The Legal Side-Effects of Amnesia

Characters in comics frequently come down with amnesia, whether induced by superheroes, supervillains, or more pedestrian causes.  This post considers one legal side-effect of amnesia: loss of competency to stand trial.

We’ve talked about supervillains and competency before in the context of the mental illnesses that many supervillains (and even some superheroes) arguably suffer from.  But what about amnesia?  If a telepathic superhero (e.g. Professor X, Psylocke) erases a supervillain’s memories in order to stop an attack or prevent future crimes, could that interfere with the government’s ability to try the supervillain for the crimes he or she already committed?  Or if a superhero’s memories are erased by a supervillain, leading the superhero to commit crimes, could the superhero argue incompetency to stand trial for those crimes?  In some jurisdictions, the answer may be yes.

I. Competency and Due Process

In the US, competency is part of the constitutional right to due process.  “It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.”  Drope v. Missouri, 420 U.S. 162, 171 (1975).  The Court noted that “the prohibition is fundamental to an adversary system of justice.”  Drope, 420 U.S. at 172.  In other words, in an adversarial system it’s simply not fair to pit the entire weight of the state against an incompetent defendant.

II. Amnesia and Competency

So then, does amnesia—specifically, amnesia regarding the alleged crime—render a defendant incompetent to stand trial?  The general rule is that it does not.  “[T]here is no record of any court holding a defendant incompetent to stand trial solely on the basis of amnesia.”  Amnesia: A Case Study in the Limits of Particular Justice, 71 Yale L.J. 109 (1961) (emphasis added).  Courts are reluctant to allow a defense of amnesia because it can be faked and because it is often de-coupled from an ongoing mental illness or defect, which means the amnesiac may be clearly competent in many ways.

However, while no courts have adopted a bright line rule that amnesia necessarily implies incompetence, several courts have allowed amnesia to be considered in the usual competency analysis.  See, e.g., Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968); United States ex rel. Parson v. Anderson, 481 F.2d 94 (3d Cir. 1973); Morris v. State, 301 S.W.2d 381 (Tex. Crim. App. 2009).  Severe amnesia—to the point of interfering with a defendant’s ability to consult with and assist his or her lawyer—may lead to a finding of incompetency.

The Wilson court went one step further and gave a list of six factors a trial court should use at the post-trial stage in considering whether a defendant’s amnesia has affected the fairness of the trial:

(1) The extent to which the amnesia affected the defendant’s ability to consult with and assist his lawyer.

(2) The extent to which the amnesia affected the defendant’s ability to testify in his own behalf.

(3) The extent to which the evidence in suit could be extrinsically reconstructed in view of the defendant’s amnesia. Such evidence would include evidence relating to the crime itself as well as any reasonably possible alibi.

(4) The extent to which the Government assisted the defendant and his counsel in that reconstruction.

(5) The strength of the prosecution’s case. Most important here will be whether the Government’s case is such as to negate all reasonable hypotheses of innocence. If there is any substantial possibility that the accused could, but for his amnesia, establish an alibi or other defense, it should be presumed that he would have been able to do so.

(6) Any other facts and circumstances which would indicate whether or not the defendant had a fair trial.

In general, the worse the amnesia and the weaker the external evidence—including the government’s case—the more likely that the trial will be found to violate due process.  However, the D.C. Circuit is essentially alone among jurisdictions in taking this approach, which has been explicitly rejected by many other courts.  See, e.g., State v. Peabody, 611 A.2d 826 (R.I. 1992).

III. The Wilson Test In Practice

So let’s apply this to a few examples. For starters, in X-Men #3 from 1963, Professor X winds up erasing the Blob‘s memory of the X-Men and his attack on them. But the Blob only winds up losing a few hours of memory, maybe a day at the worst. So while he wouldn’t be able to testify about what he did, if the state decided to press charges for something he did during his rampage, he’d probably wind up passing a competency hearing.  His amnesia is not so severe that he has forgotten who he is or why he might have been motivated to do what he did.  Further, there’s enough extrinsic evidence that it’s unlikely that any of his defenses would require him to testify from memory.  Courts routinely reject this kind of short-term amnesia as an impediment to competence in cases where defendants have forgotten the crime itself because of substance abuse (e.g. blacking out after a bar fight) or trauma.

But what about Magneto in Defenders # 15-16? Magneto is regressed to infancy by Alpha. That right there raises significant competency questions, not only to do with memory, but rationality and maturity. Again, proving Magneto’s mental state could be tricky, but the fact that he does not remember anything about what happened before his encounter with Alpha should not be hard to establish. Here, the fact that Magneto possessed essentially no record of his prior life should produce a very different outcome from the Blob’s case above, as the “old” Magneto could have presumably raised affirmative defenses—such as necessity—for his actions, while the new one cannot even understand why he would have done the things of which he is accused, something the Blob probably would be able to do.

IV. Conclusion

Superheroes should think twice about erasing a villain’s memories.  While it may be an effective way to stop a villain in his or her tracks, it may also render them incompetent to stand trial.  In general, the worse the amnesia, the more likely the defendant is to be found incompetent, so go easy on the mind wipes, guys.

37 Responses to The Legal Side-Effects of Amnesia

  1. I think the more interesting question is what happens to testimony in general in a world where your memories can be changed. Ie. could opposing counsel impeach the testimony of a witness on the grounds that he or she had been within a ten mile radius of Professor X at one point in time, and thus could have had his or her memories altered?

    Could someone challenge the state’s decision not to charge Prof X with something (say, child endangerment) on the grounds that Professor X might have been messing with the DA’s exercise of prosecutorial discretion?

    There are a lot of ways you could go with this.

  2. @William: While I’m not an attorney, I think the burden would be on opposing counsel to prove that Professor X had altered the witness’s memory, or that the situation strongly suggests the possibility. Consider, as a parallel, a case where opposing counsel is arguing that the police planted evidence or digitally altered the recording of a suspect interview. While anyone could make that assertion, I doubt a court would (or at least should) take it seriously without some evidence beyond the assertion itself.

    • It seems to me that any evidentiary issue like tampering with a witnesses memory would be a question of law regarding the admissibility of the evidence, needless to say, in the multiverse we would need to supply judges (at least) with psionic-defenses like Magneto’s helmet.

  3. Regarding the events stemming from Defenders 15-16, its interesting to note the follow-up “Trial of Magneto” before the World Court in X-men #200 (and subsequent X-men Vs. Avengers Mini-series). A successful plea was made that the regression mentioned returned him to “a state of grace” and charges prior to the incident were dropped.

  4. A question: What laws does inducing Amnesia violate? Would erasing a few hours in order to prevent someone committing a crime be considered to be justifiable or reasonable force? Would the legal definition of Assault include non-physical attacks?

    • Re: reasonable force. As with any kind of force it would depend on the circumstances. To take an extreme example: someone is about to shoplift food to feed their hungry child, and the telepathic store owner wipes their memory to the point that they don’t even remember they have a kid. Yeah, that would probably prevent the crime, but it couldn’t possibly be reasonable.

      Another example: suppose a hot-headed person is insulted in a bar, whips out a knife and starts to attack the insulter. Erasing their memory of the last couple of minutes, thus undoing the insult, would probably be reasonable in order to prevent a violent or even deadly attack.

      Re: assault. I think it would qualify under most statutes, partly because the damage is, in fact, physical: at some level the victim’s neurons must be rewired or otherwise physically affected. So take Missouri’s 3rd degree assault statute: “A person commits the crime of assault in the third degree if the person … recklessly causes physical injury to another person.” Mo. Rev. Stat. 565.070. (NB: Intentionally causing physical injury would satisfy the recklessness requirement.)

      The statute (that part of it, anyway) does not require a physical touch, just a physical injury. And it’s good to have a broad law like that because there are real-world ways to hurt someone without touching them (e.g. lasers, radiation exposure, cutting brake lines). If the amnesia were serious enough to qualify as “serious physical injury,” then higher degrees of assault would be available.

      Some assault statutes might be written to require a physical touch, but I think most states have broad enough laws to encompass the injury caused by inducing amnesia.

  5. I wonder how this would affect the statute of limitations.
    Everything here is about heros wiping villians (presumably vice versa occurs) but what about deliberate amnesia? Suppose someone wanted to be incompetent until the statute of limitations expired for the crime? Imagine for example a pill that is labelled ‘memory loss for 6 years’ (or pick your time period) might be used to avoid jail time.
    Assuming it worked what would the criminal liability be for someone selling these pills (the pharmacist – scourge of the hero community lol) in allowing someone to evade prosecution. Assume its the only motivation for selling and stocking these pills.

    • As a practical matter I don’t think such pills would ever get approved by the FDA if that was their only use. Now, there has been some research into inducing selective memory loss of traumatic events, so one could imagine similar technology being abused to erase memories of committing crimes.

      However, I think any criminal doing so wouldn’t be helping themselves much. The court would likely rule that, since the amnesia was intentionally self-induced, the defendant voluntarily waived his or her rights. This is similar to a defendant who intentionally destroys evidence, including evidence that might show his or her innocence.

      Note that the result might be different if the defendant intentionally induced severe mental illness; unlike amnesia that would affect his or her ongoing ability to understand the proceedings. But that’s a high price to pay, and if the illness were later reversed then charges could be re-filed. Since the illness was intentionally induced, it might even toll (i.e. pause) the statute of limitations. A similar analysis would apply if the amnesia were so extreme as to basically amount to mental illness (e.g. a complete memory wipe).

  6. I like John’s question but I’d like to expand to the civil ramifications. Zatanna erased Dr. Light’s memories of a crime he had committed but she also erased Batman’s (BW) memory of catching her erasing Light’s memories. In this case Batman had done no wrong so the question of reasonable force is thrown out the window.

    Could Batman (or Dr. light for that matter) sue Zatanna or the Justice League for being mind-wiped?

    • Sure. The usual definition of tortious battery is an intentional harmful or offensive contact. Since amnesia necessarily means messing around with someone’s neurons, there is definitely a harmful or offensive contact, even if it is accomplished by remote means. And there’s no doubt that Zatanna intended to do what she did.

      The trick would be proving it, of course. Unless Zatanna’s mind-wipe left some kind of unique signature on the victims’ minds, the plaintiffs would need a witness, a video, a confession, or some other kind of evidence that Zatanna did it.

  7. The subject of “are we more than the sum of our memories?” comes up, here. While I have my own opinions on the matter, I like to raise the thought experiment: Let’s say Jean Grey, possessed of the Phoenix, does terrible things that alter the face of the Earth in horrific ways (including wiping out all superpowered people and aliens in the solar system), but, not wanting to deal with something that happens along the way, she uses her formidable psychic powers to wipe her own mind and the Phoenix to alter her appearance. Joan Green is what this new Jane Doe chooses to call herself as she goes about constructing a new life.

    If Joan finds herself embroiled in the mystery of what happened when the Dark Phoenix Jean Grey committed her heinous acts, and goes detective to uncover where this monster went as signs crop up that she might return, and discovers that it is SHE, in fact, who did it…

    Is Joan culpable for Jean’s crimes?

    • I think so, since the memory loss was intentional and self-inflicted. As mentioned above, I think that’s a voluntary waiver of Jean’s rights.

      Now one might wonder what the justification is for punishing someone who has no memory of committing the crime or even knows why he or she might have done it. I think all three of the usual justifications apply. Rehabilitation applies because we want to ensure that as Joan remembers who she is that she uses her powers for good. General deterrence applies because we want other criminals to know that self-mind-wipes aren’t a get out of jail free card, and specific deterrence applies because we want to make sure Jean Grey doesn’t do it again. And retribution applies because heinous crimes were committed and society wants to punish the person responsible, perhaps doubly so because that person tried to evade responsibility.

  8. Two questions:

    First, you mention the case of a superhero who commits crimes while under amnesia caused by a supervillain. While you covered the issue of competency to stand trial, I think that this involves more issues than just competency. Presumably the villain gave the hero amnesia because it is possible to convince the hero, in his amnesiac state, to commit a crime that he could not be convinced of in his normal state. Wouldn’t this then be some kind of villain-caused temporary insanity, and therefore the hero would not be responsible for this crime? Also, I don’t think rehabilitation applies (the hero, once he regains his memory, is not willing to commit crimes and doesn’t need to be rehabilitated), nor does deterrence (you can’t deter people from committing crimes under villain-caused amnesia, since the villain will just include that as part of the mindwipe).

    Second, the Jean Grey question raises a different question based more closely on actual comics. Because of retcons, Jean may not have actually been the Phoenix, but the Phoenix has memories of being Jean, and Jean has memories of being the Phoenix. Could Jean say “yeah, I looked like the Phoenix, and the Phoenix thought it was me, and I absorbed the Phoenix’s memories, but I’m not actually the Phoenix and therefore you can’t hold me responsible for the Phoenix’s crimes”?

    What if next year some respected philosopher comes up with a new theory of identity which says that (given the *same* facts) Jean and the Phoenix are the same person? Could the court then claim that new information has shown that Jean is responsible after all? Even though the new information isn’t a change in the facts of the case, just a change in philosophical interpretations of whether person A is the same as person B?

    • Fact: while Phoenix was killing the Asparagus people, Jean Grey was at the bottom of Jamaica Bay.

    • More to the point, when the Avengers found Jean at the bottom of Jamaica Bay and the Fantastic Four subsequently revived her, Jean had no memories of being the Phoenix, which indicates that they were two distinct people. It was only later when Jean Grey fought Madelyn Pryor that Jean absorbed Madelyn’s memories. Because Madelyn was Jean’s clone, Madelyn had Phoenix’s memories. (Madelyn was already created when Phoenix died and Jean was at the bottom of Jamaica Bay so upon dying the Phoenix entity preserved its memories Madelyn and not Jean.) So Jean ended up remembering what Phoenix did even though Madelyn didn’t, at least not consciously. (She might have thought they were dreams.)

      Anyway, the upshot is that Jean is two degrees removed from the crimes of Phoenix. If Jean witnesses an execution and, upon the convicted criminals death, absorbs all the criminals memories, does the state now have to execute Jean as well? I don’t think so.

      • Ken Arromdee

        I wasn’t thinking specifically of Madelyne Pryor, I was thinking of the general Marvel Comics tendency to be vague about whether Jean is Phoenix. The original retcon was a sore point for many fans and writers and they haven’t really stuck completely to it. Yeah, Jean was replaced, but just because it wasn’t actually the same physical body doesn’t necessarily mean anything–it’s not as if comic book characters haven’t gotten new bodies before. And it’s been implied that Jean has a stronger connection to the Phoenix force than just being duplicated by it and that in some way it’s a part of her that she has to accept (and that therefore having her gain Phoenix’s memories is just being reunited with a part of herself, not getting something from an alien entity.)

        So I think it would be a legitimate legal question over whether Jean is responsible for what the Phoenix did, given that her connection to it is very vague. And that given the few relevant things that the law can take notice of, some (same memories) suggest she is Phoenix and some (different body) suggest she is not.

  9. Melanie Koleini

    What about using permeate amnesia as a punishment for a crime? In the Babylon 5 universe, instead of the death penalty or life in prison without parole, criminals are mind-wiped. Their memories and personalities are destroyed and replaced with law-abiding personalities that want to spend their lives helping others.

    Assuming the technology was proven to be painless and effective, would the punishment be constitutional?

    • That’s a good question. It’s a bit tricky because there’s not much of a real-world analog, at least in terms of criminal sentences. Treatments like anti-psychotic drugs, deep brain stimulation, transcranial magnetic stimulation, and the now-abandoned prefontal lobotomy are used to treat people with mental illnesses, including people who are in prison or who have been involuntarily committed, but they are rarely-if-ever part of a criminal sentence.

      The closest analogs would be chemical castration (i.e. hormone therapy) and mandatory addiction treatment with drugs like naltrexone.

      The permanence of the procedure is closer to the death penalty, however, so I suspect the courts would scrutinize it very closely.

      • Martin Phipps

        I think one argument against using a mind wipe instead of capital punishment is that it isn’t the same level of deterrent. Imagine I kill somebody and I have my mind wiped by the state. I still have my savings and can perhaps retire quite comfortably with the support of my friends and family. Meanwhile my victim is dead. Oh and as a special added bonus, I don’t have to live with the guilt of killing anybody because I don’t remember doing it. Sweet. I think a lot of people would have problems with that.

      • Re: Martin’s reply, the B5 example had certain elements of personality alteration to it since as mentioned the new identity generally had an impulse to serve the community imbedded and they (according to the writer) generally wound up doing some sort of community service. So not exactly a “get out of jail free” card. If anything, one wonders if throwing the lifelong community service aspect on top of things might push it over the edge of reasonable punishment since you’re de facto punishing an arguably different individual for something they have no recall of. It was however only used in response to murder as a replacement for the death penalty, so in that regard it was given a similar scrutiny/weight.

      • Martin Phipps

        If it involves community service then that’s different because community service is a real world punishment for misdemeanors. As for not remembering what you did, well, again, that happens in the real world, say for example when somebody commits a crime while drunk and can’t remember what happened. Of course that person should be punished and so should somebody who deliberately has their memories wiped for all the reasons James gave elsewhere, ie as a deterrent both to the criminal and other would be criminals, as a way to convince the general public that justice has been served and as a form of rehabilitation (because really it just isn’t enough to say that his mind has been altered and he won’t kill anybody else).

  10. The follow-up on the Jean question raises a new one for me:

    If Lex Luthor clones himself, and implants the clone with his memories, but is still, himself, a separate entity and fully functional and conscious of himself, his his clone culpable for his crimes? Even if the cloned Lex believes himself to be Lex? What if Lex has this clone with his memories made as a backup copy, in case something happens to the original him, and this clone is only released upon his death?

    Conversely, what if the clone is left for the police to capture, while the real Lex changes his appearance and makes a new identity, stealing his own fortune to start anew? If this ruse is discovered, is the clone culpable for the crimes? Does the clone have any legal right to the resources “stolen” by the original Lex?

    • If Lex Luthor clones himself, and implants the clone with his memories, but is still, himself, a separate entity and fully functional and conscious of himself, his his clone culpable for his crimes?

      Lex’s clone is basically Lex’s son, not Lex himself. If Lex is still alive then Lex can and should be tried for his crimes. If Lex is dead then Lex is dead and his son cannot and should not be tried for the crimes of his father even if he has all of Lex’s memories.

      Even if the cloned Lex believes himself to be Lex?

      Look, if Lex creates a clone of himself and implants the clone with his memories then the clone is legally a new born baby (Right?), albeit a remarkably large, skilled and intelligent one. I’m not even sure if Lex’s clone could be legally tried as an adult. If Lex’s clone himself committed crimes he might have to be tried in juvenile court.

      What if Lex has this clone with his memories made as a backup copy, in case something happens to the original him, and this clone is only released upon his death?

      One complication would be how up to date the memories would be. I mean, if Lex were about to die I would think his priority would be saving his own life. The clone might be left with old memories and might not remember the specific crime that Lex was to be tried for.

      On the other hand, if Lex’s clone had up to date memories of Lex’s crimes then the smart thing for “Lex” to do is admit to everything that Lex did but claim (truthfully) that it wasn’t him. (He should be able to prove this. The clones mitochondrial DNA should be different from the original’s.) If the real Lex shows up again then
      “Lex” can testify against him. Hell, for that matter, if the technology exists allowing you to transfer memories from yourself to your clone then witnesses might not have to testify at all: their memories could be selectively transferred to the jury!

      Of course, if “Lex” were called to testify against Lex then the defense might object saying that “Lex” did not actually witness Lex do anything of the things that Lex was accused of. The defense might want to have “Lex”‘s testimony dismissed as hearsay. Now, mind you, the judge might argue that Lex giving memories to “Lex” counts as a confession (ie “Lex” knows what he knows because Lex told him about it). Or the prosecution might question the accuracy of “Lex”‘s memories: expert witnesses might need to testify as to whether or not “Lex”‘s memories are real or the imaginings of a child.

      Does the clone have any legal right to the resources “stolen” by the original Lex?

      If Lex is dead then the clone is Lex’s legal heir but he wouldn’t be entitled to anything Lex stole. In fact, the state might even want to confiscate items that Lex bought with stolen money. That being said, it might be difficult to prove that Lex stole anything at all: Lex is usually portrayed as a criminal who successfully engaged in legitimate business so not all of his money (if any) was stolen. It’s not like Lex was a drug dealer and the government could calculate how much of his money was earned from the sale of illegal drugs.

      • Martin Phipps

        the judge might argue that Lex giving memories to “Lex” counts as a confession

        the prosecution…

        the prosecution might question the accuracy of “Lex”‘s memories

        the defense…

      • We don’t seem to have a clear definition in RL about whether or not a clone would be legally considered a ‘descendant’ or not.

      • Ken Arromdee

        As I pointed out once, clones in comic book style stories tend to have a range of characteristics, that run the full range of “like an offspring” (two “parents”, child age, no memories of original, original takes parental role, only one clone at a time, etc.) to “like a sibling” or “not like anything else” (one “parent”, same age as original, has memories of original, no parental role, clones created in large quantity). Clones vary in these respects, so it may not be sensible to decide “is a clone an offspring” in the same way for all clones. Star Wars doesn’t take place in our universe, but if it did, you could make a case that Boba Fett is the original’s son and the stormtroopers aren’t, simply because they fall in different places on the clone spectrum.

      • Could Lex then clone himself, copy all his memories and whatever else makes up his mind into the clone and then kill the original to avoid going to jail? (since from the point of view of the clone he is still Lex, as if his mind was transfered)

        What about those teletransporters that destroy the original and creates a copy at the destination; would those serve as a way to earn sudden immunity from crimes you committed? What if it malfunctions and the original isn’t destroyed, could both the original and the transporter clone be judged guilty of the same exact crime?

  11. I’m not sure that it would be entirely accurate to claim that in a comic book universe, that memories are stored in the neurons in the brain and are hence physical things. Given the amount of astral projection, energy beings, ghosts and other examples of assorted non-physical sentience, with memories, you could argue that Cartesian mind-body dualism is a more accurate theory.

    Which raises the question of what would be the legal status of a sentient ghost? Would it differ if the ghost could attend count on its own behalf or if it required the assistance of a psychic or medium in order to communicate?

    Also what happens if minds switch bodies (with or without a physcial brain transplant – although this would, of course, make it easier to prove)? For example, Psylocke gets transfered into the body of a Japanese assassin. What is her legal identity? Can she be charged with the crimes of the assassin? How does the law define identity?

    • If Psylocke were tried then the jury would have to have Magneto style helmets so she couldn’t alter their opinions.

      It would also help if the jury consisted of heterosexual woman and/or gay men as she is drawn in such a way that a jury could be swayed inappropriately without her even using her powers. If I were honest I think I would have to excuse myself from a jury trying Psylocke.

      • Martin Phipps

        (Seriously though, I heard it argued that Jeffrey Dalmer and Ted Bundy were handsome men and that the defense would have wanted to have women on the jury while the prosecution should have seen through this and objected. Or are juries supposed to be made up equally of men and women? I think if I were a prosecutor I would argue then men should have juries made up of men because those are his peers.)

      • Although considerations like the gender, religious, political and racial makeup of a jury are important questions prosecutors and defense attorneys can still simply use peremptory challenges to reject a certain number of potential jurors without giving a reason. Also I don’t think that a prosecutor in Psylocke’s hypothetical trial could demand that a heterosexual woman or a homosexual man be included in the jury.

  12. Melanie Koleini

    The comments have strayed a bit far from amnesia. But I’d like to forget about comics and move to a currently theoretical but scientifically possible scenario. I have a clone made of myself (using my own egg cell) and implanted in a surrogate. Would the baby be my daughter or my sister? Could my parents claim to be the baby’s parents? I don’t know if this has happend in the comics yet but it should have.

    • Conner Kent is for all intents and purposes the son of Clark Kent and Lex Luthor. Ew.

    • I’m pretty sure that the person who gives birth is the mother under the law. I’m not sure how the law would handle a person who wasn’t born but decanted.

  13. Melanie Koleini

    ‘I’m pretty sure that the person who gives birth is the mother under the law.’
    Even if I accept that, whose the father? The husband of the woman who gives birth? The law hasn’t fully caught up with the assistive reproduction techniques that are in common use now. There is probably a lot of case law but I bet its mostly family court judges trying to settle custody disputes.

    I’m not a family lawyer but I know a bit about assistive reproduction. Technically, a woman carrying a baby that is not genetically related to her for someone else is called a ‘gestational carrier’. In some states, the gestational carrier would be considered the legal mother. Surrogate agencies generally do not employ gestational carriers living in those states.

    There are states that will allow the genetic mother to be listed on a baby’s original birth certificate as the mother. Also, the federal government recognizes genetic parentage when determining citizenship (at least in the case of parents using gestational carriers living in other counties). I recommend the HBO documentary “Google Baby” for a laymen perspective of international surrogacy. I could have an embryo made with my egg and donor sperm, implanted in a gestational carrier in another country. Once the baby was born, I could obtain a US passport for him or her relatively quickly. I could also PAY the gestational carrier for her services. If she was considered the baby’s mother this would be considered child trafficking under international treaty. (I’m sorry I don’t know the reference to cite.)

    Anyway, this all ducks the intent of my original question: ‘who would a clone’s parents be legally?’ I can’t think of several possibilities and I suspect judges in different states would reach different answers.

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