Benefiting from past wrongdoing, human embryonic stem cell lines, and the fragility of the German legal position

Bioethics

Volumn 21, Issue 3, 2007, Pages 150-159

  Takala, Tuija ^a,b   Häyry, Matti ^a,b  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

^b UNIVERSITY OF HELSINKI   (Finland)

Author keywords

Benefiting from evil; Ethics; Germany; Law; Morality; Stem cell research

Indexed keywords

ACT; ARTICLE; CELL LINE; DECISION MAKING; EMBRYONIC STEM CELL; GERMANY; LAW; MEDICAL ETHICS; MORALITY; THREAT;

COMPLICITY; EMBRYONIC STEM CELLS; ETHICS, RESEARCH; GERMANY; HUMANS; MORALS; RESEARCH;

EID: 33846900676     PISSN: 02699702     EISSN: 14678519     Source Type: Journal    
DOI: 10.1111/j.1467-8519.2007.00538.x     Document Type: Article

References (59)

1. European Consortium for Stem Cell Research (EuroStemCell). 2006. Regulations in EU Member States regarding hES cell research. Available at: http://www.eurostemcell.org/Documents/Outreach/ stemcell_hesc_regulations_2006feb.pdf [Accessed 24 Nov 2006].
2. Deutscher Bundestag. 2002. Entwurf eines Gesetzes zur Sicherstellung des Embryonenschutzes im Zusammenhang mit Einfuhr und Verwendung menschlicher embryonaler Stammzellen (Stammzellgesetz - StZG). Berlin. Bundestagsdrucksache 14/8394.
3. Deutscher Bundestag. 1990. Gesetz zum Schutz von Embryonen (Embryonenschutzgesetz - EschG). Berlin. Bundesgesetzblatt 8/2746.
4. Grundgesetz. 1949. The German Basic Law, The Constitution of the Federal Republic of Germany, 23 May.
5. An overview of the stem cell debate more generally is provided by S. Holm. Going to the Roots of the Stem Cell Controversy. Bioethics 2002; 16: 493-507.
6. Stammzellgesetz, section 4.
7. Grundgesetz, article 1; Embryonenschutzgesetz.
8. Grundgesetz, article 5:3.
9. T. Heinemann & L. Honnefelder. Principles of Ethical Decision Making Regarding Embryonic Stem Cell Research in Germany. Bioethics 2002; 16: 530-543, p. 534.
10. This comes close to applying the 'principle of charity' to the German view which is, to us, very difficult to understand if the original turns of phrase are used.
11. Cf. R.P. Churchill. 1986. Becoming Logical: An Introduction to Logic. New York: St. Martin's Press: p. 58.
12. See also S. Holm. 2003. 'Parity of reasoning' arguments in bioethics - some methodological considerations. In Scratching the surface of bioethics. M. Häyry and T. Takala, eds. Amsterdam and New York: Rodopi: 47-56, pp. 53-55.
13. Our description comes close to the one provided by Heinemann and Honnefelder, op. cit. note 9, but the terminology is, from time to time, different.
14. Totipotent (or 'omnipotent') embryos and stem cells can, by definition, develop into fully-developed human beings, whereas embryos and stem cells which are not totipotent (or 'omnipotent') cannot. See Heineman and Honnefelder, op. cit. note 9, pp. 532-533.
15. There are currently no known cases of human embryonic stem cell line creation in Germany. But illegal activities are always a logical possibility.
16. The first report on creating human embryonic stem cell lines appeared in 1998, and it is therefore highly improbable that any such activity would have preceded the Embryo Protection Act of 1990. See J.A. Thomson et. al. Embryonic Stem Cell Lines Derived from Human Blastocysts. Science 1998; 282: 1145-1147.
17. By definition, pluripotent cells have the ability to develop into many types of specialised tissue, but they cannot, as such, develop into complete human beings.
18. It seems that the German legislator must here, surprisingly, agree with the view expressed by Michael Tooley in the abortion debate, according to which we have no obligation to turn potential persons (in Tooley's example, kittens) into actual persons (in Tooley's account, by administering them a wonder drug). The surprise (although by no means a discrepancy) is that a fragment of Tooley's pro-choice argument seems to occupy an indispensable role in the German legislature's pro-life view. See M. Tooley. Abortion and Infanticide. Philos Public Aff 1972; 2: 37-65, pp. 60-62.
19. R.M. Green. Benefiting from 'Evil': An Incipient Moral Problem in Human Stem Cell Research. Bioethics 2002; 16: 544-556.
20. F.B. Charatan. Anatomy Textbook Has Nazi Origins. Br Med J 1996; 313: 1422.
21. Green, op. cit. note 17, pp. 547-548.
22. Ibid: 548-549.
23. Ibid: 549.
24. Ibid: 550-551.
25. The idea of the critical evaluation of practice encouragement is more fully explained in R.M. Green, B. Gert & K.D. Clouser. The Method of Public Morality Versus the Method of Principlism. J Med Philos 1993; 18: 479-491.
26. Green, op. cit. note 17, p. 556, p. 553.
27. Ibid: 554.
28. Provided that the stem cells come from 'surplus' embryos, and that the embryos are not created solely to be destroyed and utilised for their stem cells.
29. Green, op. cit. note 17, pp. 554-555.
30. If they approve fertility treatments, they encourage, however indirectly, embryo destruction. Green himself does not draw attention to this paradox in his article. It is possible that he has missed it altogether.
31. S.G. Post. The Echo of Nuremberg: Nazi Data and Ethics. J Med Ethics 1991; 17: 42-44.
32. R.S. Pozos. 1992. Scientific Inquiry and Ethics: The Dachau Data. In A.L. Caplan, ed. When Medicine Went Mad: Bioethics and the Holocaust. New Jersey: Humana Press: 95-108.
33. Ibid: 105.
34. Pozos uses here the word 'utilitarian' in the technical meaning defined by the latter part of the sentence. The connection between this usage and the doctrine of utilitarianism (as a moral theory) is not explained in his article.
35. Pozos, op. cit. note 29, pp. 105-106, cf. p. 96.
36. A closely related, and even more cautious, view regarding the use (specifically, the publication) of 'tainted results' can be found in F. Luna. Vulnerable Populations and Morally Tainted Experiments. Bioethics 1997; 11: 256-264.
37. Green, op. cit. note 17, pp. 544-546, 553-554.
38. L. Gillam. Arguing by Analogy in the Fetal Tissue Debate. Bioethics 1997; 11: 397-412.
39. Gillam's article, ibid., contains useful references to this discussion. These are not cited here, because they are peripheral to our argument.
40. Ibid: 403-408.
41. The maximum penalty for 'misusing' human embryos is three years' imprisonment. Embryonenschutzgesetz.
42. C.M. Romeo-Casabona. Embryonic Stem Cell Research and Therapy: The Need for a Common European Legal Framework. Bioethics 2002; 16: 557-567, p. 562.
43. By 'pre-Act' lines we mean those human embryonic stem cell lines created before 1 January 2002, and by 'post-Act' lines those created after that date.
44. Green, op. cit. note 17, pp. 550-551.
45. Romeo-Casabona (op. cit. note 38, p. 564) makes this suggestion in the European context.
46. On the problems of the use of the concept of a 'spare' embryo in these debates, see S. Holm. The Spare Embryo - A Red Herring in the Embryo Experimentation Debate. Health Care Anal 1993; 1: 63-66.
47. Pozos, op. cit. note 29, p. 105.
48. See also F.S. Oduncu. Stem Cell Research in Germany: Ethics of Healing vs. Human Dignity. Med Health Care Philos 2003; 6: 5-16.
49. On this phenomenon, see, e.g. L.S. Cahill. Genetics, Commodification, and Social Justice in the Globalization Era. Kennedy Inst Ethics J 2001; 11: 221-238;
50. S. Holland. Contested Commodities at Both Ends of Life: Buying and Selling Gametes, Embryos, and Body Tissues. Kennedy Inst Ethics J 2001; 11: 263-284.
51. Holm (op. cit. note 5, pp. 500-501) also discusses the 'technical slippery slope towards reproductive cloning'. This argument is not analysed here, because, if valid, it would provide grounds for prohibiting stem cell research regardless of origin of the lines studied.
52. They only have to say that embryos are not, by definition, similar to adult human beings, and that they do not, therefore, have all the rights that adults have. If they are then accused of 'selective dehumanisation' (by the use of restrictive definitions), they can argue that the burden of proof lies with their opponents. Rights are originally associated with fully-developed human beings, and they are connected with the features and abilities fully-developed human beings have. Since embryos do not have these, there are no good grounds to extend full protection to them. To claim that embryos have full human rights is about as intelligent as it would be to call the exclusion of trees from the sphere of human rights 'selective dehumanisation'.
53. They cannot, in other words, decide in a few years' time to set a new, later date, which would enable German scientists to exploit the results of human embryonic stem cell lines created after 1 January 2002. Green (op. cit. note 17, pp. 552-553) warns about this in analysing President George W. Bush's decision to authorise the use of existing stem cell lines on the grounds that the life-and-death decision has already been made.
54. This type of thinking is usually associated with the philosophy of Immanuel Kant, who wrote on the topic: '[Man] as a person, i.e. as the subject of a morally-practical reason, is exalted above all price. For as such a one (homo noumenon) he is not to be valued merely as a means to the ends of other people, or even to his own ends, but is to be prized as an end in himself. This is to say, he possesses a dignity (an absolute inner worth) whereby he exacts the respect of all other rational beings in the world, can measure himself against each member of his species and can esteem himself on a footing of equality with them.'
55. I. Kant. 1797. The metaphysical principles of virtue (Metaphysische Anfangsgründe der Tugendlehre), pp. 434-435.
56. In I. Kant. 1994. Ethical Philosophy. Second edition translated by J.W. Ellington and with an introduction by W.A. Wick. Indianapolis and Cambridge: Hackett Publishing Company: p. 97.
57. Heinemann and Honnefelder, op. cit. note 9, p. 542.
58. A recent study seems to indicate, however, that this is not enough for the German public, who are critical towards all kinds of human embryo research. Das Institut für Markt- und Politikforschung. 2002. Beuerteilung der neuen Moglichkeiten in der Biotechnologie. Bundesweite Erhebung.
59. Holm, op. cit. note 5, p. 499.