Death by Vivisection and Statutory Deconstruction

Five years ago the National Institutes of Health (NIH), urged on by its own Human Embryo Research Panel, proposed funding an array of morally objectionable experiments using human embryos. Public opposition brought prompt Congressional action banning the use of federal funds for creating human embryos for research, and for "research in which a human embryo or embryos are destroyed, discarded or knowingly subjected to risk of injury or death." First enacted early in 1996, the ban has been approved each subsequent year.

Faced with the continuing ban and a public revulsion problem, NIH narrowed its immediate goal, advocating research in the less obviously repugnant field of human embryonic "stem cells." The current Administration and certain members of Congress have been looking for ways to fund this research without violating the letter of the law. In November 1998 President Clinton asked the National Bioethics Advisory Commission (NBAC) to report on the ethical and medical issues involved. Before dissecting NBAC's September 7, 1999 report, a brief recap:

Embryonic stem cells are not themselves human beings. They are fast-growing, undifferentiated cells which are capable of producing a wide variety of specialized cell typesCbrain, muscle, blood and liver, for example. Why a moral objection to research involving such cells? Because to harvest or "isolate" embryonic stem cells one must destroy a living, growing human embryo. In contrast, many stem cells (such as those which produce new blood cells) can be extracted from an adult with no harm to the donor.

Statutory De-construction

Several linguistic ploys have been suggested to creatively reinterpret the Congressional ban. NIH Director Harold Varmus has argued that no human being is harmed by the research because a human being is "an entire mature organism." By this standard, we could exclude infants and teenagers (and, some would say, young males into their late 20's). Recent studies in brain imaging have proven what parents have long suspected: the brains of teens and young adults process information differently from those of "grown-ups." That mature organism standard is quite a slippery slope. One could make a fair case for excluding fans of professional wrestling ... MTV viewers ... and who knows where it could end?

Health and Human Services (HHS) general counsel Harriet Rabb claims that a human embryo outside a womb is not an "organism" unless it is proved that the embryo would have become a "human being" if implanted in a womb. But, as every standard embryology text states, he or she already is a human being once fertilization has occurred. It strains the imagination to think what else a human embryo could become if implanted in the womb, other than a human fetus, infant, toddler, etc.? The only way to keep a human embryo from becoming a human fetus and then an infant is to deprive him or her of the protective environment of the womb, deny nourishment or otherwise destroy that embryo.

It has also been suggested that research embryos could be pre-programmed with a lethal genetic defect, designed to make them self-destruct before a certain stage of development. Researchers could claim they have a right to do lethal experiments on such embryos because the embryos were not intended to survive long enough to become what the researchers see as "human beings." Compare this idea to the conduct of doctors involved in the infamous Tuskegee syphilis experiments. Bad enough that they callously watched patients suffer and die without treating them. But even the Tuskegee doctors didn't themselves infect their patients with a lethal condition, as is now proposed with embryos.

NIH and HHS also argue that embryos can be killed with private funds and their stem cells transferred to federally-funded researchers without doing violence to the law. This ignores the plain statutory language, which bans funds not simply for the act of killing an embryo, but for any part of a research project in which one or more embryos are destroyed, discarded or knowingly subjected to risk of injury or death. The argument offends fundamental concepts of moral and legal culpability, and was even rejected by NBAC for both ethical and pragmatic reasons.

The following are some interesting points made in the NBAC report and in the transmittal letter to President Clinton by NBAC Chairman Harold Shapiro. (Shapiro, president of Princeton University, is also defender-in-chief of Princeton's new bioethicist Peter Singer who justifies the killing of handicapped newborns.)

THEY SAY: "Although wide agreement exists that human embryos deserve respect as a form of human life, there is disagreement both on the form such respect should take and on the level of protection owed at different stages of embryonic development." (emphasis added)

WE SAY: Exactly what form or level of respect is shown by dissecting (thereby killing) a live human embryo for stem cells? And why the need to debate or split hairs over the level of protection owed at different embryonic stages? Since 1975 Congress has protected human embryos in the womb from all harmful federally funded research, at exactly the same stage of embryonic development (about one week old). Their location has no bearing on their humanity.

THEY SAY: "An exception should be made to the present statutory ban on federal funding of embryo research to permit federal agencies to fund research involving the derivation of human ES [embryonic stem] cells from this source... ."

WE SAY: "Derivation" is an innocuous way to describe killing a human embryo by slicing him open and extracting his stem cells (precursors to all vital organs). On the plus side, it is admirable that NBAC (unlike NIH) acknowledges the need to carve out an exception to the federal ban if one wanted to undertake this research with federal funds. At least NBAC does not engage in fanciful misinterpretations of the law.

THEY SAY: "Although some may view the derivation and use of ES cells as ethically distinct activities, we do not believe that these differences are significant from the point of view of eligibility for federal funding." In fact, trying to separate the two "presents an ethical problem, because doing so diminishes the scientific value of the activities receiving federal support. This separation ... rests on the mistaken notion that the two areas of research are so distinct that participating in one need not mean participating in the other."

WE SAY: Here NBAC correctly interprets the statute and rejects NIH's claim that privately-funded groups could legally kill the embryos and pass their stem cells on to federally-funded researchers. These are not ethically distinct activities. The NIH suggestion of segregating steps in the research process to Afit@ the ban without seeking an exception, is unsound for other reasons. Even from the researchers' point of view, the arrangement would compromise NIH's ability to regulate the research and maintain quality control. In its effort to project a "moderate" image, NIH has only succeeded in producing evasive legal interpretations, questionable science and incoherent ethics.

THEY SAY: "[T]here is no compelling reason at this time to provide federal funds for the creation of embryos for research. At the current time, cadaveric fetal tissue and embryos remaining after infertility treatment provide an adequate supply."

WE SAY: Remarkably, the chief reason NBAC offers against creating new human lives for destructive research is that there are currently enough "spare" embryos left over from infertility treatment and "cadaveric fetal tissue" (from aborted fetuses) to supply the near-term research demand. If and when this Asupply" is not "adequate," the government will be urged to create embryos solely for destruction as well.

THEY SAY: The use of "spare" embryos from fertility clinics "raises fewer ethical questions [than using embryos created for research purposes] because it does not alter their final disposition."

WE SAY: This argument says it's okay for the government to kill "spare" embryos because a private party would kill them eventually. By this logic the government could conduct harmful experiments on death row prisoners (as Jack Kevorkian has proposed) or on patients with AIDS, or on anyone else who is terminally ill because killing them won't "alter their final disposition." Congress has, in fact, already rejected this proposition, protecting all embryos in the womb from harmful research whether their mothers intended to abort them or bring them to term [42 USC §289g].

THEY SAY: "If the decision to discard the embryos precedes the decision to donate them for research purposes, then the research determines only how their destruction occurs, not whether it occurs."

WE SAY: NBAC's argument is based on a premise it knows to be false. Its own survey of infertility clinics showed that despite willingness on the part of some parents to have their "spare" embryos discarded, a sizable percentage of the clinics have never discarded any "spare" embryos. Having a researcher determine how the destruction of embryos' lives is done is precisely what is prohibited under the federal law governing fetal tissue research. Far from being an innocuous procedural issue, using tax dollars to determine how the killing is to be done and then to do the killing is something the federal government has never had the power to do. Nor should it.

THEY SAY: Adult stem cells are useful too, but because of "important biological differences" they "should not be considered an alternative to ES ... cell research."

WE SAY: Research using adult stem cells is advancing rapidly--making them more versatile, directing their development, and enabling them to live in culture for months at a time. The "differences" between embryonic and adult stem cells are increasingly less apparent. In some ways, the use of an adult's own stem cells to treat diseases is more promising because it avoids the significant obstacle of tissue rejection.

Here's just a smattering of reports from medical journals and major newspapers in the past year:

• New research suggesting that nerve stem cells "can de-differentiate and reinvent themselves" as blood-producing stem cells "means that the need for fetal cells as a source of stem cells for medical research may soon be eclipsed by the more readily available and less controversial adult stem cells" (D. Josefson, "Adult stem cells may be redefinable," British Medical Journal, 30 Jan. 1999, p. 282).
• Commenting on the same findings: "The research shows 'there are alternative strategies' to harvesting stem cells from embryos, said Dr. Ronald McKay, a National Institutes of Health researcher and pioneer in stem cell studies" (P. Recer, "Patient's Cells May Grow New Organs," Associated Press, Jan. 21, 1999).
• Recent research shows that mesenchymal stem cells in adult bone marrow "can in principle be used to repair bone, cartilage, tendon and many other injured or aged tissues. ... The cells would be derived in many cases from the patient's own bone marrow and thus present no problem of immune rejection" (N. Wade, "Discovery Bolsters a Hope for Regeneration," New York Times, April 2, 1999, p. A17).
• Biologists from Children's Hospital, Boston report using bone marrow cells to create muscle tissue, causing mice with muscular dystrophy to produce correctly working muscle cells. "'The integration of these cells with the muscle cells is a great finding because it really does open up the possibility of therapy for these patients,' said Dr. Mark F. Pittenger, a biologist at Osiris Therapeutics in Baltimore..." (N. Wade, "Researchers Turn Marrow Into Muscle," New York Times, September 23, 1999, p. A17).
• Adult "precursor" or stem cells "may prove much more useful to medical science" than embryonic cells. "Scientists used to think that such potential for cellular regeneration was present only in embryos--that, for example, humans had made their lifetime supply of brain cells by age 17. But that canon is steadily eroding. ... 'I think we will find these stem cells in any organ that we look,' says Harvard Medical School researcher Evan Y. Snyder" (L. Johannes, "Adult Stem Cells Have Advantage Battling Disease," Wall Street Journal, April 13, 1999, p. B1).
• "This suggests that there is a stem cell in the adult bone marrow that is capable of becoming anything if you give it the right signal," (Byron Petersen of University of Pittsburgh Medical Center, quoted in P. Recer, "Cell Used to Make New Liver Tissue," Associated Press, May 13, 1999).
• Commenting on new ways to "regenerate" and transplant patients' own brain cells to treat Parkinson's and other diseases: "What we have is a protocol in which we don't have to harvest 12 or 15 fetuses, we don't have to give immunosuppressant therapy, and we don't have to worry about viral disease transmission" (Michel Levesque, director of neurofunctional surgery at Cedars-Sinai Medical Center in Los Angeles, quoted in M. Moran, "For cell transplants, is one better than two?", American Medical News, May 3, 1999, p. 29).
• "For generations, scientific dogma held that the adult brain cannot repair itself, because it lacks stem cells. Wrong. Recently, scientists found that adult brains do indeed harbor stem cells. ... Since stem cells divide end-lessly, a single cell started from a human fetus could provide all that's needed. But the recipient's immune system might attack these as foreign. Perhaps the patient's own body is a better source of stem cells. ... [And] brain stem cells may not be a necessary ingredient for custom-making new brain tissue. Scientists believe it may be possible to reprogram more readily available kinds of stem cells, such as ones that produce skin, so that they will churn out brain cells, instead" (D. Haney, AP Medical Ed., "Scientists Try to Grow Brain Parts," Assoc.Press, May 1, 1999).

NIH is expected to issue guidelines soon for federally-funded research using stem cells obtained by destroying human embryos. The guidelines will reportedly be published in draft form for 60 days of public comment. All who oppose the use of tax dollars to destroy the lives of innocent human beings should be heard.