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Many thousands of Americans with terminal illnesses hope the 110th Congress supports their “right to life” by expanding federal funding for embryonic stem cell research. As 80 Noble laureates explained in a letter to President Bush, “therapies using these cells may one day provide important new strategies for the treatment for a host of currently untreatable disorders.” The House of Representatives’ recent passage of H.R. 3, which promotes federal funding of this important research, represents renewed determination to override President Bush’s 2006 veto on this issue. But H.R. 3 failed to garner a veto-proof majority and, because it merely repackages the same proposal that Bush vetoed in 2006, it will likely achieve nothing more than another political stalemate. A new approach is required if federal funding of embryonic stem cell research is to become a reality. H.R. 3 limits federal funding to embryos created for reproductive purposes that exceed the clinical needs of women seeking in-vitro fertilization (IVF) treatment and that would otherwise be discarded; the bill requires informed consent and prohibits financial inducements for embryo donations. These ethical constraints, however, did not dissuade President Bush from vetoing identical legislation last year. The president gave three reasons for his decision: A frozen embryo is a nascent human being; federal funding should not support research that destroys nascent human life; and these frozen embryos could be placed for adoption by making them available to infertile couples. The administration has limited research to pre-existing embryonic stem cell lines (“where the life and death decision has already been made”). Due to contamination and other problems, however, fewer than 20 such lines have been available for federally funded research. In contrast, H.R. 3 would make eligible for federally funded stem cell research many of the 400,000 unused embryos that IVF clinics have held in frozen storage for years (most of which will inevitably be discarded as medical waste). My support for embryonic stem cell research and special concern for people suffering from amyotrophic lateral sclerosis (“Lou Gehrig’s Disease”) led me to search for a veto-proof compromise responsive to the above concerns. While matters of principle do not lend themselves easily to compromise, the principle at stake is not necessarily absolute. Although abortion opponents have attacked embryonic stem cell research in an effort “to win for the human embryo, step by step, recognition of its humanity,” this research need not fall victim to the larger debate over a woman’s right to choose. Admittedly, frozen embryos have the potential to become human beings, but they lack the means to do so unless implanted in utero. No amount of nurturing will enable a frozen embryo thawed in a petri dish to become a human being. Moreover, giving priority to embryos destined to become medical waste ignores biblical obligations to respect and preserve human life. (Indeed, most abortion opponents acknowledge the propriety of terminating a pregnancy to save the mother’s life.) Bill does not threaten adoption At the veto ceremony in 2006, President Bush paraded more than 100 children who had once been frozen embryos, and argued that they demonstrate the potential for life these embryos embody. But neither H.R. 3 nor any future legislative initiative threatens the adoption of such embryos; IVF patients may still donate their unused embryos for transfer to infertile couples. Currently, however, only 2.8% of IVF couples have chosen this option. If Congress wants to promote embryo adoptions, it could require IVF clinics to make embryo adoption the first option for couples to consider. This may not be wise national policy as it comes at the expense of thousands of children awaiting adoption in foster homes, but it satisfies those who want to protect the life potential of frozen embryos. For those who object to their tax dollars funding research they oppose morally, the simple solution is to finance it through a check-off procedure like the one employed to fund presidential campaigns. With only 11% of taxpayers contributing $3, this device has produced more than $50 million annually. This far exceeds the amount now allotted for federal embryonic stem cell research and, given its widespread public support, such research should generate much more. If this research succeeds, conscientious objectors could choose to decline treatment, but this approach at least preserves the “right to life” of the terminally ill. Thus, carefully tailored legislation can achieve reform without jeopardizing the interests of abortion opponents or those who want more frozen embryos placed for adoption. Michael Goldsmith is the Woodruff J. Deem Professor of Law at Brigham Young University J. Reuben Clark Law School.

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