Recent developments in the law and ethics of embryonic research: Can science resolve the ethical problems it creates?

Journal of Law, Medicine and Ethics

Volumn 33, Issue 2, 2005, Pages 384-403

  Robertson, Christopher ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 23944481192     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720x.2005.tb00505.x     Document Type: Review

References (45)

1. J. A. Thomson, et al. "Embryonic Stem Cell Lines Derived from Human Blastocysts," Science 282 (1998): 1145-47.
2. For a useful survey of the science of stem cell research as of 2001, see Stem Cells: Scientific Progress and Future Research Directions. Department of Health and Human Services (June 2001), available at 〈http://stemcells.nih. gov/info/scireport〉.
3. Ibid. Id.
4. National Bioethics Advisory Commission (NBAC), "Ethical Issues in Human Stem Cell Research" (Spring 1999), available at 〈http://www. georgetown.edu/research/nrcbl/nbac/execsumm.pdf〉, at 8.
5. NIH Revitalization Act of 1993, Pub. L. No. 103-43, 107 Stat. 122, codified at 42 U.S.C. § 289a-1.
6. International Foundation for Genetic Research v. Shalala, 1995 U.S. App. LEXIS 14790 (4th Cir.).
7. The ban, which had been renewed each year, appears in the 2002 appropriations bill, H.R. 3061 §510 as: (a) None of the funds made available in this Act may be used for - (1) the creation of a human embryo or embryos for research purposes; or (2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under 45 CFR 46.208(a)(2) and section 498(b) of the Public Health Service Act (42 U.S.C. 289g(b)). (b) For purposes of this section, the term 'human embryo or embryos' includes any organism, not protected as a human subject under 45 CFR 46 as of the date of the enactment of this Act, that is derived by fertilization, parthenogenesis, cloning, or any other means from one or more human gametes or human diploid cells. See American Association for the Advancement of Science, Center for Science, Technology and Congress, "AAAS Policy Brief: Stem Cell Research," (updated August 2004), available at 〈http://www.aaas.org/ spp/cstc/briefs/stemcells/index.shtml〉.
8. NBAC, supra note 3.
9. Draft NIH guidelines, 64 Fed. Reg. 67,576 (December 2, 1999); final guidelines, 65 Fed. Reg. 51,976 (August 25, 2000).
10. Later appealed as Doe v. Shalala, 2004 U.S. App. LEXIS 25146 (4th Cir. 2004).
11. Note that this organization's legal theory that the embryos are "born" seems to be at odds with their organizational name, the "National Association for the Advancement of Preborn Children."
12. G. W. Bush, "Remarks by the President on Stem Cell Research," (August 9, 2001), available at 〈http://www.whitehouse.gov/news/releases/ 2001/08/20010809-2.html〉.
13. Id., and Executive Order No. 13237 of November 28, 2001, 66 Fed. Reg. 59851.
14. 66 Fed. Reg. 57,107 (November 14, 2001).
15. Ibid. Id.
16. N. Brulliard, "Bipartisan Bill Advocates More Stem Cell Research," Atlanta Journal-Constitution, February 17, 2005, at 2C.
17. "Stem Cell Lines Compromised?" Wired News, January 23, 2005 at 〈http://wired.com/news/medtech/0,1286,66375,00.html〉;
18. see also M. Martin, A. Muotri, F. Gage, and A. Varki, "Human Embryonic Stem Cells Express an Immunogenic Nonhuman Sialic Acid," Nature Medicine 11 (2003): 228-32.
19. A. L. Caplan, "Stem-Cell Research A Pawn In Election Politics; Bush's Policy Makes A Mockery Of Moral Issues Involved," Bioethics on NBC (October 5, 2004), available at 〈http://www.bioethics.net/articles.php? view-Cat=2&articleId=69〉.
20. For example, Harvard University launched a major initiative in 2004, making seventeen additional stem cell lines available for research. See, J. H. Powell, "Harvard Bigwigs Tout Stem Cell Center," Boston Herald April 24, 2004, at 19.
21. For a recent survey of action in the states, see K. Gelles, "Stem Cells' Promise Pits Jobs vs. Values," USA Today, February 16, 2005, at 1B.
22. See M. Sappenfield, "Woes for California's Stem-Cell Experiment," Christian Science Monitor, December 20, 2004, available at 〈http://www.bioethics.net/News/?id=234〉.
23. R. Weiss, "Bills Renew Fight on Stem Cells," Washington Post, February 17, 2005, at A6.
24. H. R. 162, Stem Cell Replenishment Act of 2005.
25. Editorial, "Stem Cell Policy Collapses," USA Today, January 26, 2005, at 12A.
26. D. W. Landry and H. A. Zucker, "Embryonic Death and the Creation of Human Embryonic Stem Cells," Journal of Clinical Investigation 114 (2004): 1184-86, available at 〈http://www.jci.org/cgi/content/full/114/9/ 1184〉.
27. K. Philipkoski, "Stem-Cell Method May Cheat Death," Wired News (December 22, 2004), at 〈http://wired.com/news/medtech/0,1286,66113,00. html?tw=wn_story_page_prev2〉;
28. see also N. Strelchenko, O. Verlinsky, V. Kukharenko, and Y. Verlinsky, "Morula-Derived Human Embryonic Stem Cells," Reproductive BioMedicine Online 9 (2004): 623-629.
29. E. Check, "Stem Cell Library Boosts the Case For Change," Nature 429 (2004).
30. They also argue that stem cell harvesting may also be permissible just before death, while the embryo is in extremis - the final stages of dying. "Section 6: Seeking Morally Unproblematic Sources of Human Embryonic Stem Cells," Transcript, President's Council on Bioethics (PCBE) (December 4, 2004), available at 〈http://www.bioethics.gov/transcripts/dec04/session6. html〉. See also Landry and Zucker, supra note 24.
31. See In Re Long Island Jewish Medical Center, 641 NY Supp 2d 989 (N. Y. Superior Ct. 1996).
32. Landry and Zucker, supra note 24, at 1185.
33. Ibid. Id.
34. See note 6, supra.
35. See PCBE, supra note 27; W. B. Hurlbut, "Altered Nuclear Transfer As a Morally Acceptable Means for the Procurement of Human Embryonic Stem Cells," The President's Council on Bioethics (December 2004), at 〈http://www.bioethics.gov/background/hurlbut.html〉.
36. Ibid. Id.
37. Ibid. Id.
38. See D. Melton, G. Daley, and C. Jennings, "Altered Nuclear Transfer in Stem-Cell Research - A Flawed Proposal," N. Engl. J. Med., 351 (2004): 2791-92.
39. Ibid. Id.
40. This point was made by Melton, supra note 35, and by Paul McHugh in the PCBE discussion, supra note 27, as well as by two commentators in the PCBE public comment session at the December 4, 2004 meeting, available at 〈http://www.bioethics.gov/transcripts/dec04/session7.html〉.
41. PCBE transcript, supra note 27.
42. Ibid. Id.
43. At the PCBE meeting, Council Member Michael Gazzaniga put the point this way: "normally, we generate a word to describe a biologic phenomenon and here we seem to be tinkering with biologic phenomenon to have it fit the meaning of a word, and that's not what you do....you are building something here and we're going to have to call it something. And it's not an embryo, it's something else if you want to have it play out this way." PCBE transcript, supra note 27.
44. An August 2004 poll found that only 34% of those who reported high levels of religious commitment support stem cell research, while 66% of those with low levels of religious commitment support the research. "GOP the Religion-Friendly Party, But Stem Cell Issue May Help Democrats," Pew Forum on Religion and Public Life, at 〈http://pewforum.org/docs/index.php?DocID= 51〉 (last visited March 8, 2005).
45. See also "Ethical Issues in Stem Cell Research; Volume III, Religious Perspectives," National Bioethics Advisory Commission (2000), available at 〈http://www.georgetown.edu/research/nrcbl/nbac/stemcell3. pdf〉.