President Obama’s March 9 executive order overturning the Bush administration’s limitations on federal funding of embryonic stem cell research was an important event, for symbolic as well as pragmatic reasons. Rapidly improving technology now enables scientists to reprogram ordinary skin cells into a new type of cells that mimic the quality of those derived from embryos, a development that might render embryonic stem cell research obsolete within the next several years. Regardless, the president’s order signified the end of the Bush administration’s much criticized “war on science,” during which technology policy was held hostage to conservative ideology and biomedical research was viewed as an extension of abortion politics.
Or so it seemed. But a funny thing has happened on the way to the counterrevolution: The National Institutes for Health, having just been granted its freedom, is threatening a partial return to Bush-era bondage. Instructed by the president to prepare new funding rules to replace the Bush policy, the NIH issued draft guidelines in April and is now considering public comments. Unless the draft is substantially altered, the final regulations, due out next month, will place several limits on federal support for stem cell research that undermine science and are reminiscent of the prior regime’s ideological commitments — a kind of “Bush policy light.”
First, the draft guidelines prohibit federal funding of the actual creation of embryonic stem cell lines — a process that requires destroying 5-day-old human embryos, known as blastocysts, in order to collect the necessary cells from their interiors — an obviously necessary prerequisite for studying the cell lines themselves in order to better understand diseases and seek cell-based cures. Practically, this restriction is not fatal: Creating stem cell lines is cheap enough that the scientific community can rely on alternative funding sources, including California’s stem cell agency and philanthropic foundations. But, like the rejected Bush policy, this limitation places the interests of blastocysts, which lack neurons and are thus incapable of experiencing pain or any other sensation, above those of fully sentient human beings suffering from the range of illnesses and disabilities that might one day be cured by stem cell research.
On this point, it is difficult to blame the NIH. The agency essentially is implementing legislation known as the Dickey-Wicker amendment, which prohibits federal support of any research activity that harms embryos. Reenacted each year since 1996 and as recently as last month, Dickey-Wicker is inconsistent with the spirit of the Obama executive order, but it can only be reversed by Congress, and that body has shown no indication thus far that it intends to do so, notwithstanding its membership’s otherwise overwhelming support for embryonic stem cell research.
Criticism of other limitations incorporated into the guidelines, however, are properly directed at the NIH.
The draft guidelines limit federal funding to research on cell lines derived from embryos created by in vitro fertilization (IVF) clinics but not subsequently used for reproduction. Cell lines derived from embryos produced explicitly for research purposes, in order to study the development of disease in cells with a particular genetic makeup, for example, would be ineligible for support.
The intuition behind this limitation is that excess IVF embryos would be discarded in any event, so using them for research does not increase the total number of embryos ultimately destroyed, as using specially created embryos would. But this distinction matters only if it is morally objectionable to use blastocysts for any purpose other than procreation and if the half-million or more excess embryos in clinic storage in the United States alone can reasonably be said to have been created for this purpose. The first premise is inconsistent with the spirit of the Obama executive order, and the second misunderstands the way fertility clinics operate.
In practice, embryo creation by IVF clinics is usually limited only by the number of eggs that can be obtained from a patient (or egg donor) from one cycle of fertility treatment. The process typically results in the creation of 10 to 20 embryos, with full knowledge that only the two to three judged most likely to implant will be selected for procreative use. This production method maximizes the likelihood of success of any single IVF cycle and thus minimizes the expected cost of producing a pregnancy, itself a laudable goal, but it is decidedly not the case that the vast number of fertility clinic embryos are created for reproductive use. And it is difficult to identify a moral theory according to which it is ethical to create doomed embryos in order to save money but not in order to seek cures for diabetes, Alzheimer’s disease or cancer.
Finally, replicating a Bush-era restriction, the NIH guidelines would prohibit funding of research using a cell line if any compensation had been provided for donation of the progenitor embryo. If scientific knowledge would be advanced by studying a cell line derived from an embryo with a particular genetic makeup that is difficult to obtain, this blanket prohibition could impede medical progress. And such a limitation ultimately can only be justified by reference to the premise, rejected by the majority of Americans and the Obama executive order, that blastocysts are the moral equivalent of people and so should not be treated in any way that would be inappropriate to treat a person.
None of this is to say that scientific research should know no limits of any kind. Obama himself often has qualified his support for science with the caveat that it must be conducted ethically. In the case of stem cell research, however, the primary ethical imperatives are that the people who donate tissues provide fully informed consent and that the subjects of future experimental treatments derived from stem cells be protected from the risk of harm to the greatest extent possible. The Bush policy went awry because it was based on the false premise that ethics require us to treat blastocysts as if they were people. This premise has now been rejected; the NIH should not resuscitate its spirit through federal funding rules.
Russell Korobkin is a professor of law at the University of California at Los Angeles School of Law and the author of Stem Cell Century: Law and Policy for a Breakthrough Technology (Yale 2007).