The Clone Wars on Human Rights

The Clone Wars The Lost Missions posed very interesting legal questions over Clone rights. Is a Clone a person? Is a Clone property? Can a Clone be euthanized to protect the rest of the Clone population?

CloneBrothers_1What is more impressive is these issues were presented in a children’s cartoon.

Attack of the Doctors

The Clone Wars episodes “The Unknown,” “Conspiracy,” “Fugitive” and “Orders” centered on a Clone Trooper named Tup who suffered a breakdown from a defective bio-chip in his brain that caused him to kill a Jedi. The story focused on his friend Fives trying to get Tup proper medical treatment.

The issues of treatment turn on whether the Republic or Kamino owned the Clones. Moreover, doctors proposed a medical exam to kill the Clone to find out the illness caused Tup to kill a Jedi.

Nerf_Clone_EuthanizeA doctor killing a human being “for the greater good” is the unholy marriage of eugenics and euthanasia. Normally, deciding whether the state kills someone requires a criminal trial and not a doctor’s note.

Eugenics laws in the United States were common through the first third of the 20th Century, often forcing sterilization on those with physical illnesses. Justice Holmes described the intent of the laws as follows:

It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough.

United States v. Kriesel, 720 F.3d 1137, 1160 (9th Cir. Wash. 2013), Dissent, citing Buck v. Bell, 274 U.S. 200, 207, 47 S. Ct. 584, 71 L. Ed. 1000 (1927).

Euthanasia raises many other issues, but many states have prohibited the practice (while others legalized death with dignity) on the governmental interests of “prohibiting intentional killing and preserving human life; preventing the serious public-health problem of suicide, especially among the young, the elderly, and those suffering from untreated pain or from depression or other mental disorders; protecting the medical profession’s integrity and ethics and maintaining physicians’ role as their patients’ healers; protecting the poor, the elderly, disabled persons, the terminally ill, and persons in other vulnerable groups from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards voluntary and perhaps even involuntary euthanasia.” Wash. v. Glucksberg, 521 U.S. 702 (U.S. 1997).

The mixing of eugenics and euthanasia truly would create a “Doctrine of Fear,” because the state could execute anyone a doctor found to be of a public heath danger.

Revenge of the Lawyers

The issue of “Clone ownership” in determining the medical treatment of Tub had the haunting unease of Chief Justice Roger Taney’s rejection of human rights in the Dred Scott opinion. Once again, science fiction turned to a cartoon about a Clone and a Droid to define what it means to have “human rights.”

The law and science explains there are two types of cloning:

Therapeutic cloning is the use of cloning techniques to reproduce cells, tissue, and in some instances, organs for medical uses. Therapeutic cloning has possible future uses for deficiencies in bone marrow, heart muscle tissue, and neurons (for patients with Parkinson’s disease). Therapeutic cloning is to be distinguished from reproductive cloning which seeks to reproduce entire organisms. “Dolly” the famous, or infamous, sheep created by the Roslin Institute in Scotland is an example of reproductive cloning.

Advanced Cell Tech. v. Infigen, Inc., 2002 Mass. Super. LEXIS 377, 2-3 (Mass. Super. Ct. June 18, 2002).

The Star Wars Clones without question are products of reproductive cloning.

My friend Judge Matthew Sciarrino posed the following questions about the issues of ownership:

I would have loved to see the purchase agreement – did the Kominoans reserve a right to take back a damaged clone?  Did they become Republic property upon delivery? Was the agreement modified by Lord Tyranus after Syfo Dyas?

The answers to all of those questions require a “Clone” to be property and lacking any human rights.

That is not the Jedi way.

I’m A Man, Not a Number

The Clone Fives highlighted his humanity by stating he was “not a number” and that “Clones do not use numbers.” Fives bluntly told one of his creators “I am a living being.”

The United States has actively tried to keep these “science fiction” issues from becoming reality.  Missouri banned human cloning in its state Constitution (Cures Without Cloning v. Pund, 259 S.W.3d 76, 79 (Mo. Ct. App. 2008)) and New York banned grants being made available to fund human reproductive cloning from any source directly or indirectly (NY CLS Pub Health § 265-a) as two examples.

MO-CloningThe Clones were created to be the soldiers of Grand Army of the Republic. On many levels, this is taking a leap beyond using drones in combat. Instead of risking the lives of citizens or having an unpopular draft to build an army, simply ordering thousands of Clones avoids having citizens fight for their country. A civilian population is less likely to oppose a war if they are not feeling its effects by actually having to fight it.

What rights would a Clone have as a living being? We often view being human as requiring being born and having parents. Clones have a donor and were grown in a laboratory. Do these facts make them less or human? Or is humanity based on 1) Intelligence; 2) self-awareness; and 3) consciousness (to borrow from Star Trek The Next Generation)?

The fact the Clones did not refer to themselves as numbers, but names they gave themselves, demonstrated all three elements. Moreover, the fact Clones had different haircuts, facial hair and interests showed further self-awareness. Additionally, demonstrating compassion for their fellow soldiers showed character traits of what makes humans, human.

501-Boba_1If the Republic recognized that Clones had intelligence, self-awareness, consciousness, but viewed the Clones as state property, then the Republic sanctioned slavery based on whether a life was born or grown in a test tube. Alternatively, if the Republic did not recognize Clones having intelligence, self-awareness, consciousness, then the Clones were legally treated like a machine or a domestic animal.

Neither option is attractive for a Republic. It was redeeming of the Jedi Shaak Ti to stand up for Fives with the statement, “it is simply the right thing to do” over his life and reporting to the Chancellor, even if her argument was based on the Republic owning the Clones.

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Josh Gilliland
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.