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Judge Lamberth’s Unspoken Morality

Dena S. Davis’s recent Bioethics Forum commentary addressed Federal District Judge Royce C. Lamberth’s August 23 ruling which granted a preliminary injunction to halt all federally funded embryonic stem cell research. As Davis pointed out, the primary target of Judge Lamberth’s opinion was the Department of Health and Human Services (DHHS) General Counsel’s longstanding interpretation of the Dickey-Wicker Amendment.

The Dickey-Wicker Amendment is a rider that has been annually appended to appropriations bills and provides that no federal funds may be used to create embryos for research or conduct research that destroys human embryos. Since 1999, the DHHS General Counsel’s interpretation of the amendment has permitted the allocation of federal funds for research on stem cells provided that federal money is not used to extract the stem cells from embryos. The interpretation also has prohibited government funding of research that directly creates or destroys embryos. (The Dickey-Wicker Amendment does not apply to state or privately funded work).

However, Judge Lamberth’s interpretation of the amendment would prevent federally funded researchers from using any embryonic stem cells because, on his reasoning, even if the extraction of stem cells from embryos were carried out with state or private money, extraction is a crucial step in the process and therefore part of the federally funded research.

Considerably compelling legal and scientific arguments exist against Lamberth’s interpretation of the amendment. As of now, a federal appeals court has temporarily stayed Lamberth’s preliminary injunction as the three appeals judges consider the case.

Meanwhile, numerous individuals who oppose the destruction of pre-implantation embryos have cheered Lamberth’s ruling. As Davis has noted, for ardently pro-life individuals, the entire enterprise of human embryonic stem cell research is morally objectionable. All plaintiffs in the current case publicly ascribe to this position and indeed, the suit was initially filed in part “on behalf of embryos” and parents who wish to “adopt” embryos.

The current case is rife with ideological tension and moral overtones that are implicit in the Dickey-Wicker Amendment, its subsequent interpretations, and the motives of the plaintiffs. While the decision makes no mention of ethics, it presents an opportunity to subject the ongoing debate about the ethics of human embryonic stem cell research to careful public scrutiny.

Like Davis, I submit that public funds should directly support the use of human embryos for research. Here I offer a moral defense of this position by focusing on an element of the case which sets into relief the broader ethical debate – the moral status of embryos that are unused in fertility treatments.

In-vitro fertilization replicates the natural process of conception by creating embryos in the hope that at least a few will prove suitable for implantation. In the process, some embryos fail to develop. Sometimes, embryos develop that are not immediately needed. Most fertility patients freeze these embryos for later use. There are hundreds of thousands of embryos in frozen storage in the U.S. Eventually patients may finish their families and still have some frozen embryos remaining (so called “spare” embryos). They then have to decide whether to discard the spare embryos or donate them to research, including stem cell research, or to other fertility patients.

Current NIH guidelines restrict the use of public funds to research on embryonic stem cells taken from spare embryos donated for such purposes by fertility patients. Opponents of embryonic stem cell research posit that spare embryos are people who deserve the same human rights and social protections afforded to babies who have been born. Some have argued that it would be morally appropriate to force couples to implant all created embryos; however, this would introduce particular pregnancy dangers associated with multiple gestations.

On the other hand, a moral argument in favor of human embryonic stem cell research maintains that the spare embryos exist because technology has enabled more couples to become parents, creating more human lives than we would otherwise have. It is a great gift to humanity that the embryos left over from the assisted reproduction cycles can be used for research that has the potential to alleviate human suffering. According to this position, endowing spare embryos with the status of human beings fabricates a difficult and unnecessary set of social and moral obligations.

An argument in support of embryonic stem cell research maintains that the potential to become an autonomous human is not equivalent to being an autonomous human. This argument incorporates the integral role of parental decisions in the creation of life. Parents create children through a series of life decisions and events, and while the biological material of potential human life is a necessary component in that process, it is not sufficient. Equally necessary to the creation of a new human life is the choice of the parents to pursue pregnancy and carry it to term. A human being can begin only when all of these factors align.

According to this position, the biological material that precedes this point is morally neutral. Spare embryos are not human beings deserving of human rights and social protections equivalent to those afforded members of society. Therefore, it is acceptable to destroy these embryos in order to advance potentially life-saving science.

These are abridged versions of the more detailed and nuanced arguments put forth by both opponents and proponents of human embryonic stem cell research, and much thoughtful work has been published on the topic. The objective of saving human lives tends to motivate both sides of the debate. However, the recent court case elucidates a core challenge that seems to have resulted in a perennial debate over research on human embryos: whether or not one assigns full human status to embryos, one is relying on subjective belief.

Despite great efforts, it seems that no third position has been able to bridge the chasm between the two beliefs regarding the human status of the embryo. That we live in a society with pluralistic belief systems does not, however, justify a standstill on human embryonic stem cell research. To suspend research on account of irreconcilable belief systems would concede victory to opponents of research.

Meanwhile, as Davis has noted, the bulk of society supports both embryonic stem cell research and IVF. While majority rule is certainly not always sufficient argument for pursuing a specific policy, at least in this case, if federally funded research proceeds, opponents may at least express their moral disapproval by opting out of participation in the research, donation of embryos, or utilization of the products of human embryonic stem cell research.

Laura Bothwell is a doctoral candidate in History and Ethics of Public Health and Medicine in the Department of Sociomedical Sciences at Columbia University.

Published on: September 13, 2010
Published in: Bioethics, Emerging Biotechnology

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