America’s Stem Cell Mess

Other countries have laws that provide researchers with legal and moral clarity.

Modified From © Klaus Guldbrandsen / Photo Researchers, Inc.

It’s hard not to feel sorry for American embryonic stem cell (ESC) researchers. Over the dozen years since the cells were first derived, they’ve been expected to meet federal rules that change with each president, research guidelines from the National Academy of Sciences as interpreted by their institutions, and separate requirements from state and private funders. While the extremely restrictive policies of the Bush administration caused a number of alternative funders to step up to the plate, each comes with its own rules, restrictions, and reporting requirements. Labs with a mix of federal and private funding are required to account for the monies separately, leading to the somewhat absurd practice of color-coding lab instruments and workspace so that nothing paid for with federal money is...

The picture brightened last year when President Obama lifted his predecessor’s restrictions, allowing the National Institutes of Health (NIH) to release new guidelines for an expanded ESC research program. But this August, a judge issued a preliminary injunction putting that entire program on hold. NIH has appealed the decision, and as I am writing, the appeals court has lifted the injunction pending consideration of the full appeal. Right now is the perfect opportunity for the US government to finally put ESC research on a firmer legal—and moral—footing.

Extracted cells are not full embryos, so embryonic stem cell researchers have been able to spend federal dollars provided the cells were extracted using nonfederal money.

The injunction case was brought by two stem cell researchers who complained that NIH’s 2009 ESC research guidelines violated the law. (The plaintiffs work on adult stem cells.) Every year since 1996, the US Congress has included language in its budget bills prohibiting the use of taxpayer money for “research in which a human embryo or embryos are destroyed, discarded or knowingly subjected to risk of injury or death.” At first blush, these words, known as the Dickey-Wicker Amendment, might appear to prohibit government funding of ESC research altogether, because ESC research necessarily involves the destruction of human embryos. Yet the US government has been funding some ESC research for nearly a decade.

It's time to openly acknowledge that proceeding with embryonic stem cell research means losing some embryos. With such acknowledgment, the United States can have a more honest and durable policy.

NIH, under the Bush and Obama administrations, has supported ESC research on the basis of a careful and quite narrow interpretation of the Dickey-Wicker Amendment. Scientists cannot spend federal money extracting ESCs, the government’s legal counsel reasoned in 1999, because for the embryo, extraction is destruction. But extracted cells are not full embryos, so researchers have been able to spend federal dollars studying ESCs provided they were extracted using nonfederal money. This is a nice legal argument, and it did the job for a while. But as the recent court case shows, it is not sturdy enough to support a multimillion-dollar, decades-long federal research program.

Some legal scholars have always been concerned that NIH’s interpretation of the Dickey-Wicker Amendment flouted the spirit of the law. And bioethicists have worried that even if it works legally, the interpretation is morally suspect. An ESC policy that won’t fund cell extraction is not free of moral responsibility for that essential step in the process. German law prohibits destroying human embryos but permits research on some imported ESCs. The result is that Germany essentially outsources the activity it finds morally objectionable—no German embryos were harmed in the making of this science.

A much better way to go about all of this is to be up front and honest about what the United States will and will not fund with taxpayer money. Under the kinds of laws and policies in place in the United Kingdom, Sweden, Belgium, Canada, and Australia, among others, the rules for research involving embryos are clearly spelled out. For example, Canada limits the research to embryos left over from fertility treatment. Other nations allow a great deal—the United Kingdom and Australia both permit cloning of human embryos, but everything has to be licensed, which allows for close review and national oversight of the research. At the very least, these laws provide ESC scientists with clarity and predictability.

The Dickey-Wicker Amendment is passed annually, which means that every year US lawmakers have a chance to tweak the language so that it won’t interfere with the country’s ESC research program. Another option is to enact legislation requiring the US government to conduct and support ESC research, which was passed by both houses of Congress in 2005 and 2007 but vetoed both times by President Bush. Neither of these options is politically neutral, but they shouldn’t be as difficult to achieve now as they once were. Public opinion polls show significant support for limited kinds of ESC research (no cloning; no creation of embryos for research purposes). And we already know from past political battles that the research has bipartisan support.

Some people are completely opposed to ESC research, while others have no qualms. But many are ambivalent. Maybe you believe that human embryos are different in a morally significant way from other human cells, even if you don’t think that they have the status of born humans, or even fetuses. Maybe you believe that what we do with human embryos is symbolically significant, that how we treat the earliest forms of human life says something about our underlying moral code. Or perhaps you just feel that diverse, multicultural nations function best when they minimize how often and how much they offend the deeply held religious and moral beliefs of a sizable number of their citizens. But maybe you also believe that the research holds great promise. University of Wisconsin scientist, James A. Thomson, who first derived ESCs from embryos, has said “if human embryonic stem cell research does not make you at least a little bit uncomfortable, you have not thought about it enough.” But he also thinks it is important work.

“A little bit uncomfortable” seems to be how a majority of Americans and their political representatives feel. And it is the position taken by many other nations that are active in ESC research but that also subject it to some limitations and to a transparent oversight system. The United States has decided to permit ESC research within its borders and to support some of the work with public funds. So it’s time to openly acknowledge that, at least for now, proceeding with this important and timely research means losing some embryos. With such acknowledgment, the United States can have a more honest and durable policy. And then ESC researchers can stop worrying about laws, regulations, and court orders and get back to worrying about culture conditions, tumors, cell differentiation, and all the other scientific puzzles that remain to be solved.

Josephine Johnston is a research scholar at The Hastings Center, an independent bioethics research institute in Garrison, NY. She has degrees in law and bioethics, and works on ethical, legal, and policy issues in assisted reproduction, psychiatry, and neuroscience.

J.M.K. Makdisi, “The slide from human embryonic stem cell research to reproductive cloning: Ethical decision-making and the ban on federal funding,” Rutgers Law J, 34:463-511, 2003.

D.S. Davis, “Restoring human embryonic stem cell research,” Bioethics Forum, published online August 31, 2010.

National Bioethics Advisory Commission, “Ethical Issues in Human Stem Cell Research,” Rockville, Md.: National Bioethics Advisory Commission, 1999:iv-v.

E. Parens, L.P. Knowles, “Reprogenetics and public policy: Reflections and recommendations,” Hastings Cent Rep, S1-S24, July–August 2003.

G.D. Fischbach, R.L. Fischbach, “Stem Cells: Science, Policy, and Ethics,” J Clin Invest, 114:1364-70, 2004.

M. Guenin, The Morality of Embryo Use, New York: Cambridge University Press, 2008.

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