DRAFT

the Ethics of Stem Cell Research

Paul Lauritzen
Professor, Department of Religious Studies
Director, Program in Applied Ethics
John Carroll University,
University Heights, Ohio

JuLY 2003

 

. . . the final stage is come when man by eugenics, by prenatal conditioning, and by an education and propaganda based on perfect applied psychology, has obtained full control over himself. Human nature will be the last part of nature to surrender to man. (Lewis, 1947)

This sudden shift from a belief in Nurture, in the form of social conditioning, to Nature, in the form of genetics and brain physiology is the great intellectual event, to borrow Nietzsche’s term, of the late twentieth century. (Wolfe, 2001)

I begin with passages from an unlikely pair of authors because although C. S. Lewis and Tom Wolfe are somewhat distant in time, certainly different in temperament, and extravagantly different in personal style, they share an imaginative capacity to envision the possible consequences of modern technology. The technology that occasioned Lewis’s reflections?“the aeroplane, the wireless, and the contraceptive” may now seem quaint, but his warning about turning humans into artifacts, that accompanied the passage quoted above, is eerily prescient. Similarly, although he does not directly take up stem cell research, Tom Wolfe’s reflections on brain imaging technology, neuropharmacology, and genomics are worth noting in relation to the future of stem cell research. In his inimitable way, Wolfe summarizes his view of the implications of this technology in the title of the essay from which the above passage comes. “Sorry,” he says, “but your soul just died.”
The point of beginning with Lewis and Wolfe, then, is not that I share their dire predictions about the fate to which they believe technology propels us; instead, I begin with these writers because they invite us to take an expansive view of technology. I believe that such a perspective is needed and is in fact emerging in recent work on stem cell research. This is not to say that the sort of traditional analysis that has framed much of the debate on stem cells, analysis that involves issues of embryo status, autonomy, and informed consent, for example, is unhelpful; far from it. Nevertheless, traditional moral analysis of stem cell research is nicely complemented by a consideration of the “big picture” questions that Lewis and Wolfe both wish to press. This report will therefore seek to draw attention to the literature on stem cell research that attends both to the narrow and to the expansive bioethical issues raised by this research.

The Moral Status of the Embryo
There is little doubt that public reflection on stem cell research in the United States has been affected by the extraordinarily volatile cross-currents of the abortion debate. Although I will indicate below several reasons why framing the stem cell debate as a subset of that on abortion is problematic, nevertheless, in its current form, stem cell research is debated in terms dictated by the abortion controversy, and that has meant that questions about the status of the embryo have been particularly prominent.¹ For example, the National Bioethics Advisory Commission (NBAC) described the ethical issues raised by stem cell research as “principally related to the current sources and/or methods of deriving these cells” (NBAC, 1999, 45). A policy brief from the American Association for the Advancement of Science (AAAS) begins its discussion of the ethical dispute over stem cell research by citing the disagreement over the status of the embryo as the decisive variable leading to fundamentally different views on this research (AAAS, 1999, 11). The National Academy of Sciences’s report on stem cell research claims that “the most basic [ethical] objection to embryonic stem cell research is rooted in the fact that such research deprives a human embryo of any further potential to develop into a complete human being” (National Academy of Sciences, 2002, 44). The Ethics Advisory Board of the Geron Corporation lists the moral status question as the first moral consideration relevant to deciding the acceptability of stem cell research (Geron Corporation Ethics Advisory Board, 1999, 32). The list could go on.

Despite the fact that these statements all insist on the importance of the status question, they also recognize that the debate about the status of the early embryo is not new and that the controversy over stem cell research does not, strictly speaking, raise novel issues in this regard. Indeed, it is probably best to place the initial skirmishes over stem cell research in the context of moral debates about human embryo research generally. In fact, it is worth noting that the report of the NIH Human Embryo Research Panel (HERP), published in 1994, explicitly identified the isolation of human embryonic stem cells as one of thirteen areas of research with preimplantation embryos that might yield significant scientific benefit and that should be considered for federal funding (See NIH HERP, 1994, ch. 2).

Although the recommendations of the HERP were never implemented, the fact that a high-profile panel reviewed ex utero preimplantation human embryo research and explicitly endorsed stem cell research, meant that the panel report would affect the policy debate about stem cell research, even though its recommendation that the derivation and use of stem cells be federally funded was not adopted. For one thing, the panel’s anticipatory support for stem cell research assured that when human stem cells were actually derived several years later, the debate that ensued would be tied to the abortion controversy. As members of the HERP panel have made clear, from the start, the work of the panel was embroiled in controversy. For example, shortly after the HERP was impaneled, thirty-two members of Congress wrote to Harold Varmus, the director of NIH, to complain about the composition of the panel. A lawsuit was filed in an attempt to prevent the panel from meeting, and members of the panel received threatening letters and phone calls (Green, 1994; Tauer, 1995; Hall, 2003).

Given the pro-life opposition to the HERP panel and its recommendations, it is no real surprise that initial reactions to the prospect of human stem cell research fell out along the fault lines of abortion politics in the country. By and large, individuals and groups opposed to abortion tended to be opposed to stem cell research, and individuals and groups supportive of legalized abortion tended to support stem cell research. ² For example, the testimony that Richard Doerflinger, the principal spokesperson for the U.S. Catholic bishops on pro-life matters, offered before the Senate Appropriation Subcommittee on Labor, Health, and Education in 1998 was substantially the same as that he offered before the HERP in 1994 on stem cell research (Doerflinger, 1998, 1994). In both cases, the fundamental issue was the status of the embryo. Given Catholic teaching that the embryo must be treated as a person from conception, no experimentation on the embryo can be allowed that would not also be allowed on infants or children. Hence, the Catholic church treats stem cell research as it has treated previous issues involving the destruction of human embryos; it is condemned as morally abhorrent.

In similar fashion, the arguments reviewed by the HERP panel that supported embryo research generally in 1994, were mobilized again four years later when stem cell research was the specific point of contention; and again the focal point was embryo status. Consequently, just as the HERP report opted for a “pluralistic” view of the embryo that emphasized its developmental potential, so, too, did the NBAC endorse the idea that the early embryo deserves respect, but is not to be treated fully as a person.³
Moreover, the fact that the HERP defended its support of stem cell research by stressing the developmental capacity of the embryo also shaped the trajectory of much subsequent support for this work, because insisting on respect for the embryo but denying its personhood meant explaining how one could respect the embryo while nevertheless destroying it. Daniel Callahan, for example, posed this problem very strongly in response to the HERP report. If “profound respect” for the embryo is compatible with destroying it, he asked, “What in the world can that kind of respect mean?” It is, he says, “an odd form of esteem?at once high-minded and altogether lethal” (Callahan, 1995). Callahan was not alone in raising this issue and attempts to answer his question continue to appear in the literature (See Lebacqz, 2001; Meyer and Nelson, 2001; Ryan, “Creating Embryos,” 2001; Steinbock, 2001, 2000).

In retrospect, then, it seems that the HERP report served almost as choreography for the initial debates about stem cell research, and, as a result, the steps in the debate closely followed those that are familiar from the abortion controversy (On this point, see Hall 2003). The upshot, in my view, is that much of the debate has been too narrowly focused and has a kind of repetitive and rigid quality to it. As I noted above, for example, the Catholic church has repeatedly claimed that the central issue raised by stem cell research is that it involves the destruction of human embryos, embryos it believes should be treated as persons.⁴ For that reason, the rhetoric with which the Catholic church condemns embryonic stem cell research closely parallels that used to condemn abortion. Yet, because the American bishops do not want to be perceived as anti-science, they have also repeatedly and uncritically praised adult stem cell research, even though there are good reasons, given Catholic concerns about social justice, to be concerned about the pursuit of adult stem cell research. I will return to this point below, but for now I wish simply to note that much of the opposition to embryonic stem cell work has resembled Catholic opposition in being circumscribed by questions of embryo status, narrowly construed.

A similar constriction, however, is also apparent in the preoccupations of supporters of stem cell research. Just as opponents of this research have ritualistically condemned the destruction of early embryos but uncritically celebrated adult stem cell work, supporters of embryonic stem cell research have typically insisted on using embryos left over from IVF procedures, while repudiating the use of embryos created solely for research. Indeed, insisting on the distinction between so-called “spare” embryos and “research” embryos and endorsing only the use of spare embryos has been one way that supporters of embryo research have tried to demonstrate their “respect” for the embryo. Yet, it is worth asking whether the spare embryo/research embryo distinction does not, to borrow Daniel Callahan’s image, provide a kind of “wafting incense” to mask what supporters still find a disquieting smell (Callahan, 1995).⁵

Although the debate about stem cell research might have been framed in terms of the abortion controversy in any event, the HERP report insured that the initial debate over stem cell work that followed in aftermath of the public announcement of the work of John Gearhart (Shamblott et al., 1998) and James Thomson in 1998 (Thomson et al.) would be navigated in the wake of the conflict over abortion. As I indicated, the upshot is that the discussion about stem cell research has been more cramped than it might otherwise have been. The discussion has been too focused on the details of embryological development; too focused on the differences between those who view the early embryo as a person and those who do not; and far too individualistically oriented. Before turning to ways that the debate might be become less cramped, let me focus more concretely on these difficulties.

The point about the debate being framed too individualistically is nicely illustrated in an article on abortion by Lisa Sowle Cahill entitled “Abortion, Autonomy, and Community” (Cahill, 1996). Cahill begins this article by claiming that, in discussing the morality of abortion, there is no way to avoid the question of the status of the fetus. Nevertheless, she says, the debate about fetal status is almost always conducted with the goal of determining the rights involved, where rights are understood very individualistically. To the degree that the fetus is acknowledged to have rights, those rights are pitted against the rights of the pregnant women. Although Cahill doubts that we can jettison the use of rights language altogether, if we are going to use rights language, she says, we must “remove that language from the context of moral and political liberalism” (361). If we do so, we might be able to see that we have duties and obligations to which we do not explicitly consent. As Cahill puts it, “such obligations originate simply in the sorts of reciprocal relatedness that constitutes being a human” (361).⁶ For example, moving away from an individualistic liberal view of the pregnant woman as primarily or exclusively an autonomous moral agent might lead us to recognize the obligations that individuals and communities have to support her during and after a burdensome pregnancy (363).

We do not need to accept Cahill’s commitment to the Catholic common good tradition to recognize the truth in her conclusion that pitting the rights of the fetus against the rights of the pregnant woman individualistically construed leads us to overlook important social dimensions of the problem of abortion. It seems to me that much the same dynamic is evident in the stem cell research debate.

Consider again the central argument that the Catholic church has made against stem cell research. The Pontifical Academy for Life suggests that the fundamental ethical issue is whether it is morally licit to produce or use human embryos to derive embryonic stem cells. The reasoning the Academy provides for concluding it is not licit is worth reproducing in full. The Academy lists five points:

1. On the basis of a complete biological analysis, the living human embryo is — from the moment of the union of the gametes — a human subject with a well defined identity, which from that point begins its own coordinated, continuous and gradual development, such that at no later stage can it be considered as a simple mass of cells.

2. From this it follows that as a “human individual” it has the right to its own life; and therefore every intervention which is not in favor of the embryo is an act which violates that right. . . .

3. Therefore, the ablation of the inner cell mass (ICM) of the blastocyst, which critically and irremediably damages the human embryo, curtailing its development, is a gravely immoral act and consequently is gravely illicit.

4. No end believed to be good, such as the use of stem cells for the preparation of other differentiated cells to be used in what look to be promising therapeutic procedures, can justify an intervention of this kind. A good end does not make right an action which in itself is wrong.

5. For Catholics, this position is explicitly confirmed by the Magisterium of the Church which, in the Encyclical Evangelium Vitae, with reference to the Instruction Donum Vitae of the Congregation for the Doctrine of the Faith, affirms: “The Church has always taught and continues to teach that the result of human procreation, from the first moment of its existence, must be guaranteed that unconditional respect which is morally due to the human being in his or her totality and unity in body and spirit: The human being is to be respected and treated as a person from the moment of conception; and therefore from that same moment his rights as a person must be recognized, among which in the first place is the inviolable right of every innocent human being to life’”(No. 60). (Pontifical Academy for Life, 2000; emphasis in original)

Notice that the core of the argument, namely points one and two, is framed in terms of the rights of the individual embryo. We have seen this emphasis already in noting Richard Doerflinger’s various statements on stem cell research. Yet, notice also the claim that we know the embryo to be an individual with rights on the basis of “a complete biological analysis.” This is not, of course, the first time that the Catholic church has made this claim. In the Declaration on Procured Abortion, the Congregation for the Doctrine of the Faith claimed that “modern genetic science” confirms the view that “from the first instant, the programme is fixed as to what this living being will be: a man, this individual-man with his characteristic aspects already well determined” (Congregation, “Declaration on Procured Abortion,”1974, 13). The Instruction on reproductive technology, Donum Vitae, also makes this claim. “The conditions of science regarding the human embryo provide a valuable indication for discerning by the use of reason a personal presence at the moment of the first appearance of a human life: how could a human individual not be a human person?” (Donum Vitae, 13).

One reason the Catholic church has played such a major role in framing the stem cell debate is that, in defending its position, it combines the two claims we have just noted, neither of which is explicitly religious. First, the early embryo is an individual person with rights and, second, the fact that the embryo is an individual person is confirmed by modern science. Indeed, a fair amount of the literature that supports embryo research generally can be read as an attempt to answer the question posed in Donum Vitae: How can a human individual not be a human person?

Certainly Catholic writers who reject the church’s teaching on the status of the embryo have responded directly to that question (See Cahill, 1993; Farley, 2001; McCormick, 1994; Shannon, 2001; Shannon and Walter, 1990), but so too have non-Catholics. For example, in a statement issued by their ethics committee, what was then called the American Fertility Society rejected the claim in Donum Vitae that science supports the personhood of the embryo. According to the ethics committee “. . . it remains fundamentally inconsistent to assign the status of human individual to the human zygote or early pre-embryo when compelling biological evidence demonstrates that individuation, even in a primitive biologic sense, is not yet established. Thus, homologues (identical) twins may result from spontaneous cleavage of the pre-embryo at some point after fertilization but prior to the completion of implantation. Furthermore, during very early development, an embryo is not clearly established and awaits the differentiation between the trophoblast and the embryoblast” (American Fertility Society, 1988, 3S).

Arguably, writers like Mary Anne Warren and Bonnie Steinbock, who distinguish between biological or genetic humanity and moral humanity, are also at least indirectly answering the question posed in Donum Vitae (Warren, 1997; Steinbock 2001, 1992). Yet, whether writers are responding more or less directly to Catholic discourse, or not at all, the important point is that the stem cell debate has been remarkably preoccupied with the question of whether the early embryo is an individual person and whether and how the minute details of embryological development help us to answer this question. This is one reason why a fair amount of the ethics literature on the topic reads like a textbook on embryology.

I want to be clear here: I am not suggesting that the details of embryological development are unimportant. The maxim from the field of research ethics applies here as well: bad science is bad ethics. My point is rather that the preoccupation with the details of early embryogenesis may lock us even more rigidly into an individualistic human rights framework than we are in debates about abortion. It also leads us to frame the debate as fundamentally about one question, and, indeed, it tempts us to treat the question as if there is one and only one answer. In this frame of mind, once we have that answer, there is not a lot more to talk about. Either the early embryo is a person with the right to life, in which case embryonic stem cell research is wrong, or the early embryo is not a person with rights, and then there is no moral reason to object to stem cell work. Gene Outka has made a similar point in his assessment of stem cell literature. As Outka puts it, in its starkest form, the crystallizing question is whether it is cogent to claim that embryonic stem cell research is morally indistinguishable from murder (Outka, 184). The problem with framing the question this way, he says, is that it “encourages an unfortunate tendency to restrict evaluative possibilities to a single either/or. Either one judges abortion and the destruction of embryos to be transparent instances of treating fetuses and embryos as mere means to other’s ends, or one judges abortion and embryonic stem cell research to be, in themselves, morally indifferent actions that should be evaluated solely in terms of the benefit they bring to others.” (Outka, 2002, 184).

The frame of human rights reinforces this either/or because, as I noted, a being is either a rights-bearing entity or it is not. I have argued elsewhere, that this either/or tends to drive people to the extremes. Either the embryo is a person or it is essentially a kind of property (Lauritzen, 2001). Although I will not rehearse the argument for rejecting the two extremes here, it is worth noting that the rhetoric associated with each extreme does not appear to match the practice of those who adopt the rhetoric or in fact to match the considered moral judgments of most Americans on these issues.

I can illustrate my point in relation to the view that the early embryo is a person with the right to life by describing a cartoon that hangs on my office door (See appendix A). The cartoon depicts protestors in front of a stem cell research lab condemning those who work there as being anti-life. Down the street at the abortion clinic, the workers are noting how quiet things have gotten at their facility since the stem cell lab opened. The point of the cartoon, of course, is that we may soon see protests and demonstrations of the sort that are common at abortion clinics at facilities that conduct stem cell research and that there is an irony in the fact that pro-life advocates would be demonstrating against research being done to find treatments for Alzheimer’s, Parkinson’s, and other devastating illnesses. This is not entirely fair to the pro-life community, but it makes a point.

In fact, I do not have trouble imaging protestors picketing stem cell research facilities for, as we just noted, when stem cell research and abortion are evaluated together and when the evaluative option is a single either/or, then abortion and stem cell research may appear indistinguishable from murder. Certainly the rhetoric of someone like Richard Doerflinger has been consistent in condemning both abortion and stem cell research as equivalent to murder. The cartoon draws attention to this consistency, even while it questions the commitment of pro-life advocates to scientific research designed to promote the quality of life.

In one sense, then, the cartoon probes whether there is an inconsistency between being pro-life and opposed to research an Alzheimer’s disease, Parkinson’s disease, and other devastating illnesses. I do not myself think that there is any inconsistency in being pro-life and opposed to stem cell research, but the cartoon does point in the direction of a fairly significant disconnect between the rhetoric and the reality of those opposed to stem cell research because they believe the early embryo is a person. To see this point, imagine that, instead of a stem cell clinic, the cartoon depicted on IVF clinic down the block from the abortion clinic and that the workers at the abortion clinic are noting how quiet things have gotten since the IVF clinic opened. The dramatic tension that made the original cartoon funny would be missing from our revised cartoon precisely because it is hard to imagine protestors disrupting the work at IVF clinics. To be sure, the Catholic church and others have argued that IVF is morally wrong, but the rhetoric condemning IVF is exceptionally muted compared to that condemning abortion or stem cell research. Nor has there been a concerted effort to put an end to IVF practice in this country as there has been in the case of abortion and stem cell research. Yet, if the embryo is a person from conception, then participating in IVF as it is practiced in this country, when early embryos are routinely frozen or discarded or both, is to be complicit with murder. Why, then, are there no organized efforts to shut down IVF clinics in this country? ⁷

Indeed, opponents of stem cell research and cloning often write as if these technologies raise the haunting specter of human embryo research for the first time. The reality, of course, is that the existence of in vitro fertilization depended entirely on embryo research and that every variation or innovation in IVF protocols involves experimentation on human embryos. Carol Tauer is one of the few scholars who has pressed this point. As Tauer sees it:

. . . the entire history of the research leading to the first successful IVF is the history of attempts to fertilize oocytes in the laboratory. Eventually these attempts succeeded, and the first IVF baby was born, followed by thousands of others in the ensuing decades.

The ethics literature contains scholarly discussions as to whether it is ethically permissible to make use of medical advances that result from unethical research. This discussion sometimes focuses on medical research conducted by the Nazis in concentration camps and institutions for retarded, mentally ill, and handicapped persons. Yet I have never seen reference to reproductive technologies in this context. If the fertilization of embryos in research is a practice that is abhorrent to many or most people, then would it not be logical to question the continuing use of the results of such research? (Even the Catholic Church, which opposes the use of IVF and most other forms of assisted reproduction, does not invoke this argument to support its opposition.) (Tauer, 2001, 153)

If the embryo research associated with IVF points to a problem of consistency for those who oppose stem cell research because it involves destroying persons, it is no less problematic for those who support stem cell research but insist on respecting the embryo and embrace the distinction between “research” and “spare” embryos. For as Tauer points out, Robert Edwards, the scientist involved in the first successful IVF procedure, began studying fertilization nearly thirty years before Louise Brown was born in 1978, and the first successful laboratory fertilization of human eggs took place a full ten years before she was born. Tauer quotes Edwards’ report on this work: “We fertilized many more eggs and were able to make detailed examinations of the successive stages of fertilization. We also took care to photograph everything because we would have to persuade colleagues of the truth of our discoveries” (Tauer, 154).⁸ Nor was the creation of these “research” embryos done secretly: Edwards and Steptoe published their work in the journal, Nature in 1970 (Edwards, Steptoe, and Purdy, 1970).

At the very least, then, there is something of an irony in the fact that so much attention has been devoted to developing and defending the distinctions between embryos created solely for research and embryos left over from IVF procedures, because there would be no embryos left over from IVF procedures had there not been embryos created solely for research purposes to develop IVF in the first place. Given this fact, and given that this fact is no great secret?even though it has not been discussed very much?it appears disingenuous to endorse the distinction between “research” and “spare” embryos as a way of demonstrating respect for the early embryo while nevertheless encouraging its destruction.

I have suggested that the fact that so much of the stem cell debate has been framed in terms of whether the embryo is a person with rights has been unfortunate because it has cast the debate in sharply individualistic terms and has led to a preoccupation with embryological development narrowly construed. In addition, however, framing the debate in terms of embryo status and embryo rights tends to exaggerate the differences among commentators in contrast to their similarities. Consider, for example, the response of conservative Judaism in the United States to this issue. Rabbi Elliot Dorff has prepared a responsum on stem cell research for the Rabbinical Assembly Committee on Jewish Law and Standards, and his responsum is instructive.⁹

As responsa are, it is structured in terms of relevant questions: in this case, two questions frame Dorff’s discussion. First, “may embryonic stem cells from frozen embryos originally created for purposes of procreation or embryonic germ cells from aborted fetuses be used for research?” (Dorff, 2002, 1). Second, “may embryonic stem cells from embryos created specifically for research, either by combining donated sperm and eggs in a petri dish or by cloning be used for research?” (1) I think it is noteworthy that the very questions that frame Dorff’s analysis both reflect and perpetuate a certain construction of the issue, but at this juncture, my point is different: given the way the debate has been framed, what most (non-Jewish) readers of Dorff’s analysis are likely to focus on is the difference between his treatment of the early embryo and that of others in the literature. Indeed, even where you might expect to find?and do in fact find on closer inspection?similarities between this Jewish analysis and Catholic reflection on this issue, the first impression will be that of difference. The reason, of course, is that our attention is drawn to Dorff’s analysis of the early embryo, and Jewish views are sharply different about embryo status than those of the Catholic church and other pro-life opponents of stem cell work.¹⁰

For example, Dorff points out that, according to the Talmud, during the first forty days of gestation, the embryo and the fetus are considered as simply water. From the forty-first day until birth, Jewish tradition considers the fetus as “the thigh of its mother.” Moreover, says Dorff:

As it happens, modern science provides good evidence to support the Rabbis’ understanding. As Rabbi Immanuel Jakobovits noted long ago, the Rabbis’ “forty days” is, by our obstetrical count, approximately fifty-six days, for the Rabbis counted from the woman’s first missed menstrual flow, while doctors today count from the point of conception, which is usually about two weeks earlier. By 56 days of gestation by obstetrical count the basic organs have already appeared in the fetus. Moreover, we now know that it is exactly at eight weeks of gestation that the fetus begins to get bone structure and therefore looks like something other than liquid. Indeed, the Rabbis probably came to their conclusion about the stages of development of the fetus because early miscarriages indeed looked like “merely water,” while those from 56 days on looks like a thigh with flesh and bones. (16)

• Our bodies are not ours; they belong to God and God commands that we seek to preserve life and health.
  
• All human beings, regardless of ability or disability are created in the image of God and are therefore to be valued as such.
  
• Humans are not God. We are finite and fallible and this fact ought to promote humility and urge caution.

Research done always will mean research foregone. Will this research help or avoid the problem of access to health, given that poverty and poor health are so desperately intertwined in this country? . . . How can difficult issues of global justice and fair distribution be handled in research involving private enterprise? (Zoloth, 2001, 238)

It was this decentering of the human and reification of the thing that was the catastrophe that felled the enterprise . . . It is not just that they breached a limit between what is appropriate to create and what is not, the process of the creation must be carefully mediated, with deep respect for persons over the temptations of the enterprise. Such a text elaborates on the tension between repairing the world . . . and acts that claim that the world is ours to control utterly (Zoloth, 2001, 106-107).

The “gift of life” is big business in America. For a nonprofit tissue bank, one typical donation can yield between $14,000 and $34,000 in downstream sales, sometimes far more than that. “Skins, tendons, heart valves, veins, and corneas are listed at about $110,000. Add bone from the same body, and one cadaver can be worth about $220,000.” Four of the largest nonprofit tissue banks told the Orange County Register that together they expected to produce sales totaling $261 million in 2000. (226)

Nor is the issue of downstream commodification restricted to the sale of donated cadaveric tissue; it arises in relation to IVF embryos donated for research. As Dorothy Nelkin and Lori Andrews point out in their book, Body Bazaar, IVF patients are not generally told what the research involving their donated embryos will include. Many will be unaware that their embryos will be used to develop commercial stem cell lines (Nelkin and Andrews, 2001, 35).

It is significant that even the most vocal advocates of procreative liberty and laissez-faire arrangements in reproductive matters recoil from the prospect of selling human embryos. Yet, although the commodification of tissue may be particularly troubling when it involves embryos, if there is a problem with commodifying and commercializing human tissue, it is a problem we confront with adult stem cell research as well as with hES cell work. Lori Knowles has made a similar point about being consistent in our moral judgments about commodifying embryos. She notes that fears about commodifying reproduction have led many to oppose the sale of embryos and to reject the idea that couples who donate embryos have any proprietary interest in the result of the research done with their embryos. As Knowles puts it, “if it is wrong to commercialize embryos because of their nature, then it is wrong for everyone. It is simply inconsistent to argue that couples should act altruistically because commercializing embryos is wrong, while permitting corporations and scientists to profit financially from cells derived by destroying those embryos” (Knowles, 1999, 40).

Knowles draws attention here to the fact that there is a tension between our moral and legal traditions as they apply to developments brought about by cloning, stem cell research, and the existence of ex utero human embryos, among other technological breakthroughs. For example, we patent embryonic stem cell lines, thereby insuring massive profits for patent holders, while decrying the commodification of embryonic life. Knowles is correct that there is a tension between our profit-based medical research model and our commitment to altruism and the access to health care that a commitment to justice demands. Adult stem cell research, of course, raises very similar issues, because the same tension exists between the need for proprietary control of technology and the need for affordable access. For example, patents have been sought and granted for human adult stem cells work as well as for embryonic stem cell technologies. According to a study on the patenting of inventions related to stem cell research commissioned by the European Group on Ethics in Science and New Technologies, as of October 2001, two thousand twenty-nine patents were applied or granted for stem cells and 512 patents were applied or granted for embryonic stem cell work (Van Overwalle, 2002, 23; see also McGee and Banger, 2002). As a result, access to therapies developed from adult stem cell research is likely to be as serious an issue as access to embryonic stem cell therapies.

Indeed, issues arising from commodification of both adult and embryonic stem cells are likely to dominate the next phase of the debate, if only because corporate interest in this work, both nationally and internationally, is so strong (Hill, 2003). Noting that, as of 2002, “a dozen biotech companies have entered the stem cell industry and have invested millions of dollars,” David Resnik suggests that the next stage of the stem cell debate will involve a battle over property rights relating to stem cells (Resnik, 2002, 130-31).

To be sure, the battle over property rights raises important legal and policy question, but it also raises ethical questions as well. For example, Resnik provides the following table of possible ethical objections to patenting stem cells.

Although the ethical objections to commodifying stem cell work can not be sorted out as neatly as this table suggests, Resnik correctly identifies a variety of such objections. I will not try to defend it here, but my own view is that the problem is not just that stem cells and their products may be commodified, but that market rhetoric may come to dominate the discussion (and practice) of regenerative medicine in a way that is dehumanizing. That is, market-rhetoric may lead us ultimately to think of humans as artifacts. In short, I take very seriously Margaret Radin’s argument that the rhetoric in which we conceive our world affects who and what we are (Radin, 1996, 82).¹¹ At the same time, however, stem cell research is most likely to bear therapeutic fruit, if there is a market in stem cells and their products. The pressing moral question, then, is how do we promote the benefits that stem cell research may yield without succumbing to a market rhetoric that reduces humans to commodities?

Several writers have suggested that one answer may be to promote greater governmental regulation. For example, Holland argues for moving beyond a policy of restricting federal funding of stem cell research but allowing an unregulated private market in this field to active regulation to curb the private sector’s work on stem cells. Lori Knowles suggests that the United States might adopt a body like Canada’s Patented Medicine Prices Review Board as a way to allow a market to function, but with oversight that would provide access to potential cells for further research and price controls of products to insure widespread access (Knowles, 1990, 40). George Annas has suggested that we need to establish a federal Human Experimentation Agency to regulate in the area of human experimentation. (Annas, 1998, 18). As Annas puts it:

Virtually all those who have studied the matter have concluded that a broad-based public panel is needed to oversee human experimentation in the areas of genetic engineering, human reproduction, xenografts, artificial organs, and other boundary-crossing experiments. (19)

• Development of a new kind of patent.
  
• Set limits on exclusive licensing through compulsory licensing.
  
• Lower the lifespan of hES cell patents
  
• Set stricter guidelines for hES patent utility (2)

Stem cell technologies have profound temporal implications for the human life course, because they can potentially utilize the earliest moments of ontogenesis to produce therapeutic tissues to augment deficiencies in aging bodies. Hence they may effect a major redistribution of tissue vitality from the first moments of life to the end of life. In doing so however they demonstrate the perfect contingency of any relationship between embryo and person, the non-teleological nature of the embryo’s developmental pathways. They show that the embryo’s life is not proto-human, and that the biology and biography of human life cannot be read backwards into its moment of origin. (Waldby and Squier, forthcoming)

Thus the ontological status of the embryo is not the only thing in question. The ontological status of the graft recipient must be negotiated, when the graft involves genetically-engineered stem cells from another species. And the ontological status of the illnesses to which biomedical technology responds is equally challenged, in an endless regression, as the division between veterinary and human medicine, or between zoonoses (diseases humans can catch from animals) and what has recently been dubbed humanooses, is called into question. This increasingly permeable, increasingly constructed barrier between human and animal presents us with another form of life to negotiate, whose boundary lies not between silicon and carbon, but rather between steps in the evolutionary ladder?or the branching development tree?of phylogenetic lifeforms. Stem cell technologies thus challenge both the temporal and spatial boundaries of human life, both our biography and our biological niche, giving a much broader meaning to the questioning of embryonic personhood. (Waldby and Squier, forthcoming)

‘What does the human being do, characteristically, as such?and not, say, as a member of a particular group, or a particular local community?’ To put it another way, what are the forms of activity, of doing and being, that constitute the human form of life and distinguish it from other actual or imaginable forms of life, such as the lives of animals and plants, or, on the other hand, of immortal gods as imagined in myths and legends (which frequently have precisely the function of delimiting the human)? (Nussbaum, 1995, 72)

Nussbaum notes that this inquiry proceeds by examining a wide variety of self-interpretations and that comparing characteristic human activities with non-human activities and, through myths and stories, comparing humans and the gods is particularly helpful. For one thing, such an inquiry helps us to define limits that derive from membership in the world of nature.

Indeed, although Nussbaum is particularly attentive to the wide variety of cultural interpretations of what it means to be human, she insists that to ground any essentialist or universal notion of human rights, one must attend to human biology. Although her account of the human is neither ahistorical nor a priori, it is linked to an “empirical study of a species-specific form of life” (1995, 75). When she develops her account of central human capabilities, she begins with the body. She writes:

We live all our lives in bodies of a certain sort, whose possibilities and vulnerabilities do not as such belong to one human society rather than another. These bodies, similar far more than dissimilar (given the enormous range of possibilities) are our homes, so to speak, opening certain options and denying others, giving us certain needs and also certain possibilities for excellence. The fact that any given human being might have lived anywhere and belonged to any culture is a great part of what grounds our mutual recognitions; this fact, in turn, has a great deal to do with the general humanness of the body, its great distinctness from other bodies. The experience of the body is culturally shaped, to be sure; the importance we ascribe to its various functions is also culturally shaped. But the body itself, not culturally variant in its nutritional and other related requirements, sets limits on what can be experienced and valued, ensuring a great deal of overlap. (Nussbaum, 1995, 76)

Nussbaum’s work both in identifying the judgments that underwrite compassion and in tying an account of rights to human function and capabilities that are presumably universal highlights what is at stake, not merely with stem cell research but with a growing list of biotechnological developments which appear to destabilize the concept of human nature and which require that we think carefully and hard about what it might mean for some humans to have access to these technologies while other humans do not.¹⁵ At the very least, the combination of what Rabinow describes as the biologicalization of identity around genetics rather than gender and race with the possibility of manipulating that genetic identity for those with the money or power to do so does not bode well for securing wide-spread compassion across economic or technological divides. Even more important, however, is the recognition that the very notion of human rights may ultimately rest on the idea (and what, until recently has always been the reality) of a natural human condition that is relatively stable.

I believe that Nussbaum is correct when she claims that inquiring into characteristic human activities and comparing these to non-human activities helps us to define limits and thereby to promote human flourishing. Unfortunately, what Susan Squier calls the “pluripotent rhetoric” of stem cell research is that of limitless possibilities (Squier, Liminal Lives). The ultimate limit, of course, is death and yet even this limit appears illusory in some visions of our biotech future.

It is worth noting in closing that William Safire’s New Year’s Day column at the dawn of the twenty-first century, in January 2000, was entitled “Why Die?” The longing behind this question is neither new nor unfamiliar. What is new is that this longing to escape the vulnerabilities and limitations of the body is united with a technology that holds out the prospect of fundamentally changing that body. Yet, I agree with Gerald McKenny that we need to ask whether we wish to accept and promote a view of bodily vulnerability as merely an obstacle to human flourishing, which ought to be overcome at any cost (McKenny, 1998, 223).

Although a longing for invulnerability is perhaps a quintessentially human trait, and although the quest to reduce the human suffering wrought by illness and disease is morally admirable, there is no mistaking the hubris behind the question, Why Die? Opponents of stem cell research have, from the start, argued that there is a kind of idolatry in a science that would reduce the human embryo to just so much biological material. What I have tried to show in this report is that such concerns need not be limited to those who think that the early embryo is fully a person. Nor should this kind of concern be limited to those who oppose stem cell research. I do not think the early embryo is a person and I believe that both embryonic and adult stem cell research should go forward under a system of strict regulation. Nevertheless, I confess to being haunted by the passages with which I began and I believe that future debates on stem cell research must take very seriously the worries about commodification and the possibility of fundamentally changing the trajectory of a human life.¹⁶

Appendix A

Jimmy Margulies, Editorial Cartoonist
The Record, Hackensack, New Jersey
Cartoon used with permission of the artist.

notes

1. Given the current status of technology, deriving human embryonic stem cells requires destroying embryos. If the cells could be derived without the destruction of embryos or if parthenogenetically stimulated eggs produced stem cells, issue of status would almost certainly fade. Nevertheless, serious ethical issues would still remain. This is one reason I believe it is a mistake to focus narrowly on embryo status.
   
2. Gene Outka has argued that there is an “internal coherence” to views of the embryo, issues of complicity, and views on adult stem cell research (Outka, 2002).
   
3. Although the HERP report claimed that “it is not the role of those who help form public policy to decide which of these views [of the embryo] is correct, there is little doubt that the panel adopted the pluralistic view. For that reason, most commentators found the above claim disingenuous.
4. Compare, for example, the various statements that Richard M. Doerflinger has made on the U. S. bishops’ behalf. See Doerflinger, 1988, 1998, 1999, 2001. Margaret Farley has argued that the Catholic preoccupation with abortion has eroded its credibility on other important social issues, including stem cell research. (See Farley, 2000).
5. Another debate that is at least partly shaped by focusing on embryo status revolves around the question of complicity. For example, supporters of stem cell research may harbor a residual uneasiness about endorsing the destruction of human embryos, at least if the number of articles in the literature explaining the concept of complicity with wrongdoing is any indication. John Robertson, Ronald Green, and Thomas Shannon, have all written on the issue of cooperation with evil in relation to stem cell research. (Robertson, 1999; Green, 2002; Shannon, 2001; see also Kaveny, 2000; and Gilliam, 1997). To be sure, the issue of complicity or cooperation with wrongdoing is a very traditional one in moral philosophy and theological ethics. Still, if the early embryo does not deserve the respect accorded persons and if destroying the embryo is compatible with respecting it, then deriving stem cells is not an act of wrongdoing and issues of complicity do not arise. Cahill also emphasizes the way a liberal individualist view of the person discounts the significance of embodiment. I will return to this point below.
6. Cahill also emphasizes the way a liberal individualist view of the person discounts the significance of embodiment. I will return to this point below.
7. That both those who view the embryo as a person and those who do not but who insist on respect for the embryo, have been remarkably cavalier with regard to the use of embryos in IVF programs can be seen by the fact that there are currently over 400,000 embryos frozen in the United States, a number we did not even know until quite recently (Hoffman et al. in association with The Society for Assisted Reproductive Technology and RAND, 2003).
8. In a commentary published in Nature, in September 2001, Edwards writes: “On the verge of clinical application, stem cells offer a startlingly fundamental approach to alleviating severe incurable human maladies. Fondly believed to be a recent development, they have in fact been part and parcel of human in-vitro fertilization (IVF) from as long ago as 1962.”
9. Dorff’s responsum was accepted by the Committee on Law and Standards by a vote of twenty-two to one in March 2002. On the basis of Dorff’s responsum the Rabbinical Assembly passed a resolution in April 2003 supporting stem cell research for therapeutic purposes. (Resolution in Support of Stem Cell Research and Education, April 2003: available at www.rabassembly.org.)
10. Alpers and Lo draw the distinction between commodification and commercialization as follows: “The issue of commodification involves treating either human beings or symbols of human life as merchandise or vendible goods. . . . Commercialization refers to the practice of realizing large profits from the development and sale of techniques or products that involve distinctive human material, such as embryos, eggs, or tissue” (Alpers and Lo, 1995).
11. Radin quotes Georg Lukács on the reification of commodities and the effects on human consciousness. Lukács writes: “The transformation of the commodity relation into a thing of ‘ghostly objectivity’ cannot therefore content itself with reduction of all objects for the gratification of human needs to commodities. It stamps its imprint upon the whole consciousness of man; his qualities and abilities are no longer an organic part of his personality, they are things which he can ‘own’ or ‘dispose of’ like the various objects of the external world” (Radin, 1996, 82). When we think about genes for enhancing memory or muscle mass, it is worth keeping in mind Lukács’s claim that human qualities and abilities may come to be thought of as objects for sale in the external world.
12. Erik Parens has noted the importance of attending to the big picture raised by stem cell work and how the politics of abortion has obscured that picture. See Parens, 2000.
13. In another essay, Glannon argues that substantially increasing the human life span would profoundly affect issues of personal identity and thus a sense of personal responsibility for one’s action. He ties his argument in interesting ways to the biology of memory function (Glannon, “Identity”). For a classic philosophical discussion of the problems associated with immortality, see Williams, 1973.
14. Although he is not discussing stem cell research explicitly, Paul Rabinow’s discussion of technological change wrought during the last two decades is worth noting. He writes: “In the United States, for example, in the last two decades, while the most passionate value conflicts have raged around abortion, a general reshaping of the sites of production of knowledge has been occurring. To cite the biotechnology industry, the growing stock of genomic information, and the simple but versatile and potent manipulative tools (exemplified by the polymerase chain reaction) is to name a few key elements; a more complete list would include the reshaping of American universities, the incessant acceleration in the computer domains, and the rise of ‘biosociality’ as a prime locus of identity?a biologicalization of identity different from the older biological categories of the West (gender, age, race) in that it is understood as inherently manipulable and re-formable” (Rabinow, 1999, 13). A couple of pages later, he writes: “My analysis points to the fact that the basic understanding and practices of ‘bare life’ have been altered. The genome projects (human, plant, animal, microorganismic) are demonstrating a powerful approach to life’s constituent matter. It is now known that DNA is universal among living beings. It is now known that DNA is extremely manipulable. One consequence among many others is that the boundaries between species need to be rethought; transgenic animals made neither by God nor by the long-term processes of evolution now exist (16).
15. For a science fiction exploration of this theme of selected genetic enhancement, species boundary crossing see Octavia Butler, Dawn.
16. A number of people either helped with the preparation of this report or provided feedback on an earlier draft. Thanks to Christa Adams, Diana Fritz Cates, William FitzPatrick, James L. Lissemore, Charlie Ponyik, Mary Jane Ponyik, Kristie Varga, Lisa Wells, and the ethics writers group at John Carroll University.

___________

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