Stem Cells, Life, and The President's First Veto

By SHERRY F. COLB

Wednesday, Jul. 26, 2006

Last week, both Houses of Congress passed a bill, called the "Stem Cell Research Enhancement Bill." Had the President signed it, the bill would have eliminated restrictions on federal funding for embryonic stem cell research established in 2001. The bill garnered broad bi-partisan support in the Congress, including among its supporters such self-described pro-life Senators as John McCain, Bill Frist, and Orrin Hatch.

As expected, President Bush vetoed the bill; it was his first and only veto in five-and-a-half years as president.

This column attempts to illuminate debate on this bill by examining some of the moral questions at issue.

What Is At Stake?

Embryonic stem cell research involves the use of cells taken from live human embryos as part of a scientific effort to find treatments and ultimately cures for diseases such as Alzheimer's and Parkinson's. Embryonic cells hold as much promise as they do because they have not yet differentiated and are accordingly capable of becoming any kind of cell in the human body.

Opponents of such research have sometimes argued that there are feasible alternatives to it, in the use of adult stem cells, for example, but such claims have not fared well in the scientific community. And in any event, moral opposition to the use of embryonic cells is typically absolute and not conditioned on whether substitutes exist.

Is this moral opposition logically entailed in the pro-life view? Some believe so, but I will suggest otherwise.

Human Experimentation

Those who oppose the research describe it as human experimentation. Karl Rove, the President's top political advisor, articulated the position in this way: "We were all an embryo at one point, and we ought to as a society be very careful about being callous about the wanton destruction of embryos, of life."

As anti-abortion defenders of the research point out, however, the embryos in question will be destroyed anyway. And if an embryonic human being is going to die, defenders contend, then it might as well save other lives in the process. Distinguishing the research from induced abortion, pro-life proponents claim that an abortion ends a life that would otherwise (if the woman had decided to carry the pregnancy to term) have likely survived into its post-birth phase of existence. The choice in terminating a pregnancy is consequently one that pits life against death, a contest that the stem cell bill effectively avoids.

Where Do These Embryos Come From?

The debate about embryonic stem cells arises from the method by which doctors in the United States perform fertility medicine. Live human embryos - outside of a woman's uterus - do not spontaneously occur in nature. They must be harvested as unfertilized eggs and then combined with sperm in a test-tube. Egg harvesting, in turn, occurs as part of the process of fertility medicine.

In this fertility treatment, "in vitro fertilization," a doctor ordinarily uses hormone injections to stimulate hyper-ovulation in the woman and then harvests her eggs and fertilizes them with sperm to create zygotes. After cells in the new embryo have divided for a set number of days, the doctor implants the embryos inside the woman's uterus with the goal of achieving a pregnancy.

If the procedure produces more embryos than the doctor recommends implanting at one time, then the remainder will likely be subject to cryopreservation (freezing) for later use. If the couple achieves the hoped-for pregnancy outcome the first time, however, and does not wish to undergo implantations in the future, it can decide to have the embryos either destroyed ("killed," if one prefers) or donated to another infertile couple.

It is when a couple chooses the first option - destruction - that the stem cell bill becomes relevant. If it had passed into law, the bill would have authorized federal funding for research that harvests stem cells from embryos slated for destruction at fertility clinics.

Experimenting on Embryos Slated for Destruction

Opponents of the stem cell bill thus embrace a very broad approach to the issue. To defend this approach, they accordingly cannot resort to the argument that it would be better for an embryo to survive and become a live birth than for it to become a source of potentially life-saving research material. The stem cell bill does not (and need not) take a side in that dispute: By definition, none of the research subjects in question would have survived to become infants either way.

Nor can opponents rely on the contention that utilizing fertility techniques to create excess embryos is unethical. The current law does not limit that practice by fertility clinics, a practice meant to maximize the odds of achieving a viable pregnancy.

The only question that the stem cell bill poses, then, is this: Should the government provide support for research that will involve the study (and, in the process, destruction) of embryos that would otherwise have been destroyed without study.

If we concede, for purposes of argument, that embryos are moral persons, entitled to human rights, then two competing analogies may shed some light on how to answer that very narrow question.

Death Row Experimentation

In the United States, we have one class of human beings that is legally slated and scheduled for destruction (and whose destruction is itself funded by state governments): convicted murderers sentenced to death. One could imagine a utilitarian scientist arguing that because people on death row are scheduled for execution, they ought to be available for scientific experimentation - even experimentation that risks death. After all, would it not be better for people we are going to kill to provide us first with useful information? Furthermore, a scientist might urge, if a condemned inmate's organs match someone in the population who needs a heart or a liver, we should be able to harvest those organs (under general anesthesia) prior to execution as well.

In fact, though, we do not permit compelled medical experimentation on death row inmates, nor do we require them to donate their organs prior to execution. A person on death row retains his right to refuse medical treatment, including - and especially - treatment designed to help people other than the recipient of the intervention.

On the assumption that embryos are persons, an opponent of stem cell research could therefore argue that if we are willing to respect the human rights of convicted murderers scheduled to die as punishment for their crimes, then it follows even more strongly that we should not perform experiments on innocent embryonic life, no matter what the benefits might be to other lives.

If one accepts this analogy, then one will likely oppose the stem cell bill.

Relatives on Life-Support

A competing analogy presents itself, however, and this one could point us in a different direction. Perhaps the embryonic human being is more like a hospital patient on life support than like a condemned prison inmate. In contrast to the condemned prisoner, for example, the embryo - created outside of the womb - has no chance of survival without implantation or freezing. Similarly, a patient on a respirator cannot survive in the absence of that respirator. Once the embryo's parents have ruled out implantation, the freezer, like the respirator, becomes a necessary condition for continued existence.

Under these circumstances, family members of a patient who did not indicate her wishes regarding organ donation in advance, may consent to harvesting the patient's tissue or organs for donation prior to turning off the respirator - and may give such consent even if a specific type of donation is experimental.

In each case - that of the frozen embryo and that of the respirator patient - we arguably have a person who is either not yet or no longer capable of experiencing pain or awareness, a person who will shortly die, and a person whose fate prior to death rests in the hands of family members.

Full Human Rights for Embryos?

As I have explained elsewhere, I do not share the view that embryos do - or ought to - have the same moral status as people who have been born (or even, for that matter, fetuses who have the capacity to feel pleasure and pain). It turns out that I am far from alone: A majority of Americans - and of Congresspersons - also reject this view. For us, the stem cell research question posed by the bill that the President vetoed last week is an easy one: If the embryo will be destroyed, it is far better to extract stem cells from it and find a cure for disease than not to do so.

As I have tried to demonstrate in this column, though, one need not necessarily abandon a commitment to embryonic personhood to support the stem cell bill. The assumption that embryos are no less entitled to life and dignity than human beings who have already been born does not dictate a position, one way or the other, on the use of discarded stem cells for research.

If one is inclined to support the promise of this research, as so many are, despite a pro-life perspective on abortion, there is a morally coherent way to do so. And that fact should comfort some, enrage others, and perhaps quiet those who insist on accusing pro-life supporters of hypocrisy and pandering when they side with those who seek the vital cures that stem cell research could some day offer.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her other columns may be found in the archive of her work on this site.

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