SUBMISSION TO

the Senate Community Affairs Legislation Committee

Inquiry into the Research Involving Embryos and Prohibition of Cloning Bill 2002

by the National Civic Council (WA)

GPO Box S1369 Perth WA 6845

Tel 08 9321 2822; Fax 08 9321 1798

e-mail: 

prepared by Richard Egan, State President.

1. Prohibition of Cloning Bill 2002

We welcome the historic passing by a unanimous vote of the House of Representatives of the Prohibition of Cloning Bill 2002.

Since the cloning of “Dolly” the sheep in 1997 the world has had to seriously confront the prospect of human cloning. After an initial universal negative reaction to this prospect there was a sustained attempt by some scientists and ethicists to justify the cloning of human embryos for use as a source for therapeutic products, including human embryonic stem cells. 

It is our position that all attempts at human cloning are intrinsically contrary to human dignity. It is always wrong to bring a new human life into existence without natural parents whether the intention is to bring such a child to live birth or to cannibalise it for spare parts or cells at an earlier stage of the child’s development.

We are pleased that Australia is taking its stand with those nations that have moved to outlaw all human cloning.

We also endorse the prohibitions in this Bill of other unacceptable practices.

Recommendation 1: We urge the Committee to recommend to the Senate that it unanimously pass the Prohibition of Human Cloning Bill 2002.

2. Research Involving Embryos Bill 2002

2.1 The licensing regime

This Bill sets up a licensing regime to permit the use of human embryos other than in an ART programme subject to the following limitations:

	-  the embryos are ‘excess ART embryos’ [Section 35(1)]
	-  the embryos were created before 5 April 2002 [Section 36 (3) (b)] (until 5 April 2005 or earlier if so determined by COAG) [Section 60]
	-  each person responsible for a particular embryo has given consent for the use of that embryo [Section 39 (1)-(2)]
	- the use of the embryo is likely to result in ‘significant advances in knowledge, or improvements in technologies for treatment ... which could not reasonably be achieved by other means’ [Section 36 (4) (b)]

2.2 Excess ART embryos

Who are the ‘excess ART embryos’ who will be the subject of research licensed under this Bill? These human embryos will have been created in an IVF clinic with the supposed intention of implanting them in a particular woman. 

However, the standard practice of IVF in Australia has resulted in a rapid growth in the stockpile of human embryos created by IVF in frozen storage. This standard practice uses superovulatory drugs to cause a woman undergoing IVF to produce several ova in one cycle. These ova are then harvested by laparoscopy and fertilisation in vitro is attempted with all the ova retrieved. 

Of those human embryos successfully fertilised only 2-3 at most are transferred to the woman undergoing IVF procedures. This is to prevent the dangers associated with multiple pregnancies.

The remaining human embryos are transferred to frozen storage at about 2-3 days of development. They may be thawed and transferred to the woman in subsequent treatment cycles.

However, in many cases a woman will decide not to undergo any further treatment cycles before all the human embryos frozen for her have been thawed and transferred. This may happen for a number of reasons including: a successful live birth (either from IVF or naturally) with no desire for further live born children; repeated failure of IVF cycles and a decision not to undergo the stress and difficulties involved in further cycles; breakdown of relationship between the woman and the father of the human embryos in frozen storage; death of the woman or damage to her uterus precluding the transfer of remaining human embryos.

This has resulted in a steadily increasing stockpile of human embryos. According to the Reproductive Technology Council of Western Australia’s Annual Report 2001 (Appendix 3, page vi) the number of embryos in storage in Western Australia has grown as follows since 1993:

1993 - 1706 embryos in storage
1994 - 1870 embryos in storage
1995 - 2821 embryos in storage
1996 - 3456 embryos in storage
1997 - 4697 embryos in storage
1998 - 6108 embryos in storage
1999 - 7317 embryos in storage
2000 - 8692 embryos in storage
2001 - 9661 embryos in storage

There is no sign of this growth being reversed. 

In 1999, the latest year for which comprehensive statistics for Western Australia are available, 512 human embryos were allowed to succumb with the consent of the couple and 33 human embryos were donated by 19 couples to other infertile couples resulting in 9 live born children.

The Research Involving Embryos Bill 2002 is premised on the existence of this stockpile of human embryos. As was pointed out in numerous speeches by members of the House of Representatives these excess human embryos are ‘going to die anyway’.

It is our submission that before the Senate considers passing this Bill in its present form it has an obligation to conduct a thoroughgoing inquiry into the practice of IVF in this country and to seek to establish whether the present practice of superovulating women, fertilizing all ova harvested and placing embryos into frozen storage for possible subsequent use is scientifically, medically, ethically and socially justified.

Included in such an inquiry should be such questions as:
	- What are the health effects on women of superovulation?
	- Is it now technologically possible and safe to store unfertilised ova rather than human embryos?
	- Are women being placed on IVF programmes too readily? (Many conceive naturally while on the programme.)
	- Is the freezing of human embryos ethically justified or is it incompatible with the respect owed the human embryo?

We don’t expect the present inquiry to canvass these questions. However, we submit that it is premature to set up a national scheme for using ‘excess ART embryos’ as research material when there has been no national inquiry into the absurd situation in which perhaps 70,000 human embryos are now in frozen storage with no prospect of this stockpile diminishing.

Recommendation 2: We urge the Committee to recommend to the Senate that the Research Involving Embryos Bill 2002 be either not voted on or rejected until there has been a thorough national inquiry either by this Committee, a select committee of the Senate, or a select joint committee into the practice of IVF in Australia with particular reference to the creation of a stockpile of human embryos.

2.3 The April 5, 2002 cut-off

The apparent rationale for the original cut-off as announced by the Prime Minister prior to the COAG meeting of April 5, 2002 was to ensure that there would be no motivation for ART clinicians to artificially and unnecessarily increase the number of excess ART embryos created after the COAG decision with the intent of ensuring a ready supply of excess ART embryos for research.

This limitation of research to a finite number of human embryos (those in existence on April 5, 2002) also seemed to reflect the underlying focus on the use of human embryos to derive embryonic stem cells and the frequent and repeated assurances of the scientist-advocates of human embryonic stem cell research that only a finite number of embryos would be needed to derive sufficient human embryonic stem cell lines for all subsequent research.

These assurances have been repeated in recent days with Professor Trounson stating that no more than 50 human embryos would be required for the derivation of human embryonic stem cell lines.

COAG responded to the Prime Minister’s proposal for a cut-off by insisting that it not be permanent. The Bill as it presently stands provides (Section 60) that the 5 April, 2002 cut-off will automatically expire on 5 April, 2005. From this date all excess embryos will be available for research. The Bill then is not drafted from the viewpoint that the number of human embryos needed for research will be finite. This is one of the key indicators of a disjunction between the public and parliamentary (in the House of Representatives) debate and the realities of the Bill. The debate has focussed almost exclusively on the use of a very limited number of human embryos to derive human embryonic stem cell lines from which an unlimited number of therapeutic applications may be established. 

By contrast the drafting of the Bill (and the comments of the NHMRC representatives at the Committee hearings on 29th August) make it clear that the use of human embryos in research that will consume embryos in much larger numbers (and in an ongoing way into the future) than the proponents of human embryo stem cell research have foreshadowed.

There simply has been no public debate on this broader agenda of research involving human embryos. 

COAG was not even satisfied with the automatic expiry of the 5 April, 2002 cut-off on 5 April, 2005. “The Council agreed to establish an Ethics Committee with membership jointly agreed to by the Council to report to the Council within 12 months on protocols to preclude the creation of embryos specifically for research purposes, with a view to reviewing the necessity for retaining the restriction on embryos created on or after 5 April 2002".

The Bill provides [Section 60 (b)] that the 5 April 2002 cut-off will cease to apply prior to 5 April, 2005 if COAG “declares an earlier day by notice in the Gazette” on “that earlier day”. In effect this means that the 5 April 2002 cut-off may never apply.

The Ethics Committee is due to report to COAG by 5 April 2003. The Senate cannot pass the Bill until November 11, 2002 at the earliest. While the licensing provisions will come into effect 28 days after the Act receives Royal Assent (say not before 31 December 2002) Sections 25-27 which would make it an offence to use an excess ART embryo for research without a license do not commence until six months after the Act receives Royal Assent (say not before 31 May, 2003). By then COAG may well have removed the 5 April 2002 cut-off by declaration.

In our submission it would be an extraordinary surrender of the duties and power of the Senate to leave it to the Council of Australian Governments acting by fiat to change the conditions under which a serious criminal offence [Section 25 (1)] with a maximum penalty of 5 years imprisonment is committed. The Senate is asked to approve in advance the findings of the Ethics Committee established by COAG and the decisions of COAG made on the basis of those findings. Neither the Prime Minister, the Premiers nor the Chief Ministers will be held directly accountable for their decision on this matter. 

Finally, the whole Act is due for review [Section 61] to be completed within three years of the Prohibition on Human Cloning Bill 2002 receiving the Royal Assent [see its Section 61]. Any proposed changes to the Act will need to be considered by the Senate. It seems reasonable to defer any change to the 5 April 2002 cut-off to be considered by the Senate at that time (say soon after December 2005). 

Recommendation 3: We urge this Committee to recommend that the Senate not agree to delegate to COAG its legislative prerogative in relation to criminal offences under Section 25 of the Bill, nor to agree in the absence of any assurance that the creation of human embryos for research purposes can be precluded, to the automatic lifting of the 5 April, 2002 cut-off. Rather the Senate should consider this question as part of any amendments to the Act following on from the review required by Section 61. To give effect to these recommendations the Committee should recommend that the senate oppose Clause 60 of the Research Involving Embryos Bill 2002.

2.4 Consent to the use of human embryos

The Bill requires that no human embryo be used without the consent of those responsible for the existence of that human embryo. 

There are two major concerns with this proposal: the right to consent and the question of free and informed consent.

2.4.1. Does anyone have a right to agree to the destructive or damaging use of a human embryo? 

The Bill is drafted on the assumption that human embryos are in a relationship to those for whom, or from whose gametes they were created, that is more akin to the relationship of owner to property than of parent to offspring. 

Parents are not permitted under common law to make decisions for their children that are patently contrary to the life and welfare of their children (see Brennan CJ in Marion’s case for the application of this principle to the sterilisation of intellectually disabled children; similar cases deny parents the right to refuse lifesaving medical treatment for their children).

Destructive human embryo research, including the extraction of human embryonic stem cells, on frozen ‘excess ART embryos’ will involve the thawing of such embryos and their culture in the laboratory for several days. The research will be carried out on living, developing human embryos up to 14 days old. In the case of the extraction of human embryonic stem cells the human embryos will need to be grown in culture for at least 3-4 days after thawing before they are sufficiently developed to harvest stem cells from them.

Vivisection of living human beings at any stage of development is abhorrent and contrary to human dignity.

It is not justified by the absence of sentience - otherwise merely anaesthetising adult or born children would suffice or limiting vivisection to the (permanently?) comatose. Nor does the age or stage of development of the human being justify it. 

After the abuse of medicine by German doctors in the 1930s and 1940s (see Robert Jay Lifton’s Nazi Doctors: Medical Killing and the Psychology of Genocide, Basic Books, 2000) human rights conventions and the World Medical Congress have insisted that no human being be the subject of medical research that is inherently harmful or for which the subject has not given free and fully informed consent. There is no provision in these agreements for ‘proxy’ consent by parents or others to harmful (let alone life destroying) medical research on children.

Nor is this proposed vivisection justified by the fact that, given the standard practice of IVF in creating stockpiles of human embryos and the inevitable inability or unwillingness of some women for whom these human embryos were created to have them transferred, some ‘excess ART embryos’ must eventually be removed from frozen storage and allowed to succumb. (They could be donated to other infertile couples - the demand exceeds the number of human embryos that couples are willing to donate. It is not known how long human embryos can be kept on frozen storage and retain the capacity for development after thawing. However, we agree that indefinite frozen storage with no prospect of transfer to the body of a woman is an absurd fate for a human being.) 

This alleged justification is that advanced by the Prime Minister who states that he cannot see sufficient moral difference between allowing these embryos to die and using them for research. Many speakers also advanced this justification of embryo research during the Second reading debate in the House of Representatives.

This failure to see the moral difference between allowing to die and vivisection is disturbing. There are many categories of human beings who are inevitably dying (in one sense of course we are all inevitably dying) to whom this lack of moral difference between allowing them to die and vivisection could also be applied. Examples include: terminally ill adults and children; inmates on death row; Jewish inmates of a concentration camp. To list these categories is to demonstrate the absurdity of the proposition. (See further discussion on this critical point in the article by Gilbert Meilaender included below). Who would support vivisection on a child imminently dying of cancer (assuming adequate anaesthesia) even if this would lead to a medical breakthrough that could result in the prevention or cure of cancer in all other children?

In Fyodor Dostoevski’s Brothers Karamazov the following question is posed:

“Imagine that you are creating a fabric of human destiny with the object of making men happy in the end, giving them peace and rest at last, but that it was essential and inevitable to torture to death only one tiny creature ‑ that baby beating its breast with its fist, for instance ‑ and to found that edifice on its unavenged tears, would you consent to be the architect on those conditions?

Tell me, and tell the truth." 

Unlike the newborn baby referred to by Dostoevski the human embryo does not even have the defence of tears. 

It is the answer to this question that the Senate is asked to make in considering the Research Involving Embryos Bill 2002.

Recommendation: In the name of our common humanity we ask the Committee to recommend that the Senate reject the Research Involving Embryos Bill 2002 because it authorises vivisection on human beings for the sake of hoped-for advances in knowledge and technology contrary to the respect always due to each human being.

2.4.2 Free and informed consent

Notwithstanding our submission that no-one, including those responsible for the creation of a human embryo, have the right to consent to its use in destructive research we further submit that the Bill does not provide adequately for any such consent to be free and fully informed.

There is no requirement that the responsible persons be informed of the range of research that the human embryos may be used for (including drug testing, etc.). (The definition of proper consent [Section 23] requires that consent be obtained in accordance with the Ethical Guidelines on Assisted Reproductive Technology (1996) issued by the NHMRC. Only one brief paragraph of these Guidelines refers to obtaining consent fro the use of an embryo in research. It states that such consent “must specify the purpose or purposes for which that embryo or embryos may be used, namely ... for specified research in which the outcome for the embryo or embryos is explained. There is then a reference to 6.4, which sets out limitations on research involving embryos similar to those in this Bill (likelihood of a significant advance in knowledge, etc.) And to the Glossary which explains the difference between therapeutic and non-therapeutic research on an embryo. It is not clear that the reference to ‘specified research’ means anything more than a specification as to whether consent is being sort for therapeutic or non-therapeutic research.)

There is no requirement that they be told that they can impose restrictions on the use to which an embryo can be put [Section 39 (1)-(2)].

There is no requirement that they be offered the alternative of donating an embryo to another couple.

There is no ‘cooling off’ period after the obtaining of the consent to ensure that the decision to agree to the use of the embryo is a stable decision. (Given the well-known stresses of couples undergoing ART in our view at least 12 months would be needed to ensure a stable decision as opposed to a decision made under pressure to decide the fate of excess embryos after withdrawal from an ART programme). 

There is no requirement for independent counselling from a person with no commercial or other links either to the ART clinic or to the research institution before a person is asked for their consent.

There is considerable evidence from the experience of families who have consented to organ donation without these sorts of protections to ensure fully informed and free consent that the failure to provide for such consent results in a range of lasting emotional and psychological harms, including forms of post-traumatic stress disorder and unnecessary complications of bereavement.

It is likely that couples dealing with the other stresses of ART treatment (especially those who leave the programme without a successful pregnancy being achieved) will be acutely vulnerable to complications arising from later discovery that their donated embryos were not in fact used (as they may fondly have imagined) to cure juvenile diabetes but to enable a multinational corporation to patent a new reagent or test a new drug. 

Recommendation 5: We urge the Committee to recommend that the Senate add to the Bill a Code of Practice for the seeking and obtaining of consents to the use of human embryos. Such a Code of Practice should aim at ensuring that any consent to the use of an embryo is fully informed and free. 

2.5 Significant advances in knowledge and improvements in technology.

The only limit on the kind of research and related uses of human embryos to be conducted under the licensing regime of this Bill is that the use of the embryo is likely to result in ‘significant advances in knowledge, or improvements in technologies for treatment ... which could not reasonably be achieved by other means’.

There is no specification of the kinds of knowledge that may be sought or of the technologies for treatment that may be improved. The list given in the Explanatory Memorandum (Clause 25) includes:
	- research to derive stem cells
	- research to improve ART clinical practices
	- training people in ART techniques
	- quality assurance testing of pre-implantation diagnostic testing
	- examining the effectiveness of new culture media for growing human embryos.

However, this list is not exhaustive. The inclusion of ‘training people in ART techniques’ and ‘quality assurance testing’ is significant. It is hard to see how these lead to a ‘significant advance in knowledge’ or ‘improvements in technologies for treatment’.
This suggests that the drafters of the Bill and the Explanatory Memorandum may be reading down Section 36 (4), which only requires the NHMRC Licensing Committee to ‘have regard to’ various matters, including ‘the likelihood of significant advance in knowledge, or improvement in technologies for treatment’. This wording does not require the Committee to reject license applications for uses that do not have any likelihood of advancing knowledge or improving technologies for treatment.

Nothing in these provisions would prevent the use of human embryos by pharmaceutical companies for direct testing of drugs or even the use by cosmetic companies of human embryos either for toxicity testing of new products (a significant advance in knowledge) or as actual ingredients in cosmetic products. (There is established precedent for the use of collagen from aborted fetuses in cosmetic products.)

The Bill essentially declares the human embryo to be the ‘new laboratory rat’ and a potential ingredient in industrial production. The Bill gives no substantive guidance to the Licensing Committee as to which kinds of uses are acceptable.

In regard to the uses related to ART practice it should be noted that destructive use of human embryos for these purposes is prohibited in Western Australia, South Australia and Victoria. Yet these States have flourishing ART clinics. It is clear that the uncontrolled use of human embryos permitted in the non-regulated States (to be extended by this Bill to the entire country) is not necessary to sustain a viable ART industry.

We again point out the disjunction between the Bill and the public and parliamentary debate. The Bill allows the destructive or harmful use of embryos in a virtually unlimited range of uses. The public and parliamentary debate has been almost exclusively on the extraction of human embryonic stem cells.

Recommendation 6: While not supporting the extraction of human embryonic stem cells from human embryos, we urge the Committee to point out to the Senate that while the public debate and the justification advanced for this Bill by COAG and the Prime Minister has been the supposed benefits to be gained from the extraction of human embryonic stem cells from excess ART embryos the terms of the Bill allow for much broader destructive use of human embryos. Supporting an amendment to limit licenses to the use of excess ART embryos for the extraction of embryonic stem cells as proposed by Mr Cadman in the House of Representatives would at least restore some integrity to the relationship between the Bill and the justifications advanced by its key proponents.

2.6 The extraction of human embryonic stem cells

It is our submission that there is no present scientific or medical justification for the proposal to allow any further destruction of human embryos for the purpose of extracting human stem cells.

Our reasons are as follows:

 - there are already 10 human embryonic stem cell lines in Australia, lines which are eligible for NIH funding under President Bush’s decision of August 9, 2001.

- these stem cell lines can be indefinitely maintained and multiplied

- according to advocates of human embryonic stem cell research these stem cell lines can be used to produce cells of all 212 human tissues

- the fact that all of these stem cell lines are presently or have been grown on mouse feeder cells is of no immediate relevance. This would only be a factor when any actual human clinical trials are under consideration. 

- there is as yet not a single proof of safety and efficacy in an animal model for any therapy for any disease using embryonic stem cells. Until such proof is obtained then no human clinical trial could possibly be approved.

- there are reasons to believe that human embryonic stem cells may never produce a successful therapeutic product. Problems such as genomic instability, tendency to tumour formation or uncontrolled differentiation and the need to overcome immune rejection may prove insurmountable. There is no need for any further human embryonic stem cell lines to be used in research which attempts to overcome these problems. Any research can be undertaken using existing human embryonic stem cell lines and using animal models.

We note however from the website of ESCI ( that their business plans shows profitable short term and medium term revenue streams without actually producing any therapeutic product from human embryonic stem cells. Revenue sources related to human embryonic stem cell lines include: research reagents (monoclonal antibodies/cell lines/growth factors); sale of differentiated cells (e.g. cardiac, renal and hepatic cells) for toxicity testing; licensing fees. ESCI do not expect to trial their first therapeutic development product until at least 2005/6. 

In the light of these realities, it makes sense to reverse the review provisions of the Bill. Instead of allowing a three year trial of destructive human embryo research it makes more sense - scientifically, medically and socially - to impose a three year moratorium on destructive human embryo research. In three years time the science should be clearer:

Will human embryonic stem cells  be proved safe and efficacious in an animal trial?

Will adult stem cells – which are ethically uncontentious and already being used in actual therapies and in human clinical trials (including Australian trials for spinal cord injury; Parkinson’s and heart disease) – prove to be efficacious in treating all the degenerative diseases for which human embryonic stem cell therapies have been proposed?

It is worth waiting for three years to found out the answers to these questions before deciding to cross the line by giving Parliamentary approval to the intentional destruction of human embryos fro research.

Recommendation 7: We urge the Committee to recommend to the Senate a three year moratorium of destructive embryo research, by retaining the review provisions of the Bill while substituting for the licensing provisions of the Bill a prohibition on any use of a human embryo – excess or otherwise – other than use in an accredited ART programme.

3. Section 56 – Effect on State Laws

According to the Explanatory Memorandum Section 56 as it appears in the Research Involving Embryos Bill 2002 will result in the effective negation of prohibitions or restrictions on destructive embryo research under State legislation in Victoria, South Australia and Western Australia.

It is argued that this is required by the COAG commitment to national uniform legislation.

It is our submission that this way of proceeding – overturning State laws by a Federal law – is neither democratic nor warranted by the COAG agreement. We use the Western Australian law as an example.

The Human Reproductive Technology Act 1991 was passed unanimously by the Western Australian State Parliament. It effectively prohibits any research on a human embryo that would not be of direct therapeutic benefit to that embryo. If Section 56 of the Research Involving Embryos Bill becomes law in its present form then this Western Australian law will be nullified, at least in relation to anyone who is granted a license for destructive embryo research under the new Act.

The COAG agreement was to achieve national uniform legislation. This can only ultimately be achieved by the States and Territories passing corresponding State laws to match the Federal legislation. Only when the Premiers and Chief Ministers seek to introduce and pass such legislation will we see if the Parliaments of the States and Territories support national uniform legislation which permits destructive embryo research. This is even more so than usual given that all State Parliamentary parties will permit their members a free vote on this issue.

There is nothing in the COAG documents which mandates the Federal Government to overturn State laws restricting destructive embryo research. 

We submit that the proper way to proceed is to ensure that the Federal bill leaves existing State laws restricting embryo research intact until the relevant State Parliaments see fit to amend these laws to comply with the national unfirm legislation proposed by COAG.

To proceed otherwise is to impute to COAG  - a meeting of Commonwealth and State chiefs of executive governments – a legislative prerogative that it does not and ought not have.
Recommendation 8: We urge the Committee to recommend to the Senate that it support an amendment to Section 56 of the Research Involving Embryos Bill 2002 as proposed in the House of Representatives by Mr Pyne as follows:

“Section 56    Operation of State Laws

Nothing in this Act is to be taken to affect the operation of any law of a State that
prohibits absolutely the use of excess ART embryos, or that imposes additional
conditions, whether consistent or inconsistent with this Act, on the use of such
embryos.”

Spare Embryos : If they're going to die anyway, does that really entitle us to treat them as handy research material? 
by Gilbert Meilaender 

The Weekly Standard (www.weeklystandard.com) 08/26/2002, Volume 007, Issue 47 

IN OUR ONGOING NATIONAL DEBATE about the use of human embryonic stem cells for research, there is one compromise position that reappears with regularity and attracts relatively wide support. This position proscribes (at least for federal funding) any research on stem cells derived from embryos produced solely for research purposes, while permitting research on stem cells derived from embryos that were produced but are no longer needed for use in infertility treatments. (I am not here referring to a different sort of compromise struck by President Bush in his speech of August 2001. He permitted funding for research on embryonic stem cell lines only if the evil deed of embryo destruction had already been done but not for cell lines derived from embryos destroyed in the future--thereby seeking to permit some research to go forward without providing an incentive for further destruction of embryos.) Because spare embryos are destined to be discarded in any case--because, that is, the decision of those with legal authority over the embryos has been to discard them--they have no future life prospects. They are destined to die, and the only question is how. Why not, one might wonder, gain some useful knowledge from their dying? 

This compromise approach is not without appeal, and it has a distinguished pedigree. It was, for example, specifically endorsed by the National Bioethics Advisory Commission in its 1999 report on "Ethical Issues in Human Stem Cell Research." The commission recommended that research on stem cells derived from spare embryos remaining after infertility treatments be eligible for federal funding but that, at least for the present, such funding not be permitted for research on stem cells derived from embryos that had been produced solely for research purposes. 

This is a thoughtful compromise and in certain ways attractive. At the very least, it seems less crass than simply endorsing embryo research without limits. Perhaps some support the compromise solely for strategic reasons--as a first step but not, they hope, the last step in embryo research. But for others it may demonstrate a praiseworthy inclination to "shudder" just a bit in the face of a routinized use of nascent human life that any full-fledged program of embryo research would certainly involve. Nevertheless, appealing as this mediating position is in certain respects, we should not too quickly endorse it; for the pedigree of this sort of reasoning is actually more mixed and troubling than we usually realize. Consider the following three examples: 

In the mid-1970s Congress established a National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. This commission, which proved to be fairly influential, examined and issued reports on a number of difficult topics in the ethics of human experimentation. The first of its reports, issued in 1975, was "Research on the Fetus." With certain safeguards, the commission was prepared to approve research on the fetus in utero and on the possibly viable infant outside the uterus, but if the research was not aimed at benefiting the research subject himself or herself, the commission required that it impose "minimal or no risk" or "no additional risk" to the well-being of the fetus or infant. 

Having agreed on that, the commission also had to consider possible research on the fetus still living in the womb but intended for abortion (that is, destined to die) or on the child still living outside the womb after abortion but nonviable (and, hence, destined to die). The commission eventually recommended that these possible research subjects be given equal treatment. They too should not be subjected to research that imposed more than minimal risk or any additional risk to their well-being. It is instructive, however, to remind ourselves that several of the commissioners argued that "equal respect" could mean something quite different for a fetus-to-be-aborted or for a still living but nonviable child outside the womb after abortion. In those cases, these commissioners suggested, one cannot impose any additional risk of harm or further diminish the life prospects of these potential research subjects. They are going to die; the only question is how. They may simply die, or they may be used as research subjects in the course of their dying. In the latter case, so the argument went, we do not treat them unequally or respect their lives less. On the contrary, we apply exactly the same principle ("no additional risk of harm") that we apply to other research subjects. In this instance, however, because they are destined (as a result of someone's choice) to die soon anyway, we can--without further diminishing their life prospects or imposing upon them additional risk of harm--use them as research subjects in ways that we would never use fetuses or infants who were not destined to die. "Bombs away," as a student of mine once put it. 

A second example may be yet more troubling. Perhaps the most well-known instance of research gone horribly awry in this country is the Tuskegee syphilis experiment. For approximately forty years officials of the U.S. Public Health Service used impoverished, uneducated black men in Macon County, Alabama, as subjects in a project designed to study the effects of untreated syphilis. The subjects were left untreated even after penicillin was known to be effective in the treatment of patients with syphilis. We miss some of the complexity of the case, however, if we forget that the poverty, illiteracy, and race of these men meant that, even if the research were not undertaken, they almost surely would not have gotten treatment. The circumstances of their lives destined them to suffer from and perhaps die of complications resulting from syphilis. 

Public Health officials were not in a position to change those circumstances. Carrying out their research would neither diminish the life prospects of these men nor impose upon them any additional risk of harm. Why not, therefore, at least gain from their plight knowledge that might benefit future sufferers? In "Bad Blood: The Tuskegee Syphilis Experiment," James H. Jones describes such a mode of reasoning (referring in particular to the view of Dr.Taliaferro Clark, but with, it is clear, wider reference to the motives of the researchers generally): "The fate of syphilitic blacks in Macon County was sealed (at least for the immediate future) regardless of whether an experiment went forward. Increasing the store of knowledge seemed the only way to profit from the suffering there." Nothing is lost and something potentially of medical significance is gained. Why not proceed? 

A third example is, if anything, more thought-provoking still. When prisoners arrived at a concentration camp such as Auschwitz, "selections" were made that determined the life prospects of those prisoners. Many were fated to die. Discussing the way in which doctors at Auschwitz were "hungry for surgical experience," Robert Jay Lifton writes: "In the absence of ethical restraint, one could arrange exactly the kind of surgical experience one sought, on exactly the appropriate kinds of 'cases' at exactly the time one wanted. If one felt Hippocratic twinges of conscience, one could usually reassure oneself that, since all of these people were condemned to death in any case, one was not really harming them." 

The justification is striking. We have met it before. By virtue of decisions others had made, these victims had no life prospects. Hence, they could not really be harmed if subjected to experiments that would never have been carried out on people not destined to die. Why not, then, gain useful medical knowledge and thereby wrest some good from tragic circumstances? It is crucial (and terrifying) to remember that the doctors of whom Lifton writes were, in many cases, ordinary people--like us--who supposed themselves to be advancing the mission of medicine. 

HERE, THEN, are three examples of reasoning that is structurally similar to the reasoning often used to defend the mediating position that permits research only on "spare" embryos. I do not say that those who argue for research on spare embryos should be equated with the Tuskegee researchers, or the Nazi doctors, or even moralists who were willing to apply exactly analogous reasoning not (let us note) to five-day-old blastocysts but to well-developed fetuses and newborn but nonviable infants. (Neither, on the other hand, do I seek to relieve the conscience of anyone who may be bothered by the similarities in argument.) I simply ponder these examples as a way of wondering whether we need to slow down the train of this conversation and think again. The compromise--research on spare embryos but no others--has its appeal. But perhaps we ought to worry about it more than we do. Are there reasons to question the appeal of this approach? I think there are. 

We should notice, just for starters, that the form of the argument essentially baptizes the current practice of in vitro fertilization in this country--a practice that is, we might note, almost entirely unregulated. The argument simply accepts, for example, the routine creation of spare embryos. No doubt this practice eases the burden on those who seek IVF to overcome infertility, but there is no reason why their burden should necessarily be of greater moral concern than the production of spare embryos destined to be discarded. It seems unlikely that our society will--very soon--decide to rein in and rethink its IVF practices, and proponents of embryo research sometimes act as if one cannot oppose it without demanding far-reaching IVF regulation. As a tactic, of course, this is intended to stifle opposition to embryo research by requiring its opponents to bear the burden of arguing for rolling back practices now widely used. But, of course, there is no reason why we should not tackle our problems one at a time. The fact that we cannot start over and immediately construct our IVF practices in a morally better and more regulated manner does not mean that we need proceed farther down the road on which we are traveling. It may be moral progress simply to stop, even if we cannot for now turn back. 

Moreover, the fact that these are spare embryos remaining after infertility treatments may actually turn the argument in quite a different direction. These embryos have already been used once in the service of someone else's project. Perhaps even, we may hypothesize, they have been justly used in that project. Certainly, at least, the IVF project uses embryos in ways that are oriented toward their natural reproductive end. But, still, they have been produced and used in an attempt to satisfy the desires of others. Is not being used once enough? Why, if they are no longer needed or wanted for reproductive purposes, should we suppose that they are still available for our use, still a handy resource for other purposes entirely unrelated to their well-being or their natural end? Why does the fact that they are destined to die, by human will and choice, make them available for our continued use? 

They are destined to die anyway. What follows? Not that we should feel free to use them, but, rather, that, as Hans Jonas once argued with respect to the terminally ill, we should spare them "the gratuitousness of service to an unrelated cause." Given that certain choices have been made, these spare embryos are destined to die, but our relation to their dying is not a matter for moral indifference. It is one thing for us to acquiesce in their death; it is quite another for us to embrace their death as our aim, to seize upon it as an advantageous opportunity to use them yet again for our purposes. 
They are destined to die by our will and choice. What follows? Not that we should feel free to use them, but rather that, having condemned them to their fate, we should refrain from the added indignity of regarding them as handy research material. We cannot pretend that they simply are dying--as if that were a natural fact independent of our will and choice. First we decide that they must die. Then we say that, since they're destined to die anyway, we might as well gain some good from that tragedy. Looked at in this light, the argument seems inherently corrupting. 

Sometimes, of course, it will be tempting to think that we should at least seize the opportunity to redeem their loss by using them to seek good for others. This is a fascinating thought, depending, as it does, on the intuition that an evil is done here and is in need of redemption. More than a quarter century ago, writing about the ethics of fetal research, Paul Ramsey contemplated similar claims about the need to gain at least some good from the deaths of aborted fetuses. He suggested that only a religious commentary could adequately explain the need to find a salvific or redemptive purpose in research upon condemned and dying human subjects. "Collectively guilt-laden, we go on . . . to other potential harms and wrongs in order to avoid acknowledging the first. . . . We are determined to wrest by our scientific good works" some benefit from the deeds that engender guilt in us. The issue of embryo research is not precisely the same as fetal research, of course, but the insight into our ready recourse to the quasi-religious language of finding some redeeming good in what we do is illuminating. 

We need to think again about the spare-embryo argument. Initially appealing as it may be, offering it seems a chance to move forward with research while still drawing a significant moral line, it begins to lose its force the longer we ponder it and the harder we press on it. The very form of the argument--"he'll die anyway; we might as well get some good from his dying"--seduces us into supposing that all moral evils must be forms of "harm." "No harm, no foul" may work well enough for officiating basketball, but it does not work well for sorting through our moral obligations. Reducing all moral evils to harm, we blind ourselves to issues of dignity and justice--as if, for example, we would not wrong a permanently unconscious person by selling tickets for others to observe him. 

We need to slow down, think again, and draw back, lest we train ourselves to think in ways that diminish us as a people. Perhaps this means--though it's hard to say for sure--that the pace of medical progress must be slower than it could be. If so, that only means that here, as in so many other areas of research, we accept and honor necessary moral limits. For, as Paul Ramsey also put it, "the moral history of mankind is more important than its medical history." 

Gilbert Meilaender is a member of the President's Council on Bioethics. The views expressed here are his own and do not represent the council.