IBC MEETING ON HUMAN CLONING

UNCLAS PARIS 002266


FOR IO/UNESCO Q K. SIEKMAN

PLEASE PASS TO HHS BILL STEIGER

E.O. 12958: N/A
TAGS: UNESCO TBIO
SUBJECT: IBC MEETING ON HUMAN CLONING

REF: STATE 114207


1. The International Bioethics Committee (IBC) of UNESCO
met October 28-29, 2008, followed, October 30-31, by a
joint meeting of the IBC and the Intergovernmental
Bioethics Committee (IGBC),to discuss what the IBC
should recommend to the Director General on possible
action by UNESCO with respect to human cloning and to
discuss IBC reports on certain principles of the
Universal Declaration on Bioethics and Human Rights
(2005). The meeting evidenced an absence of consensus
for further work toward a normative instrument on human
cloning and disagreement on the draft report on Social
Responsibility. Final action on these items will be
taken by the IBC at its next meeting, in Mexico in May,

2009. The IGBC will meet next in Paris in July. End
Summary.


2. The IBC mandate is to encourage the exchange of ideas,
and to heighten awareness. Carter Snead, Professor at
Notre Dame Law School, is a newly appointed member. The
IGBC is composed of 36 Member States, including the U.S.
Member States that are not members of the IGBC and NGOs
attended the IBC and IGBC meetings as observers.


3. The DG had asked the IBC, an independent advisory
committee composed of 36 experts, to consider whether
there had been changes since the Declaration on Human
Cloning adopted by the UN General Assembly (2005) that
warranted further action on this issue by UNESCO. A
working group of the IBC prepared a report that
recommended development of a binding instrument banning
reproductive cloning and development of guidelines for
regulation of "research" cloning in countries that permit
it.


4. At the Direction of the Department (Reftel) Ambassador
Oliver met with the Director General on October 27 to
discuss the involvement of UNESCO in the cloning issue.
The Ambassador conveyed the U.S.' strong objection to any
action by UNESCO with respect to human cloning. She
pointed out that continuing to pursue this matter would
be divisive and would adversely affect the DGQs
leadership in his last year in the post. She hoped
that, regardless of the nature of the recommendation of
the IBC, the DG would not recommend that UNESCO pursue
efforts to develop an instrument banning reproductive
cloning.


5. There was no consensus among the IBC experts at the
October 2008 meeting to adopt the report of the working
group or to recommend that UNESCO proceed to develop an
instrument banning reproductive cloning. They noted
there is confusion about the science (in particular, the
implications of induced plenipotent stem cell technology
(IPS)) and the terms used. The chairman of the working
group heard a "healthy skepticism" concerning the working
groupQs report. The chairman of the overall IBC said
that the working group needed more time to reflect.


6. The interventions of Member States at the joint
meeting with the IGBC that followed on the heels of the
IBC meeting reinforced the absence of a consensus for
further work toward an instrument.


7. The United States made a statement opposing further
work by UNESCO to develop an instrument. It pointed to
the 2005 UNGA Declaration, which urged Member States "to
prohibit all forms of cloning in as much as they are
incompatible with human dignity and the protection of
human life." The U.S. said there has been no new
development to warrant reopening the UNGA Declaration;
the Declaration was based on beliefs about human life
that are universal and fundamental and have not changed
over the last three years; the U.S., like many others,
believes that any human cloning is unethical and an
assault on human dignity, and transforms humans into
commodities, devaluing human life and the relationship of
human beings to each other. An effort to ban
reproductive human cloning, while being silent on
"research" cloning, would suggest something less than
total condemnation of all cloning and thus be
inconsistent with the UNGA declaration. There can be no
exception for "research" cloning, which would require the
destruction of all cloned embryos; to attempt to justify
it on the basis of potential benefits would take the
ethically untenable position that human life can be
created and destroyed for the convenience of others. And
any effort to regulate "research" cloning would similarly
be unacceptable since it would facilitate what the UNGA
has already said should be banned.


8. The interventions of a number of other Member States
implied opposition to UNESCO work on an instrument,
either by not supporting UNESCO action or by making a
variety of essentially negative points. They said there
was no consensus for action; any action would take a long
time; the effort might be counterproductive if it failed
and led to negative inferences; it is too early to decide
if a convention would be possible; and/or UNESCO should
move slowly and cautiously in this area. With varying
degrees of clarity, countries taking one or more of these
approaches included: Switzerland, Jamaica, Germany,
France, U.K., Saudi Arabia, Denmark, and the Netherlands.
Madagascar preferred a ban on reproductive cloning and a
moratorium on research cloning but explicitly said that
nevertheless it supported the U.S. and France and Germany
(which it understood to be negative). Canada also
explicitly supported the U.S., saying this is not the
time to develop a convention. The World Health
Organization said that efforts to agree on a convention
would take too long and would "undermine the credibility"
of UNESCO and WHO. On the other side of the coin,
Japan, Indonesia, and South Korea supported the working
group report and wanted a convention banning reproductive
cloning with regulation of "research" cloning; the
Dominican Republic, Egypt, and Kenya supported such
action by UNESCO because they said they need UNESCOQs
guidance. The interventions of Russia, Libya, and India
were so muddled as to verge on being incomprehensible,
but they did not express clear support for an instrument.


9. Further comments on the working group's report can be
filed in writing. The IBC plans to adopt its final
recommendation to the DG at its next meeting.


10. The meetings also considered IBC reports on certain
principles of the Bioethics Declaration.


11. One of these principles is the importance of
obtaining a patient's consent for a medical intervention
(Articles 6 and 7). The IBC reported at the meeting on
how it had responded to suggestions made by the members
of the IGBC at its meeting in July 19-20, 2007. The
report on consent is now published in final form.


12. The meeting also discussed a draft of a report on
"Social Responsibility," a term included in the title of
Article 14 of the Bioethics Declaration ("Social
responsibility and health"). The draft weaves together
different strands of the Declaration to create new
"rights": it says, for example, that Article 14 is
normative, not descriptive, and, as combined with Article
15 (benefit sharing) and Article 21.1 (transnational
practices),creates a transnational obligation (p. 18).
The meeting discussed international social
responsibility, social determinants of health, the
combination of human rights and bioethics, the right to
health, solidarity, etc. A few countries endorsed the
draft; most criticized it, with diverse viewpoints.


13. Colombia, on behalf of the Latin American group that
had pushed for the inclusion of Article 14 in the
Bioethics Declaration, said the draft was contrary to the
spirit of the Declaration and that the report should not
be forwarded to the DG. Cuba supported Colombia, and
complained that the draft was founded in "liberal
capitalism." Joining the Colombian intervention were
Philippines, Peru, and the Dominican Republic. The
Chairman of the IBC said they would consider the draft
further. He welcomed the joint action by the Latin
American countries, but specifically disputed their
contention that the draft report reflects an "ideology":
this is "totally false." He asked who was behind their
effort so he could communicate with them and consider
their views for the next IBC meeting.


14. The U.S. intervened on several points, in particular,
that the effort to squeeze the complex issues of
improving health care into the language of rights
generally, and that of the Bioethics Declaration
specifically, is misplaced. The IBC should not attempt
to interpret or apply the Declaration; as evident from
the discussion, there are divergent views about its
meaning. It should be recalled, moreover, that two
conditions were essential to reaching a consensus on the
Bioethics Declaration: a) Member States understood the
Declaration had to be written on the basis of broad
principles and that they could not reach agreement on
particular applications. The IBC walks into quicksand if
it tries to supply the specificity that the Member States
themselves avoided in order to reach consensus. b) The
wording (including Article 14, which was discussed at
length by Member States) was precisely drafted and
negotiated in order to reach this consensus; the
understanding of the U.S., on the basis of which it
joined consensus, was (and is) that Article 14 is
descriptive, not normative. The IBC is exceeding its
mandate in issuing what appear to be authoritative
statements about the Declaration and in doing so to
attempt to create new rights and obligations. Whatever is
finally published should contain a disclaimer that it
does not represent the views of UNESCO or of Member
States (the disclaimer in the consent report mentioned
only the former),and this should be more readily
observable than the very small-type disclaimer in that
report.


15. Comments on the draft report can be filed in writing.
The IBC intends to agree on the final version at its next
meeting.


16. Comment: IBC's activities in connection with the
Bioethics Declaration demonstrate a number of problems
that arise from normative activities at UNESCO. These
relate to the IBC specifically, but also more generally
to normative instruments.

An advisory committee composed of independent experts
acting in their personal capacity is a vehicle ripe for
free-lancing; the committee members have a draw on Member
States' resources and the ability to use the imprimatur
of the Organization to advance their own personal agenda
and ideological predilections, with no control by Member
States. They can do this by issuing reports and
publications. These are published by the UNESCO press
with the UNESCO logo. The standard disclaimer that the
publication does not necessarily represent the views of
the UNESCO is barely visible, except to those looking
closely for it. If it is noticed, its effectiveness in
any event is undermined by the appearance and provenance
of the publication. The committee is thus able to issue
what appear to be official and authoritative statements.
These can be used to support efforts to have UNESCO act
in an area by preparing a normative instrument, or as
fodder for efforts to influence the broader political and
intellectual climate. For instance, the report on Social
Responsibility that is in process declaims on the role of
the State (e.g., the rationale for its sovereignty must
be found in the need to protect people from untreated
disease) and international solidarity, and finds an
international obligation of social responsibility. It
also opines that the profit motive of the pharmaceutical
industry "no doubtQconflicts' with the Bioethics
Declaration. Statements like this can be expected to be
picked up and used by governments and private sector
organizations who seek to find a rights-based pressure
point to achieve resource transfers (money or
intellectual property) within countries and from the
"rich" to the "poor" countries.

While advisory committees of experts, and the IBC in
particular, are themselves problematic, they also
demonstrate the broader risks that arise from the
development of normative instruments at UNESCO. The
danger arises first in the drafting of the instrument;
the drafting process itself becomes a vehicle for trying
to achieve policy goals that one would not think would be
included in the subject matter of the instrument under
consideration. Thus the drafting of what was billed as a
bioethics declaration enabled various member states and
academics working through the IBC and through member
states to introduce a bevy of economic, social, and
political matters: technology transfer, protection of
all forms of life and the environment, the value and use
of intellectual property and traditional knowledge,
support for developing countries, etc. It is difficult
enough in the negotiation to limit the instrument to the
agreed upon subject matter. But the document that is the
product of this negotiation and agreed to by Member
States can then be used as a launching pad by academics,
advisory committees, and member states to push the very
notions that were opposed by some of the member States
and discarded in the negotiation of the instrument in
order to reach a consensus. Creative academics and
members of an advisory committee, in addition, can use
the words of the instrument as a foundation on which to
hook various other agendas and to find (really to create)
new "rights" not even thought of at the time.
UNESCO is not, therefore, a reliable forum for
international agreements. The United States should be
vigilant to efforts to develop normative instruments at
UNESCO. It should be prudential and cautious about
joining any that are adopted. End Comment.



OLIVER