Consensus, Ethics, and Politics in Cloning and Embryo Research

Jonathan D. Moreno and Alex John London

In February of 1997 the world awoke to the news that what was once a fantasy of science fiction had been transformed into a feat of science fact: Scientists in Scotland had succeeded in cloning an adult sheep by a method that has subsequently become known as somatic cell nuclear transfer cloning. Within hours of this announcement, the President of the United States asked the National Bioethics Advisory Commission (NBAC) to examine the legal and ethical issues associated with the use of this new technology and to recommend steps the government should take in order to prevent its abuse. As a result, somatic cell nuclear transfer cloning is remarkable not only because of the possibilities it presents for the cloning of adult humans, but also because of the speed with which a public bioethics body was commissioned to evaluate the social, ethical, and political ramifications of these possibilities.

The celerity with which the NBAC was charged with examining this new advance is an example of the growing role of bioethics panels in America’s civil life. It is also emblematic of the institutional character that public bioethics has taken on in recent years. On another level, the NBAC and its subsequent report represent the latest bout in the ongoing struggle to understand the role of reproductive technology and research in our communal lives. Only a few years earlier, in 1994, the National Institutes of Health created the Human Embryo Research Panel (HERP), an ad hoc 19-member advisory group that met six times that year to advise on whether various kinds of research involving ex utero human embryos are acceptable for federal funding, unacceptable, or require further review. In spite of some disagreement, the committee members generally concurred that acceptable research included methods for improving the possibility of pregnancy, fertilization, egg activation, egg maturation, egg freezing, preimplantation genetic diagnosis, and for the development of embryonic stem cells. Cloning egg cells without transferring them to the uterus was deemed to require further review, and unacceptable research included cloning and experimenting with egg cells and then transferring them, and cross-species fertilization. [1]

In its report, the NBAC concluded that the cloning of human beings by means of somatic cell nuclear transfer was morally unacceptable at this time because of the unacceptably high risks posed to the resulting fetus and child. As a result of this consensus, it recommended a continuation of the existing moratorium on the use of federal funds for human cloning and called for a congressional moratorium of all somatic cell nuclear transfer cloning with the intent of creating a child. It also called for the inclusion of a "sunset" clause so that at the end of a five year period these issues could be reevaluated by a suitable oversight body and the moratorium either rescinded, augmented, or reinstated. [2]

Each of these bodies faced different challenges but each experience exemplifies the complexities and pitfalls that characterize the intersection of ethics and public policy making. In order to assess the respective work of these groups, it will be necessary to place it in two contexts, one conceptual and the other historic. The conceptual context is the role of consensus in bioethics. The historical context is the place of these groups in our experience with other ethics commissions. Then we may consider the ways that such groups force us to think carefully about the notions of consensus and compromise in bioethics and about the role of bioethics in public life. Consensus as Closure and as Concealment

In Deciding Together [3] one of us (JM) noted the ubiquity of appeals to consensus in bioethics and argued that one cause and consequence of bioethics’ consensus orientation is that it is an "applied" field that spurred (or, perhaps, consolidated) reform in the informal rules that govern physician-patient relations. Another factor is that bioethics as a social institution manifests itself in a variety of small group settings, including ethics committees and commissions. [4] Though the conclusions of these groups are always subject to analysis and critique, groups both small and large tend to value moral consensus as a primary indication that deliberation may cease, and ethics panels are no different. Not only ethics panels, but groups formed for countless purposes have good reason to value consensus, whether their primary concern is relevant to moral values or not. But particularly in enabling individuals to work together for highly complex objectives that are widely recognized as value-laden, moral consensus operates as a kind of lubricant of social relations.

To be sure, there are alternatives to moral consensus as an endpoint, including a determination only to identify issues and the evidence and arguments in support of various positions. But ethics panels appointed by government agencies -- an important source of the current prestige of bioethics -- rarely have the option of operating like a public graduate seminar. Their very raison d’etre is, after all, to help resolve some policy problem, not merely to clarify it. Moreover, to the extent that it is possible, resolution implies that panel members must achieve consensus among themselves and create a conceptual framework that can help build a public consensus. We will have more to say about the demands of consensus-building later.

The most ambitious instance of a government ethics panel prior to the NBAC ( which began its work in 1996) was the President’s Commission on Ethical Problems in Medicine and Biomedical and Behavioral Research (1980-84). The President’s Commission’s le adership was eminently aware of its consensus orientation. Both the chairman and executive director described and defended the Commission’s commitment to finding consensus whenever possible. In at least one case, the report on access to health care, det ermination to reach consensus is said to have nearly caused a serious breach between the staff and several more conservative commissioners. But the most basic criticism of the President’s Commission in this regard came from Jay Katz, who pointed out that reports of group consensus tend to paper over interesting and sometimes important disagreements. In a revealing response, Chairman Morris Abram argued that a commission’s only weapon in the effort to see its recommendations realized is persuasion, which would presumably be impaired if too much was said about internal disputes on the way to consensus. [5]

Unlike the President’s Commission, the NBAC was charged with the much narrower task of evaluating a single new and relatively untested technology. As a result, the NBAC readily reached a consensus on the moral unacceptability of somatic cell nuclear t ransfer cloning, built on the "virtually universal concern regarding the current safety of attempting to use this technique in human beings." [6] The HERP was not so fortunate. To its credit, the HERP made clear where there was only a narrow major ity, especially in its discussion of which categories of preimplantation embryo research are "acceptable" for funding by the federal government, which require further review, and which are unacceptable. (pp. 75-83) Three individual statements are also a ppended that express reservations some members had about specific recommendations and provide further insight into the HERP’s deliberative process. Yet the main body of the report was evidently phrased carefully enough that the members did not on the who le feel obliged to dissent. In this respect, the HERP achieved both consensus and openness.

We believe that, once the HERP members reached their internal consensus on the moral justifiability of human embryo research, they adopted the right conceptual framework to advance its view. That framework stressed a pluralistic justification for huma n embryo research within carefully drawn limits, and attempted to respect the view that all fertilized human eggs have some moral status. In determining that the potential benefits of embryo research to women, children and men outweighed the preimplantat ion embryo's moral standing, the HERP settled on what might be called a "consensus compromise," an agreement on one way of attempting to respect multiple principles. The HERP also navigated the problem of overselling its own consensus by acknowledging i ts unease about some issues, such as that on the deliberate creation of "spare" embryos for research. For these accomplishments and more, the Human Embryo Research Panel is to be commended.

Unfortunately, because the role of such bodies in building moral consensus is not well understood, the HERP faltered at one sensitive point: it seems to have felt obliged to present an ethical argument in support of the view that some embryo research m ay take place, rather than a policy argument with ethical implications. In fact, the Panel did not present an ethical argument, though it said it did. Like others, we are critical of the panel's proferred conceptual framework as an ethical argument, but we approve the framework as the basis of a policy argument.

In retrospect, the President’s Commission was given a broad range of issues to consider, from genetic engineering to informed consent to resource allocation. The Commission’s bioethical expertise was provided mainly by its staff. But subsequent g overnment bioethics panels have been charged with more targeted, if no less ambitious, goals, and the membership itself has included a healthy dose of experience in bioethics. This was true in the mid-1990s of presidential advisory committees on human ra diation experiments and Gulf War veterans’ illnesses, as well as the NBAC itself, which immediately established focused subcommittees on genetics and human subjects research. About half of the membership of the Human Embryo Research Panel was individuals who have been recognized as "ethicists" at one time or another in their careers. This change reflects the increasing specialization and professionalization of bioethics. Accordingly, one can expect that many of the tacit assumptions in the field of bioe thics will find their way into the consensus of these panels.

The background consensus of bioethics as a professional field includes many propositions that are not always well articulated. Some, such as the moral right of personal autonomy, are often stated, but in a policy context a commitment to autonomy also implies a commitment to pluralism, especially in a multi-cultural society like the United States. In turn, pluralism carries with it some implications for decision making processes, such as diversity of representation. These details are important becaus e pluralism is much more likely to be satisfied in an ethical framework that involves "weighing" or "balancing" various views than in one that emphasizes a relatively uncomplicated moral imperative. Thus, among Western ethical traditi ons, theories that derive from utilitarian, empiricist, and mercantile sources (weighing and balancing are metaphors borrowed from the marketplace), are more likely to find their way into the consensus of ethics panels than theories based on deontological , rationalistic and religious sources. Along these lines, ethics panels freighted with these background assumptions are likely to view ethical standards from faith traditions as useful insights and reference points, but not as decisive owing to their par ticularistic origins.

We offer these observations about the consensus background of bioethics for two reasons: first, to make the point that in general one can expect to see certain patterns of reasoning issue from bioethics panels as the professionalization of the field c ontinues; second, to explain why the HERP was driven to a pluralistic ethical framework even though, as we shall shortly argue, its expressed reasoning did not get it there.

There should be nothing startling in these observations about the background consensus of bioethics or the way it operates. H. Tristram Engelhardt, Jr., essentially made this point when he observed that bioethics has become a kind of lingua franca of modernity, and this has occurred not only within the professional field but also in public discourse about ethical issues. [7] Along with the increasing professionalism of bioethics and the increasing use of technical language in the conduct of bi oeth ical inquiries comes a more or less distinctive set of presuppositions that set the framework for discussion.

To make the latter point as clearly as we can, the "public" bioethics that takes place in such contexts as government ethics panels is not ethics. It is policy making with ethical deliberation as a necessary but not sufficient condition. The conceptu al frameworks developed by these panels should not, therefore, be presented as ethical in anything like the way that ethical arguments are presented in academic journals. To do so misstates the case, undermines the consensus-building function of ethics p anels, and leaves them open to charges that their ethical framework is unsound. We will elaborate on the way this problem applies to the HERP between an ethics panel's internal and external consensus.

In Deciding Together one of us (JM) urged that the concepts of consensus and compromise require sharper definition and that the terms need more careful use in the bioethical literature than is normally the case. They are easy to confuse bec ause they are both processual in nature, a fact that is concealed by the popularity of these terms as nouns, as in "reaching a consensus" or "settling on a compromise." Once the processual nature of consensus is recognized it can be seen that there are c ertain pre-conditions for success, including "formal" conditions like mutual respect among the parties and "substantive" conditions like agreement on certain facts that characterize the problem.

Compromise takes place when disputing parties "split the difference" between irreconcilable points of view, [8] but consensus need not involve that kind of bargaining. Rather, consensus in the full sense may take place, and consensus processes [9] are at their most vibrant, when parties are genuinely uncertain as to the right course of action and through a deliberative process come to some generally acceptable conclusion. The "genuine uncertainty" of which we speak need not be a Rawlsian veil, nor do es it de mand that the parties come to the table unfettered by any prejudices or self-interest or even prior views. Rather, it requires a seriousness of purpose, authentic doubt about the best outcome, and openness to alternative points of view. Although it is s urely possible to expect too much of consensus processes, we believe that this is the kind of posture expected in the "real world" when we assess one another's sincerity in the midst of a problematic situation that seems to require a difficult choice.

In especially controversial matters consensus in the full sense may be impossible because parties do come to the table with some prior views that are fixed. The HERP was fated to be unable to formulate a consensus in this full sense (at least not one that would be acceptable outside the HERP), because some members of our society hold a fixed position on what counts as the beginning of personhood. While they might have had a full internal consensus on this point, they could not achieve that on behalf of the society as a whole, an external consensus.

Although the questions surrounding the cloning of human beings may be no less controversial than those surrounding embryo research, the NBAC was able to reach a clear consensus without having to engage in any form of compromise. This fact, however, is not the result of our having made substantial progress on these issues since the HERP convened in 1994. Nor is it the product of widespread agreement on the illicitness of cloning human beings. Rather, it is the result of the relative lack of informati on that we have about the safety of somatic cell nuclear transfer. As we will see below, the NBAC did not embark on a serious engagement with the more substantive questions concerning the acceptability of cloning humans as such. Had it done so it is hig hly likely that it would have found itself in much the same situation as the HERP. As a result, the NBAC report may not suffer from the same shortcomings as that of the HERP, but as we will see, the NBAC report raises important issues concerning the role of such panels in its own right.

Ethics panels may engage in two kinds of consensus building, one having to do with their internal dynamics and a second with their external environment. Internally, some ethics panels may not operate with consensus in mind, but perhaps only with a majority. Technically, IRBs can operate on a majoritarian basis, and at least a few hospital ethics committees and even government panels may do so. In the main, however, consensus seems to be the preferred arrangement, for several reasons. As a more ambiguous standard than majority rule consensus helps preserve the group's internal amity, especially important if the panel is not ad hoc and its members know they will probably have to work together for some time.

Consensus may also be preferred to majority rule owing to the kind of issue at stake. If the issue is seen as a moral one many people are uncomfortable with the notion that one vote more than half can "decide" an ethical issue. Rather, our society, a t least, seems more comfortable with the idea that the morally right course emerges from the joint deliberation of well-meaning people. Institutions will often go to great lengths to maintain at least the appearance of a deliberative model in what are pe rceived as ethical questions. It is interesting that the only committee of the United States House of Representatives that does not have a majority of members from the party in power, but have rather an equal number of members from each party, is the eth ics committee, as though structuring a committee with such a name according to partisan lines would be too obviously unseemly -- even for Congress.

The HERP sought to preserve consensus by enabling members to formulate individual statements that were appended to the text, thus providing members with enough flexibility that they did not feel they had to dissent from the report as a whole. It is al so important that the statements were not called "dissents," as they well might have been, which would have somewhat impaired what was in the main an appearance of solidarity.

Whether a panel operates according to a consensus orientation or not, it needs also to be aware of its relationship to its external environment. Some panels are expected to help build a consensus within the public from which it is drawn, as though its deliberations are surrogates for those that might be conducted if the whole society could fit into a single hall, like a New England town meeting. Perhaps government-appointed ethics panels tend toward consensus because the panel's internal consensus pr ocesses are easily conceptualized as the society's consensus processes writ small: How can the society be expected to reach a consensus if the panel can only achieve a majority? Ethics committees or task forces appointed by professional organizations, o n the other hand, may not have the same persuasive function, and may feel less obliged to operate according to consensus, though they may do so anyway for reasons of collegiality.

We will not dwell here upon what has been called the "authority prob lem," how the conclusions of consensus-oriented ethics panels come to deserve a stature to which society defers. This tough issue in moral epistemology turns on whether the moral authority of consensus resides outside the consensus activity or whether it emerges from the nature of consensus processes themselves. One of us (JM) has defended a version of the latter view, called ethical naturalism. However one treats the authority problem, in the case of government-appointed "expert" panels on ethical i ssues moral authority in itself is probably not going to be enough to bring a commission's proposals to realization. Depending on the issues, a heavy dose of political sophistication is required of those who seek to shape government policy by building a moral consensus external to the panel itself, even (or perhaps especially) when their deliberations are dignified as ethical concerns.

In this sense, in spite of the depth of experience of its members, the HERP may have misjudged the political environment when it recommended that the creation of research embryos should be permitted. Not only did this judgment detract from the HERP’s internal consensus, it presented an easy target for critics of the very idea of human embryo research. Instead, the HERP could have merely indicated that it did not find the objections to this practice to be conclusive.

One cannot generalize about the relative importance of internal versus external consensus-building in ethics panels. Circumstances determine the task at hand. For example, a local hospital ethics committee that happens to include many of the most pow erful members of the staff and administration may worry little about shaping opinion in the rest of the institution, so seriously are its recommendations taken. The same may be true of a national ethics commission composed of influential figures working mainly on issues that are not terribly divisive and at the behest of an agency eager to receive and begin to implement its proposals. Such circumstances offer the group the luxury of focusing on internal processes rather than worrying about persuading of ficials or the public at large.

But the circumstances of many other ethics panels offer no such luxury. Congressional and presidential advisory bodies (and many more local ones), are not only likely to be characterized by diversity of internal opinion (at least at the beginning), bu t also by the challenge of consolidating public opinion about matters that are often arcane and complex. Relevant to this phenomenon is a special form of consensus building that can be called "consensus extending." In such processes the deliberative bod y identifies views or values that are known to be already widely held and attempts to infer from them some other views that should also be acceptable to the public. One advantage of this strategy is that it avoids confronting the potentially divisive mai n issue head-on, and instead attempts to find clues that might yield a justifiable resolution likely to find public acceptance. The HERP report adopts this strategy by noting the public's acceptance of three propositions: the importance of research, the serious moral consideration due preimplantation human embryos, and the need for Federal review of research with embryos.

However, because the HERP’s recommendations do not accept that human life with full moral standing begins with the union of sperm and egg, there is an irreducible element of compromise with respect to those Americans who hold this view. Thus the best the HERP could have done is achieve a consensus compromise. Not wanting to appear to engage the abortion issue at all, we will see that the HERP attempted instead to argue that no single ethical criterion for resolving the problem of the embryo’s moral s tatus is up to the job. But, as we shall show, their argument was not an ethical one, and thus the central issue — coming up with a consensus where there could not be full consensus — was somewhat obscured. We will then examine the way these issues were dealt with by the NBAC.

In spite of our general approval of the tone and execution of the Panel's report, it includes an unfortunate confusion that illustrates the importance of a better understanding of the role of ethics panels and the nature of the consensus processes in which they engage. What is especially unfortunate about this confusion is that it is utterly unnecessary, for it occurs only in the chapter that deals with "ethical considerations" but not in later chapters.

The panel's chapter on "Ethical Considerations in Preimplantation Embryo Research" is presented as an ethical analysis grounded in values that underlie consensus ethics, such as an appreciation of cultural pluralism and moral diversity. But a c areful reading shows it is not an ethical analysis; rather it is a policy analysis. That is, the chapter is not "an assessment of [the preembryo's] moral status" (p. 40), as it purports to be, but an assessment of how a pluralistic society can best en compass various views about the preembryo's moral status. Thus although the chapter is in fact a consensus-oriented analysis, it presents itself as a standard ethical analysis, thereby masking the important policy work it attempts to do.

To see this, one need only consider the way the chapter contrasts what are called single criterion views of the moral status of the human embryo with what are called pluralistic views of its moral status. In any subject matter single criteria are almo st sure to be too limited to do the conceptual work required of them (what is the single criterion for being a work of art or being a rock?); or more complex than the word "single" suggests (the third "single criterion" for personhood mentioned is that of "well-developed cognitive abilities." (p. 37)) The single criterion approach seems to have been created mainly to do the rhetorical job required of it in theHERP report’s narrative.

If the reader did not already have a sneaking suspicion that the single criterion approach is a loser, he or she could simply turn the page and learn that the pluralistic approach "emphasizes a variety of distinct, intersecting, and mutually supporting considerations." Happily, a pluralistic approach can embrace a number of single criteria, such as "genetic uniqueness, potentiality for full development, sentience, brain activity, and degree of cognitive development." Unfortunately, as the text acknow ledges, none of these is by itself a sufficient condition for personhood, but together "at some point" they give an entity full moral status and entitlement to "protectability." (p. 38)

The report then considers "implications for public policy," noting that Americans hold "widely different views" on the moral status of prenatal life and that the goal of public policy is "a reasonable accommodation of diverse interests," taking into ac count "the diverse moral sensibilities that exist in the community." Pluralistic views are said to do this better than single criterion views because the former "is less subject to the specific criticisms leveled at each of the single criterion views," a nd "corresponds with the steady increase in moral respect many people give to prenatal life in its various stages from conception to birth." (p. 40)

The first supposed advantage of pluralistic views is again a rhetorical one that might be called "safety in numbers": The more criteria are included in a framework the more likely the framework will survive criticism. The second alleged advantage is t he correspondence of a pluralistic view with what "many" think about the issue. Neither advantage mentioned is part of an ethical analysis. Both are strategic, in terms of likelihood of public embrace of a certain approach, and metaethical, in the sense that these advantages range over and characterize different ways of attempting to gain a widely acceptable theory.

We have said that the HERP report’s pluralistic framework is not a moral argument, but rather an effort to build a consensus compromise through a policy argument with ethical implications. In other words, one might say that the HERP was attempting to formulate a story about the human preimplantation embryo based on themes with which most Americans could feel comfortable, including that preimplantation embryos have some moral status. Though a few won’t be happy about the way the story comes out, their reservations, however grave, are not supposed to undermine the general satisfaction with the story. That, at least, is the hope.

Thus the chapter on "Principles and Guidelines for Preimplantation Embryo Research" states in its introduction:

This statement reflects an appreciation of the need to extend the public moral consensus to embryo research by calling upon well-established views in other areas so as to formulate a consensus compromise on embryo research. But since the report's "ethi cs" chapter confuses the nature and purpose of its pluralistic framework, it is open to the charge that it fails as a moral argument, as indeed it does.

In their criticism of the panel report George Annas, Arthur Caplan, and Sherman Elias point out that in order for the framework to explain how moral standing is conferred upon embryos, it must explain why the particular properties included in the frame work confer moral worth. The report does not do that and so it fails as a moral argument. Annas, Caplan and Elias argue that "inability to define the moral status of the embryo convincingly is the crucial failure" of the report, and is also why so many Americans have reservations about embryo research. [10]

It is well and good to call, as do Annas et alia, for a moral analysis that will settle the problem of the preembryo's moral status, but the HERP should not be chastised for falling somewhat short of the wisdom of Solomon. Considering the proximity o f this problem to the notoriously recalcitrant and highly politicized abortion quagmire, authority of near-Biblical proportions might be needed to meet the challenge Annas and his colleagues set for the panel. Notice that they did not provide one.

The Panel's framework would have been less open to criticism, in our view, if it had announced its aim as frankly consensus-oriented rather than as an effort to assess moral arguments. All of the elements of the former sort of presentation are in the report, such as reference to the nation's cultural pluralism and to its diversity of moral and religious beliefs, and they are summarized well elsewhere in the text.

The confusion between formulating ethical arguments and developing an intellectual basis for consensus building appears even in the executive summary, which states: "the Panel concludes that sufficient arguments exist to support the permissibility of c ertain areas of research involving the preimplantation human embryo within a framework of stringent guidelines." On the approach we recommend it would state, "the Panel concludes that, taken as a whole, our society's moral values support the permissibili ty of certain areas of research involving the preimplantation human embryo within a framework of stringent guidelines." Again, the emphasis is on the panel's analysis of the values of the society of which it is a part, not on its judgment from on high.

The HERP’s charge permitted the approach we suggest. According to the report's executive summary, "its task was to propose guidelines for preimplantation human embryo research that would be acceptable public policy based on reasoning that takes accoun t of generally held public views regarding the beginning and development of human life." (p. ix) A consensus-building strategy would emphasize those "generally held public views" more than a moral analysis based upon those views, for the latter is almost sure to be subject to criticism on philosophical grounds. An account that hews closely to "generally held public views" accentuates description rather than prescription.

Some might see our position on this matter as political in the pejorative sense of cynical manipulation of the policy process, and that we also want to take the ethics out of bioethics. These criticisms would misunderstand our view, which is not that e thics is dispensable but that public bioethics is, like it or not, a public policy creature. And the goal of deliberating about public policy is to make public policy. In this instance, since a consensus in the full sense was not in the cards, it might have been better to see the job as one of formulating a consensus compromise and mounting the strongest possible argument about the public values that support it.

Consensus building about a compromise that involves a moral view deeply held by some members of our society is bound to be a messy business. The alternative is to stick close to the seminar room and to refrain from engaging in public bioethics concern ing controversial issues like those pertaining to human reproduction. Some may prefer this locale, but for better or for worse, bioethics is in fact a player in the policy arena, and it is not clear that it can pick and choose its issues. But calling a framework an ethical argument when it is not is no solution.

As we noted earlier, there was no need for compromise within the NBAC because it readily achieved an internal consensus on the problem of safety. For this reason some have hailed the NBAC report as a "significant achievement" not only be cause it was able to reach a consensus on a controversial issue within the allotted ninety day period but also because the report makes a concerted effort to lay out the relevant moral topology and to provide a kind of prolegomenon to the national convers ation about the licitness of cloning human beings that it hopes will follow in its wake. [11]

We might also add that the NBAC should be commended for taking seriously its role as a consensus oriented, public policy centered body. For instance, it justifies the considerable attention paid to the views of various faith traditions concerning the licitness of cloning humans by noting that an acceptable public policy will not only have to be morally justifiable but politically feasible. Any public policy that runs counter to the deeply held beliefs of these religious traditions will likely be the subject of widespread opposition, thereby possibly running afoul of the feasibility requirement. [12] Similarly, in its section on "Legal and Policy Considerations" it admits that:

Although moral and theological questions are important, the NBAC is forthright in its view that such considerations must be integrated within a political framework that includes the disparate views of a pluralistic, democratic community. These argumen ts may not establish the conclusion that cloning humans is unacceptable but their prevalence within the larger community represents an important factor that must be taken into account by any feasible political judgement.

As laudable as these accomplishments are, however, a much less sanguine view of the NBAC report sees them as being purchased at the price of a larger social responsibility. Not only did the NBAC not attempt to forge a consensus around ethical and soci al issues other than safety, but as one member has put it, "Consensus on the safety argument meant, however, that NBAC did not have to try to resolve the larger debate about the probable impact of acts and especially widespread practices of human clo ning on social values that are not reducible to harms or wrongs to individuals." [13] And from the narrow perspective of its immediate charge, this is true; once the safety issue was settled, the NBAC could make a recommendation without becoming mir ed in volatile social, ethical, and theological issues.

Nevertheless, where the HERP was forced to engage in what we have called the consensus extending process, the NBAC demurs, and its unwillingness to grapple with more substantive questions concerning cloning as such, has led to a growing dissatisfaction with the NBAC report. With time and practice, the safety issue will be overcome and we will once again have to face the more troublesome underlying issues at the heart of the debate about cloning. The NBAC report puts itself forward as beginning a nat ional debate that needs to ensue if we are to come to a broader consensus about the appropriate uses of this new technology. But what kind of contribution to this national debate does the NBAC report really make?

When it comes to issues other than safety, the NBAC report reads more like a fact-finding study than a document with normative import aimed at shaping public debate or public policy. In some cases the facts that were uncovered are genuinely important. For instance, it is significant that there already seems to be a consensus in various faith traditions that a child which resulted from the cloning process would not be diminished in its humanity and would be entitled to "the same moral protections that already apply to other persons created in the image of God." [14] This is a fact about the beliefs of major faith traditions in this country which has significant normative import. But because it did not have to engage in a process of consen sus co mpromise or consensus extending, when it comes to issues of greater disagreement the report is often content simply to note the existence of controversy, the nature of the relevant disputes, and to move on.

This means that although the report notes that there are a number of complicated and conflicting views on many difficult issues, it does very little in terms of suggesting how public policy should be shaped by these debates or even to suggest strategie s for confronting these issues so as to make the creation of a workable public policy more feasible. This is unsatisfying for those who are well versed in the nuances of these debates as well as for those who are not, but who are looking to the report for normative guidance. As the question of safety recedes into the background, the NBAC report has relatively little to contribute to the shape of the national debate. This is not to say that the NBAC should have tried to provide substantive answers to th e thorny moral and political questions lurking just beyond the safety issue. It is simply to say that the report could have gone some way towards shaping the context in which this debate should occur.

For instance, because it does not attempt to set out the framework of a consensus extending process, the NBAC report is open to the charge that it deals with somatic cell nuclear transfer cloning outside of the broader context in which it arose and wit hin which it would be utilized. [15] This is, after all, one new reproductive technology among many and dealing with it as an isolated innovation obscures the fact that the field of reproductive technology is itself in need of serious regulation and revie w. We have learned to adapt readily to the scientific advances we have achieved in this century and some have already begun to wonder how long it will take before the outrage over the possibility of cloning humans will seem "as misguided as medieval ban s on dissecting cadavers in medical schools." [16] If human cloning is just an incremental step beyond what we is already being done with the array of fertility drugs, in vetro fertilization, artificial insemination, and our extant practices of gen etic manipulation, then it will become increasingly difficult to see why cloning should be singled out for special regulation once we become more adept at, and inured to, the cloning of sheep, cows, and monkeys. In fact, one worry that many people had a bout the use of cloning, the creation of a delayed twin, has already been partially realized through the use of existing reproductive technology. Using one of their own frozen embryos a woman gave birth in February of 1988 to a baby boy born seven years after its non-identical twin brother.

Noting the analytical similarity between cloning and our existing fertility enhancement practices, Laurence Tribe cautions against using the law to condemn or outlaw certain "patterns of human reproduction." He argues that "to ban cloni ng as the technological apotheosis of what some see as culturally distressing trends may, in the end, lend credence to strikingly similar objections to surrogate motherhood or gay marriage and gay adoption." [17] Tribe is worried about the effects t hat a ban on cloning will have for the children that may result from illicit use of the technology. Whether these are legitimate reasons to regulate rather than ban cloning remains to be seen. But we submit that these are legitimate worries about the possibl e effects of undertaking a piecemeal regulation of individual reproductive technologies. The point is not that cloning’s similarity to our existing reproductive technologies should allow it to be utilized as freely as they are. It is rather that our con cerns about cloning should be expressed in the context of a thoughtful deliberation about our use of reproductive technologies in general and that what should be avoided is not the banning or regulating of patterns of human reproduction per se, but the ad hoc way of making public policy that will result from considering individual reproductive technologies in isolation from one another.

Had the NBAC attempted to provide a normative framework in which the debate about cloning should be conducted it could have done so by placing this new technology within the proper social context and thereby served as a catalyst for a long overdue exam ination of the use and regulation of reproductive technologies as a whole. This should not be taken as the rather unrealistic objection that a commission with ninety days to make its recommendations should have tried to tackle these broader problems as w ell as the question of cloning human beings. It is, rather, the more realistic charge that had the NBAC included a chapter in which it tried to forge the beginnings of this national conversation it could have set out the basis of a normative framework in which this conversation should occur and at least gestured at the way that a feasible consensus or consensus compromise might be reached. Although this may have been the more politically daring path, done well, it may have also been the more socially be neficial.

Having said this, however, it is not clear whether these dissatisfactions should be leveled at the NBAC itself or at the way it was expected to deal with a complicated question of public policy in an impossibly short period of time. If the lesson of t he HERP is that public bioethics bodies should recognize the political nature of their task and recognize as one goal that of forging a workable public policy, then the lesson of the NBAC report is that, if we are going to look to such bodies for guidance , it will be necessary to give them the time that it takes to engage in the messy business of building a workable consensus.