Human dignity for clones? Expanding humanity and reflecting on the EU Charter of Fundamental Rights, By Stephanie Hughes

Posted by ccld201

21 February 2024

Human dignity is underpinned by the early philosophical notions of equality, humanity, and reciprocity[1] and is regularly interpreted by judges in connection with other human rights.[2] European Union (EU) law through the EU Charter of Fundamental Rights, which forms part of the Treaty of European Union (TEU), prohibits reproductive human cloning under its Article 3. Reproductive cloning is the ‘asexual reproduction process by which an identical replication of an already existing parent organism is created’.[3] Whilst Article 3 recognises the potential for broader dimensions of human interaction, as it prohibits cloning, there is no mention of the impact that creation has on the clone and what rights, if any, will be afforded to it. This lack of expansion on the clone’s rights forms the basis of my inquiry and this blog will seek to explore ‘whether a human clone’s human dignity would be protected if violated’, particularly when human dignity is as the first value in which the Union is founded upon under Article 2 TEU. A linked second instalment will expand on this and explore the wider question of whether this would be the same for other scientific advancements. This blog will explore the aims of the EU legal system, how these can be expanded to protect the humanity of human clones, and, finally, the justifications to support such expansion.

The current EU values and human rights

The EU legal system protects humanity and human dignity by centring its provisions on respecting the physical and mental integrity of individuals. This is particularly evident in Article 3 EU Charter which recognises everyone to possess the ‘right to respect for his or her physical and mental integrity’ as well as Article 4, which prohibits torture or inhumane and degrading treatment. Undoubtedly, this seeks to place the individual ‘at the centre and protecting them in their relations with power’[4] by ensuring people are not used as commodities within society – forming Kazuo Ishiguro’s[5] central message (in his novel ‘Never Let Me Go’) against exploitation, which will be examined in further detail in the third section. The aims of the EU legal system are evident and this, fundamentally, emulates early philosophical conceptions that everyone will be respected ‘with equal standing under the moral law’.[6]

Expanding these values to protect human clones

Many have questioned what makes us human and the concept of humanity, with Ife remarking humanity to be a ‘cultural, historical, and social construction’[7] that varies depending on the different contexts. If one assumes this definition, the notion of humanity fundamentally depends on what society deems to be human. It is then possible to expand the current EU Charter conception of humanity and to shift away from our present, western and liberal understanding that is rooted in being ‘patriarchal, secular, and individualistic’.[8] Therefore, as our recognition of what is human is potentially expandable, it is argued here that the current protection of human dignity can likewise be widened. Not only is this theoretically possible, but this expansion is also conceivable under Article 52.3 EU Charter, which recognises that Union law is ‘not prevented from providing more extensive protection’, thus enabling human dignity and human rights protection to evolve with society.

The justifications for an expansive reading

Firstly, if clones are neither regarded as human nor offered protection of human dignity, this could cause inexplicable complications for the recognition of IVF babies and identical twins who are considered as human. It is possible that some may argue that human clones should not be afforded protection as they are not naturally created through orthodox methods of human conception or because they are genetically identical to the parent. Although this would permit the harvest of organs for medical purposes which may serve to benefit the parent, it would be a bizarre and abhorrent conclusion to deny an IVF child any form of human rights and dignity protection due to the mere process through which they are conceived. Whilst the method of creating an IVF child and a human clone differ greatly, refusing a clone’s humanity solely because they are created outside of the womb would likewise be problematic – the means of creation should not remove humanity. Furthermore, identical twins are no less human merely because they share a genetic makeup. Although some authors have noted humanity to be based on something ‘individualistic’,[9] it is argued that this merely recognises the human species as separate and distinct from other animals rather than being genetically individualistic. Although clones would be an identical genetic copy of the parent, it would be inexplicable to state this genetic similarity removes their humanity. This stance in particular is furthered when one considers the fact that environmental conditions influence individual development from conception to adult life. This also creates unique features and even clones, although genetically identical, might not be completely reproduced in an identical way.[10]

Secondly, human clones would still be able to fall within Nussbaum’s ‘ten central capabilities’[11] that, whilst does not provide a theory of what human nature is, describes what is essential to human functioning. This includes being able to live to the end of a life, being able to have good health, and being able to have senses, imagination, thought, and emotions. Although human clones would be a product of science, this would not remove innate human functions and the abilities to form thoughts, opinions, and experience strong attachments. As a result, it would be morally repugnant to attempt to differentiate between clones and humans when they possess the same potential to develop characteristics that fundamentally underpin humanity. Notably, Achenbach and Clados recognised that there are numerous medical benefits to human clones’ existence; including utilising them to study human development, treat diseases, and generate tissues or organs for transplants.[12] Yet, this contradicts early perspectives of human dignity as being innate within all individual persons and as an unconditional status that cannot be defined nor undermined by being reduced to a mere price.[13] Ultimately, as clones resemble human life in every aspect other than their creation, they are deserving of the same protections of humanity and should not be refused such recognition nor be treated as commodities, even in the utilitarian ways contended by Achenbach and Clados.

The final, and perhaps most persuasive, justification (albeit a hypothetical possibility) for recognising cloned humans as human lies within literature. Ife recognised literature to form a key component to the study of humanity as authors explore the meaning and deeper connotations of humanity. One piece of particular note is the novel ‘Never Let Me Go’ written by Kazuo Ishiguro;[14] which explores what it means to be human, conferring core attributes of humanity to human clones. The novel depicts how human clones are able to experience human qualities such as self-awareness, freewill, and how they are able to maintain a human-like thought process of questioning one’s existence. This novel works to signify how it is reprehensible to conclude a human clone is a lesser human that does not deserve nor require the same protections due to the means of their creation. Whilst this is not a direct commentary on the EU Charter, Ishiguro’s central message is relatable to the EU legal system; cloned humans are able to experience human qualities and thus their dignity and rights must also be afforded protection under the EU Charter. The thesis of this blog post, i.e. that people are not treated nor used as commodities, is also aligned with this contention. Society should therefore recognise the humanity of potential cloned humans, regardless of whether they have been created solely for scientific usages, as identified by Ishiguro.

Conclusion

This blog has demonstrated that the ambiguity of Article 3 EUCFR is problematic in that it does not elaborate on the protections, if any, that would be afforded to a human clone. Nevertheless, the most persuasive argument would be to afford the creations the same protections of human rights and dignity as would be offered to an ordinary human being.

Stephanie Hughes is a third year Law student at Exeter University. Her interest in human rights law originated after taking the human rights and human dignity module in her second year. She became increasingly interested in the potential for human dignity and how the notion can be expanded in light of technological advancements. She believes that discussions surrounding expansion are important as they address and question fundamental societal values and promote a reflection on the reasons underpinning the protection of this notion.

[1] Immanuel Kant, The Metaphysics of Morals [1797], edited by Mary Gregor (CUP 2009) 209.

[2] Catherine Dupré, ‘Article 1: Human dignity’ in S Peers et al (eds) A commentary on the European Charter of Fundamental Rights (Hart Publishing 2021), 3-23.

[3] J v Achenbach and Miriam Clados, ‘Cloning, international regulation’ in A Peters (ed), Max Planck Encyclopaedia of Public International Law (OUP, June 2008) <https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1616?rskey=AjP3RX&result=1&prd=OPIL> accessed 19 February 2024.

[4] Catherine Dupré, ‘Article 1: Human dignity’ in S Peers et al (eds) A commentary on the European Charter of Fundamental Rights (Hart Publishing 2021), 3-23.

[5] Kazuo Ishiguro, Never Let Me Go (Faber 2006).

[6] Catherine Dupré, The Age of Dignity (Hart Publishing 2015).

[7] Jim Ife, ‘Centering and decentering the “human’ in human rights pedagogy’ in: Baden Offord, Caroline Fleay, Lisa Hartley, Yirga Gelaw Woldeyes and Dean Chan (eds), Activating Cultural and Social Change: The Pedagogies of Human Rights (Routledge 2022), Chapter 10.

[8] Jim Ife, ‘Centering and decentering the “human’ in human rights pedagogy’ in: Baden Offord, Caroline Fleay, Lisa Hartley, Yirga Gelaw Woldeyes and Dean Chan (eds), Activating Cultural and Social Change: The Pedagogies of Human Rights (Routledge 2022), Chapter 10

[9] Jim Ife, ‘Centering and decentering the “human’ in human rights pedagogy’ in: Baden Offord, Caroline Fleay, Lisa Hartley, Yirga Gelaw Woldeyes and Dean Chan (eds), Activating Cultural and Social Change: The Pedagogies of Human Rights (Routledge 2022), Chapter 10

[10] Francisco J Ayala, ‘Cloning humans? Biological, ethical, and social considerations’ (2015) 29 PNAS 8879.

[11] Martha Nussbaum, Creating capabilities: The Human Development Approach (Harvard Uni Press 2011)

[12] J v Achenbach and Miriam Clados, ‘Cloning, international regulation’ in A Peters (ed), Max Planck Encyclopaedia of Public International Law (OUP, June 2008) <https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1616?rskey=AjP3RX&result=1&prd=OPIL> accessed 19 February 2024.

[13] Immanuel Kant, The Metaphysics of Morals [1797], edited by Mary Gregor (CUP, 2009) 209.

[14] Kazuo Ishiguro, Never Let Me Go (Faber, 2006).