parthenogenesis for research and isolation of stem cells from those embryos in such
a country, andvice versa.^15
In 1998, the Convention was supplemented with the Protocol, which in Article
1 paragraph 1 prohibits “[a]ny intervention seeking to create a human being
genetically identical to another human being, whether living or dead [...].” This
provision is obviously aimed at prohibiting human reproductive cloning. Whether it
prohibits therapeutic cloning as well depends on the definition of another term—
“human being.” If this term would refer only to a born and functional human being,
the prohibition would not embrace therapeutic cloning. Conversely, if embryos
created by somatic cell nuclear transfer would also be considered human beings, the
provision would prohibit therapeutic cloning. Even though paragraph 2 of the same
Article defines “a human being genetically identical to another human being” as “a
human being sharing with another the same nuclear gene set,” neither the Protocol
nor the Convention explains which entities are to be considered human beings.
Therefore, similarly to the case of human embryos, the reach of this provision
depends on the interpretation of the term “human being” in each state party to the
Protocol. Unlike in the case of human embryos, though, the Explanatory report to
the Protocol directly states that the definition of the scope of the expression “human
being” for the purposes of the application of the Protocol is left to domestic law of
the parties.^16 Accordingly, under Article 1 paragraph 1 of the Protocol, therapeutic
cloning is prohibited in all states that consider embryos created by somatic cell
nuclear transfer human beings, andvice versa.
The facts that each EU member state has the discretion to allow or ban embry-
onic stem cell research; that some EU member states have signed and ratified the
Convention and the Protocol, some have only signed them but did not ratify them,
and some have not signed them; and that EU member states that are parties to the
Convention have a further discretion to interpret the terms “human embryo” and
“human being” as they see fit resulted in great fragmentation of approaches the EU
member states apply regarding the permissibility of embryonic stem cell research—
the true fundamental reasons of this being different religious, philosophical, and
ethical beliefs in European countries, which are out of the scope of this discussion.
For the purposes of this particular chapter, it is sufficient to point out that regula-
tions among EU member states include those that are extremely permissive regard-
ing human embryonic stem cell research (for instance, in Belgium and the United
Kingdom), those that are permissive albeit under very strict conditions (for
instance, in Germany and Italy), those that outright ban such research (for instance,
(^15) For example, Finland, which has both signed and ratified the Convention, defines the human
embryo as “a living group of cells resulting from fertilization not implanted in a woman’s body.”
See Medical Research Act of Finland ( 1998 ).
(^16) See Council of Europe ( 1998 ), para. 6.
58 J. Mutabžija