Last month, Vice published a short article by Jason Koebler about how genetic engineering, including the genetic engineering of human beings, is probably protected by the First Amendment. The basic argument behind this seemingly ridiculous notion is that the First Amendment protects not only speech but also “expressive conduct,” which can include offensive performance art, flag burning, and, perhaps, “acts of science.” Such acts of science may be especially worth protecting when they are very controversial, since that might mean they should be treated as political or religious speech. The 2010 hullabaloo over Craig Venter’s “synthetic cell” was trotted out as an example of the deep political and even religious implications of scientific experiments, since the idea of creating synthetic life might, as it did for Venter himself, change our “views of definitions of life and how life works.”
It is worth noting that, notwithstanding breathless headlines and press releases, Craig Venter did not create a “synthetic life form.” What Venter did was synthesize a bacterial genome, though he did not design that genome, but rather used a slightly modified version of the sequence of an existing bacterial species. Venter then put this synthesized genome into cells of a closely related bacterial species whose genome had been removed, and, lo, the cells used their new genomes and eventually came to resemble the (slightly different) species from which the synthetic genome was derived.
Unless Venter once believed that DNA possessed mystical properties that made it impossible to manufacture, or that he had never heard of bacterial transformation experiments by which bacteria can pick up and use foreign pieces of DNA (experiments that predate, and were in fact used to establish, our knowledge that DNA is the molecule of heredity), it is hard to see why he would need to change his “views of definitions of life and how life works” in light of his experiment.
Of course, freedom of speech is not only for the coherent but also the confused arguments made for the deep implications of some controversial forms of research. In a talk given at a recent DARPA conference, bioethicist Alta Charo suggested that controversial experiments like cloning or genetic engineering may be carried out to “challenge” those who think that these experiments are wrong, and that this might mean they should be protected as forms of political expression.
Scientists and academics should be free to challenge deeply held beliefs about human nature and morality. As Robert P. George has argued regarding his pro-infanticide Princeton colleague Peter Singer, “freedom of thought and expression and academic freedom are for everyone — not just those whose views others find congenial.” But this academic freedom is premised on doing business “in the currency of academic discourse: a currency consisting of reasons and arguments.” Cloned or genetically engineered children are not reasons or arguments, and they are certainly not the currency of academic discourse.
The use of reproductive biotechnologies like cloning or genetic engineering to express a political or religious view would mean that the child that results from these technologies would be treated as a form of political or artistic expression. But as the Witherspoon Council on Ethics and the Integrity of Science argued in its recent report on human cloning, this kind of perversion of the relationship between parents and children, where children become seen as products to be manufactured in accordance to the parents’ specifications and to serve their interests, is at the heart of what is wrong with technologies like human cloning and genetic engineering. And moreover, as the Council notes, to claim First Amendment protection would require satisfying several legal criteria that cloning almost certainly would not satisfy. That there are respectable bioethicists arguing that the creation of human beings is now seen as a form of artistic or political self-expression is in fact a very good reason for passing laws to ban technologies like cloning for manufacturing human beings.