Substantive Due Process and a Right to Clone

Publication Date: May 2002

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Law and ethics

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Abstract:

As Congress continues to explore whether restrictions on cloning should be imposed, this report will consider whether a right to clone may be found under the Due Process Clauses of the Fifth and Fourteenth Amendments. In past cases, the U.S. Supreme Court has recognized certain personal rights as being fundamental and protected from government interference. Some of those cases involve various reproductive matters, including procreation and childbearing. If a right to clone is found to be fundamental, any infringement on that right would be evaluated with strict scrutiny, the most rigorous form of judicial review, if challenged. Because government action often fails to withstand strict scrutiny, the judicial recognition of a fundamental right to clone could raise questions about legislation that would prohibit or limit cloning. However, if a fundamental right to clone is not found, government regulation of cloning would be subject to rational basis review, the most deferential level of judicial review.