US Stem Cell Legal Debacle the First Step In a Long Fight Based on Absurdity and Stupidity

Today The New York Times reported that US president Barack Obama's about one and a half year old turnaround of US policy on embryonic stem cell research has been halted by Chief Judge Royce C. Lamberth of the Federal District Court for the District of Columbia. Judge Lambert issued a temporary injunction against Obama's policy change that made federally funded research on embryonic stem cell lines legal regardless of when these lines were created. Before the change, federal funding (i.e. NIH grants) could only be granted to projects utilising cell-lines created prior to 9:00 P.M. EDT on August 9, 2001. The judge's argument for the ruling is that President Obama's policy change violates a 14 year old ban on the use of federal money for stem cell research involving the destruction of embryos. The complete ruling can be found here. US stem cell scientists have reacted with shock and the news have quickly waltzed around the world, giving quick and strong echo also in my own country (here, here, here, here, here, here, here, just to name a few), thus illustrating the importance of US policy in this area for scientists and clinicians all over the world, also in countries like my own, that allows stem cell research on the same conditions of ethical review as other types of human subject research.

Judge Lamberth's ruling is the direct result of a suit against Obama's policy change made by the so-called Alliance Defense Fund, a Christian lobbyist and legal activist organisation that describes itself as "defending the right to hear and speak the Truth". One may justifiably rant about the obvious absurdity of this claim in light of the fact that the suit against embryonic stem cell research is an obvious move to stop stem cell scientists to be able to find and speak the truth about stem cells and their role in the human body and impact on human health. However, at the same time, I was not surprised by this attempt from the world (in)famous US "religious right". After all, the basic ethical stance underlying this particular opposition to embryonic stem cell research is that the destruction of human embryos involved in creating the cell lines in question equals first degree murder. In consequence, using the products of such destruction for research equals a deeply immoral exploitation on the occurrence of what people holding this view logically has to regard as mass murder of the same epic proportions as the Holocaust, Stalin's terror and the "year zero" slaughter of Khmer Rouge Cambodia.

On the other side of the hedge, however, are all those people who do not subscribe to this extreme ethical view. Pointing to the enormous potential benefits to life and health of embryonic stem cell research they claim that even if human embryos are not "things" and worth protection (none of these people claim, e.g., that embryonic stem cell research should be unregulated or exempted from the requirement of research ethical review), the research is defensible.

In effect, we may probably look forward to a long legal battle in the US, Judge Lamberth's ruling being but the first step. But in the meantime we may ask about the ethical basis both for the ban on federal funding of embryo research and for Judge lamberth's application of this ban to stem cell research.

I must be honest and declare from the outset that US policy on embryo research has always struck me as part absurd, part plain stupid (no disrespect to US federal politicians intended, the stupidity is structural). This is not because I disagree with the basic ethical view on the moral importance of human embryos described earlier. That is, I do disagree with it, but even if this view is granted as an axiom, one would, I suggest, have to agree that US policy in this area suffers from a complete lack of supporting arguments. Having been involved in the academic ethics debate about embryo research as well as the process of political debate leading to the clear legalisation of embryonic stem cell research in Sweden in the early years of this century, I have had the opportunity to think about this topic once again recently, due to new research on the ethics not of stem cell research but that of regulating stem cell research, undertaken in cooperation with Daniela Cutas, and very recently published in the book Contested Cells - Global Perspectives on the Stem Cell Debate.

So let's start with the absurdity. The idea of the destruction of human embryos being murder, and the systematic such destruction thus being a case of genocide, does not directly imply that it is immoral to use cell lines resulting from such destruction for research or other purposes. For instance, even today, hospitals and doctors all over the world are making use of the results of the Nazi freezing experiments without any representative of the US religious right raising his voice in protest. However, we may also compare to how anyone of us would react if we learned that the hospitals of our country were making use of tissue and organs for transplantation that had been produced by the elaborate murder of people in other countries in order to obtain these organs and tissue. It is, I believe, in this vein that the opposition to embryonic stem cell research has to be understood - again, assuming for the sake of discussion the basic premise regarding the moral importance of embryos. Now, what is the logical conclusion of such a piece of reasoning? Well, I conjecture, it is certainly not that the sort of policy we find in the US is justified.

Consider the Bush policy of banning the funding of research on cell lines produced after August 9, 2001. As I understand it, the result of the ADF suit and Judge Lamberth's subsequent ruling is that this is the policy that is now in effect until further legal notice. However, this policy is not supported by the ethical argument just set out. This argument makes no difference between the destruction of embryos or the use of the cell lines thus produced on the basis of when this destruction and production took place. Murder remains murder even if it occurred before August 9, 2001, and what is, in virtue of the reasoning explained above, an immoral exploitation on the occurrence of murder remains so whenever the murder is supposed to have taken place. In fact, Dr. Cutas and myself conclude, in the chapter mentioned above, the only way to square the Bush policy with the view on the moral importance of embryos entertained by its supporters would be to revise the latter so that strong moral importance is attached only to embryos that exist after August 9, 2001. The absurdity of this sort of standpoint should be obvious even to the most nutty "pro-lifer". That is, had Judge Lamberth been consistent in his ruling, he would have invalidated not only Obama's but also Bush's policy on embryonic stem cell research. His current ruling is, in effect, genuinely paradoxical.

So, over to stupidity. This point regards not only US policy on stem cell research, but its entire legal take on all sorts of embryo research. Again, I'm assuming for the sake of discussion, the validity of the view on the moral importance of embryos already mentioned. Morally speaking, embryo research is in effect genocide. If true, this is excellent reasons indeed to ban embryo research, isn't it?! Indeed it is, however, US policy is not about banning embryo research. You may destroy human embryos by doing research or any other thing, as long as you are not funding your activities through federal taxes. Genocide is OK if you pay for it yourself!! In fact, it is well known among scholars studying the ethical, legal and social implications of genetics and reproductive technology that the chief effect of the US ban on federal funding of embryo research is that all activities where embryos are destroyed are now safely out of reach of any sort of regulation within the confines of the commercial secrecy of corporations and private enterprises. In consequence, embryos are being destroyed at least as much as ever, but due to the ban even farther off from the reach of the long arm of the law than before. This is simply stupid. Especially people who view embryo research as genocide should think so - on this basis, the conclusion has to be that the ban makes a bad thing even worse. And to get away from this stupidity, the only way would seem to lead back to absurdity; claiming that embryo destruction is not murder as long as US federal tax payers don't pay for it. Again, even the nuttiest of pro-lifer should recognise the absurdity of such a claim, and thus oppose and fight the ban regarding embryo research.