A paper presented to the Oxford Society of Scholars Forum
by Rollin A. Van Broekhoven, JD, LLM, DPhil, DLitt, DPS
29 September 2001


In 1729, when the Irish were crushed by poverty, thanks to the brutal economic policies of their English overlords, Jonathan Swift – the conservative Irish clergyman who became the world’s greatest satirist – wrote up “A Modest Proposal.”  In deadpan prose and in a kindly benevolent style, he suggested that Irish babies be sold for food.  That way, he argued, there would be both more food to go around and fewer mouths to feed.  Besides, baby skin would make a really soft leather, making possible a new industry that would create jobs and boost the Irish economy.

Swift, the Christian pastor, was lampooning the moral utilitarianism of the Enlightenment, which taught that anything could be morally justified if it were “useful” giving the greatest tangible benefit to the greatest number.  Swift showed where this kind of thinking, if pursued logically, would lead.  Indeed, his “A Modest Proposal” did wake up the conscience of a good number of his readers, who realized that no noble social end could possibly justify the consumption of babies, and no moral philosophy that could justify such a thing could possibly be valid.

…Thinking about moral issues in utilitarian terms has become so ingrained that many Americans are unable to think in any other terms.  If something – no matter how reprehensible – has a positive outcome, it must be okay.1

This paper addresses issues concerning the utilization of human embryonic stem cells in research.  Although research also involves adult stem cells, such research does not at the present confront society with the same ethical and legal issues present in human embryonic stem cell research.  Two great questions confront the human race at the start of this biotech century.2 The first is whether we should use members of our own kind, namely, Homo Sapiens, in whatever stage of biological existence, for the purpose that is other than the good of the individual concerned.  The second, perhaps only in the horizons of our thinking, is whether we should use our growing capacity to design, determine, and transform ourselves and our nature, toward a so-called “post-human” future.3 What is at stake is society’s understanding of what it means to be human.  Nevertheless, underlying consideration of this subject are the following questions:  If a procedure or process is scientifically or technologically feasible, is it, or should it be morally permissible, or at least be regarded as morally neutral?4 If it is morally permissible or neutral, is it, or should it be legally permissible?  For many of us, these questions are intensely personal as we deal with bioethical end of life or incurable disease issues in our own families.

The relation of the natural sciences and morality and religion and law is one of the most fascinating, challenging, controversial, and potentially enriching studies possible in contemporary Western life.  At its broadest and most general meaning, “science” is knowledge that is accumulated, systematized, and formulated with reference to the discovery of general truths or the operation of general laws.  At this level, a distinction must be made between the natural or physical sciences, such as physics, chemistry, or biology, and the normative sciences, such as the social sciences.  A more specific definition of the “natural science” may be that it is “any systematic field of study or body of knowledge that aims, through experimentation, observation and deduction to produce a reliable explanation of phenomena with reference to the material or physical world.”5 Philosophy of science deals, in very general terms, “with the philosophical issues associated with the natural sciences.”6

The natural sciences tended to be neutral towards religion.  They did not require prior or consequent acceptance or rejection of any religious beliefs.  As a result, most natural scientists assume that considerations of divine influence upon or involvement within natural order are largely irrelevant to the specific task searching for a natural explanation to patterns observed in nature.  A significant philosophical distinction important to understanding the development of the natural sciences concerns “rationalism” and “empiricism.”7

On the one hand, rationalism with its emphasis on reason and view that all truth has its origins in human thought, unaided by any form of supernatural intervention or appeal to the experience of the senses, promoted the view that certain truths were universal and necessary.  The alternative to rationalism, on the other hand, was an appeal to experience, generally known as empiricism.  The issue emerging from the debate between rationalism and empiricism is whether certain truths (assuming there is such a thing as truth”) are a priori or a posteriori.  The same debate exists in religion and in moral thought, namely is the knowledge of God a priori, implanted there by God, or a posteriori, derived by reflection on experience or divine revelation.  How one approaches the question of the morality of stem cell research is in large measure derived from one’s a priori understanding of the nature of God and His commands, or one’s a posteriori understanding of God based on one’s experiences, including experience with God.

Where once there was a dialogue between religion and science, with certain shared assumptions, now there is a growing sense of conflict between religion and science.  While the nature and the reasons for this conflict are beyond the scope of this paper, there are four considerations that may be noted that reflect the growing realization of insecurity in the inherited assumptions on which prior prevailing understandings rested.8 These include: the cultural shift reflected in the rise of postmodernism; the growing dissatisfaction with philosophical foundationalism; the influence of the negative direction of the conflict models and imageries; and the tendency to perpetuate outdated and misleading stereotypes often dependent upon incorrect assumptions, findings, and assertions in earlier works.9

There is a fundamental cultural change taking place in Western society that is drawing it consistently closer to a post-Christian understanding of the world, with an increasingly incoherent amalgam of classical Judea-Christian, and post-Christian components.10 Perhaps most prominent is the rise of postmodernism.  Postmodernity is a multi-layered concept that alerts us to a variety of major social and cultural changes taking place at the end of the twentieth century within “advanced” societies, in part due to the rapid technological change involving telecommunications and computer power, the rising power of information technology combined with biomedical advances, shifting political concerns, and the rise of social movements.  “Postmodernism” refers to cultural and intellectual phenomena associated with the abandonment of “foundationalism.”  It questions the key components of the Enlightenment, and the collapse of hierarchies of knowledge, taste and opinion, and the increase in the local rather than the universal.  “Postmodernity,” on the other hand, refers to putative social changes.  Characteristic to this movement is a cultural sensitivity without absolutes, fixed certainties, or foundations, which takes delight in pluralism and divergence and which asserts that claims to “truth” often represent disguised attempts to justify power, status, or other vested interests.11 Where legislative reason once reigned and lip service was paid to codes of ethics relating to such things as preservation of life and punishment for law-breaking, now governments are expected to manage the health services, the economy, and other contemporary dilemmas.  At the heart of the new pattern of post-Christian and postmodern assumptions and understandings lies the question of bioethics.12 However, there is the need to articulate a Christian worldview as the starting point of cultural engagement in bioethics as elsewhere.13

We are all generally familiar with atrocities committed by physicians in Nazi concentration camps during World War II.  We have become more aware of the unethical treatment of syphilis among African-Americans in Alabama during the 1950s and 1960s.  The Brooklyn Chronic Disease Hospital was involved in injecting live cancer cells into non-consenting elderly patients.  Then there was the Willowbrook incident involving the use of incarcerated mentally retarded children to test hepatitis vaccines.  More recently, there have been reports of improper use of fetuses in biomedical research in the early 1970s at the National Institutes of Health (NIH) or at institutions supported by the NIH.  As a result of these kinds of medical experiments, the United States has been engaged in a substantial biomedical ethical debate for more than three decades.  With few exceptions, Evangelicals have rarely been invited to participate in the various Governmental and national bodies, such as the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research (1974-1978), the Ethics Advisory Board (EAB) (1978-1980), the Congressional Biomedical Ethics Advisory Committee (1985), the Human Fetal Tissue Transplantation Research Panel, and the National Ethics Advisory Commission.14 According to a report, Biomedical Ethics in U.S. Policy (June 1993), issued by the U.S. Congressional Office of Technology Assessment, all these federal initiatives, without exception, were proponents of a centralized control of biomedical ethical guidelines.15 This report stated that “[i]n the absence of a single authoritarian church or other mechanism to handle bioethical issues, American society often turns to the government or the courts for the resolution of thorny ethical issues” where the “need is not so much for finding moral solutions to complex policy matters, but rather, for identifying problems and either making recommendations or defining tradeoffs among alternatives.”16


On July 19, 2001, NIH issued its report, Stem Cells: Scientific Progress and Future Research Direction, prepared under the auspices of the Office of Science Policy.17 This report was a review of the state of the science of stem cell research as of June 17, 2001.  The report was based on a thorough review of the extant scientific literature, including more than 1200 scientific publications, interviews with scientific experts (both domestic and international) from all areas of relevant biomedical research in stem cells, reports of investigations from investigators in academic laboratories, and extensive discussions with scientists in pharmaceutical and biotechnology sectors.  Although NIH recognized that there are compelling ethical and legal issues surrounding human pluripotent stem cell research, it did not include any review of these issues in this review of the science.

A stem cell is a special kind of cell that has a unique capacity to renew itself and to give rise to specialized cell types.  Most cells in the body are committed to conduct a specific function.  However, a stem cell is uncommitted and remains uncommitted until it receives a signal to develop into a specialized cell.  The proliferative capacity of stem cells, combined with the ability to become specialized, makes the stem cells unique.  Through animal research, scientists discovered a class of cells that could develop into any cell type in the body.  These cells were called “pluripotent,” which means that these cells have the potential to develop into all of the more than 200 different known cell forms.  Stem cells with this unique property come from embryos and fetal tissue.  In 1998, scientists for the first time were able to isolate this class of pluripotent stem cell from early human embryos and grow them in a culture.18 At approximately the same time, there was new information emerging about a class of stem cells, the so-called adult stem cells.  An adult stem cell is an undifferentiated cell that is found in a differentiated or specialized tissue in the adult.  Sources of adult stem cells include bone marrow, blood, the cornea and retina of the eye, brain, skeletal muscle, dental pulp, liver, skin, the lining of the gastrointestinal tract, and the pancreas.19

According to the NIH report, and much of the lay literature concerning stem cell research, stem cells hold the key to replacing cells lost in many diseases.  The report states that “[t]here is little doubt that this potential benefit underpins the vast interest about stem cell research.”20 Some of the diseases identified in the report include Parkinson’s disease, diabetes, chronic heart disease, end-stage kidney disease, liver failure, and cancer.  In addition, stem cells may be used to generate replacement tissues for treating neurological diseases, such as spinal cord injury, multiple sclerosis, and Alzheimer’s disease.  Despite advances in transplantation, there are shortages and will continue to be shortages of donor organs that can fully meet the growing demand for organ replacements.

It is interesting that both Stem Cells: A Primer, National Institutes of Health, May 2000 and Stem Cells: Scientific Progress and Future Research Directions21 described stems cells in the context of human development.  For example, the Stem Cell Primer stated:

Human development begins when a sperm fertilizes an egg and creates a single cell that has the potential to form an entire organism.  This fertilized egg is totipotent, meaning that its potential is total.  The first hours after fertilization, this cell divides into identical totipotent cells.  This means that either one of these cells, if placed into a woman’s uterus, has the potential to develop into a fetus.  In fact, identical twins develop when two totipotent cells separate and develop into two individual, genetically identified human beings.  Approximately four days after fertilization and after several cycles of cell division, these totipotent cells begin to specialize, forming a hollow sphere of cells, called a blastocyst.  The blastocyst has an outer layer of cells and inside the hollow sphere, there is a cluster of cells called the inner cell mass.

The outer layer of cells will go on to form the placenta and other supporting tissues needed for fetal development in the uterus.  The inner cell mass cells form virtually all of the fetal tissues of the human body.  Although the inner cell mass cells can form virtually every type of cell found in the human body, they cannot form an organism because they are unable to give rise to the placenta and supporting tissues necessary for development in the human uterus.  These inner cell mass cells are pluripotent….

In the case of blastocyst in vitro, after a human oocyte (an immature egg cell of an animal or human ovary) is fertilized in vitro by a sperm cell, certain events occur within a fairly predictable timeline.  The first is by day 2 (24-25 hours), the zygote (fertilized egg) undergoes the first cleavage to produce a two-cell embryo.  By day 3 (72 hours), the embryo reaches the eight-cell stage called a morula.  It is at this stage that the genome of the embryo begins to control its own development.  By day 4, the cells of the embryo adhere to each other in a process known as compaction.  By day 5, the cavity of the blastocyst is completed and the inner cell mass begins to separate from the outer cells.  This is the first observable sign of cell differentiation in an embryo.  Many in vitro fertilization (IVF) clinics transfer the day 5 embryos to the uterus for optimal transplantation, paralleling the stage at which a blastocyst would naturally implant the wall of the uterus in vivo.  Embryonic stem cell (ES cell) cultures are derived from Day 5 blastocysts and normally consist of 200 to 250 cells.  In deriving the ES cells cultures, the trophectoderm (the outer cell ring that surrounds the blastocyst) is removed.

Unlike ES cells, which are defined by their origin, adult stem cells have no such definitive means of characterization.  Like all stem cells, adult stem cells can make identical copies of themselves for long periods of time, i.e., they have the ability to proliferate through long-term self-renewal, and to give rise to mature cell types that have specific characteristic morphologies or shapes and functions.  Some adult stem cells have the capability to differentiate into tissues other than the tissues from which they originated.

The NIH Report stated that one of the main advantages of ES cells as compared to adult stem cells is that ES cells have unlimited ability to proliferate in vitro, and are more likely to generate a broad range of cell types through directed differentiation.  One issue connected with stem cell transplantation is the real possibility that they would trigger immune rejection or induce formation of tumors.  In addition to potential stem cell therapies, other potential uses of human ES cells include the study of early events in human development, exploration of the effects of chromosomal abnormalities, and the testing of candidate therapeutic drugs.

The NIH Report would seem to suggest that the information contained in it results from experimentation and represents knowledge that is certain.  Nevertheless, in a careful reading of the Report, what stands out is the frequent use of terms, such as “possible,” “potential,” “current evidence indicates,” “appear to have,” “future uses of human pluripotent cells might include,” etc., all suggesting that the evidence is not present for many of the assertions in the report, particularly as they relate to human ES cells.22 Most of the conclusions in the Report are based on animal experimentation, particularly mice.  Moreover, there appears to be a strong bias in favor of human ES cell research, with much more cautious appeal to adult stem cell research.

As the NIH defines the human embryo, it is “the developing organism from the time of fertilization until the end of the eight week of gestation, when it becomes known as a fetus.”23 It contains both XX (female) and XY (male) chromosomes, 23 derived from the egg, and 23 derived from the sperm, found in a fully developed human being, without any chromosomal abnormalities.  During the development, the embryo will never grow to be anything other than a human being.  Indeed, as testified by Dr. Harold Varmus, MD, Director of the National Institutes of Health before a Senate Subcommittee:

Stem cells are cells that have the ability to reproduce themselves and to give rise to other more specialized types of cells.  Totipotent stem cells – such as the product of fertilization of an ovum and its progeny – are stem cells that have total potency, which means that they have the ability to form an entire mature organism, e.g., a human being, although only if placed in a woman’s uterus.24

It is these unique human qualities that make the human embryo stem cell so important for potential research to identify the genetic and environmental signals that direct the specialization of a stem cell to develop into specific cell types, to use in research in a pharmaceutical development and study of the beneficial and toxic effects of candidate drugs, and to determine the potential application for the specialization of cells into cells and tissues that can be transplanted into patients for the purpose of repairing injury and pathological processes.  The scientific literature is clear that the status of the human embryo, i.e., a human being, is determined scientifically on the basis of embryology, not on the basis of moral philosophy or religion.  However, the “routine utilization of human stem cells for medicine is 20 to 30 years hence,” according to William Haseltine, chief executive of Human Genome Sciences, Inc.25


There are a number of levels of thinking in bioethics in which the contrast between the Christian and secular perspectives becomes more obvious.  The first level involves an examination of the worldview.  The Christian worldview is theocentric.26 God is sovereign, is known by both general and special revelation, and operates according to His holiness and calls us to holiness and a life lived in accordance with the Biblical principles He has revealed.  Humans are created in the image of God and have fallen from grace by sinful choice.27 God provided the means of redemption through the death and resurrection of His Son.  In a Christian anthropology, particularly with relevance to discussions of bioethics, suffering is linked to a particular story of history, incorporating creation, fall, redemption, and eschaton.28 Therefore,

Discussion of reproductive technologies (such as artificial insemination, IVF, embryo transfers or surrogacy) will be informed by Christian understandings of family, sexuality, and the nature of human life.  In similar fashion, discussions regarding genetic engineering (such as the Human Genome Project) will be informed by Christian world view perspectives such as the relationship of God’s providence to human agency.29

The relationship of corporeality to the imago Dei might be stated with regard to the meaning and nature of the “sanctity of life” concept inherent in ES cell research as follows:

God created humanity in his image to “re-present” him, both in relation to the material creation and in relationship to himself.  This representation of God in humanity is part of every aspect of human being.  Corporeality, as one of these aspects, provides a material medium for the “representation” of God.  Corporeality is the most tangible aspect, both in the sight of the individual himself or herself and of others relating to the person.  It is by means of corporeality that the human person has the potential to relate the presence of God, through his or her being and actions, to the Other and the others.30

The word, “sanctity,” can be construed with meanings, such as, “to set aside, to devote, to give over, or to consecrate.”  So it can be understood Biblically to denote being “dedicated to God.” “Life,” construed from the New Testament Greek suggests the breadth of the word intimates both the natural life of a person and the life future and present lived through the transcendence and power of Jesus Christ.  Thus, “sanctity of life” signifies the “giving over” of “the natural and transcendent human existence” to God.31 As the Christians are called upon to address the ever-extending issues, like in vitro fertilization, surrogacy, and now ES cell research, and at the same time revisit old issues, such as euthanasia, the Church is engaged in a piecemeal reconstruction of human nature for the purposes of the post-Christian culture.32

The secular worldview is anthropocentric and focuses on the importance and the autonomy of the person.33 Moreover, Charles Darwin’s theory of the origin of the species by natural selection combined several concepts.34 First, it postulated random variations among the individual member of a species.  Second, it assumed that there was a struggle for survival in which a slight variation gave an advantage in the intense competition for existence.  Third, it concluded that individuals with that advantage become predominant because, on the average, they will live longer and have more progeny.  To the extent there may be universal principles, these can be learned by reason alone.

In The Twilight of the Idol, Friedrich Nietzsche, in writing a moral code for physicians, wrote:

The invalid is a parasite on society.  In a certain state it is indecent to go on living.  To vegetate on in cowardly dependence on physicians and medicaments after the meaning of life, the right to life, has been lost ought to entail the profound contempt of society.  Physicians, in their turn, ought to be the communicators of this contempt – not prescriptions, but every day a fresh dose of disgust with their patients.35

Alasdair MacIntyre, speaking of the cultural impact of philosophy and the philosophical centrality of moral philosophy, argued that Nietzschean ideas pervade our culture.36 Indeed, Nietzsche’s influence on bioethical discussion can be located immediately in his advocacy of radical autonomy, in which he claimed to be the teacher of the truth for a post-Christian and post-theistic world in which we create our own values.37

Two major ideas in a philosophical shift came in the post-Renaissance world.  The first was the idea of the autonomy of the human will.  If, indeed, human will is unconditioned, if it has no antecedents, if there are no standards by which it can be judged, if it is a law unto itself, the seed is planted for moral relativism.  The second is the concept that process is ultimate.  Nothing is fixed.  Everything is in flux, in the midst of change and process.  If everything is in process, then there can be no absolute moral commands, and this leads to moral relativity as well.

The second level in thinking about bioethics involves consideration of moral reasoning.  There are three major ideas that belong to the discipline of ethics.  The first is that ethics always includes some theory of obligation.  This is the basis for determining what one ought to do or ought to refrain from doing.  It is what enables one to make moral judgments in decisionmaking structures.  The second is that ethics always includes a theory of value.  This answers the questions:  What makes something good or valuable?  What makes something bad?  How does one place value or worth on something?  What is the relationship between the values one holds and the decisions one makes?  Thirdly, ethics always deals with a theory of motivation.  What ought to be the self-conscious thoughts that go through a person’s mind as one does one’s duty, as one applies one’s values in moral decisionmaking?

Almost all ethical theories of obligation can be divided into two major categories.  The first category is deontology.  Deontology is the approach to ethical theory that says that the rightness or wrongness of an act or rule is intrinsic to that act or rule.  Thus, an act is right, not because it leads to good consequences, but because it is right in and of itself.  The second major category is consequential or teleological ethics.  According to this theory of obligation, the consequences of the act determine the rightness or wrongness of the act.  Therefore, one’s moral duty in every choice is to maximize, through the consequences of one’s actions, the most amount of good for the greatest amount of people.  In the current debate, stem cell research, particularly, embryonic stem cell research, is justified on the basis of a consequentialist or teleological theory of obligation.  Both stem cell research and the call for federal funding of this research is almost entirely articulated in terms of the alleged potential benefits to provide cures for diseases, such as, Parkinson’s, Alzheimer’s, diabetes, chronic heart disease, end-stage kidney disease, liver failure, and cancer when weighed against the destruction or discarding of surplus embryos from IVF clinics.  Indeed, many the arguments against federal funding are also based on a consequentialist theory of obligation, namely, the unproven nature of the claims concerning the potential of stem cell therapies and the possible bad consequences resulting from the failures of such therapies.38

Combining the ideas of a theory of obligation, a theory of value, and a theory of motivation to form an ethic, a Christian ethic might be said to include the following:  A theory of obligation which recognizes the imago Dei in God’s creation of the human being and is derived from God’s commands with respect to honoring and protecting human life as found in the “creation ordinances,” the Decalogue, and the teachings of the New Covenant; a theory of value which recognizes the ultimate good in God’s creation and creative order; and a theory of motivation which seeks to bring glory to God in all things.  It is difficult to understand how the destruction of human embryos and the use of their stem cells in research can be asserted to meet these elements of a Christian ethic.


The public policy question is not whether or not ES cell research should be legal or illegal, but whether or not the government should permit and fund the production of embryos (human beings) to be used as material for scientific research, and whether the Government should fund the research on stem cells derived from destroyed embryos.  The NIH Report of the Human Embryo Research Panel concluded that the government should permit and should fund such research.  Currently, there is no Federal law prohibiting the scientific use of embryos for stem cell research.  The issue presently before the President and the Congress is whether or not the Federal Government should fund ES cell research.

The only federal statute relating to artificial reproductive technologies, like IVF, is the Fertility Clinic Success Rate and Certification Act of 1992.39 The Department of Health and Human Services promulgated regulations implementing this Act.40 However, the Public Health Service Act and implementing regulations generally prohibit the use of any appropriated funds for “(1) the creation of a human embryo or embryos for research purposes; or 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.”41

President Clinton issued a press release on July 14, 1999 stating:

NIH is putting in place guidelines and an oversight system that will ensure that the cells are obtained in an ethically sound manner.  The President’s 1994 ban on the use of federal funds for the creation of  human embryos for research purposes will remain in effect.  No other legal actions are necessary at this time, because it appears that human embryonic stem cells will be available from the private sector.  Publicly funded research using these cells is permissible under the current Congressional ban on human embryo research.

On December 2, 1999, NIH issued Draft Guidelines for Research Involving Pluripotent Stem Cells to ensure that NIH-funded research in this area was “conducted in an ethical and legal manner.”43 These draft guidelines provided that early human embryos may be used for NIH-funded research only if the cells are derived from early human embryos that were created only for purposes of infertility treatments and were in excess of the clinical needs of the person seeking such treatment.  The donation of early human embryos derived from excess clinical needs must be voluntary with no inducements, monetary or otherwise, offered.  Informed consent was required from those who sought treatments and elected to donate excess human embryos for research purposes.  On August 25, 2000, NIH published its Final Guidelines for Research Using Human Pluripotent Stem Cells (hPSCs).44 The guidelines made in clear that only hPSCs derived in the private sector from human embryos that had not reached the stage at which the mesoderm was formed were permitted for such research.  Moreover, the limitation of research to hPSCs derived from frozen embryos ensured that the decision to donate embryos for hPCS research would be distinct and separate from the fertility treatment.  The final guidelines were essentially similar to the draft guidelines with respect to the use of hPSCs derived from human embryos.

Although the Final Guidelines for Research Using Human Pluripotent Stem Cells (hPSCs) remained dormant without any funding provided for the hPSC research, a lawsuit was filed on March 8. 2001 in the United States District Court for the District of Columbia seeking judgment declaring the NIH Guidelines authorizing funding of research involving human embryonic stem cell research to be contrary to the law within the meaning of 5 U.S.C. § 706.45 The plaintiffs also sought judgment declaring that any action previously taken by the Department of Health and Human Services and the NIH was null and void, and an order enjoining the Government from implementing or taking action pursuant to the Guidelines, or otherwise providing funding for research involving human embryonic stem cells.  The parties entered a Stipulated Motion to Stay the Case pending a review of the Guidelines.  On May 17, 2001, the District Court, Judge Royce C. Lambert, issued an Order staying the lawsuit pending the outcome of the Government’s review of the Guidelines.46

Throughout the first six months of his Presidency, President Bush had been considering the issue of funding embryonic stem cell research.  On August 9, 2001, he announced his decision on federal funding of stem cell research in which he authorized limited federal funding for research only on extant embryo stem cell lines and increased funding for research on umbilical cord placenta, adult and animal stems cells that do not involve the same moral dilemma.47 Then, on August 27, 2001, NIH issued its rules implementing of the President’s decision and its listing of existing stem cell lines.48

The debate over harvesting stem cell from human embryos has forced the policy makers to think about the question they have been able to avoid, namely: When does human life begin?  As Richard McCormick has written, “what we may do to ‘human embryos’ depends on what we think of them.”49 In most of the debates, there is general agreement that question of when human life begins is a question of science, to be answered by human embryologists, not by philosophers, bioethicists, theologians, politicians, or judges.50

The embryo and fetus are the two primary names given to the unborn human during gestation, and are distinguished largely by the various stages of development.  Embryo refers to the beginning of human development from fertilization to eight to ten weeks gestation.  As stated above, approximately four days after fertilization and several cycles of cell division, the blastocyst is formed, which would be the natural time for implanting the embryo in the wall of the uterus.  Fetus refers to the fertilized egg from approximately eight to ten weeks to birth.

The debate in the United States House of Representatives during the recent consideration, on July 30-31, 2001, of the Human Cloning Prohibition Act of 2001 is illustrative of the disagreements concerning the scientific, moral, and legal status of the embryo.51 Rep. David J. Weldon (R. FL) a medical doctor and chief sponsor of the bill in the House said: “There is no scientific basis for claiming the newly created embryo is not a human being.”52 On the other hand, Rep. Jerrold Nadler (D. NY) argued that “Why should we prohibit, as this bill does, the cloning of cells?  Why should we prohibit the research to lead to these kinds of cures?  Only because of the belief that a blastocyst, a clump of cells not yet even an embryo, with no nerves, no feelings, no brain, no heart, is entitled to the same rights and protections as a human being.  . . .  Some of us believe that a clump of cells does not have the same moral rights as a person suffering from a disease.”53 Referring to the point at which a cloned embryo is created, Rep. James C. Greenwood (R. PA) said: “I would question why God would choose that moment to put a soul on it.”54

The law, in Anglo-American jurisprudence, protected the inviolability of human life stretching back at least seven centuries to the ancient common law.55 In applying the law of homicide exclusively to human beings and no other species, Anglo-American law demonstrated that it had always considered the human species special, with a fundamental distinction between the human species and every other species.  This common law protection of unborn human life was directly informed by medical knowledge and had its antecedents in the ancient Roman civil law’s protection of the unborn child from the time the mother was known to conceive.56 The right to life, according to Blackstone, was “a right inherent by the nature of every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.”57 Thus, as Blackstone wrote, “[a]n infant in ventre sa mere, or in the mother’s womb is supposed in law to be born for many purposes.”58 Under the Lord Ellenborough’s Act of 1803, the British Parliament “made not merely a legal pronouncement but an ethical or metaphysical one, namely that human life has a value from the moment of impregnation.”59

The issue, however, during this common law history, was a matter of proof since the common law protected the life of a human being only when it could be demonstrated to be alive.  As a result, Blackstone could declare that the right to life began at the first contemporary evidence of life, namely, quickening.  Quickening was, therefore, regarded as the most reliable medical evidence of life for centuries.60 As medical knowledge of human development increased, legal protections of the unborn also increased.  However, the Supreme Court in Roe v. Wade61 introduced the concept of viability as a possible line at which abortion could be regulated.  For the most part, contrary to much of the popular debate, Roe v. Wade has nothing to do with the status of the embryo.62

As describe above regarding the Human Cloning Prohibition Act, the current bills pending in Congress, a distinction has been argued between cloned embryos and embryos created for research, and surplus embryos in IVF clinics that were not required for embryo implantation in a woman.  With respect to the surplus embryos that remain frozen in IVF clinics, the argument is made that these will be destroyed and should, therefore, be available for stem cell research.  The legal status of these embryos is confused.  Although there have not been many court decisions directly on point, courts have held that these embryos are “property,”63 “human beings,” or something “special” in between property and human being,64 and simply matters of contract law and informed consent.65 The general trend has been for the courts to enforce consent agreements and allow the destruction of human embryos on contractual grounds, or on the grounds that the interest in avoiding procreation trumps all other asserted interests, including the state’s interest in protecting human life.66

As of 1998, ten states regulated embryo research to varying degrees.67 These include: prohibition against all research on embryos except that which preserves the life or health of the fetus, prohibiting all investigational research on embryos and prohibiting the cultivation of embryos for research, prohibiting all use of the product of conception in scientific research, regulating the use of a live conceptus and banning non-therapeutic experimentation thereon, banning all non-therapeutic research on embryos if that research substantially jeopardizes the embryo’s life or health, or if the embryo is the subject of a planned abortion, limiting the maintenance of non-frozen pre-embryos ex utero to fourteen days and prohibiting the transfer of a research pre-embryo to a uterine cavity, prohibiting experimentation on living embryos except as necessary for the life or health of the mother.  Additionally, eleven states and the District of Columbia prohibit the sale of embryos.68 Notwithstanding these limited protections contained in statutes in a number of states, human embryos do not uniformly enjoy legal protection in the United States.  Without federal funding, which would not only provide funds for research, but would also give legitimacy to human ES cell research, there are substantial questions as to whether there would be adequate private investment necessary to provide the necessary inducement to continue this research because of the long timeline to commercially successful use of the product of such research to effect the types of cures projected at the present time.69


While there can be little question in embryology that the human embryo is indeed a human being, what remains unresolved both scientifically and morally is what society is to make of this conclusion.  Is the embryo, as a human being, entitled to protection or is it morally permissible to treat it as tissue that may be used in scientific research?  The scientific efficacy and potential for productive results from embryonic stem cell therapies are far from clear.  Scientists, ethicists, and religious thinkers hold strongly different views regarding the ethics of using human embryonic stem cells for research, notwithstanding the fact that the embryos used in such research may be surplus embryos in IVF clinics and would otherwise be destroyed or discarded.  The divergent views become stronger and more urgent where ES cell research is sought for embryos created expressly for research, rather than fertility treatment, particularly with regard to those created by somatic cell nuclear transfer.

The debates in the popular culture, the scientific community, the bioethics academy, and among religious thinkers represent, in some measure, the force of postmodernity, with its sequestration of specialties and disciplines and its cultural sensitivity without absolutes.  Through the use of scientific and technical terms and euphemisms, claims to truth are rejected or dismissed as asserted attempts to justify power, status, or other vested interests.  Lip service is paid to ancient codes of ethics and claims to religious principles, but are dismissed as representing extreme religious views that antithetical to scientific progress.  Neither bioethics nor law is able to keep pace with the new scientific advances.  Moreover, there is little necessary relationship or consistency of thought between the science of embryonic stem cell research, traditional and religious theories of morality and bioethics, and the law.

To update the “modest proposal” made by Jonathan Swift, “we are facing a similar modest proposal, but it is dead serious.”  Namely,

Since the original cells of a fetus can develop into all the organs of a human body, why not use these so-called “stem cells” to regenerate damaged tissue in adults?  Doctors could grind up all that fetal tissue from abortions and unwanted test-tube embryos at the fertility clinics into really good medicine.

Harvesting embryonic children for their stem cells is little different from Swift’s proposal to harvest just born children for food.  But whereas Swift’s audience pulled back in revulsion, much of the American public thinks this is a swell idea.70


  1. Gene Edward Veith, “A New Modest Proposal,” World (July 28, 2001), at 28; Jonathan Swift, “A Modest Proposal For Preventing the Children of Poor People in Ireland From Being a Burden to Their Parents or the Country, and for Making Them Beneficial to the Public. 1729” in A Modest Proposal and Other Satires (Amherst, New York: Prometheus Books, 1995)
  2. Nigel M. de. S. Cameron, Position Paper submitted to the United States Senate, Committee on Appropriations, Subcommittee on Labor, Health and Human Services, Education, and Related Evidence, at the Hearing on Stem-cell Research, August 1, 2001.
  3. As Paul Greenberg, wrote in “Forever Drawing the Line, in The Washington Times, August 7, 2001, A13, referring to Genesis 3:4-5,

    The oldest temptation has become the newest: Ye shall be as gods. All that’s necessary, the Serpent once told us, was to know good and evil. Things have changed: Now to be as gods, we must forget good and evil and simply forge ahead. Come, let us make man in our image, after our likeness, and have dominion.

  4. “There is something unthinking, something almost frivolous, in the unexamined assumption that Science should do something because it can be done.” Id.
  5. Alister E. McGrath, The Foundations of Dialogue in Science & Religion (Oxford: Blackwell Publishing Ltd., 1998), 1.
  6. Alister E. McGrath, Science & Religion: An Introduction (Oxford: Blackwell Publishing Ltd., 1999), 57. For example, scientists may refer to the “laws of nature” to describe the regularity and ordering which appear to exist in nature. Or, a certain experiment is carried out which suggests that a type of particle exists, although one cannot see the particle through the microscope or any other device. Philosophy of science aims to clarify the status of these hypotheses.
  7. Id. at 58.
  8. Note 5, supra, at 9-20.
  9. Id. The Enlightenment worldview was founded on its belief in the existence of certain foundational universal, rational beliefs, which could be ascertained by due intellectual processes, and thereby function as the basis of human knowledge. One of the distinguishing features of “postmodernity” is its rejection of Enlightenment paradigms of knowledge, especially its appeal to “universal and necessary” truths as oppressive or illusory. Secondly, there is a continuing dominance of conflict models and images that portray the relationship between science and religion as one of “conflict.” The Christian Church, particularly that part of the Church aligned with Fundamentalism, was regarded as a bastion of conservative thinking that presented an obstacle to the process of liberation and liberalization that many sought to unleash in the West. There were certain types of religious beliefs that were implacably opposed to the natural sciences and actively viewed science as an enemy of religion, as in the case of Darwinism generally, and in the infamous Scopes Trial of 1925 in Dayton, Tennessee. Similarly, as science advanced in western Europe, there was a confrontation between science and the culture of the day, which included social, political, and religious. In the West, these cultural influences or movements were dominated by Christianity, and so science was perceived to be in confrontation with Christianity. Third, misleading and outdated stereotypes arising from the fact that much of the scientific writing was done by scientists which had no or little knowledge of religion, and most religious writers had no competence in the natural sciences, and thereby showed excessive dependence on secondary sources for their material.
  10. Nigel M. de. S. Cameron, “The New Medicine and the Education of the Christian Mind,” in BioEngagement:Making a Christian Difference Through Bioethics Today, eds. Nigel M. de S. Cameron, Scott E. Daniels, and Barbara J. White (Grand Rapids: Wm. B. Eerdmanns Publishing Co. 2000).
  11. Note 5, supra, at 9-10. See also David Lyon, Postmodernity (Buckingham: Open University Press, 1994); Jean-François Lyotard, The Postmodern Condition: A Report on Knowledge (Manchester: Manchester University Press, 1992). According to Lyotard, advanced societies are increasingly bound up with finding the optimal contribution of higher education to the best performativity of the social system, and becomes increasingly commodified.
  12. Id. at 71.
  13. When I use the term, “Christian worldview,” I have in mind the idea of both the distinction and the relationship between God and the creation. It is one that recognizes the living God who is the leading actor, the all-powerful, the One who retains and exercises the initiative, not a detached spectator on the world. Such a Christian worldview draws on Christian doctrine for its unifying perspective. Thus, the doctrine of the creation concerns the meaning and implications of the fact that God is the almighty maker of all, that He creates freely and with a purpose, that He continues His creative activity imparting existence to His creatures through His providential care, history of redemption, and His present and coming Kingdom, that He gives something a reality of its own and grants it the exercise of delegated powers, and that because God delegates powers to His creation, the world is consequently ordered, structured, and law-governed to good ends. It would include a belief that God’s purposes in creation are the basis for all values, and that the Christian doctrine of Creation concerns creational tasks or mandates. Arthur F. Holmes, Contours of a World View (Grand Rapids: Wm. B. Eerdmanns Publishing Company, 1983), 57-71; Arthur F. Holmes, “Toward a Christian View of Things,” The Making of a Christian Mind: A Christian World View & the Academic Enterprise, ed. Arthur F. Holmes (Downers Grove: InterVarsity Press, 1985). See also, James Orr, The Christian View of God and the World (Grand Rapids: Kregal Publications, 1989), 32-36. A Christian worldview would also include the imago Dei anthropological position in which humans are made in the image of God with the capacity to know God, the Creator, intimately and personally, to have the capacity to discern good and evil and for discriminating truth from error. However, no anthropological position can be considered complete without consideration of the Fall and sin. E.g., Carl F. H. Henry, God, Revelation and Authority, 6 vols. (Waco: Word Books, Publisher, 1976), vol. II, 124-5; 134, 137-39; Richard J. McCormick, Health and Medicine in the Catholic Tradition (New York: Crossroad Publishing Company, 1984).
  14. Scott E. Daniels, “Biomedical Ethics and U.S. Health Policy” in BioEngagement, note 10, supra.
  15. Id. at 137.
  16. Id.
  17. National Institutes of Health (NIH), Bethesda, Maryland 20892, Department of Health and Human Services. The Report is also available at http://www.nih.gov/news/stemcell/scireport.htm. See also, Stem Cells: A Primer, National Institutes of Health, May 2000, available at http://www.nih.gov/news/stemcell/primer.htm.
  18. A single pluripotent stem cell has the ability to give rise to cells that develop from three germ layers (mesoderm, endoderm, and ectoderm) from which all cells of the body arise. The only known sources of pluripotent stem cells are those isolated and cultured from early human embryos and from fetal tissue that was destined to be part of the gonads. Pluripotent stem cells may be either embryonic stem cells or embryonic germ cells. The embryonic stem cell is derived from a group of cells called the inner cell mass, which is part of the early (4-5 day) embryo called the blastocyst. The embryonic germ cell is derived from fetal tissue, isolated from the primordial germ cells of the gonadal ridge of the 5-10 week fetus. Although they are both pluripotent, they are not identical in properties and characteristics. There has been some inconsistency in the use of the term, “embryo” in state statutes and in some of the popular discussion of the debates surrounding stem cell research. See Christine L. Feiler, Human Embryo Experimentation: Regulation and Relative Rights, 66 Fordham L. Rev. 2435 (May 1999), particularly note 248. As one advisor to the NIH Human Embryo Research Panel (1994) noted, many states ignore the scientific distinction between “embryo” and “fetus.” “Pre-embryo is another common term used to refer to the embryo prior to implantation. It would appear that some of the ambiguity arises out of the attempt to avoid what might be obvious with regard to the embryonic source of stem cells. The NIH report, defined “embryo” in humans as the “developing organism from the time of fertilization until the end of the eight week of gestation, when it becomes known as a fetus.”
  19. According to the NIH report, as of the date of the report, there was no isolated population of adult stem cells capable of forming all kinds of cells of the body, and indeed, adult cells are rare and often difficult to isolate and purify. The report stated that there is no evidence of an adult cell that is pluripotent, and it has not been demonstrated that one adult cell can be directed to develop into any cell type of the body.
  20. Id, Executive Summary, at 4.
  21. Note 17, supra.
  22. In an Minnesota Public Radio (MPR) interview by Terry Gross, host of the radio program, “Fresh Air,” on July 17, 2001, medical ethicist Dr. Arthur Caplan, Director of the Center for Bioethics at University of Pennsylvania, and professor of molecular and cellular engineering, and professor of philosophy, stated that there was research on animals that shows that it may be possible to regenerate spinal cords, grow peripheral nerves, etc. But he made it clear that this was all animal research and that any demonstration that one could take stem cells, make a lot of them, put them in somebody’s body, and have them do what they are hypothesized to do would be years in the future. See Transcript of Interview, produced by Burrelle’s Information Services, Livingston, NJ.
  23. See notes 17 and 18, supra, at Appendix F.
  24. Testimony before the Senate Appropriations Subcommittee on Labor, Health, and Human Services, Education and Related Agencies, January 26, 1999.
  25. See “Stem Cells’ Slow Promise: Scientific, Commercial and Political Risks Could Delay Profits for Decades, Experts Say,” The Washington Post, August 5, 2001, page H1. While Congress and the White House debate federal funding for embryonic stem cell research, investors are intrigued by the potential payoff as analysts foresee rich profits for companies that succeed in bringing treatments to market. Nevertheless, the timeline to commercialization is so long that many investors simply would not invest. Moreover, it is the commercialization of the production of human embryonic stem cells that also raises significant ethical issues.
  26. See note 13, supra.
  27. No anthropological position can be complete without consideration of the Fall and sin. As stated by Dr. Carl F. H. Henry:

    The fall of man was a catastrophic personality shock; it fractured human existence with a devastating fault. Ever since, man’s worship and contemplation of the living God have been broken, his devotion to the divine will shattered. Man’s revolt against God, therefore, affects his entire being; he no longer loves God nor his neighbor; he devotes human reasoning to the cause of spiritual rebellion. He seeks escape from the claim of God upon his life and blames his fellow man for his own predicament. His revolt against God is at the same time a revolt against truth and good; his rejection of truth is a rejection of God and the good, his defection from the good a repudiation of God and truth. Carl F. H. Henry, note 13, supra, at 135.

  28. See Nigel M. de S. Cameron, “The Christian Stake in Bioethics: The State of the Question,” and Dennis P. Hollinger, “Doing Bioethics: Christian Ethics, Pastoral Care and Public Policy,” in Bioethics and the Future of Medicine: A Christian Appraisal, eds. John F. Kilner, Nigel M. de S. Cameron, and David L. Schiedermayer (Grand Rapids: Wm. B. Eerdmanns Publishing Co. 1995), at 155. As Nigel Cameron says in his essay, “The Christian Stake in Bioethics,”

  29. The task of medicine, broadly considered, is to heal, if that is possible; to maintain and preserve health, where it remains; to “heal” symptoms and alleviate suffering where healing proper is no longer an option. . . . Human beings die because of sin. To be precise, they die first of all because of the sin of Adam and Eve, our “first parents”, whose eating of the forbidden fruit “brought death into the world and all our woe”, in Milton’s epigram. Every experience of human frailty – from the conjoined frailty of child and mother in pregnancy right through the our lifetime of disease and accident – is a consequence and potent reminder of that fact: “the soul that sins shall die.” . . . While death and resurrection bear rich seams of meaning in Scripture, they never lose their connection with the physical process of decomposition and its triumphant reversal: in Adam, in Christ, in the believer. And this is the context for medicine: in the alleviation of the bitter consequences of the Fall; in staying the hand of death, for a season; in anticipating the final resurrection of the body.

  30. Id. at 155-56. The reason the abortion debate stands out from other bioethical debates, and with it the implications on embryonic stem cell research, lies well below the problems set forth in bioethics texts namely, the meaning of sexuality and reproduction and their grounding in the indelible meaning of marriage. Even were one to accept the remarkable triumphs of twentieth-century medical-scientific technique, one must admit that these triumphs have re-defined the meaning of all three of these concerns, i.e., sexuality, reproduction, and marriage. Specifically, these triumphs have made it possible for society to give new meanings to each of these by offering technical opportunities to rearrange the relationship of human sexuality and human reproduction. Thus, “the conjoining of sex and reproduction has become as uncertain as their context within lifelong covenantal marriage – the one a biological requirement, and the other a deeply held cultural assumption.” Nigel M. de S. Cameron, “The Christian Stake in Bioethics: The State of the Question,” in Bioethics and the Future of Medicine: A Christian Appraisal, note 28, supra. For example, the woman who conceives in vitro in order to be a mother without ever having been a wife is writing a story all of her own.
  31. Jerome R. Wernow, “Saying the Unsaid: Quality of Life Criteria in a Sanctity of Life Postion,” in Bioethics and the Future of Medicine: A Christian Appraisal, note 28, supra, at 104.
  32. Id. The apostle Paul, in Eph. 2:3-11, recognized and affirmed this relationship of the biological life with the transcendent life in the now and in the future.
  33. Nigel Cameron, “The Christian Stake in Bioethics,” note 28, supra, at 8. The point here is that while the church has been confronted with these questions in contemporary discussions, there has been a general failure of the Church to engage in a discourse on these matters, in part, because the cultural shifts arising out of postmodernity and the rapid technological changes, particularly regarding the rising power of information technology combined with the biomedical advances have caught the Church unawares, and have informed much of the thinking of modern society, including the church, in ways that are antithetical to a Christian worldview. The divergence of views concerning ES cell research by those who hold firm positions against abortion, and ambivalence about end-of-life issues such as assisted suicide euthanasia, is an example of the failure on the part of the Church to articulate a clear theologically informed understanding of anthropology. Thus, much of the current opposition to abortion is based on a sympathetic, humanistic sentimentality, and compassion that is directed toward “saving babies.” Nigel M. de S. Cameron, “The Challenges of Bioethics and How Christians Ignore Them,” interview by Ken Myers, in Mars Hill Audio Journal, Volume 51 (July/August 2001). A similar situation exists in the case of the end-of-life issues, where the compassion is directed to relieving the suffering, particularly on the part of someone who seeks such relief through assisted suicide or consent to euthanasia. Moreover, there are the settled views in culture of the autonomy of the human individual and the commodification of the human being in which a woman has the right to choose whether to kill the baby in the womb, or to make human life through IVF or allowing the unborn human to live, or a terminally ill person has the right to choose whether to live and endure suffering, or to die, either through assisted suicide or consented euthanasia. Too often the Church is unable to discern the true shape of the discussion and lacks the theological knowledge grounded on the distinctives of the Judeo-Christian anthropology to engage in these bioethical discussions. As a result, without a clear theologically grounded anthropology, there is a tendency in the Church toward ad hoc assessments of the issues and ad hoc responses to bioethical issues. Moreover, with Evangelicals’ emphases on salvation, a personal relationship with Jesus Christ, and pietism, and the influence of postmodernity with its concepts of privatization, sequestration of religious beliefs and practices, and cultural sensitivity without absolutes, the Church absorbs these concepts and itself becomes a part of the culture, unable to provide a theologically informed response with respect to these bioethical issues.
  34. Robert Orr, “Decision-Making in Clinical Ethics” in Bioethics and the Future of Medicine: A Christian Appraisal, note 28, supra, at 145. The intellectual changes brought about by the Renaissance and the Enlightenment became more secular and humanistic impacting Western Christianity. The motto homo mensura, “man is the measure,” reflected the Enlightenment’s confidence in man’s capacity to judge things without any reference to God who transcends man. W. Andrew Hoffecker, “Medieval Scholasticism: The Thomistic Synthesis,” in Building a Christian World View: God, Man, and Knowledge, eds. W. Andrew Hoffecker and Gary Scott Smith (Phillipsburg, NJ: Presbyterian and Reformed Publishing Company, 1986), vol. I, at 112.
  35. John P. Newport, Life’s Ultimate Questions: A Contemporary Philosophy of Religion (Dallas: Word Publishing, 1989) 136-37.
  36. F. Nietzsche, The Twilight of the Idols and the Antichrist (London/New York: Penguin, 1990), 99.
  37. Alasdair MacIntyre, After Virtue, Second ed. (Notre Dame: University of Notre Dame Press, 1984) 109-15. See also: Frederick Nietzsche, “The Madman,” a section of Gay Science in Walter Kaufmann, ed. The Portable Nietzsche (New York: Viking 1954) at 125, “God is dead, and we have killed him.” In Fredrick Nietzsche, Thus Spake Zarathrustra, translated by Walter Kaufmann (New York: The Modern Library, 1995), 12-13, Zarathustra came into the next town, where he found people gathered in a marketplace to watch a tightrope walker. Zarathustra tells the crowd, “Once the sin against God was the greatest sin; but God died, and these sinners died with him.” In the Prologue, Zarathustra speaks, not only of the death of God, but also that faith in God is dead as a matter of cultural fact, and any “meaning” of life in the sense of a supernatural purpose is gone. Now it is up to man to give his life meaning by raising himself above the animals. The meaning of life is found on earth, in this life, not as the inevitable outcome of evolution, which might give us the “last man.” There is no morality other than what man has constructed.
  38. Stephen Williams, “Bioethics in the Shadow of Nietzsche,” in Bioethics and the Future of Medicine: A Christian Appraisal, note 28, supra, at 115. Here the author noted the long-recognized connection regarding euthanasia between Nietzschean philosophy and Nazi ideology. Moreover, the concept of compassion as a governing principle in Western moral thought was influenced by Arthur Schopenhauer in the nineteenth century, where Schopenhauer rejected a theistic basis for morality and a rational basis for morality as formulated by Immanuel Kant (which was grounded in the rational legislative will). Arthur Schopenhauer, On the Basis of Morality (New York: Bobbs-Merrill, 1965).
  39. See Stem Cells: Scientific Progress and Future Research Directions, National Institutes of Health (NIH), Bethesda, Maryland 20892, Department of Health and Human Services, note 17, supra. See also, the Stem Cell Research: An NPR Special Report, A “Virtual Roundtable on Federal Funding,” http://www.npr.org/programs/specials/stemcells/viewpoints.html, in which the potential of adult stem cell research was dismissed by panelists supporting Federal funding for stem cell research and the assertion was made that it would be “truly immoral” if the nation does not move to capitalize on the “tantalizing” potential of new medical treatments for patients with diabetes, Parkinson’s, spinal cord injuries, or other life-threatening diseases. Although research would continue even if Federal funds were cut off, the pace of medical discoveries would “slow to a crawl,” if funding were limited to private sources, and the impact it would have on “patient rights” to stem cell research and therapies. There is also the economic incentive that would result from commercial exploitation of embryonic stem cell research if it was total funded and controlled by private companies and laboratories. The arguments against Federal funding are generally those that assert that the destruction of the embryo for the removal of the stem cells embodies “the principle that non-consenting human beings must not be subjected to medical experimentation,” and that in obtaining stem cells from embryos, it is necessary to kill a growing human being. There are also the arguments that deal with the potentials for teratoma formation and tissue rejection when stem cells are implanted as part of the therapy. See also, Stem Cell Debate, The News Hour, August 24, 2000, http://www.pbs.org/newshour/bb/health/. The World Medical Association Declaration of Helsinki: Ethical Principles for Medical Research Involving Human Subjects, The World Medical Association, Inc., PO Box 63, 01212 Ferney-Voltaire Cedex, France, October 2000, although not specifically stated to apply to human ES cell research, set guidelines for research involving human subjects. The primary purpose for such research was to improve prophylactic, diagnostic and therapeutic procedures and the understanding of the aetiology and pathogenesis of disease, balancing the “predictable risks and burdens in comparison with the foreseeable benefits to the subject or to others [emphasis added].” In testimony before the U.S. House of Representatives Committee on Government Reform , Subcommittee on Criminal Justice, Drug Policy, and Human Resources, Investigative Hearing on “Opportunities and Advancements in Stem Cell Research,” on July 17, 2001, Dr. C. Christopher Hook of the Mayo Foundation and Senior Fellow of the Center for Bioethics and Human Dignity, recalled the human research abuses of Tuskegee syphilis trial study, the Willowbrook hepatitis experiments, and the experiments performed at Dachau during World War II, One of the outcomes of the Nuremberg war crimes trials was the Nuremberg Code of Research Ethics, which has served as the foundation for subsequent statements governing human subject research, including the World Medical Association Declaration of Helsinki. Germany bars the destruction of human embryo for research and bars the freezing of embryos because of the high associated death rates from thawing. Informed consent was a requirement of all of these codes. See also note 32, supra, in which there is discussion concerning the humanistic, sympathetic, sentimentality involved in “saving babies,” and relieving suffering, rather than a theologically informed anthropology.
  40. 42 U.S.C. §§ 201, 263a-1 to 263a-7 (2000) provides for the reporting of assisted reproductive technology to the Secretary of Health and Human Services through the Centers for Disease Control, and inter alia, directed the Centers for Disease Control to develop a model program for the certification of embryo laboratories to assure consistent performance of artificial reproductive technology procedure, quality assurance, and adequate record-keeping at each certified laboratory. The only sanction for violation of the act or failure to comply with the Act’s “recommendations” is public identification of a program as having failed to do so.
  41. 45 CFR §§ 46.101 – 46.123. Section 46.101 specifically recognizes that the World Medical Association Declaration of Helsinki may have application to the extent it is consistent with these regulations, and may very well be applicable to research performed in other countries under the laws of those countries. Section 46.101 provided exemption for certain categories of research, but specifically stated that these exemptions shall not apply to research involving prisoners, fetuses, pregnant women, or human in vitro fertilization.
  42. Pub. L. 105-277, Section 511, 112 Stat. 2681-386; Pub. L. 106-13, Section 1000(a)(4), the existing rider to the HHS appropriations act restricts the Department’s funds and subordinates’ funds used in human embryo research and prohibits the use of such funds in research in which human embryos are destroyed, discarded, or knowingly subjected to risk of injury or death. See also, HHS Fact Sheet: Human Pluripotent Stem Cell Research Guidelines, January 19,2001, www.hhs.gov/news/press/ 2001pres/20010119a.html. 42 U.S.C. § 289g(b); 45 CFR § 46.208.
  43. See Samuel B. Casey, “How the Law Will Shape Our Life and Death Decisions: The Case of Human Embryos,” in BioEngagement, note 10, supra, at 149, n6. Both NIH and the President have relied on a legal memorandum, dated January 15, 1999, issued by the Department of HHS Associate General Counsel. According to this legal memorandum, interpreting the statutory ban for the use of federal funds, such funds could still be used for research using stem cells from deliberately destroyed human embryos as long as the federal funds did not pay for the act of destroying the embryos. No legal authority was given for this interpretation of the rider to the appropriation act or in support of that position. Although by letter dated February 11, 1999, approximately 75 members of Congress requested the Secretary of Health and Human Services to correct the misinterpretation of the federal funding ban, no action was taken to correct the interpretation of the ban.
  44. 64 FR 67576 (December 2, 1999).
  45. 65 FR 51976 (August 25, 2000).
  46. See Complaint in Nightlight Christian Adoptions, et al. v. Thomas G. Thompson, Secretary of the Department of Health and Human Services, et al., Civil Action No. 1.01CV00502-RCL.
  47. Order, dated May 4, 2001, and filed on May 17, 2001, Civil Action No. 1.01CV00502-RCL. The Order further provided that during the pendency of the review, the Government would “continue its present policy of not funding any research involving the use of pluripotent stem cells derived from human embryos, including all independent investigator and intramural research.” Similarly, during the period of pendency, the Government would continue to postpone the review of compliance packages under the Guidelines, and shall not fund any research for a period of 30 days following the conclusion of the research.
  48. Remarks by the President on Stem Cell Research, The Bush Ranch, Crawford, Texas, Press Releace issued by the Office of the Press Secretary, The White House, http://www.whitehouse.gov/news/release/2001/08/20010809-2.html. The President discussed the scientific and moral issues involved in the debate, and stated his belief, that “human life is a sacred gift from our Creator,” and about his worry about a culture that devalues life. As a result, he limited funding of research to the “more than 60 genetically diverse cell lines already” in existence. These cell lines were created from embryos that had already been destroyed and had the ability to regenerate themselves indefinitely. He also named a President’s Council to monitory stem cell research, to recommend appropriate guidelines and regulations, and consider all the medical and ethical ramifications of biomedical innovation. The debates concerning his decision have continued, with some of the emphasis on whether, in fact, there are 60 or more cell lines, the meaning of cell lines, and on the President’s rationale for allowing research on 60 cell lines. Correspondence between The Discovery Institute, Center for the Renewal of Science and Culture, and the Phylogeny List, University of California, Berkeley.
  49. National Institutes of Health (NIH) Update on Existing Human Embryonic Stem Cells, August 27, 2001, National Institutes of Health (NIH), Bethesda, Maryland 20892, also available at http://www.nih.gov/news/stemcell/082701list.htm. In this report, NIH identified the existing cell lines, the laboratories in which they are located, and described the implementation of the President’s decision. According to NIH, there are ten laboratories in the United States and around the world that have reported that they have derived human embryonic stem cells from 64 individual, genetically diverse blastocysts. These derivations all meet the President’s criteria for use in federally-funded ES cell research, namely, they were derived from embryos that had been destroyed prior to 9:00 PM, EDT on August 9, 200, the embryos were obtained from donors after informed consent, they were derived from an excess embryo that was created for reproductive purposes, and there were no financial inducements for the donation of the embryo for research. Notwithstanding any decision the President might make regarding federal funding of human ES cell research, the stay in lawsuit in the US District Court for the District of Columbia will probably be lifted, allowing that case to proceed. Moreover, previous attempts in Congress to authorize federal funding may be resumed. In January 2000, Senators Spector of Pennsylvania and Harkin of Iowa introduced their proposed “Stem Cell Research Act of 2000 (S. 2015) which would effectively lift the ban against human ES cell research derived only from embryos that would otherwise be discarded that have been donated from IVF clinics with informed written consent of the progenitors.
  50. Richard A. McCormick, Blastomere Separation: Some Concerns, Hastings Ctr. Rep., Mar-Apr. 1994 at 14-15.
  51. See for example, S. Casey, note 42, supra, at 145; Stem-Cell Research: A Debate, The Wall Street Journal, Monday, July 20, 2001; but see note 53, infra regarding the interjection of ensoulment as important to the determination of when human life begins.
  52. 107 H.R. 1644, July 26, 2001. The companion bill in the Senate is 107 S. 790, July 26, 2001. These bills provide, in pertinent part, that:

    Congress finds that –
    [C]reating cloned live-born human children (sometimes called “reproductive cloning”) necessarily begins by creating cloned human embryos, a process some also propose as a way to create embryos for research or as sources of cells and tissues for possible treatment of other humans.

    * * *

    (C) any government effort to prevent the transfer of an existing embryo, or to prevent birth once the transfer has occurred, would raise substantial moral, legal, and practical issues, so that it will be nearly impossible to prevent attempts at “reproductive cloning” once human embryos are available in the laboratory.

    Accordingly, Title 18, United States Code [Crimes and Criminal Procedure] is amended to prohibit human cloning and to ship or receive the product of human cloning for any purpose. Criminal and civil penalties include imprisonment up to 10 years and/or civil penalty or fine of not less that $1,000,000. As of the date of this paper, the House passed by a significant margin its bill, and the Senate bill is pending a vote.

  53. 147 Cong Rec 4906, Tuesday, July 31, 2001. Rep. Weldon, prefaced this statement with a brief statement of “basic science of all of this” from medical school embryology studies, saying: Normal human cells have 46 chromosomes; the egg has 23, the sperm has 23. When united they become a fertilized egg, which then begins to differentiate into an embryo.” Nevertheless, he made it clear that the bill was not about embryonic stem cell research, nor was it a debate about abortion. Rather, it was about somatic cell nuclear transfer.
  54. 147 Cong Rec H 4916, Tuesday, July 31, 2001.
  55. 147 Cong Rec H 4906,Tuesday, July 31, 2001. The House voted 265 to 162 to outlaw human cloning, as provided in the Weldon Bill, 2001 H.R. 1644. Both Rep. Nadler and Rep. Greenwood were “cool, superior, and condescending” as they scoffed at the ban set forth in the Bill on the basis that religious moral thought could provide the same moral rights as a person suffering from a disease, or on the basis that some might assert that ensoulment occurred at the moment of fertilization. P. Greenberg, note 3, supra. Although the issue of ensoulment is beyond the scope of this paper, it should be noted that ensoulment is a part of the concept of the sacredness of human life. See G. Steven Suits, “Ensoulment and the Sacredness of Human Life,” 2001, The Center for Bioethics in the Church, P.O. Box 11953, Columbia, SC 29211. The press has noted that Sen. Orin Hatch (R-Utah) and Sen. Gordon Smith (R-Ore), both known for their strong pro-life positions, have urged President Bush to approve federal funding for ES cell research. Three other pro-life senators, Sen. Robert Bennett (R-Utah), Sen. Mike Crapo (R-Idaho), and Sen. Harry Reid (D-Nev), have come out in favor of such funding. All of these Senators are members of the Church of Jesus Christ of Latter-day Saints, and their views on embryos are based on Mormon teaching regarding ensoulment. The Mormon philosophy holds that the unimplanted blastocysts haven’t been animated by the human spirit, tracing this position to Gen. 2:7;

    Then the Lord God formed man of the dust from the ground, and breathed into his nostrils the breath of life; and man became a living being. [NAS]

    For the Greeks, the soul is what gives life to the body. According to Plato, a human living on earth consisted of two parts, the soul and the body. The soul pre-existed the body and after death, departed the body to live another life. Unlike Plato, Aristotle held that the soul could not exist without the body. It was simply a “form,” a way of behaving or thinking. The Church has followed three basic theories regarding the soul and ensoulment. The early Church followed a form of Platonic substance dualism, the pre-existence theory. According to the pre-existence theory, the human soul was created or existed at the beginning of creation, and was subsequently joined to the human body by the ordinary course of physical propagation. The second view is the creation theory which teaches that God created directly and immediately a soul and spirit for each body at the time of human birth and that only the body is generated by human parents. The third view is traducianism, which teaches that the soul and spirit are generated along with the body and that both the immaterial and material parts of a human are propagated by human generation. See: Richard Swinburn, “Soul, Nature and Immortality of the” Concise Routledge Encyclopedia of Philosophy (London: Routledge, 2000), 851; R. Swinburne, “Soul,” The Oxford Companion to Philosophy, Ted. Honderich, ed. (Oxford: Oxford University Press, 1995), 841; C. M. Robeck, Jr., “Soul,” The International Standard Bible Encyclopedia (Grand Rapids: Wm. B. Eerdmanns Publishing Company, 1988), vol. IV, 587; M. E. Osterhaven, “Soul,” Evangelical Dictionary of Theology, Walter A. Elwell, ed. (Grand Rapids: Baker Book House, 1984), 1037; Lewis Sperry Chafer, Systematic Theology (Dallas: Dallas Seminary Press, 1947), 173-79; Charles Hodge, Systematic Theology (Grand Rapids: Wm. B. Eerdmanns Publishing Company, 1979 (reprinted)), vol. II, 65-76; William G. T. Shedd, Dogmatic Theology (Nashville: Thomas Nelson Publishers, 1980 (reprinted)), vol. II, 5-31.

  56. Clarke D. Forsythe, Legal Perspectives on Cloning: Human Cloning and the Constitution, 32 Val. U.L. Rev. 469 (Spring, 1998), 485. Common law may generally be defined as consisting of the rules that are generated at a particular moment by application of the institutional principles of adjudication. Marvin Aron Eisenberg, The Nature of the Common Law (Cambridge: Harvard University Press, 1988), 146.
  57. Id., at 486-87. See also, Dennis J. Horan, et al., Two Ships Passing in the Night: An Interpretavist Review of the White-Stevens Colloquy on Roe v. Wade, 6 St. Louis U. Pub. L. Rev. 229 (1987), at 276 and note 276 citing the writings of Paulus and Marcianus in Corpus Juris Civilis. Roe v. Wade, 410 U.S. 113 (1973).
  58. 1 William Blackstone, Commentaries, 125
  59. Id., at 126. See also, Stemmer v. Kline, 17 A.2d 58, 59 (1940) holding that a child at common law was a separate entity entitled to the recognition and protection of the courts. Under common law, such a child was recognized as a person.
  60. Lord Ellenborugh’s Act, 43 Geo 3, c 58 (1803); Glanville Williams, The Sanctity of Life and the Criminal Law 227 (1957).
  61. See for example, Roe v. Wade, note 56, supra, at 132-38, where the U.S. Supreme Court discussed the common law and statutory law concerning abortion, including the Lord Ellenborough’s Act of 1803 (note 56, supra), in which quickening was the bright line after which abortions were not permitted.
  62. Note 56, supra. Although the Supreme Court upheld the right of abortion in Planned Parenthood v. Casey, 505 U.S. 833 (1992), the plurality opinion essentially abandoned the basic rationale of Roe v. Wade, while upholding the concept that “viability” marked the constitutional frontier between lawful and unlawful prohibitions of abortion. See Paul Benjamin Linton, Planned Parenthood v. Casey: The Flight From Reason in the Supreme Court, 13 St. Louis U. Pub. L. Rev. 15 (1993) for an analysis of the Casey decision.
  63. A distinction needs to be made between human life, human being (biological concept relating to the species), and “person” (a cultural or social concept). While this may seem to be semantically splitting hairs, it is important to note that insofar as constitutional protections are concerned, the Supreme Court in Roe v. Wade was simply applying constitutional protections based on its reading of the Constitution, which did not define “person,” but simply referred to “citizens” and “persons born or naturalized in the United States.” The Court noted that in almost every instance in which the word, “person,” is used in the Constitution, it has application only postnatally. The Report of the Human Embryo Research Panel submitted to NIH acknowledged that the embryos used for stem cell research are human life. The panel also said that new human life begins at conception or fertilization as an indisputable scientific fact. The Report also spoke of the embryo from the earliest moment as “developing human life.” However, as “A Statement on Embryo Research by the Ramsey Colloquium: The Inhuman Use of Human Beings,” 49 First Things 17-21 (January, 1995) stated:

    Honesty requires that we speak not simply of human life but of a human being. Skin and intestinal tissue, even eggs and sperm, are human life. But, unlike such instances of human life, the embryo from the earliest moment has the active capacity to articulate itself into what everyone acknowledges as a human being. The embryo is a being; that is, it is an integral whole with actual existence. The being is human; it will not articulate itself into some other kind of animal.

    Moreover, the Report of the Human Embryo Research Panel relies heavily on the concept of “personhood” to determine which human embryos are useable and which are “protectable.” Persons are protectable, nonpersons are not. According to the Report, moral standing develops as the human being develops, and personhood is bestowed on the basis of the qualities that make a human being a person as a result of an active and complex process of decisions on the part of society.

  64. York v. Jones, 717 F.Supp. 421 (E.D. Va. 1989) in which there was a dispute concerning one frozen embryo that the Yorks sought to have transferred from a clinic in Norfolk, VA to another clinic in Los Angeles. The Yorks won there lawsuit on the basis that the embryo was property, and that there was a bailment agreement between them, the bailors, and the Norfolk clinic, the bailee.
  65. Davis v. Davis, 842 S.W. 2d 588 (Tenn. 1992). This involved the fate of seven frozen embryos following a divorce between the Mr. And Mrs. Davis. The trial court, based on expert testimony from a Nobel Prize winning geneticist, held that the frozen embryos were “human beings,” and awarded custody of these embryos to Mrs. Davis so that she could have them implanted. On appeal, the Court of Appeals reversed the trial court, likening the embryos to property, held that Mr. Davis had a “constitutionally protected right not to beget a child where no pregnancy had taken place.” The Tennessee Supreme Court held that the frozen embryos deserved “special respect because of their potential for human life,” noting that they were neither “property” or “persons.” The Tennessee Supreme Court ruled that the fertility clinic could destroy the Davis embryos. The Court reasoned that it had to balance the right of Mrs. Davis to procreate, against the right of Mr. Davis not to procreate, and that the balance should be in favor of Mr. Davis if Mrs. Davis had any other means of procreating.
  66. Kass v. Kass, 663 N.Y.S. 2d 581 (App. Div. 1997), aff’d. 696 N.E. 2d 174 (N.Y. 1998). Here there was a dispute between the Mrs. and Mrs. Kass on their divorce concerning the disposition of frozen embryos. Unlike the Davis v. Davis case, the Kasses signed an informed consent form when they underwent IVF treatments which provided that if they no longer wished to proceed with the pregnancy, the embryos would be donated for research. During their divorce, Mrs. Kass changed her mind and wanted the embryos implanted in her uterus. Mr. Kass wanted them turned over for research. The trial court awarded the five frozen embryos to Mrs. Kass for implantation reasoning that the embryos had a status between human life and property, and that the issue of embryo disposition was a matter exclusively within the discretion of the mother. The Appellate Division reversed, holding that the informed consent document and uncontested divorce controlled, and that the remaining embryos were to be donated for scientific research. On appeal, the New York Court of Appeals held that the parties’ agreement to provide the frozen embryos to the IVF program for research controlled.
  67. S. Casey, note 42, supra.
  68. C. Feiler, note 17, supra, at n239.
  69. Id. at n244.
  70. See note 38, supra. Moreover, there are also patent rights issues that may hamper the technology transfer from laboratories holding patents on existing embryo stem cell lines that will have to be addressed before stem cell lines may be transferred to, and studied by other researchers.
  71. Note 1, supra.



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Hon. Rollin A. Van Broekhoven is a federal judge in Falls Church, Virginia. He is a member of our Board of Incorporate Members and also serves on our Board of Regents.

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