set out in this Declaration are respected.

10 For the sponsors of the resolution, see the Report of the Sixth Committee on International Convention Against the Reproductive Cloning of Human Beings, UN Doc. A/56/599, para. 5 (2001). The ten sponsoring states that later opposed the approach suggested by the resolution are Andorra, Haiti, Honduras, Italy, Nigeria, Portugal, San Marino, Sierra Leone, Spain, and Uganda. See infra note 44 for more on Spain.

11 UN Doc. A/C.6/56/SR.27, supra note 5, paras. 2-26.

12 Id., paras. 24-25 (emphasis added).

13 On this issue, see Mahnoush, H. Arsanjani The Negotiations on a Treaty on Cloning: Some Reflections, in Human Dignity and Human Cloning 145, 14546 (Silja, Vöneky & Rüdiger, Wolfrum eds., 2004).

14 These issues are also discussed in id. at 151-57.

15 During the negotiations on the Universal Declaration of Human Rights, some efforts were made to include references to the origin of such rights and to divine creation. Those efforts were defeated and the references were replaced with more secular terms susceptible to interpretation. For example, Brazil proposed the addition to Article 1 that “all human beings are created in the image and likeness of God.” This amendment was not supported and the representative of China reminded the negotiators that he and his people, which comprised a large segment of humanity, “had ideals and traditions different from those of the Christian West” and that he had refrained from proposing that they be included in the declaration and that he hoped that other delegations would show equal consideration. UN GAOR 3d Comm., 3d Sess., pt. 1, at 98 (1948). Eleanor Roosevelt described the efforts to keep the language of the declaration broad and acceptable to all:

I happen to believe that we are born free and equal in dignity and rights because there is a divine Creator, and there is a divine spark in men. But, there were other people around the table who wanted it expressed in such a way that they could think in their particular way about this question, and finally, those words were agreed upon because they . . . left it to each of us to put in our own reason, as we say, for that end.

Roosevelt, Eleanor Making Human Rights Come Alive, in What I Hope to Leave Behind: The Essential Essays of Eleanor Roosevelt 559 (Black, Allida ed., 1995), quoted in Mary, Ann Glendon A World Made New: Eleanor Roosevelt and The Universal Declaration of Human Rights 147 (2001).

16 The struggle during the negotiations of earlier human rights instruments was between states, with no or very little participation and influence by nongovernmental organizations. That struggle had more to do with reconciling political and ideological differences between the West and the Soviet bloc. Religion as such, while it had a place, was not of paramount importance. Negotiations on the Universal Declaration of Human Rights were the very first test of these conflicting political ideologies. Aside from philosophical debates as to the origin of human rights, religious concerns were limited to freedom of religion, including changing one’s religion, which was an issue for some Muslim countries. Even this concern led to only one abstention from eleven countries with a substantial Muslim population. Saudi Arabia abstained, while Afghanistan, Egypt, India, Iran, Iraq, Lebanon, Pakistan, the Philippines, Syria, and Turkey voted in favor. All states members of the Soviet bloc abstained. The Universal Declaration was adopted by 48 votes in favor, 0 against, with 8 abstentions. See discussions in the General Assembly during its adoption. UN GAOR, 3d Sess., pt. 1, 180th—83d plen. mtgs. at 852-933 (1948). For an account of the negotiating history of the Universal Declaration, see also Glendon, supra note 15.

17 Production of human beings through the technique of cloning is asexual and, as such, was considered a threat to the concept of the family. There was also a sense of discomfort, not always clearly articulated, about the implication of allowing cloned babies in society as we now know it. Similar concerns were expressed by Leon Kass, chair of the President’s Council on Bioethics, who argued against reproductive cloning:

We are repelled by the prospect of cloning human beings not because of the strangeness or novelty of the undertaking, but because we intuit and feel, immediately and without argument, the violation of things that we rightfully hold dear. Repugnance, here as elsewhere, revolts against the excesses of human willfulness, warning us not to transgress what is unspeakably profound.

Leon, R. Kass The Wisdom of Repugnance, in Leon, R. Kass & James, Q. Wilson The Ethics of Human Cloning 3, 19 (American Enterprise Institute, 1998). A similar view is expressed by Edward Rothstein. In his view:

The political problem with the manufacture of human embryos, however early in their development, is not just that it upsets opponents of abortion. It is that it shifts a barrier that might become porous, weakening the sacral quality of the human. And once that takes place, the slippery slope becomes far more slippery. Where are lines to be drawn? Will human life forms ultimately be harvested for the sake of other humans?

Rothstein, Edward The Meaning of Human’ in Embryonic Research, N.Y. Times, Mar. 13, 2004, at B9; see also Being Human: Readings from the President’s Council on Bioethics (President’s Council on Bioethics, Dec. 2003); Market, Howard Life in a Bottle, N.Y. Times, Mar. 28, 2004, §7 (Book Review), at 13. For a view that challenges opposition to reproductive cloning on any grounds, see Kerry, Lynn Macintosh Illegal Beings: Human Cloning and the Law (2005).

18 In the Sixth Committee, the delegate of the United Kingdom disputed the argument that therapeutic cloning would require a limitless supply of eggs and that women would be exploited to provide them. He referred to the practice in the United Kingdom:

The United Kingdom had created the first stem cell bank in the world, to which all researchers were required to donate a sample of their embryonic cell lines. The bank was able to grow more of the same cells and make them available to other researchers. Eventually the bank would store sufficient stem cell lines to provide a match for all the main human tissue types, so that it would not be necessary to create a new stem cell line for each person requiring treatment, and the number of lines needed would be small.

UN Doc. A/C.6/59/SR.11, para. 18 (2005).

19 It was argued that adult stem cells are already highly specialized and their potential to regenerate damaged tissue is limited because of a decrease in versatility and abundance. Embryonic stem cells, however, may produce any of the 210 different types of specialized cells that make up the human body, thereby making them immeasurably more versatile.

20 To overcome this sharp division of views, suggestions were made to use terminology similar to that of the 1998 Additional Protocol on the Prohibition of Cloning Human Beings, supra note 8, in which the definition of “human beings” is left to domestic law. That proposal was unacceptable to those supporting a ban on all forms of cloning.

21 See an op-ed piece by Daniel, C. Dennett The Bright Stuff, N.Y. Times, July 12, 2003, at Al 1. He defines a “bright” as “a person with a naturalist as opposed to a supernaturalist world view.” In his definition “brights” “don’t believe in ghosts or elves or the Easter Bunny—or God.” According to a 2002 survey by the Pew Forum on Religion and Public Life, 27 million Americans are either atheist or agnostic or have no religious preference. Id.

22 Considerations of the Holy See on Human Cloning, UN Doc. A/C.6/59/INF/1, para. 8 (2004). The New Haven School views “human dignity” in the context of its jurisprudential theory as referring to a conception of the person as autonomous and equipped for making choices, a value in himself or herself and not as a means to an end.

23 Reference was made to Article 12(b) of the Universal Declaration on the Human Genome and Human Rights, supra note 9; Articles 18 and 19 of the Universal Declaration of Human Rights, GA Res. 217A(III), UN Doc. A/810, at 71 (1948); and Article 15(3) of the International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3, providing for the freedom of thought and expression and respect for the freedom indispensable for scientific research.

24 UN Doc. A/56/192 (2001).

25 See GA Res. 56/93 (Dec. 12, 2001).

26 See Report of the Ad Hoc Committee on an International Convention Against the Reproductive Cloning of Human Beings, UN GAOR, 57th Sess., Supp. No. 51, UN Doc. A/57/51 (2002).

27 For the report of the working group, including the chairman’s informal summary of the debate, see UN Doc. A/C.6/57/L.4 (2002).

28 For the United Kingdom, which originally took the view that regulation of stem cell research should be left entirely to domestic law, this was already a substantial compromise.

29 For draft resolutions proposed by states in favor of banning only reproductive cloning and those supporting a comprehensive ban on human cloning, see the Report of the Sixth Committee on an International Convention Against the Reproductive Cloning of Human Beings, UN Doc. A/57/569 (2002), containing draft resolution A/C.6/57/L.8 & Corr. 1, at 2-4 , and draft resolution A/C.6/57/L.3/Rev. 1 & Corr. 1, at 4-6 . The General Assembly Decision 57/512 to continue consideration of the topic in the fall of 2003 is also contained in id. at 7.

30 See p. 167 supra.

31 See draft resolution A/C.6/58/L.2 (2003).

32 Letter Dated 2 April 2003 from the Permanent Representative of Costa Rica to the United Nations Addressed to the Secretary-General, UN Doc. A/58/73, annex (2003).

33 See draft resolution A/C.6/58/L.2, supra note 31.

34 See draft resolution A/C.6/58/L.8 (2003).

35 The Holy See argued:

The world cannot take two different roads: the road of those who are willing to sacrifice or commercialize human beings for the sake of a privileged few, and the road of those who cannot accept this abuse. For its own sake, humanity needs a common basis, a common understanding of humanity and a common understanding of the fundamental bases upon which all our ideas about human rights depend. It is incumbent upon the United Nations to exert every effort in the search for this basis so that human beings may be respected as they are. To bring forward the project for an international, global prohibition of human cloning is part of the mission and duty of the United Nations.

Considerations of the Holy See on Human Cloning, supra note 22, para. 10 (emphasis added).

36 Under Rule 116 of the Rules of Procedure of the General Assembly, Iran moved to adjourn the debate on the agenda item until the sixtieth session of the General Assembly in 2005. UN Doc. A/C.6/58/SR.23 (2003).

37 Id.

38 The U.S. support for a comprehensive ban was associated with the Republican position. There were concerns that stem cell research had already become an election issue in the United States, which would make it more difficult for the United States to moderate its position. The delay in negotiations would also keep the option open in case of a change of administration as a result of the election.

39 Dean, E. Murphy Defying Bush Administration, Voters in California Back $3 Billion for Stem Cell Research, N.Y. Times, Nov. 4, 2004, at P10.

40 Those states include Illinois, Maryland, Massachusetts, New Jersey, and Texas. The 2004 South Korean breakthrough in cloning was also a factor of concern for the American scientific community, which was fearful of falling behind in stem cell research. In a Senate debate on a bill to expand federal financing for embryonic stem cell research, the Republican leader Bill Frist is reported to have supported the measure, increasing the possibility that it may be passed by the Senate. Sheryl Gay, Stolberg Senate’s Leader Veers from Bush over Stem Cells, N.Y. Times, July 29, 2005, at A1. As of the end of 2005, the bill remained pending in the Senate.

41 InterAcademy Panel on International Issues, Statement on Human Cloning, supra note 2; id., Letter to Lauro Bajo, chairman of the Sixth Committee (Sept. 19, 2003) (enclosing the statement) (on file with author).

42 Letter from Eric Haan, president of the International Federation of Human Genetics Societies, to chairman of the Working Group of the Sixth Committee on an International Convention Against the Reproductive Cloning of Human Beings (Sept. 23, 2003) (on file with author).

43 Cookson, Clive Universities and Companies Rush to File Stem Cell Patents in Spite of Controversy, Fin. Times (London), June 20, 2005, §1, at 1. It is reported that the following drug companies, Bayer, Novo Nordisk, Johnson & Johnson, Pfizer, and Roche, are in the top ten list of companies with the most patents; each has filed between thirty and forty families of stem cell patents since 2000. The University of California is the leading academic institution in the field, having filed forty stem cell patents since 2000. Id.

44 Id.

45 Draft resolution A/C.6/59/L.2 (2004), sponsored by more than sixty states, supported a negotiating mandate for a comprehensive ban. However, three states (Angola, Chile, and Malawi) subsequently withdrew as sponsors of the resolution. Spain was also not among the sponsors of the draft resolution. This change could have been attributed to the more relaxed position of the new socialist government, which had slightly reduced restrictions on stem cell research. Draft resolution A/C.6/59/L.8 (2004), sponsored by more than twenty states, supported a negotiating mandate for a limited ban. Germany noticeably no longer joined the sponsors because a much more conservative approach had been taken there on stem cell research. Brazil, on the other hand, while not sponsoring the draft resolution for a limited ban, was a strong vocal supporter of that approach in the 2004-2005 negotiations.

46 Compare UN Docs. A/C.6/59/L.2 & L.8, supra note 45, with UN Docs. A/C.6/58/L.2 & L.8, supra notes 31 & 34.

47 This approach was a safe strategy for the OIC. By that time it was clear that no side would yield. Therefore, if there were to be consensus on anything, it would have to leave the position of each side intact. That approach would also not put the OIC at odds with powerful states on either side of the issue with which some OIC members had close relations, and it would be useful in view of another ongoing negotiation on a treaty against nuclear terrorism with respect to which some OIC members had an interest. Arguing that legal instruments of such importance should be adopted by consensus would only enhance their position when it came to deciding on the other treaty. As it happened, the International Convention for the Suppression of Acts of Nuclear Terrorism was adopted by consensus on April 13, 2005, as an annex to General Assembly Resolution 59/290.

Nevertheless, in their statements several OIC members invoked the medical potential of stem cell research and expressed an interest in learning more about it before making a final decision. This approach was supported by some states favoring the limited ban on cloning, which calculated that the more states learned about the medical potential and promise of stem cell research, the less they would be inclined to ban it. Precisely for the same reason, the supporters of a comprehensive ban were not enthusiastic about any further scientific briefings by experts on the topic.

48 For Italy’s proposal, see UN Doc. A/C.6/59/L.26 (2004). The proposal by Italy was viewed by some members of the group favoring a limited approach to cloning as premature since the negotiations on a text of a declaration that both sides could agree on were incomplete.

49 Report of the Sixth Committee on an International Convention Against the Reproductive Cloning of Human Beings, UN Doc. A/59/516, para. 8 (2004).

50 For the vote, see UN Doc. A/C.6/59/SR.28, para. 42 (2005). For proposals by Belgium for amendments to the declaration, see id., paras. 23, 33-40.

51 Belgium. Id., para. 23.

52 Canada. Id., para. 76.

53 Japan and Brazil. Id., paras. 60, 74, respectively.

54 Id, paras. 47-49 (emphasis added). See also the UK statement in the General Assembly, UN Doc. A/59/ PV.82, at 4-5 (2005).

55 UN Doc. A/C.6/59/SR.28, supra note 50, paras. 72-73 (emphasis added).

56 Some states had suggested a step-by-step approach, drafting a declaration first and embarking on a treaty later on.

57 Declaration, supra note 1.

58 See supra note 9.

59 International Convention Against the Reproductive Cloning of Human Beings, Report of the Sixth Committee, UN Doc. A/59/516/Add.l, paras. 7-9 (2005).

60 Declaration, supra note 1, para, (a) (emphasis added).

61 By a vote of 57 to 48, with 42 abstentions. Report of the Sixth Committee, supra note 59, paras. 10—11.

62 Declaration, supra note 1, para, [b) (emphasis added).

63 International Convention for the Suppression of Terrorist Bombings, Dec. 15, 1997, 37 ILM 249 (1998).

64 In the French version of the Declaration, the words “inasmuch as” are “dans la mesure où.” In the Spanish version, those words are translated as “en la medida en que.”

65 Paragraph (b), despite its qualifications, was not acceptable to many delegations that supported banning only reproductive cloning. Their objection was to the fact that the paragraph does not explicitly prohibit reproductive cloning of human beings and that it repeats the words “protection of human life,” which was already and sufficiently dealt with in paragraph (a). For delegations supporting a comprehensive ban on all forms of cloning, paragraph (a) referred to the application of life sciences and did not explicitly mention the words “human cloning,” an issue that was addressed in paragraph (b).

Belgium led other delegations in arguing against paragraph (b) and proposed amending it to read: “Member States are called upon to prohibit the reproductive cloning of human beings; they are also called upon to prohibit other forms of human cloning inasmuch as they are incompatible with human dignity.” Thus, this proposal recognized the existence of various forms of cloning based on intention (reproductive or therapeutic), prohibited reproductive cloning and other forms of cloning (therapeutic) “to the extent that” they were incompatible with “human dignity,” and made no reference to human life. Precisely for those reasons, the proposal was unacceptable to the supporters of a comprehensive ban on human cloning. In the Sixth Committee, Belgium’s proposal was narrowly defeated by a vote of 55 to 52, with 42 abstentions. Report of the Sixth Committee, supra note 59, paras. 12-13.

66 The word chimera or chemaera comes from the Greek: the mythological Chimera was “a fire-breathing female monster with a lion’s head, a goat’s body, and a serpent’s tail killed by Bellerophon.” Oxford Encyclopedic English Dictionary (1996).

67 For a description of this problem, see Rennie, John Human-Animal Chimeras, Sci. Am., July 2005, at A8; Shreeve, Jamie The Other Stem-Cell Debate, N.Y. Times, Apr. 10, 2005, §6 (Magazine), at 44.

* The views expressed here are solely those of the author.

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