New Campaign for Lethal Embryo Research Skirts the Law

By Richard M. Doerflinger

Abortion advocates have begun this Congress with a new effort to force taxpayers to fund lethal experiments using human embryos. They are taking a two-pronged approach: Rescind the federal law that has forbidden such funding since 1995, or have it so thoroughly reinterpreted that it can be evaded. It now seems the latter course will be pursued for the time being.

At the center of this campaign are elusive but potentially useful cells known as "embryonic stem cells," which develop inside human embryos when they are about a week old. Some scientists want to isolate these versatile cells, grow them in culture, and, theoretically, direct them to form the different cells and tissues of the human body so they can be transplanted into patients to replace damaged or diseased tissue.

The catch is that harvesting these cells from a human embryo kills the embryo. And since 1995, appropriations bills governing the Department of Health and Human Services (HHS) have banned funding of research in which human embryos are destroyed. But advocates have made it clear that nothing will stop them - - neither morality, nor law, nor even new evidence that such experiments are unnecessary for medical progress.

Plans to rescind the federal ban were announced at a December 2 hearing held by the Senate Appropriations Subcommittee on Labor and Health and Human Services. Chairman Arlen Specter (R-Pa.) and ranking minority member Tom Harkin (D-Ia.) said then that the "promise" of stem cells justifies overturning the pro-life law. (See NRL News, 12/10/98, page 8.)

Their enthusiasm led them to hold two additional hearings in January, even while the full Senate was focusing on the impeachment trial of President Clinton. (At the second of these hearings, Senator Harkin said he had enjoyed reading NRL News's "very interesting" December article on this issue, but showed no sign of changing his plans as a result.)

The subcommittee's January 12 hearing showcased researchers and patients who have been led to believe that embryonic stem cells will cure a variety of diseases. Parkinson's patient Richard Pikunis and Juvenile Diabetes Foundation spokesperson Douglas Melton suggested that these cells may provide a miracle cure for these diseases - - a claim already made, wrongly, five years ago regarding fetal tissue harvested from abortion victims.

Melton even emphasized that lethal experiments on embryos are needed because "islet cell transplantation" - - including transplants using fetal tissue - - have proved "largely unsuccessful" in treating diabetes. Tragically, heartfelt testimony on the need to cure terrible diseases was used by the subcommittee solely to justify the destruction of embryos, not to explore medical options that may be far more promising.

Professor Lawrence Goldstein, representing the American Society for Cell Biology, testified on "the need to ensure lifesaving progress in medical research, while simultaneously protecting ethical and moral decency." His "moral" proposal? That stem cells be obtained by "ethically validated means." This turned out to mean merely that the embryos directly killed for their stem cells should be those considered "extra" or "spare" by fertility clinics.

Senator Specter endorsed Goldstein's view, observing that no harm is done by destroying an embryo that would have been discarded anyway and so could not become a "person." Ignored here was the long-standing federal policy that children intended for abortion must be treated by the government with the same respect accorded to children intended for live birth.

Sen. Specter also had a word of advice for advocacy groups wanting to help him reverse the embryo research ban: They must "disabuse" people, he said, of "the notion that using embryos is anything like taking a human life."

This may prove difficult. At the hearing, advocates for destructive embryo research cited the 1994 report of the National Institutes of Health's (NIH) Human Embryo Research Panel as a guide to addressing "ethical" concerns. That report's morally obtuse call for the special creation of human embryos for research purposes was rejected even by President Clinton; its call for lethal experiments on "spare" embryos has been rejected by Congress every year since 1995. Yet even that panel said the human embryo is "a developing form of human life." Specter was calling for a campaign of disinformation.

Senator Specter also pressed for estimates on how soon various diseases will be cured if lethal experiments on embryos receive federal funds. Some witnesses balked, because such predictions are sheer guesswork. Dr. Goldstein said he did not have "a good sense" for this.

After Senator Specter insisted that such figures are important in making the political case to members of Congress, Goldstein finally said there might be "some hope" from the research in "five to ten years." In other words, one could not predict clinical advances from this research anytime soon.

Brushed aside, here and at a later hearing, was startling evidence that the goals of embryo research may be met in other ways. New advances in human growth factors, telomerase, and even adult stem cells could make embryonic stem cells irrelevant to medical progress.

Some of these alternatives have already been used successfully in patients; others are at the research stage, but would avoid the problems of tissue rejection that can arise when one individual's tissue is transplanted into someone else. [See sidebar, page 29.]

The only other subcommittee member at the January 12 hearing, Senator Harkin, said it was "disappointing" that the Clinton Administration had not yet provided a legal analysis on how much embryonic stem cell research might be funded even under current law. Specter said Harkin may be right that the law does not forbid funding the research now - - but if there is a ban on funding "we can lift that ban."

A week later, Senator Harkin got his wish. On January 19 the National Bioethics Advisory Commission, an advisory group appointed by President Clinton, met at his request to discuss the most bizarre recent proposal for embryo research: injecting genetic material from human body cells into cows' eggs to make (mostly) human embryos by cloning, then dissecting the embryos for their stem cells. NIH Director Harold Varmus, invited to testify on "scientific issues," chose instead to grab the day's headlines by releasing the long-awaited legal analysis by HHS general counsel Harriet Rabb. Her memo claims that current law allows federal funding of stem cell research based on the direct destruction of human embryos.

The HHS general counsel reached her conclusion by ignoring or distorting key aspects of the law. At a further hearing before Sen. Specter on January 26, convened to discuss the HHS memo, this author raised the following points.

First, HHS narrowly interprets the funding ban on embryo research to ban only the specific act of destroying an embryo. So long as embryos are destroyed with private funds, federal funds can be used for every other part of an experiment that depends upon such destruction. But this ignores the wording of Congress's ban, which forbids all support for "research in which" human embryos are harmed or destroyed. If destroying embryos is a necessary part of a research project, federal funds cannot be used for other parts of that project. In fact the ban's prime House sponsor, Rep. Jay Dickey (R-Ok.), declared after the hearing that HHS has misrepresented his amendment.

Second, HHS creates a new and narrow definition of "embryo" to evade the law. It claims that a human embryo is not really a "organism" unless it is proved that the embryo would have become a "human being" (by which HHS seems to mean a liveborn infant) if implanted in a woman's womb. In his January 26 testimony, NIH Director Varmus went further, defining a "human being" as "an entire mature organism."

By HHS's definition, researchers can use federal funds to create and destroy embryos to their heart's content - - as long as they use damaged or "defective" embryos not expected to survive to live birth. Researchers have already offered to engineer lethal defects in advance into the embryos they create for research, to completely evade Congress's law as well as President Clinton's 1994 ban on creating "research embryos."

HHS's strange definition also evades unsettling questions, raised by researchers themselves, as to whether the stem cells they grow in culture might sometimes try to come back together in culture and develop as early embryos. If these experiments accidentally create and destroy embryos in culture, they could not be funded. But NIH Director Varmus brushed this concern aside at the hearing. He said these entities probably cannot survive to live birth if implanted - - and it would be grossly unethical to try to find out. His implication was: We do not know, and cannot find out, whether such an experiment violates the law, so we should go ahead and fund it.

But of course, HHS's definition of "human being" has no grounding in science or law. Embryology textbooks tell us the embryo is a "human being," and even NIH's own Human Embryo Research Panel calls the early embryo "a developing form of human life." Moreover, federal law does not restrict "human being" to those already born. For example, Congress in 1981 formally commissioned a federal advisory group to study issues in genetics, "taking into account the essential equality of all human beings, born and unborn" (42 USC §300v-1).

Third, HHS correctly notes that current law allows some use of fetal tissue from abortions in research. But it ignores that law's own restrictions. Cells must be obtained only after a "fetus or embryo" is dead - - and the timing or manner of the killing cannot be determined solely by the needs of research.

When human embryos are dissected for their stem cells, it is the harvesting procedure itself that kills them - - and in a manner solely determined by researchers' need for usable cells. At the January 26 hearing, Dr. Varmus confirmed that these cells cannot be harvested from human embryos without directly destroying the embryos.

Despite these gross flaws, Specter and Harkin welcomed HHS's green light and temporarily set aside plans to rescind the embryo research law. Rewriting the law by administrative sleight-of-hand would do just as well - - and with less accountability to Congress or taxpayers.

Future Action

What happens next? Dr. Varmus says the NIH will prepare guidelines to implement HHS's ruling and fund embryonic stem cell research, in consultation with members of the old Human Embryo Research Panel and his own Advisory Committee. These are the groups that in 1994 unanimously favored the special creation and destruction of human embryos for research purposes - - groups whose recommendations were then partly rejected by President Clinton and completely rejected by Congress. The NIH is so confident that it is willing to put a thumb in the eye of both President and Congress, as it moves to fund experiments that many members of Congress thought they had banned.

The NIH is already soliciting researchers to submit grant requests for stem cell experiments, but final guidelines and actual funds may not be issued until June. In the meantime, members of Congress are writing to HHS Secretary Donna Shalala urging her to reverse her general counsel's deeply flawed legal opinion. And groups on both sides of the abortion issue are gearing up for a fight - - with the National Abortion and Reproductive Rights Action League announcing January 22 that rescinding the federal ban on destructive embryo research is one of its top priorities this year.

As in 1994, the very smallest and most vulnerable members of the human family will again be at the center of our nation's debate on exploiting human beings in the name of "progress."

Mr. Doerflinger is associate director for policy development at the Secretariat for Pro-Life Activities, National Conference of Catholic Bishops and a frequent contributor to NRLNews.