by Lori Andrews

In 1856, workers in a limestone mine in the Neander Valley in Germany made a startling discovery.  They came across an assortment of bones — a skull cap, a rib cage and certain leg and arm bones — that they initially believed came from a bear.  But when the bones were examined by anatomist Hermann Schaaffhauesen, the field of paleoanthropology was born.  The bones belonged to a distant relative of humans — a Neanderthal.

Now, a century and a half later, the Neanderthals are again in the news.  A group of scientists have completed the rough draft of the genetic sequence of the Neanderthal and compared it to the genetic sequence of modern humans.  The scientists are asking now asking the question:  What legal and ethical issues would be raised by cloning a Neanderthal?

Neanderthals are the closest relatives of humans and lived from at least 350,000 years ago until about 30,000 years ago.   They survived for about 15,000 years after modern humans appeared.  They lived in Europe, where fossils have been discovered from Spain to Southern Siberia.

For years, scientists emphasized potential differences between Neanderthals and modern humans.  But more recent genetic research shows remarkable similarities.  Professor Svante Pääbo and colleagues at the Max Planck Institute for Evolutionary Anthropology in Liepzig Germany began to sequence the Neanderthal genome in 2006.  They utilized new techniques to avoid contaminating the Neanderthal DNA with homo sapien DNA.  In conjunction with the 454 Life Sciences Corporation in Bradford, Connecticut, they isolated and sequenced DNA retrieved from three shards of female Neanderthal limb bone found in the Vindija Cave in Croatia. The bone shards are estimated to be at least 38,000 years old.  Other researchers have sequenced several million base pairs of the Neanderthal genome from bones excavated at sites in El Sidron, Spain; St. Petersburg, Russia; and the Neander Valley.

The Max Planck researchers announced in February 2009 that they had completed a rough draft version of the Neanderthal genome.  Pääbo and his colleagues found a stunning similarity between Neanderthals and modern humans.  Neanderthals had a 99.9% genetic similarity to humans.  Chimps are only 96% similar to humans.

Initially, it was thought that Neanderthals, like primates, lacked the ability to speak.  But genetic research has shown that the Neanderthal’s FOXP2 gene — associated with speech and language — is identical to that of modern humans.  There are physical similarities, too. The University of Barcelona’s Carles Lalueza-Fox found a unique Neanderthal variant of a pigmentation gene, mc1r, which suggests that they had pale skin and red hair.  Neanderthals had big brains — 1200-1600 cubic centimeters, which is slightly larger than modern humans.

When the rough draft sequence of the Neanderthal genome was completed, reporters called me to ask what rights a cloned Neanderthal would have.  They reached out to me because I’ve written in the past about cloning.  The reporters almost invariably pushed for a philosophical discussion.  What makes someone human?  Is it the ability to reason?  To speak?  The questions I was asked paralleled those in the social debate about the status of human embryos.

But the legal rights of cloned Neanderthals would not turn on such philosophical questions.  I believe that judges and legislators would protect Neanderthals whether or not they were called “human.”  The law provides protections for all sorts of entities for all sorts of reasons.  Most states have laws that prohibit cruelty to animals (without having to ask whether animals can speak or share other human traits).  If a pale-skinned, red-haired, walking-erect individual showed up in court, it would be hard for a judge to treat him or her as anything but an individual with rights.  The empathy would be too great.

A few years ago, a scientist filed for a patent on the (hypothetical) cross between a chimp and a man.  Other researchers had urged the creation of such an individual to do menial tasks.  The head of the patent office refused to grant the patent.  He said that creation of such an individual would violate the 13th Amendment, the U.S. Constitutional ban on slavery.

Just do the math.  A cross between chimp and man would have 98% similarity to you and me.  A Neanderthal would have 99.9% similarity.  If the Constitution applies to the chimp/man chimera, then the Neanderthal certainly would be entitled to life, liberty, and the pursuit of happiness.