Staff Working Paper

The announcement of the Bush Administration's human embryonic stem cell research funding policy in the summer of 2001 certainly did not end the debates surrounding the issue. The policy offered a particular target to which participants in the debate could react, but the basic questions involved in assessing how the federal government should approach embryonic stem cell research remained just as relevant, and just as controversial, as they had been before. In this paper, we offer an overview of that still continuing debate.  Without attempting to provide anything like a full account of different positions and arguments, we hope, rather, to point to the chief fault lines in the argument-to the issues that any interested citizen might wish to ponder.  First, we will outline the general form of the moral argument, noting that-although other issues are certainly also in play-the central issue has often turned on the moral standing of the human embryo. Second, we will discuss specific questions and critiques regarding the Administration's policy, as those have emerged in public discussion. Finally, we will discuss the moral standing of the human embryo, seeking again to outline the chief fault lines in that continuing debate.

While we will raise these arguments and counterarguments, problems, questions, and concerns, our purpose in this paper is not finally to assess the validity of the competing claims and to arrive at a conclusion, but-in line with the Council's charge to monitor developments in this area-to present them more or less as they have appeared in the public debates of the past several years. This way of proceeding has one especially prominent drawback: it tends to present all arguments as equivalent in their importance and prevalence. We will seek to avoid this whenever possible, and to offer some sense of which have been the key components of the public debate.

I. The nature of the moral argument

In casual conversation and sometimes in more theoretical reasoning, moral questions are often analyzed under the metaphors of "weighing" or "balancing."  These metaphors, together with the language of "value(s)," gives rise to a kind of moral reasoning familiar to all of us and commonly used by all of us.  We weigh the value of various possibilities over against each other; we balance competing interests.  Quite often, to be sure, it may not really be clear how this balancing actually takes place, and it may not be obvious that there is any scale on which the various values at stake can really be weighed.  But the metaphor is a common one, used by almost all of us at least sometimes.

We also use another related but contrasting kind of moral language, however-what we can call the language of overriding concerns, or sometimes perhaps the language of "rights."  Most often we use this language to suggest that certain claims have a kind of superseding quality, and that it would be inappropriate simply to think of these claims as one more "value" to be placed on a scale of competing values.  These sorts of principles have a kind of trump in our moral reasoning. They offer claims to be protected even against actions that might seem to realize important values.

These two approaches to moral reasoning are by no means mutually exclusive, and in many cases moral judgments call upon us to employ both at once. While some ideal or principle may be held essential to the judgment, other goods, balanced together, shape the form or outcome of the judgment as well.

This has certainly been the case in the public debate over federal funding of human embryonic stem cell research. In one sense, almost all observers have agreed that federal policy must seek a certain balance between two competing interests: the progress of medical research and treatment, and respect for nascent human life. Indeed, President Bush himself framed the issue in these terms, saying a few weeks before his decision was announced that his policy would "need to balance value and respect for life with the promise of science, and the hope of saving life."¹ But not all participants in the debates have had the same idea of what such balance should entail, and therefore how weight might be assigned to the competing demands.

For some, the degree of medical promise should decisively affect the degree of government support for embryonic stem cell research, and therefore the degree of protection afforded to nascent human life. This approach suggests that the decisive data (though of course not the exclusive ones) in establishing policy must be scientific data about what might be achieved with human embryonic stem cells.² The greater the promise of the research, the more support it should receive, and the more it might outweigh the reasons offered for fundamentally opposing the techniques involved.³ In this sense, the question is truly understood at its foundation as a balancing of competing goods, and the good given the most prominence and weight is the very great good of medical progress toward the relief of suffering. A great deal of the arguments against the Administration's policy have begun from this premise-explicitly or implicitly-and have proceeded by laying out the possible medical benefits of embryonic stem cell research, or the harms (to patients or to American science) of withholding support. We shall review a number of these lines of argument in more detail below, but it is worth noting that most of them begin from the assumption that the policy decision at hand ought rightly to be based on a reasoned balancing of crucial moral concerns-all of which matter, but none of which overrides the others in any decisive way.

Others, however, have suggested that the position of opponents of research rests upon claims to a principle of inviolability, and therefore-if these claims are valid-could not simply be outweighed by the promise of research.⁴ In this view, the basic principle that the federal government should not support the destruction of human embryos is to be upheld, regardless of the promise of research. What remains then to be balanced is the extent to which the government might go out of its way to advance the secondary moral aim-the progress of medical research-within the bounds of the principle.⁵ In this sense, the underlying question is understood as governed above all by one overriding principle, and only the extent and some particular provisions of the policy are left up to an assessment of the moral weight of other priorities. Proponents of the various forms of this position generally argue that the claim of the human embryo to protection presents us with a fundamental duty, to be ignored only in extreme circumstances, rather than just with one good to be balanced off against others.⁶

In presenting the matter this way, adherents of this view consciously emulate the model of human subjects research, which offers an example of seeking to advance knowledge and cures but keeping from trespassing upon the grounds of human life, safety, and dignity.⁷ The example of the nearly universal adherence of researchers to human subject protections over the past several decades, these commentators suggest, demonstrates that the needs of research are not always treated as paramount, and that not only the general public but also the scientific community recognizes instances in which research work-however important it is-must be limited.⁸ Researchers do not balance off the interests of human subjects against the importance of their work; rather they respect a principled boundary, the importance of which trumps even the most promising experiment. For some defenders of the embryo, the prospect of embryo research raises similar concerns, and so many argue that this issue too should be decided on the basis of a hard rule, and not by a tally on a balance sheet of benefits.⁹

But this analogy holds only if the analogy of the human embryo and the human research subject holds. Therefore, which group has the better argument with regard to the basic character of the issue before us may depend, in large part, on one's understanding of the human embryo; and so in one sense the question of whether the ethical challenge at issue ought to be understood essentially as a matter of balance or largely as a matter of principle itself depends upon the moral status of the embryo. That question of the moral status of the human embryo, as we shall see later in this paper, is by no means the only relevant question, but it may well be the most central and critical question, and the one most responsible for giving shape to the different basic approaches that different participants in the public debate have pursued, and for their differing views on the essential nature of the moral issue at stake, and of which moral goods should be weighted most heavily, or should supersede other concerns.

We turn next to arguments regarding that very question: which moral concerns should be given priority in shaping government policy toward human embryonic stem cell research.

II. The moral aims of policy

A significant part of the public debate surrounding human embryonic stem cell research policy has involved differing views of just which aims or ideals should most directly motivate policymakers in this arena. The Bush Administration's funding policy-while it appears to seek some balance between protection of human embryos and advancement of scientific research-seems to take as its overriding principle the concern that human embryos not be violated or destroyed. But a number of commentators in recent years-and of course particularly those who ascribe lesser degrees of moral status to the human embryo-have proposed alternative principles for policy.

a) The Importance of Relieving Suffering

Many observers argue that one such competing principle is the duty to seek to relieve the pain and suffering of others-the moral aim that motivates the work of biomedical science.  This aim is broadly, indeed almost universally, shared. Indeed, the Administration's own policy as outlined by its advocates, while it seeks to advance the protection of nascent human life, at the same time explicitly seeks also to advance medical research as far as is morally permissible. Some commentators argue that the Administration has chosen to emphasize the wrong one of these aims as the governing principle of its approach.

This case has generally taken as its starting point the universal desire to relieve the suffering of those afflicted by pain and disease. The cause of curing disease has a human face, the face of a loved one or neighbor, bent under the suffering of an incompletely understood and untreated disease. As a result, the motivation to know is linked to a burning desire to relieve. How, wonder many commentators, could anyone think of withholding support for research toward therapies for such devastating diseases and conditions as spinal cord injury, diabetes, and Parkinson's?¹⁰ Surely, the pain and suffering of those in need should outweigh concerns for human embryos frozen in a laboratory, argue advocates of this view.¹¹

One notable strategy in support of this view in the past several years has involved claims about disease prevalence, accompanied by assertions that those who would obstruct the public funding of research that might help patients suffering from such diseases must bear the blame for the suffering and perhaps the deaths of such patients.¹² But some opponents have argued that if this line of reasoning is to be abided then, in principle, any individual could compel us to perform otherwise immoral actions by threatening to do some evil if we did not comply.¹³

In most cases, however, the arguments for founding federal funding policy in the importance of biomedical research do not take the extreme form of blaming opponents for the suffering of the sick. Rather, they speak to the promise of bringing relief to those who most need it, and point to the immense benefits already delivered to us by modern medicine, and argue that the federal government should advance this cause in whatever ways it reasonably can. Many advocates of this view express concern for the respectful treatment of nascent human life, but argue that the claims of human embryos-whether in general, or in particular circumstances, like those stored in fertility clinic freezers-cannot simply trump the claims of promising medical research.¹⁴

In response, one prominent commentator has argued in broad terms against the underlying assumption that the demands of biomedical research should somehow be seen as "imperative." Such work, he contends, should not be seen as inherently imperative, and its claims for support may be overridden even by a level of concern for nascent human life that does not suppose that embryos possess full human moral status. He suggests that it is not at all obvious that individuals or the government have a responsibility to support such research, or that such a responsibility would override other moral duties.¹⁵ 

Others argue that the case in favor of something approaching an imperative need for support of human embryonic stem cell research is undermined by the present rules governing the treatment of human subjects in research. These rules prohibit certain sorts of procedures-however beneficial they might be to the cause of understanding and curing disease-if they endanger or violate the dignity of human subjects of the research. Those who argue that the importance of medical research and treatment should override the desire to protect human embryos presumably would not propose to override human subject protections in research on children or adults. They would likely approach the matter differently because they do not consider human embryos and children or adults to be equivalent. The difference, therefore, has to do not with the importance of research, but with the status of nascent human life, which again turns out to be the fundamental point at issue.¹⁶

It is clear, nonetheless, that the moral claims of medical research and treatment are among the most powerful in the debate over human embryonic stem cell policy, and are acknowledged as profoundly important even by those who do not finally take them to be decisive. Most arguments in opposition to the present funding policy are grounded in one or another of these claims.

b) Freedom to Research

Other opponents of the present policy argue that not only the purpose or the product of research, but also the freedom to conduct research itself offers the principle by which federal policy ought to be guided. They regard restraints on scientific research as inherently offensive and generally unjustifiable.¹⁷ The cherished ideals of freedom of thought, freedom of conscience, and specifically in this context, freedom of inquiry, trump concerns over the moral status of human embryos, the argument runs.¹⁸

The most common claim for the protection of research as a basic right involves some form of an appeal to the First Amendment's protection of free speech, interpreted through the years to cover free expression and perhaps freedom of inquiry and thought.¹⁹ Some argue that research is a form of expression, particularly when it is politically or socially controversial, and when restraints upon it are imposed for moral reasons.²⁰ "One could make the case that research is expressive activity and that the search for knowledge is intrinsically within the First Amendment's protection for freedom of thought," says one ethicist.²¹

Opponents, however, contend that this claim has never been tested in the courts, and seems far-fetched. Most currently controversial biological research involves the manipulation of living matter, rather than the mere observation of natural objects. It is therefore as much action as expression, as much creation as discovery. It is difficult to see, they argue, how such activity (as opposed to the reporting of the results of such activity) could be classified as a form of expression. "Scientists may have the right to pursue knowledge in any way they want cognitively, intellectually," argues one observer, "but when it comes to concrete action in the lab, that becomes conduct and the First Amendment protection for that is far, far weaker."²²

Moreover, argues at least one commentator, even if one did stipulate that research activity is to be protected from government restriction, it is far from clear that limits on federal funding would constitute such a restriction. Indeed, legislative and judicial precedents suggest it would not. The government routinely refrains from funding activities it otherwise permits, or even guards as constitutionally protected rights. A line of Supreme Court decisions stretching from 1977 to 1991, dealing with abortion and government funding, established the principle that the constitution does not require government to fund even those activities that the Constitution protects.²³ The only issue in the present debate is funding, and so the protected status of an activity seems not be a determining factor.²⁴

And finally, some critics of the case for a right to research point once more to the fact that scientific research-both that conducted in private and (especially) that conducted with government funding-is usually subject to certain restrictions already, particularly with regard to human subject protections. The proposition that embryo research should not be subject to such restrictions on funding or practice hinges on an argument about the sort of subject that the human embryo constitutes, rather than about the standing of research as such.²⁵ The question, therefore, is once more the question of the status of the embryo.

However they approach the matter, then, a substantial number of those engaged in the debate over federal funding policy seem to be brought back to the fundamental question of the moral status of the human embryo. Any approach to the question of federal funding of embryonic stem cell research which aims to focus primarily on something other than this question of the moral status of the embryo seems almost by necessity to assume that the human embryo is not possessed of fully human moral status. On the other hand, if the human embryo ought rightly to be treated as inviolable-as some have argued-then questions of balancing other goods or giving priority to other principles are largely rendered moot. And so to many (though as we shall discuss, not all) observers, the central questions in this arena would appear to be those that surround the human embryo: how ought we to think about and act toward the human embryo? And are all human embryos to be treated the same, or are some, because of their circumstances, origins, or prospects, to be treated differently from others?

We shall review some of the positions expressed on these critical questions below. But the Administration's policy at least claims a grounding in one such position-the argument that human embryos ought not to be violated, and therefore that federal funds should not support such violations. A number of those who have written about the policy in recent years-including both supporters and critics-have assessed it on these grounds, and judged it against its own claims and terms. As a result, several general categories of criticism of the policy itself, in its particulars, have emerged.

III. The character of the policy

Aside from the general questions of which aims ought most reasonably to guide federal policy, a great many observers in the past two years have of course also assessed the particulars of the administration's funding policy, on scientific, political, and moral terms. Critics have generally taken on the policy through one or more of three general lines of argument: that it is arbitrary, that it is unsustainable, and that it is inconsistent. Defenders of the policy, meanwhile, have usually sought to answer the critics along these same lines.

One quite common line of argument criticizes the present funding policy as essentially arbitrary, because it relies on what is deemed a capricious cutoff date. Embryos destroyed on August 8, 2001, can serve as resources for federally funded research, but those destroyed the next day are not eligible. The only difference is the date, argue some critics, and what is morally significant about that particular date? If the policy of funding human embryonic stem cell research serves a genuine good, these commentators suggest, would it not be equally good regardless of when the cells lines were derived? Would it not, therefore, make sense to permit funding for all cell lines derived on either side of the date, provided they are otherwise eligible?²⁸ And if funding of research is unacceptable, then it should simply be prohibited, regardless of when cell lines were first derived.²⁹ "It is difficult to see," writes one critic, "what ethical reasoning would commend a policy that takes as its central distinction the time chosen for political convenience to deliver a presidential address."³⁰

Meanwhile, some supporters of the policy contend that while the cut-off date of August 9, 2001, certainly has no inherent moral significance, it is imbued with meaning by the simple fact that it was the date of the announcement of the policy. That date, in other words, was the line between past embryo-destruction, which could no longer be undone, and future embryo destruction, which could still be influenced by the federal government's funding rules. If the aim was to avoid encouraging or incentivizing the future destruction of human embryos, they argue, then drawing a hard line between past and future would be crucial.³¹ That line could only reasonably be drawn at the moment of the decision's announcement (or before it), since drawing it at some point in the future would create a powerful incentive to quicken the pace of work until the cut-off date arrives. The date, they say, is therefore not a morally arbitrary marker in the context of the policy, but is rather a crucial element of the logic of the policy.³²

A further, and more common, critique of the current policy suggests that its approach cannot be expected to hold over time, and that it will prove unsustainable fairly quickly.

One form of this argument suggests that the policy has created a situation in which scientists may make some progress using existing stem cell lines, but would then be prohibited from capitalizing on what they learn and making further progress using further lines with federal funds. As the editors of the Washington Post put it: "Mr. Bush's compromise policy will be a reasonable one only as long as the existing lines are capable of supporting the research scientists need to perform."³³ Indeed, some have argued that by explicitly encouraging and speaking of the potential medical value of human embryonic stem cell research, the president himself created the circumstances that will make the constraints of the policy unsustainable. "Bush's decision was at its core an endorsement of the promise of human embryonic stem cells and their importance to the fledgling field of regenerative medicine," wrote one critic, and if that is the core message of the decision, then the resulting policy seems insufficient.³⁴ 

Others have argued on more practical grounds that, regardless of the principle expounded by the policy, its effects will be unbearable for American scientists, and will force a reconsideration.³⁵ The limits placed on funding in the current policy, several observers have predicted, will seriously hamper and hold back embryonic stem cell research work in the United States, perhaps causing prominent scientists to leave the country in search of greater support abroad.³⁶ If that were to occur, it is argued, the policy would prove genuinely damaging to American science, and therefore to the national interest, and would need to be changed.³⁷

In response to this specific point, some defenders of the policy have noted that for the time being there has not been news of any notable migration of prominent stem-cell researchers to foreign countries, and that American researchers can continue to work with private funds.³⁸

But even apart from worries about a "brain-drain" in the field, some have argued that a lack of funding is preventing progress in research, and discouraging even private funding in the field,³⁹ and that the lines made available simply will not be enough,⁴⁰ or indeed that they have already proven insufficient.⁴¹ As scientists make their case that important work is being hampered, it is argued, the policy will prove unsustainable politically and practically.⁴²

A similar argument has also been made in nearly the opposite terms. That is, some have said that if or when ongoing embryonic stem cell research produces a spectacular breakthrough in understanding or treating disease, the pressure to alter the policy would prove unstoppable.⁴³ This way, whether the future brings announcements of great progress, or whether it brings no news of advances, the result will be pressure for a policy that funds research more broadly.

Those defenders of the policy who have addressed these claims of unsustainabilty, have generally pointed to the policy's stated grounding in principle-a principle that would not change in light of scientific advances. "The general question is, well, will these cell lines be enough?," one observer has noted, "and a complicity argument [like that at the heart of the policy] will only work if the answer to that question is well, I guess they'll have to be enough."⁴⁴ Or, put differently, if the policy is founded primarily in a judgment about the moral status of the human embryo, and only secondarily in a judgment about the value of embryonic stem cell research, then advances in research alone would not be sufficient to overturn it. If it is right before such advances, it would still be valid after⁴⁵-though again, of course, whether it is right to begin with is itself a point of great contention.

 In responding to critiques like those just discussed, defenders of the Administration's policy generally point to the principles that define the approach of the policy, as partially laid out in a previous staff paper (prepared for the Council's September meeting). But some criticism of the policy has directed itself precisely to that claim of consistent adherence to principle, and proposed that the policy is morally contradictory, or at least inconsistent, in its own terms.

One common form of this charge of inconsistency has to do with the distinction drawn in policy between public and private funding. The Administration's policy addresses itself only to federal funding of embryo research, and not to the conduct of such research in the private sector. But the source of funding, this line of criticism suggests, could have no bearing on the question of the embryo's moral status. If federal funding for research that destroys human embryos is so troublesome, then why should such research be allowed to proceed when privately funded? Acting to restrict one but not the other may be prudent, but it seems inconsistent.⁴⁶ Though the president cannot simply ban embryo research himself, he could attempt to convince the Congress to do so, and he could have done so as an element of his funding policy decision. But he did not. In fact, some prominent defenders of the policy might be said to contribute to these doubts about its grounding in consistent principle, by making the fact of ongoing private research an element of their defense.⁴⁷

There may be some political or structural reasons for drawing a distinction in federal policy between what is funded and what is permitted-questions of federalism and other legal realities no doubt enter the picture, and indeed those who publicly defend the human embryo are, in many cases, actively seeking prohibitions on all embryo research in individual states.ⁱ But, critics point out, they generally say little on the larger question of permissibility at the federal level. By making so much of the importance of funding, these critics argue, the policy puts into question the importance of preventing embryo destruction more generally, and so the importance of the policy's declared guiding principle.

A related criticism contends that the distinction drawn between techniques in which human embryos are destroyed and techniques that follow on the heels of that destruction is itself inconsistent-a distinction without a difference, drawn for political cover.⁴⁸ "Pretending that the scientists who do stem cell research are in no way complicit in the destruction of embryos is just wrong, a smoke and mirrors game," writes one critic, "it would be much better to take the issue on directly by making the argument that destroying embryos in this way is morally justified-is, in effect, a just sacrifice to make."⁴⁹ Similar objections have also been raised by observers on the other side of the embryo question, who believe embryo destruction is not morally justified, and that the present policy does not sufficiently distance the federal government from support of such destruction. "The federal government, for the first time in history, will support research that relies on the destruction of some defenseless human beings for the possible benefit to others," one critic contended in the immediate wake of the August 9, 2001 announcement, "however such a decision is hedged about with qualifications, it allows our nation's research enterprise to cultivate a disrespect for human life."⁵⁰

A further critique of the policy on grounds of consistency focuses more particularly on the specific elements of the claim to non-complicity, detailed in an earlier staff paper, prepared for the Council's September 2003 meeting. If, as many of its advocates argue, the policy takes embryo destruction to be essentially a morally evil act, and if its provisions aim to make use of the irreversible consequences of that act without in any way abiding the act itself, then, critics contend, it is curious that the policy would insist on requiring that eligible stem cell lines must have been obtained from embryos originally intended for reproduction, with donor consent, and with no financial inducements. If embryo destruction is in principle a wrong, and if the policy's provisions keep the federal government from complicity in that wrong, then why should it matter how precisely the wrong was originally committed? The presence of these conditions, it is argued, suggests that the policy is not in fact based in a consistent and principled adherence to the proposition that human embryos should be treated as inviolable.⁵¹

In response to this particular concern, some have argued that the qualifying conditions reflect a secondary commitment to traditional principles of human subject and embryo research, rather than a contradiction of the fundamental commitment to avoiding the destruction of nascent human life. To distinguish among evils, it is argued, is not to deny that the distinct acts are all unacceptable.⁵² Another observer has suggested that the conditions-which reflect the minimal standards for embryo donation for research before the implementation of the policy-are an expression of the fact that embryo destruction undertaken before the policy's implementation was itself still subject to certain ethical rules, and that even in rejecting the legitimacy of the act itself, it is still reasonable to recognize the value of the rules. The policy, it is argued, itself established a new standard, but still takes account of previous standards.⁵³

In response to the more general critique on grounds of inconsistency, defenders of the policy, within and outside the Administration, have voiced an understanding of the present policy as arising out of a prudential effort to uphold a principle. The policy, as articulated by these defenders, aims at least minimally to advance the ideal that nascent human life ought not be violated, by assuring public non-complicity in the destruction of human embryos, while seeking, as much as reasonably possible within the bounds of the principle, to benefit from the results of that embryo destruction that has already occurred and can no longer be undone.⁵⁴  As President Bush put it in his August 9, 2001, address announcing the policy, "This allows us to explore the promise and potential of stem cell research without crossing a fundamental moral line, by providing taxpayer funding that would sanction or encourage further destruction of human embryos that have at least the potential for life."⁵⁵

That "fundamental moral line" is an aspect of the more general principle that human embryos should be treated as inviolable. The policy, argue some of its advocates, therefore aims to put into practice that moral principle, even if it does not do so on every possible front, or to the greatest possible extent. 

IV. The Moral Status of the Embryo

Many elements (though, as some commentators take care to note, not all elements) of the ongoing debate about federal funding of human embryonic stem cell research seem, as we have reviewed them, to come down to a basic disagreement about the nature, character, and moral status of the human embryo. The general view of the embryo said to underlie the present policy, while it may be supported by the president, and apparently by a majority of the Congress, is by no means the consensus view of the country, or even clearly a majority view.

Public debates over the moral status and appropriate treatment of the human embryo have been quite contentious and divisive in recent years. In part, this had to do with their almost inevitable entanglement with the abortion debate in America, itself a deep and thorny controversy. In part, too, this has had to do with the fact that the question of the moral status of the human embryo touches on a great many other fundamental moral and existential questions involving human origins, human dignity, the moral significance of our biology, and its relation to a great many traditional and widely shared moral teachings. Differences of opinion on the moral status of the embryo often suggest differences on these larger questions of overall worldview.⁵⁶  Nonetheless, the question of the human embryo has been taken by nearly all commentators to be amenable to human reason and argument, and a lively debate has raged despite (or perhaps precisely because of) these widely diverging starting assumptions.

The question of the moral status of the human embryo has, in the public arena, often been summed up in the question "when does life begin?" This question suggests something of the quandary, though the academic and intellectual debate generally takes a somewhat more nuanced question as its starting point. That question takes as its premise the fact that we seek to treat born human beings (from newborns, through adults) as meriting protection and, in effect, inviolable. It then asks what relation human embryos possess to these live-born human individuals, and therefore whether they too should be treated as inviolable, or not.⁵⁸

The first and most common recourse in seeking an answer to such questions has been human biology, and particularly embryology. In a certain sense, this is peculiar, since we do not base our moral judgments about how to treat adult human beings first and foremost on their biological characteristics. Indeed, our society takes great pride in its progress toward treating people equally despite biological differences.  And yet, the embryo is largely known to us through the methods and tools of modern biology, and so it often proves easiest for individuals on all sides of the issue to speak about it in those terms. Nearly all participants in the dispute therefore make some recourse to modern biology, whether to claim it illustrates the embryo's essential continuity with and similarity to human beings at other stages of life, or to argue that it shows profound and meaningful discontinuities between embryos and live-born persons.

While we examine these differing contentions, it is crucial to remember-as several commentators in recent years have noted-that the biology itself is not necessarily decisive morally.⁵⁸ A recognition of biological continuity would perhaps go some way toward disqualifying the claims of certain biological markers or states to demonstrate the permissibility of embryo-destruction, but would not by itself imply that the moral situation is therefore clear-cut in the direction of embryo inviolability.⁵⁹ And recognizing the biological significance of some particular point, marker, characteristic, or capacity would not, in itself, imply some decisive moral significance. An understanding of the moral nature or status of an early embryo is by no means necessarily dependent upon, or derivable from, a description of early embryonic development.⁶⁰ Any biological description requires some interpretation of its significance before it can act as a guide to action.⁶¹

What follows is a brief review of developments in the debate over the moral status of the human embryo in the past several years.

a) Continuity and Discontiunity

Many participants in the debate take the question of the biological continuity or discontinuity of nascent and later human life to be a crucially significant matter. They argue either that the fundamental organismal continuity from the moment of fertilization until natural death means that no lines can be drawn between embryos and adults; or, on the other hand, that some particular point of discontinuity (or the sum of several such points) marks a morally significant distinction between stages, which should guide our treatment of human embryos.

1. The case for continuity

Many of those who seek to defend the human embryo, and to have it treated as inviolable, base their case on some form of the argument for biological continuity. They argue that the human embryo is a whole living member of the human species in the earliest stage of natural development, and that given the appropriate environment, it will, by self-directed integral organic functioning, develop to the next more mature stage and become a human fetus, and then a human child. The adult human beings around us, they argue, are the same individuals who, at an earlier stage of life, were human embryos. We all were then and are now distinct and complete human organisms, not mere parts of other organisms.⁶²

This view holds that only the very beginning of embryonic life can serve as a reasonable boundary line in assessing the moral worth of a human organism, because it is the moment marked out by nature for the first visible appearance in the world of a new individual. Before it, no new individual exists. After it, sperm and egg cells are gone-subsumed and transformed into a new, third thing capable of its own internally self-directed development. By itself, no sperm or egg has the potential to become an adult, but zygotes routinely do.⁶³

Many authors therefore regard the completion of syngamy (the combining of paternally- and maternally-contributed haploid pro-nuclei to result in a unique diploid nucleus of a developing zygote) as a meaningful marker of the beginning of a new protection-worthy human life.⁶⁴  After this point, there is a new genome, and there is a zygote (single cell embryo) already beginning its first cleavage and thus its continuous developmental path toward birth.

All further stages and events in embryological development, they argue, are discrete labels applied to a system that is continuously changing in its dimensions, scope, degree of differentiation, and so on. Thus we can learn names for stages as if they were static, but the living and developing embryo is continuously dynamic.⁶⁵ More to the point, in the view of these commentators no such discrete point in time or development would seem to give any justification for assuming that the embryo in question was one thing at one point and then suddenly became something different (for example, non-human to human or non-person to person). None of the biological events (or points in processes), they contend, is sufficient to tell us what we are morally obligated to do, in the absence of one of the additional premises indicating the moral standing (or lack thereof) of the subject embryo, that the biological event is taken to represent.⁶⁶

Some critics of this position argue that it makes too much of mere genetic identity and (uncertain) potential, and does not make enough of present condition, and of the significance of development itself.⁶⁷ There is more to being human, some observers argue, than a human genome, and it matters that the early human embryo is a ball of cells, without sentience or sensation, and without human form.⁶⁸ In response, advocates of the argument from continuity suggest that it is dangerous to begin to assign moral worth on the basis of particular capacities and features, and that instead we must recognize each member of our species from his or her earliest days as a human being deserving of dignified treatment. There is, they argue, no clear place to draw a line after the earliest formation of the organism, and so there can be no stark division between nascent human life and more mature individuals.⁶⁹

2. Claims of meaningful discontinuity and developing moral status

Many other observers, however, argue that some biologically or morally significant discontinuities do in fact present themselves in the course of early development. These arguments generally do not simply hinge on biological descriptions-which are, in the absence of analysis, largely devoid of obvious moral significance-and instead begin from some implicit or explicit claim regarding the importance of a particular feature, capacity, form, or function (or the progressive accumulation of these) in defining a developing organism as meaningfully a member of the human race. They are therefore not simply grounded in biology, and appeal also to a moral or even metaphysical claim about the meaning of humanity.⁷⁰ They suggest that the developing human organism might become (at once or progressively) deserving of protection as it becomes able to feel pain, or to exhibit neural activity, or rudimentary self-awareness, or some elements of the human form, or the capacity to function independently, or as it progressively exhibits more and more of these or other criteria. Until that time, many argue, the embryo deserves some respect, but not protection on par (or nearly so) with that otherwise afforded to human subjects.⁷¹ They suggest that genetic identity and organismic continuity are not sufficient, and that what matters is present form and function, more than mere potential.⁷²

Several particular discontinuities (and combinations of them) have been proposed as candidates for the division between early stages when the human embryo may be disaggregated for research, and later stages when it deserves some level of protection.  

(a) Primitive streak

Among the most popular arguments for a meaningful point of discontinuity are those that revolve around the appearance of the primitive streak, which marks the point at which the vertebral column will form. The primitive streak generally forms around the 14^th day after first cell division. It is taken to indicate the anterior-posterior axis of an embryo (in vertebrates), although recent results suggest that polarity is established much earlier, and in fact may be indicated by the point of sperm entry.⁷³ 

One principle reason for the importance placed on the primitive streak has to do with the biology of twinning. Prior to the appearance of the primitive streak, the embryo may relatively easily divide completely to form identical twins. Some conclude that individuality must not yet be established, since the embryo might yet become two embryos.⁷⁴ They argue that since individuality is essential to human personhood and capacity for moral status, and since individuality presumes a definitive single individual, and the singularity of the embryo is not irrevocably settled prior to the appearance of the primitive streak, the entity prior to the primitive streak stage does not have definitive individuality and therefore cannot have moral status.⁷⁵ Critics of this line of reasoning note that twinning is a normal (though not statistically very common) event, and that the division of an embryo into two does not somehow demonstrate ex post facto the lack of moral worth of the embryo before twinning. Twinning, they suggest, affords no moral paradox and no proof of the worthlessness of early embryos.⁷⁶

Nonetheless, for this reason, and for others (discussed below) having to do with the formation of the nervous system, primitive streak has often been taken to be a highly significant marker of embryological development, and many commentators suggest it as a reasonable candidate for a meaningful point of discontinuity. Supporters of embryo research regularly propose the 14^th day of development as a logical stopping point for permissible embryo research.¹

(b) Nervous system

A second argument for discontinuity, related to the primitive streak case, focuses on the developing nervous system. Many observers regard the nervous system as an especially important marker of humanity, both because the human brain is critical in making human beings human, and because the nervous system is the seat of sensation, and in this case especially the sensation of pain. Proponents of this view hold that before an embryo has developed the capacity for feeling pain (or, in some forms of the argument, before sentience), we cross no crucial moral boundary in subjecting it to destructive research.⁷⁸ For some, this is taken to mean that the primitive streak, as the first marker of a future nervous system, is a crucial feature of developing life. For others, further points of neural development are held to be decisive.⁷⁹

(c) Human Form

Some observers also argue that some rudimentary features of the human form must be apparent before we can consider the human embryo deserving of protection. In this view, the human form truly signals the presence of a human life in the making, and calls upon our moral sentiments to treat the being in question as one of us.⁸⁰ Different versions of this argument appeal to different particular elements (or combinations of elements) of the human form as decisive, but all suggest that a ball of cells is not recognizably human, and therefore ought not to be treated as simply one of us.⁸¹

These various particular cases for discontinuity (and these are not the only ones propounded through the years) are not mutually exclusive, and indeed many of them point to more than one particular point or element of early human development as finally decisive of moral status, but rather to a developing moral status accruing to the developing human organism.⁸² Their claim, in the broadest terms, is that in its earliest stages the human embryo is not yet simply a human person, and need not be treated as though it was. Human development, they contend, is not an unimportant element of human life, and a being at the earliest stages of that process is not to be treated the same as a being much farther along.⁸³ There are differences, and these differences matter, in ways that can be determined by human choice and understanding, as well as by an understanding of biological facts.⁸⁴

Some arguments in favor of permitting or funding embryo research do not explicitly (or exclusively) rely upon a case for discontinuity or for a developing moral status founded in the embryo's biology. Instead, or in addition, they rely upon questions of embryo-viability, potential, and unique circumstances to address questions of the moral status of certain particular human embryos.

(a.) IVF Spares

The most commonly cited case is that of cryogenically frozen IVF embryos, left over from assisted reproduction procedures and stored, perhaps indefinitely, in the freezers of an IVF clinic. One recent study suggests there are hundreds of thousands of such embryos in the United States alone.⁸⁵ Most of these frozen embryos may never be claimed by the original egg and sperm donors for use in assisted reproduction procedures. They are destined to remain frozen and, eventually, to die without developing further. Though there have been some efforts to build interest in the adoption of such embryos, and their use in assisted reproduction by other couples, such adoption, some commentators suggest, is very unlikely to become a large-scale phenomenon, or to affect the fate of most of these embryos.⁸⁶ Under the present funding policy, if these frozen embryos were used in research, and embryonic stem cells were derived from them, research on the resulting cells would not be eligible for federal funding. Many observers argue that it should be, and that these particular embryos, whatever one's position on the embryo question in general, are essentially destined to die without ever developing, and that it would therefore be appropriate to at least redeem some possible good from their existence.⁸⁷

Indeed, since so many cryopreserved embryos are already in existence, and since the vast majority seem very unlikely to be adopted even if we were to pursue and encourage embryo adoption, and since many may not be viable even if they were to be transferred, some observers have argued that practically speaking they are virtually all already lost.⁸⁸  Not that they are already dead, but they are in a so-called "terminal situation" from which no rescue is practically possible. In view of this situation, one commentator proposes extending the principle of permitting the killing of innocents to these embryos. That is, killing may be morally permissible in cases where the innocent will soon die for other unavoidable reasons, and where there is another innocent who can somehow be rescued through or as a result of that normally impermissible act of killing (thus nothing more is lost). He points out that the case of cryopreserved embryos stretches the application of the "nothing is lost" principle further than previous uses, because the embryos in question are alive and likely if not certain to die only because of human choices and designs specifically directed toward them. The principle is also stretched because the lives that might be saved through embryo deaths are quite distant. The potential lives saved are those of unspecified persons with some of a range of disease that might be treated by therapies that as yet do not exist and are not in any particular case known to be likely, let alone certain, to help. And again, all this is the case only if the research depending on the embryo deaths does indeed prove fruitful as hoped. However, against all these formidable and indefinitely extended ifs, there is the present fact that the cryopreserved embryos are already here, already have little or no prospect of rescue-are, in one observer's description, already lost.⁸⁹

Presumably if embryo destruction for human embryonic stem cell research were generally agreed to be permissible through this principle, it could be federally funded, subject to such secondary considerations as the just allocation of resources and the need for free and informed consent by donors.

One concern with this approach to embryos left over from IVF procedures involves what critics have called the circular reasoning of the argument: the embryos are in a "terminal situation" because of human choice and design, so to then decide that since they are going to die anyway they may as well be put to good use, is to ignore the moral implications of the original decision to create and freeze them.⁹⁰ Some proponents of using IVF spares, however, argue that the present situation is properly understood as a forced choice between two mutually exclusive alternatives, both in some sense tragic, for the final deposition of stored embryos (whether donated or abandoned). One choice may then be justified as the lesser evil. Even if the original decisions leading to the creation and storage of these embryos were misguided, the embryos exist, and the decisions cannot be undone.⁹¹

A further concern involves the question of whether in accepting the application of the "nothing is lost" principle for already existing embryos, it would be possible to condone future use of excess embryos, or whether the principle requires the prevention of the creation or storage of "excess" embryos in the future.⁹² Further, this application of the principle applies to embryos created for the purpose of reproduction and inadvertently not transferred. Should research use be accepted, however, it is not clear that it would be possible to differentiate embryos created solely for reproduction, and embryos created with an eye to research uses. It might therefore be difficult to avoid condoning the creation of extra embryos with research in mind.⁹³

Other observers, however, take the presence of cryogenically preserved embryos further, and conclude that there is good reason for using some embryos for research not only because a tragic situation already exists, but because the donation of embryos is an act of positive good, and that using donated embryos is a social obligation conferred by their presence as donated entities.⁹⁴ This approach would have us start by recognizing that in the current situation there is a set of embryos (in IVF clinics) such that none of the members will ever enter a uterus, uterine tube, or even a (still hypothetical) artificial uterus.⁹⁵ These, in one commentator's term, are "unenabled," and have no potential for full development. Since there is no possible way for such embryos to develop, there is no "possible person" to whom any "unenabled" embryo corresponds, and therefore using them in research involves no loss of possible life.⁹⁶

Critics of this approach argue that in effect it allows the moral status of a given embryo to be simply decided by those responsible for it. That is, whether a given embryo has moral status depends on whether it has a practical prospect of developing, as evidenced by whether it enters a uterus. Whether it enters a uterus, in turn, depends on human choices, so the moral status of a given embryo depends on human choices. If we choose to remove opportunity by removing enabling conditions such as a uterus in which to implant, then the embryo lacks just that, the opportunity to develop in conditions permitting development, but its intrinsic potential to develop (given needed conditions) has not changed.⁹⁷

Nonetheless, in the view of a number of commentators, the fact of the existence of these frozen embryos changes the balance of duties and respect.  In these and similar ways, many observers have argued that the presence of hundreds of thousands of frozen embryos with little to no chance of ever developing to birth creates special circumstances in which the use of embryos in research (whether destroying them for research or allowing them to die and subsequently using them)⁹⁸ does not depend upon a final judgment regarding the moral status or worth of the human embryo as such.⁹⁹

(b) Natural Embryo Loss

Some authors point to the high rate of embryo loss under natural and unassisted conditions, and argue that directed embryo destruction for the purpose of research would not result in greater loss than this natural process, and would result in far greater benefits for humanity.¹⁰⁰ The rate of natural embryo loss after conception in unassisted human reproduction is high, some suggest as high as 80 percent,¹⁰¹ and the fact of natural loss is fairly well known, so that persons who engage in or permit the pursuit of conception through unassisted reproduction are knowingly bringing about the conception of many embryos that will die. We generally do not regard this embryo loss as unacceptably tragic or engage in great efforts to avert it, or to find ways to diminish it. These commentators argue, therefore, that making use of artificially created embryos for research would not result in the destruction of a greater portion of those embryos than might have died in natural unassisted reproduction.¹⁰²

Moreover, they suggest, the high rate of natural embryo loss should bring into question the views of those who believe that early-stage human embryos merit equal treatment with human children and adults. If so many die in the natural course of things, how do we not treat natural procreation as a great fountain of tragedy and carnage? They argue that the natural rate of embryo loss, and our response to it, should teach us something about the limited significance of human embryos in the earliest stages. One observer adds that the same logic should diminish our concerns about creating human embryos for research, as long as sufficient embryos are created for implantation to keep the chances of survival for any given embryo as good as the chances in natural reproduction.¹⁰³ Another further argues that human embryonic stem cell research actually raises the probability of longer survival for all humans including embryonic ones, and is therefore a case of permissible taking of life, even on the assumption that the embryos are persons.¹⁰⁴

Opponents of this view, however, have argued that natural death of embryos and deaths caused by intentional efforts to destroy embryos for research are not morally equivalent, and that the character of our reaction to the former does not permit us simply to engage in the latter. They propose that moral status is not ascribed to a being by the reaction of others to its death or in any other sense by their view of its value.¹⁰⁵

(c) Prediction of Non-Viability of Embryos

A further approach to the subject seeks to identify a subset of cryopreserved embryos that might reasonably be regarded as non-viable in advance.  That is, although the embryos are not dead, and could presumably be thawed and would still exhibit some cellular function, they would be unlikely to survive even if transfer were available.  Since IVF procedures often result in more embryos being conceived than can be transferred at one time, goes the argument, the clinicians must make judgments about which of the available embryos seem most likely to survive and develop.  So by applying similar judgment to frozen embryos, we might identify those that would be least likely to survive even under the most favorable circumstances.  These embryos might then reasonably be regarded as non-viable, and perhaps available for research use since their use will not disrupt a potential life. ¹⁰⁶ 

There has not been much direct reaction to this view in the ongoing ethical debates, though some observers have noted, in other contexts, that the techniques used to identify embryos more or less likely to develop successfully in IVF procedures-techniques most often based on visual assessment of the embryos-have never been proven effective, or even tested to ascertain their validity.¹⁰⁷

(d) Creation of Non-Viable Embryo-like Artifacts

A related proposal suggests that we avoid the risk of error in identifying or defining some class of embryos as non-viable and instead seek to create embryo-like entities that would be guaranteed non-viable. This proposal is motivated in part by an understanding of development as not just a set of events but a directed sequence (or network of sequences) that point toward the adult, reproducing, stage of the organism in question.  By implication then, an embryo is not merely a very young organism, nor merely a group of adherent cells, but an organism that is in the process of developing along that directed path.  So development is not just what embryos do, but developing is what embryos essentially are.  Conversely, goes the argument, an entity that is not capable of developing is not an embryo, although it may have many embryo-like properties. This leads to the proposal that researchers might create "artifacts" that would be embryo-like in many respects, and could even yield embryonic stem cells, but would fundamentally not be embryos, in that they would be designed not to have full developmental capacity.¹⁰⁸ This might be done by manipulating the genome of the embryo in question by knocking out genes necessary for extra-embryonic membranes or for another process such as angiogenesis.¹⁰⁹

This proposal has been critiqued by some on two general grounds. First, they suggest, it would require significant research to assure both that the knock-out procedure did reliably result in a non-viable entity, and that the resulting entity still produced stem cells that were normal (or else they would be of little interest). This research might itself be morally problematic. And second, some have wondered whether the knock-out procedure might not be morally constitutive of embryo destruction, and whether designing and creating a developing organism with some human features but with no hope of long-term development may not itself be morally troublesome.¹¹⁰

For the moment, this approach is purely speculative, and so would have no bearing on the present embryonic stem cell research funding policy, or the considerations surrounding it, though it has begun to play a part in the debates over the moral status of the embryo, and the permissibility of embryo research more generally. 

A number of commentators have also raised some issues and concerns which, while they do not fall neatly into the above categories, strike us as highly relevant to the human embryonic stem cell research debate.

Some, for instance, have argued that any federal policy must take note not only of the state and potential promise of embryonic stem cell science, but also that of some potential alternatives to such research, which might be less morally troubling to some Americans. Many opponents of public funding for human embryonic stem cell research, for instance, have argued that more attention should be paid, and more resources devoted, to human adult stem cell research, which does not raise many of the moral difficulties present in the embryonic stem cell debates¹¹¹ (though, for some, it still does raise a number of ethical difficulties).¹¹² Such research, they contend, could make embryonic stem cell research (or at the very least publicly funded embryonic stem cell research)¹¹³ unnecessary. In response, however, others have argued that embryonic stem cells may possess unique advantages over adult stem cells, just as the opposite may be the case, and that therefore both avenues, and also research using stem cells derived from fetal tissue, should be pursued simultaneously.¹¹⁴ In a related staff paper, we examine some of the scientific facts regarding adult and embryonic stem cells, but in the context of the ethical and political debates, the distinctions between them have been quite important and prominent.

Other observers have raised concerns related to the debate itself, rather than to the specifics of one technique or another, or of one funding policy or another. Some, for instance, have argued that what is needed in the human embryonic stem cell research debate is not only an exchange of views about the substantive issues (though that is surely crucial) but also some sense of the appropriate democratic process for deliberation on such a profoundly contentious issue, and for establishing appropriate public policy. The embryonic stem cell debate, it is argued, offers a valuable opportunity to think through the ways in which the American polity debates the most contentious moral issues.¹¹⁵

Others have also argued that the debate, as it has taken shape over the past several years, has focused almost exclusively on questions of the status of the embryo, when other issues-including commodification, human nature, embodiment, and the purposes of science and medicine-also bear heavily on the subject, and may illuminate it in ways at least as significant.¹¹⁶

Others have also noted that many participants on all sides of the embryonic stem cell research debate have tended almost carelessly to accept the assumption-which at this point has not yet found grounding in the experimental or clinical findings of the research-that  embryonic stem cell research will someday soon bring cures to many who are ailing. Such talk, some observers have argued, tends to raise false hopes, and thus does a genuine disservice to the sick and disabled.¹¹⁷ "It is misleading to suggest that stem cells will bring cures," one such writer observers, "particularly cures for patients now coping with the serious diseases the research targets."¹¹⁸

A related concern, raised by some of the same commentators, involves what has been termed "the disproportionate emphasis on stem cell research in contemporary health politics."¹¹⁹ The prominence of this debate in American politics, they argue, may tend to distract us from the fact that many Americans, and even more people elsewhere, lack very basic healthcare, and do not have access to those medical tools and techniques that already exist, and that do not raise profound controversy.¹²⁰

In these ways, the controversial possibility of scientific alternatives, as well as concerns about the health of American democracy, the honesty of a political debate that touches on the hopes and fears of many who are suffering, and the bigger picture of health politics all impinge upon the question of federal funding of human embryonic stem cell research.

Participants in the public debate surrounding human embryonic stem cell research and the Administration's funding policy have addressed themselves to the character of the question at issue; the nature, object, assumptions, and premises of the policy itself; the vexing question of the human embryo; and a number of other related concerns. As we have seen, strong and powerfully argued views have been presented on various sides of each of these questions. It may be that developments and discoveries in biology will never finally be enough to settle the question, and that the decisive issues are principally ones of competing moral views of human life, human dignity, and scientific progress. This is likely not a subject that will ever be settled by slogans or syllogisms, and perhaps it will not be settled at all any time soon. But the rich and growing ethical debates do suggest the possibility of progress toward greater understanding, and more informed public decision-making. 

ENDNOTES

1. "Press Conference by President Bush and Italian Prime Minister Berlusconi," as made available by the White House Press Office, July 23, 2001.
2. See, for instance, Weissman, I., "Stem Cells-Scientific, Medical and Political Issues," New England Journal of Medicine, 346:20, May 16, 2002, 1578.
3. See, for instance, Green, R. "Determining Moral Status," American Journal of Bioethics, 2:1, 28-9.
4. See, for instance, Orr, R. "The Moral Status of the Embryonal Stem Cell: Inherent or Imputed?" American Journal of Bioethics, 2:1, 57-8
5. See, for instance, Doerflinger, R. "Ditching Religion and Reality," American Journal of Bioethics, 2:1, 31.
6. See, for instance, Latham, S. "Ethics and Politics," American Journal of Bioethics, 2:1, 46.
7. See, for instance, Marquis, D. "Stem Cell Research: The Failure of Bioethics," Free Inquiry, Winter 2002.
8. See, for instance, the testimony of Richard Doerflinger before the Council on June 12, 2003. A transcript of that testimony is available on the Council website at http://www.bioethics.gov/transcripts/jun03/session4.html
9. See, for instance, FitzGerald, K. "Questions Concerning the Current Stem Cell Debate," American Journal of Bioethics, 2:1, 50-1.
10. See, for instance, Haseltine, W. "Regenerative Medicine: A Future Healing Art," Brookings Review, Winter 2003.
11. See, for instance, Stolberg, S. "Scientists Urge Bigger Supply of Stem Cells," The New York Times, September 11, 2001, p. A1.
12. See, for instance, Perry, D. "Patients' Voices: The Powerful Sound in the Stem Cell Debate," Science, 287:5457, 1423; and the testimony of Irving Weissman before the Council on February 13, 2002, available on the Council website at http://bioethics.gov/transcripts/feb02/feb13session2.html
13. This point was taken up by the Council in its report Human Cloning and Human Dignity: An Ethical Inquiry (July 2002), chapter 6, p. 168.
14. One useful description of this approach to the issue is Zoloth, L., "Jordan's Banks, A View from the First Years of Human Embryonic Stem Cell Research," American Journal of Bioethics, 2:1, 7.
15. Callahan, D. What Price Better Health: The Hazards of the Research Imperative. Los Angeles: University of California Press, 2003; also see Daniel Callahan's testimony before the Council on July 24, 2003, available on the Council's website at http://bioethics.gov/transcripts/july03/session1.html
16. FitzGerald, K., op. cit., 50-1.
17. For examples, see Weiss, R. "Legal Barriers to Human Cloning May Not Hold Up," The Washington Post, May 23, 2001.
18. See, for instance, Elias, P. "States, Feds May Clash over Cloning Rules," Genomics and Genetics Weekly, April 12, 2002, p. 24
19. This, for instance, was the line of reasoning of the American Bar Association when, in August of 2002, it issued a resolution supporting limited therapeutic research using cloned human embryos. The report of the ABA's Section of Individual Rights and Responsibilities (available from the ABA) lays out the case.
20. See, for instance, Russo, E. "Policy Questions and Some Answers," The Scientist, April 15, 2003.
21. R. Alta Charo, of the University of Wisconsin Law School, quoted in Coyle, M. "The Clone Zone," The National Law Journal, May 15, 2002.
22. Alan Meisel of the University of Pittsburgh School of Law, quoted in Coyle, M. "The Clone Zone," The National Law Journal, May 15, 2002.
23. See: Maher v. Roe 432 U.S.464 (1977); Harris v. McRae 448 U.S. 297 (1980); Rust v. Sullivan 500 U.S. 173 (1991).
24. Berkowitz, P. "The Meaning of Federal Funding," a paper commissioned by the President's Council on Bioethics, available on the Council website at http://www.bioethics.gov/background/berkowitz.html. See also Khushf, G., and Best, R. "Stem Cells and the Man on the Moon: Should We Go There from Here?" American Journal of Bioethics, 2:1, 38.
25. FitzGerald, K., op. cit., 50-1.
26. Doerflinger, R., op. cit., 31.
27. See, for instance, Lauritzen, P. "Report on the Ethics of Stem Cell Research," a commissioned paper prepared at the request of the Council; and Dresser, R. "Embryonic Stem Cells: Expanding the Analysis," American Journal of Bioethics, 2:1, 40-1.
28. Childress, J. "Federal Policy Toward Embryonic Stem Cell Research," American Journal of Bioethics, 2:1, 34.
29. Kahn, J. "missing the mark on stem cells," Bioethics Examiner, 5:3, Fall 2001, p.1.
30. Murray, T. "Hard Cell," The American Prospect September 24, 2001.
31. See, for instance, the testimony of Richard Doerflinger before the Council on June 12, 2003. A transcript of that testimony is available on the Council website at http://www.bioethics.gov/transcripts/jun03/session4.html
32. Bush, G.W. "Stem Cell Science and the Preservation of Life," The New York Times, August 12, 2001, p. D13.
33. "How many lines," Washington Post, August 31, 2001, p.A22.
34. Daley, G. "Cloning and Stem Cells-Handicapping the Political and Scientific Debates," New England Journal of Medicine, 349:3, P. 211.
35. Kennedy, D. "Stem Cells: Still Here, Still Waiting," Science, 300, May 9, 2003, p. 865.
36. See, for instance, Brickley, P. "Scientists Seek Passports to Freer Environments," The Scientist, 15:36, August 20, 2001.
37. See, for instance, Weissman, I. "Stem Cells-Scientific, Medical and Political Issues", New England Journal of Medicine, 346:20, May 16, 2002, 1578.
38. See, for instance, Weise, E. "USA's Stem Cell Scientists Fear a Research Brain-Drain," USA Today, May 12, 2003, p. 6D.
39. Clark, J. "Squandering Our Technological Future," The New York Times, August 30, 2001, p. A19. See also the testimony of Thomas Okarma, President and CEO of Geron Corporation, before the Council on September 4, 2003. The full transcript of Okarma's testimony may be found on the Council's website at http://bioethics.gov/transcripts/sep03/session4.html
40. Robertson, J. "Crossing the Ethical Chasm: Embryo Status and Moral Complicity," American Journal of Bioethics, 2:1, 33.
41. See, for instance, Pizzo, P. "Remove Obstacles to Stem Cell Research," San Jose Mercury-News, June 19, 2003; and Holden, C. and Vogel, G. "'Show Us the Cells' U.S. Researchers Say," Science, 297, August 9, 2002, p. 923.
42. See, for instance, Capron, A. "Stem Cell Politics: The New Shape to the Road Ahead," American Journal of Bioethics, 2:1, 35-6.
43. Robertson, J., op. cit., 33-4.
44. This comment was made by Council member Gilbert Meilaender in Council discussion on September 4, 2003. A transcript of that discussion is available on the Council website at http://www.bioethics.gov/transcripts/sep03/session2.html
45. See, for insance, FitzGerald, K., op. cit., 50-1.
46. Khushf, G., and Best, R., op. cit., 38.
47. See, for instance, Stolberg, S., op. cit.
48. See, for instance, Robertson, J. "Ethics and Policy in Embryonic Stem Cell Research," Kennedy Institute of Ethics Journal, 9:2, 109-136; Spike, J. "Bush and Stem Cell Research: An Ethically Confused Policy," American Journal of Bioethics, 2:1, 46; and Capron, A., op. cit., 36.
49. The statement was made by bioethicist Glen McGee, in reference to the Clinton-era proposed NIH rules on funding, quoted in Spanogle, J. "Transforming Life," The Baylor Line (Winter 2000), p. 30.
50. The remark was made by Bishop Joseph A. Fiorenza, President of the U.S. Conference of Catholic Bishops, in a news release ("Catholic Bishops Criticize Bush Policy on Embryo Research," made available by the United States Conference of Catholic Bishops, August 9, 2001).
51. This argument arose in the course of Council discussion on September 4, 2003 (see particularly the comments of Council member Michael Sandel in that discussion.) A transcript of that session is available on the Council website at http://www.bioethics.gov/transcripts/sep03/session2.html
52. Ibid., see particularly the comments of Council member Mary Ann Glendon in that discussion.
53. Ibid., see particularly the comments of Council member William Hurlbut in that discussion. 
54. Some reasons to regard public funding of activities in a different light from mere permission are proposed in Khushf, G., and Best, R., op. cit., 38.
55. "Remarks by the President on Stem Cell Research," as made available by the White House Press Office, August 9, 2001.
56. See, for instance, London, A. "Embryos, Stem Cells, and the 'Strategic' Element of Public Moral Reasoning," American Journal of Bioethics, 2:1, 56.
57. For examples of this way of proceeding-both in arguments supporting embryo research, and arguments opposing it-see, among numerous other sources, the Council's July 2002 report, Human Cloning and Human Dignity: An Ethical Inquiry, chapter 6.
58. See, for instance, McCartney, J. "Embryonic Stem Cell Research and Respect for Human Life: Philosophical and Legal Reflections," Albany Law Review 65:3, 597-624.
59. See, for instance, Orr, R., op. cit., 57-8.
60. See, for instance, Steinberg, D. "Can Moral Worthiness Be Seen Using a Microscope?" American Journal of Bioethics, 2:1, 49.
61. See, for instance, Green, R., op. cit., 20.
62. See, for instance, Doerflinger, R., op. cit.,  31-3; Orr, R., op. cit.,  57-8; and the personal statements of Council members William Hurlbut and Robert George and Alfonso Gomez-Lobo, in the Council's July 2002 report Human Cloning and Human Dignity: An Ethical Inquiry, among others.
63. See, for instance, Orr, R., op. cit., 57-8.
64. See, for instance, Sullivan, D. "The Conception View of Personhood: A Review," Ethics and Medicine, 19:1 (Spring 2003), p. 11-33.
65. A form of this argument was presented by some members of the Council in the Council's July, 2001 report Human Cloning and Human Dignity: An Ethical Inquiry, chapter 6, and in several of the personal statements appended to that report.
66. See, for instance, Steinberg, D., op. cit., 49.
67. See, for instance, Green , R., op. cit., 20-30.
68. See, for instance, Lanza, R., et al. "The Ethical Validity of Using Nuclear Transfer in Human Transplantation," Journal of the American Medical Association, 284:24, 3175-9.
69. See, for instance, Orr, R., op. cit., 57-9; Callahan, S. "Zygotes and Blastocysts : Human enough to protect," Commonweal, June 14, 2002; the position articulated by several members of this Council in our July 2002 report Human Cloning and Human Dignity: An Ethical Inquiry, chapter 6; and the personal statements of Council members Robert George and Alfonso Gomez-Lobo, and William Hurlbut in that same report.
70. See, for instance, Steinberg, D., op. cit., 49-50; and Green, R., op. cit., 20.
71. See, for instance, Myer, M., and Lawrence, J. "Respecting What We Destroy:  Reflections on Human Embryo Research," Hastings Center Report, 31:1, 16-23.
72. See, for instance, Strong, C. "The Moral Status of Preembryos, Embryos, Fetuses, and Infants," The Journal of Medicine and Philosophy 22:5, 457-78.
73. Pearson, H. "Developmental Biology: Your Destiny, from Day One," Nature, 418:6893, p. 14-15.
74. See, for instance, McCartney, J., op. cit., 601-602; Brogaard, B. "The moral status of the human embryo: the twinning argument," Free Inquiry, Winter 2002; Myer, M., and Lawrence, J., op. cit., 18. The question of twinning-pro and con-was also taken up by the Council in its July 2002 report, Human Cloning and Human Dignity: An Ethical Inquiry, chapter 6.
75. See, for instance, Green , R., op. cit., 21-2; Lanza, R., op. cit., 3177.
76. See, for instance, Ashley, B., and Moraczewski, A. "Cloning, Aquinas, and the Embryonic Person," National Catholic Bioethics Quartely 1:2, 189-201; Orr, R., op. cit., 58; Marquis, D. op. cit.; and Lori Andrews quoted in , Green, R., op. cit., 22. The question of twinning-pro and con-was also taken up by the Council in its July 2002 report, Human Cloning and Human Dignity: An Ethical Inquiry, chapter 6. 
77. See, for instance, National Institutes of Health, Report of the Human Embryo Research Panel (Bethesda, MD: NIH), 1994; National Bioethics Advisory Commission, Ethical Issues in Human Stem Cell Research (Washington, DC: Government Printing Office), 1999, p. 7; and the position articulated by several members of this Council in our July 2002 report Human Cloning and Human Dignity: An Ethical Inquiry, chapter 6, among many others.
78. See, for instance, Lanza, R., op. cit., 3177.
79. See, for instance, Strong, C., op. cit., 467.
80. See, for instance, Wilson, J. "On Abortion" Commentary, January 1994; and the position articulated by several members of this Council in our July 2002 report Human Cloning and Human Dignity: An Ethical Inquiry, chapter 6.
81. See, for instance, Green, R., op. cit., 20-30; and the position articulated by several members of this Council in our July 2002 report Human Cloning and Human Dignity: An Ethical Inquiry, chapter 6.
82. See, for instance, National Institutes of Health, Report of the Human Embryo Research Panel (Bethesda, MD: NIH), 1994; and the position articulated by several members of this Council in our July 2002 report Human Cloning and Human Dignity: An Ethical Inquiry, chapter 6.
83. See, for instance, McGee, D. "The Idolatry of Absolutizing in the Stem Cell Debate," American Journal of Bioethics, 2:1, 53-4.
84. See, for instance, Green, R., op. cit., 20.
85. Hoffman, D.I., et al., "Cryopreserved Embryos in the United States and Their Availability for Research," Fertility and Sterility, 79: 1063-1069.
86. See, for instance, Spike, J., op. cit., 45.
87. See, for instance, the testimony of Michael West before the Labor, HHS, and Education Subcommittee of the Senate Appropriations Committee, December 4, 2001, among others.
88. Outka, G. "The Ethics of Stem Cell Research," a paper presented to the Council for its April 2002 meeting, and available on the Council website at http://bioethics.gov/background/outkapaper.html. A slightly revised version appeared in the Kennedy Institute of Ethics Journal, 12:2, p. 175-213.
89. Ibid.
90. See, for instance, "The Stem Cell Sell," Commonweal, August 17, 2001; Meilaender, G. "Spare Embryos," The Weekly Standard, August 26, 2002; and Council discussion of Gene Outka's paper, in its April 2002 meeting, a transcript of which is available on the Council website at http://bioethics.gov/transcripts/apr02/apr25full.html#3
91. See, for instance, McCartney, J, op. cit., 615.
92. This concern is raised in Outka, G. "The Ethics of Stem Cell Research," a paper presented to the Council for its April 2002 meeting, and available on the Council website at http://bioethics.gov/background/outkapaper.html. Also see the Council discussion of that paper, available on the Council website at http://bioethics.gov/transcripts/apr02/apr25full.html#3; and see Meilaender, G., op. cit.
93. See, for instance, the transcript of Council discussion on April 25, 2002, available on the Council's website at http://bioethics.gov/transcripts/apr02/apr25session3.html
94. Guinin, L. "Morals and Primordials," Science, 292:1659-60.
95. Spike, J., op. cit., 45.
96. Guinin, L., op. cit..
97. See, for instance, Orr, R., op. cit., 58.
98. Mahowald, M. and Mahwoald P. "Embryonic Stem Cell Retrieval and a Possible Ethical Bypass," American Journal of Bioethics, 2:1, 42-3.
99. See, for instance, Zoloth, L., op. cit., 4-5.
100. See, for instance, Harris, J. "The ethical use of human embryonic stem cells in research and therapy," in Burley, J. and Harris, J., eds. A Companion to Genetics: Philosophy and the Genetic Revolution, Oxford: Basil Blackwell, 2001; and Savulescu, J. "The Embryonic Stem Cell Lottery and the Cannibalization of Human Beings," Bioethics, 16:6, 508-529.
101. This subject was discussed in a Council session on January 16, 2003. When asked, in the course of testimony before the Council, about the rate of natural embryo loss, Dr. John Opitz (Professor of Pediatrics, Human Genetics, and Obstetrics/Gynecology, School of Medicine, University of Utah) responded: "Estimates range all the way from 60 percent to 80 percent of the very earliest stages, cleavage stages, for example, that are lost." The transcript of this session is available on the Council website at http://bioethics.gov/transcripts/jan03/session1.html
102. Spike, J., op. cit., 45.
103. Harris, J. "Stem Cells, Sex & Procreation," a paper presented to the American Philosophical Society, March 29, 2003.
104. Savulescu, J., op. cit., 508-529.
105. See, for instance, Orr, R., op. cit., 57-9.
106. See, for instance, Zoloth, L., op. cit., 4-5.
107. See, for instance, Mandavilli, A. "Fertility's New Frontier Takes Shape in the Test Tube," Nature Medicine, 9:8, 1095.
108. See, for instance, Weiss, R. "Can Scientists Bypass Stem Cells' Moral Minefield?" The Washington Post, December 14, 1998, p. A3.
109. See, for instance, the personal statement of Council Member William Hurlbut, appended to the Council's July 2002 report Human Cloning and Human Dignity: An Ethical Inquiry.
110. See, for instance, several observers quoted in Weiss, R. "Can Scientists Bypass Stem Cells' Moral Minefield?" The Washington Post, December 14, 1998, p. A3.
111. See, for instance, Orr, R., op. cit.,  57-8; "A review of the National Institute of Health's Guidelines for Research Using Human Pluripotent Stem Cells," Issues in Law and Medicine, 3:17, p. 293; and the testimony of Rep. Dave Weldon before the Technology and Space Subcommittee of the Senate Commerce, Science and Transportation Committee, January 29, 2003.
112. Lauritzen, P. "Report on the Ethics of Stem Cell Research," a commissioned paper prepared at the request of the Council.
113. See, for instance, Oldham, R. "Stem Cells: Private Sector Can Do It Better," The Wall Street Journal, August 28, 2001, p. A14.
114. See, for example, the discussion and testimony at the Council's April 2002 meeting, available on the Council's website at http://bioethics.gov/transcripts/apr02/apr25full.html.
115. Strong, C. "Those Divisive Stem Cells: Dealing with Our Most Contentious Issues," American Journal of Bioethics, 2:1, 39-40.
116. Lauritzen, P. "Report on the Ethics of Stem Cell Research," a commissioned paper prepared at the request of the Council.
117. See, for instance, Dresser, R., op. cit., 40-1; and FitzGerald, K., op. cit., 50-1
118. Dresser, R., op. cit., 41.
119. Ibid.
120. See also: FitzGerald, K., op. cit., 50-1.

Footnotes

i. Lori Andrews detailed both these ongoing efforts and existing legislation in the states in testimony before the Council’s July 2003 meeting, and in the accompanying paper.