HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Tuesday, March 8, 2011

The Battle over Embryos

Bard Both in vitro fertilization and Human Embryonic stem cell (hESC) research involve the destruction of human embryos about five or six days after conception. Yet the public seems to view the two activities very differently. Stem cell research still engenders legal controversy including the recent, and as yet unresolved, case of Sherley v. Sebelius in which research scientists challenge President Obama’s decision to lift President Bush’s Executive Order prohibiting federal funding for stem cell research beyond a specifically identified limited number of existing cell lines. The plaintiffs are scientists currently seeking research funding for work with adult stem cells. They claim that President Obama’s order violates existing federal law, the Dickey/Wicker amendment, which prohibits federal funds being used to destroy human embryos for research purposes. They assert standing based on the harm they will suffer from competing with those seeking funds for embryonic stem cell research.

While the Sherley case seeks to prevent federal funding of embryonic stem cell research, several states, including Iowa, are considering taking the next step of making such research actually illegal.  Others have taken the opposite approach and passed statutes allocating funds to support this research. The National Council of State Legislatures has been tracking this issue. One possible result is that unlike England where all hESC research is funded and regulated by the government, it may become entirely dependent on states and private donors.

Yet very little, if any, of the protest over embryonic stem cell research addresses the inevitable result its ban will have on limiting the availability of IVF.  Rather than spark outrage, IVF is often described as a “miracle” and babies born with its assistance “miracle babies.”  Indeed, a clinic in India, a country which is making an industry out of providing IVF treatments as well as surrogate mothers at costs far lower than the United States  is actually called “IVF Miracles

Although there were some laws introduced, following the public outcry over the Octo-Mom’s ability to have eight embryos implanted, they were aimed more at the costs to the state of someone without financial means acquiring so many mouths to feed. Indeed her act in having all of viable embryos implanted saved them from the usual fate of disposal, donation for research, or a state of permanent frozen hibernation. 

Iowa, Colorado, and several other  states, are considering a so-called “personhood” amendment which would extend the status of “legal person” from conception forward.  Louisiana already has such a law and it is being interpreted as not prohibiting IVF but rather prohibiting the destruction of any embryo created in the process. 

While couched as pro-life and anti-stem cell research measures, in fact these bills would effectively make illegal any form of in vitro fertilization in which a embryo is not allowed to gestate to maturity

Here’s an op-ed piece I wrote for the Des Moines Register trying to sort things out. Is anyone else interacting with the public on this topic?

Gaining Moral Perspective on the Movement to Ban Fetal Stem Cell Research

By Jennifer S. Bard, Visiting Professor Drake Law School

The world of scientific research is fraught with ethical dilemmas which should be the concern of everyone in the community.  In that context, the current debate in Iowa and many other states over whether embryonic stem cell research should be made illegal is not only appropriate but important.  But it needs to take place within the context of facts.

Unlike every other cell in the human body which has a specific purpose and of which there is often a limited supply, stem cells have the potential to generate any organ or tissue.  Until recently, little was known about stem cells because they were rarely seen.   This is because the capacity for unlimited generation ends when we are born.  After that cells become specialized.  While adults have some modified forms of stem cells which oversee the production of new cells in blood or bone marrow,   once a spinal cord is severed or brain tissue atrophies from dementia, it does not grow back.

The hope of those undertaking embryonic stem cell research is that someday it will be possible to transplant stem cells into the already developed human body so that it can repair itself.  The effect would be to accomplish things that are now impossible such as undo the paralysis of those suffering from spinal cord injuries or to cure diseases like cancer, diabetes or Parkinson’s.  Here’s the catch.  There is no way, nor should there be any need, to sugar coat the reality that obtaining embryonic stem cells involves the deliberate stopping ,after five to eight days, the process in which a fertilized human egg develops into a fully formed infant.  The embryos used for stem cell research are donated by parents who have extra embryos after having undergone in-vitro fertilization (IVF) and are then destroyed in the process of developing embryonic stem cells which can be studied and implanted into injured parts of the body. 

Why do parents donate these embryos?  Because as technology now stands, it is impossible to undergo IVF without facing the decision of what to do with the embryos which are not implanted yet remain viable.  Most such embryos are destroyed by thawing.  Many remain in frozen storage forever. A few may be donated for use by other couples.  And some are donated for research.  All of these options are legal in Iowa and the choice is completely the parents’.

For those who believe life begins at conception and that any effort to stop the process of fetal development is wrong, both IVF which results in left over embryos and embryonic stem cell research are absolutely wrong and should be illegal.  But not everyone sees the case as clearly as these absolutists nor need they.  

For non-absolutists, each form of embryo destruction requires a different balancing of benefit versus cost and each of us is entitled to our own opinion. Few of us have “all or nothing” ethical belief systems.  Even those who accept the necessity for embryo destruction to provide infertile couples with their own biological children can have a special moral concern about research involving a human embryo. It is reasonable to want to balance the need for research against the act of destroying an embryo.

Most Americans so far see embryonic stem cells’ capacity to substantially reduce sickness and disability worth the use of embryos which would have otherwise been discarded.   Only one state, Louisiana, has made stem cell research completely illegal by making it illegal to destroy any frozen embryo.  This kind of law imposes substantial restraints on our fundamental liberties to create families and control reproduction.  While some claim that embryonic stem cell research is unnecessary because of advances in adult stem cell research that, unfortunately, is not true.  But the concerns of those who oppose the use of embryos for research are valid and should be respected by acknowledging the sensitivity of the undertaking and by continuing to fund research with adult stem cells even though it may end up being more difficult and expensive.

It would be interesting to know the extent to which those expressing opposition to fetal stem cell research are also opposed to the usually inevitable destruction of embryos in IVF?  

It’s interesting to watch how this pageant of cognitive dissonance plays out. 

    - Jennifer S. Bard

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Nice article. In my teaching I've often noticed that people are quick to adopt deontological rhetoric but use consequentialist means in reasoning through these kinds of issues (indeed most issues related to life or death, not just embryo-related). So they are generically pro-life (which tends to be the norm where I teach), but often effectively support the destruction of life in a variety of circumstances in terms of what they will actually approve. I certainly don't try to dissuade students from all dissonance--logic is a key tool, but not the entirety of thinking--but I do find it hard to get them to abandon such double-think even as they acknowledge it is a problem. They would rather hold onto the dissonance than face up to the seriousness demanded by the questions.

Posted by: Rod | Mar 9, 2011 9:59:18 AM

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