The Administration's human Embryonic Stem Cell Research Funding Policy:
Moral and Political Foundations

On August 9, 2001, in a televised address to the nation, President Bush announced his Administration’s newly crafted policy for the limited funding of human embryonic stem cell research. In the course of the two years that followed, the policy as well as its moral and legal foundations have all been subjects of heated dispute and profound confusion. From the moment of its first announcement, the policy has been misunderstood (and at times misrepresented) by some among both its detractors and its advocates. Whatever one’s view of the policy, there is certainly much to be gained by seeking to understand it as it was propounded, accurately and in its own terms, in the light also of the political and historical contexts in which it was put forward. This staff paper attempts to place the Bush Administration’s stem cell funding policy in its proper historical context, and to articulate its moral and political underpinnings.

1. A brief history of the embryo funding debate

The federal government makes vast public resources available to biomedical researchers each year — over $20 billion this year alone — in the form of research grants offered largely through the National Institutes of Health (NIH). This extraordinary show of public largesse reflects the great esteem in which Americans hold the biomedical enterprise, and the value we place on the development of treatments and cures for those who are suffering. But such support is not offered indiscriminately. Researchers who accept federal funds must abide by ethically based rules and regulations governing, for instance, the proper treatment of animals and the use of human subjects in research, among other requirements. And some policymakers and citizens have always insisted that taxpayer dollars not be put toward specific sorts of research that violate the moral principles and sensibilities of the American public. This has meant that controversies surrounding the morality of some forms of scientific research have at times been reflected in controversies over federal funding policy. Surely among the most prominent examples has been the three-decade-long public debate about whether taxpayer funds should be used to support research that involves destroying human embryos or making use of destroyed embryos and fetuses — practices that touch directly on the much-disputed questions of the moral status and proper treatment of nascent human life.

In the immediate aftermath of the Supreme Court’s 1973 Roe v. Wade decision, legalizing abortion nationwide, some Americans, including some Members of Congress, became concerned about the potential use of aborted fetuses (or embryos) in scientific research. In response to these concerns, the Department of Health, Education and Welfare (the precursor to today’s Department of Health and Human Services) initiated a moratorium on any potential DHEW sponsorship or funding of research using human fetuses or living embryos. In 1974, Congress codified the policy in law, initiating what it termed a temporary moratorium on federal funding for clinical research using human fetuses or embryos “before or after abortion.” Concurrently with that moratorium (and also addressing concerns not directly related to embryo and fetal research), Congress established a National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. Among its other tasks, Congress explicitly assigned the Commission the responsibility of offering guidelines for human fetal and embryo research, so that standards for funding might be established, and the blanket moratorium might be lifted.

That same year, the Commission called for the establishment of an Ethics Advisory Board within DHEW to review research protocols for potential federal funding of research using human embryos, and to consider particular grant applications. In doing so, the commission looked ahead to the possible uses of in vitro embryos, the first successful in vitro fertilization (IVF) of human egg by human sperm having been accomplished in 1969. The Department adopted the recommendation in 1975, and an Ethics Advisory Board was established. The Board first took up the issue of research on in vitro embryos in full in 1978, and issued its report in 1979.

By that point, human IVF techniques had been developed in Britain. These raised unique prospects and concerns which were distinct from some of those that involved human fetal tissue research, so that starting in the late 1970s funding of embryo research and funding of fetal research came to be treated as mostly distinct and separate issues. The Ethics Advisory Board recommended that research involving embryos and IVF techniques be funded, provided that research did not take place on embryos beyond fourteen days of development, and that all gamete donors were married couples.

The Department, however, did not accept the Board’s recommendation, and no funding was provided for human embryo studies. The Ethics Advisory Board’s charter expired in 1980, and no renewal or replacement was put forward, creating a peculiar legal situation in which the original 1974 law was still in effect, but no review body existed to consider requests for funding of embryo research. Such funding was therefore rendered impossible in practice, and the Ethics Advisory Board was never replaced, leaving the de facto ban on funding in place through the 1980s.

In 1993, Congress enacted the NIH Revitalization Act, a provision of which rescinded the requirement for approval of research protocols by the non-existent Ethics Advisory Board. This opened the way in principle to the possibility of NIH funding of human embryo research using IVF embryos. The following year, the NIH convened a Human Embryo Research Panel to consider the issues surrounding such research and propose guidelines for potential funding applications. The panel recommended that most sorts of human embryo research should at least be considered for federal funding, including the creation of human embryos through IVF with the explicit intention of using them only for research. President Clinton, responding to substantial public and Congressional pressure, overruled the panel on the latter point, ordering that embryo creation for research not be funded, but he accepted the panel’s other recommendations, and instructed the NIH to consider applications for funding of research using embryos left over from IVF procedures.

Congress, however, did not approve of this course of action. In 1995, before any funding proposal had ever been approved by the NIH, Congress attached language to the 1996 Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act (the budget bill that funds DHHS and the NIH) prohibiting the use of any federal funds for research that destroys or seriously endangers human embryos.

This provision is known as the “Dickey Amendment” (after its original author, former Representative Jay Dickey of Arkansas), and has been attached to the Health and Human Services appropriations bill each year since 1996. Everything about the subsequent debate over federal funding of embryonic stem cell research must be understood in the context of this legal restriction. The provision reads as follows:

SEC. 510. (a) None of the funds made available in this Act may be used for—

(1) the creation of a human embryo or embryos for research purposes; or

(2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under 45 CFR 46.208(a)(2) and section 498(b) of the Public Health Service Act (42 U.S.C. 289g(b)). ¹

(b) For purposes of this section, the term ‘human embryo or embryos’ includes any organism, not protected as a human subject under 45 CFR 46 as of the date of the enactment of this Act, that is derived by fertilization, parthenogenesis, cloning, or any other means from one or more human gametes or human diploid cells.

The Dickey Amendment was originally enacted before the first isolation of human embryonic stem cells, which took place in 1998, but the Amendment has been reenacted every year since. It is grounded in the principle that nascent human life ought to be treated as inviolable. Many of its supporters and advocates believe that human embryos should not be destroyed for scientific research, however promising, and that such destruction should therefore by no means be supported by taxpayer dollars.

On its face, the Dickey Amendment would seem to close the question of federal funding of embryonic stem cell research, since obtaining stem cells for such research relies upon the destruction of human embryos. But in 2000, a legal finding by the General Counsel of the Department of Health and Human Services (under President Clinton) argued that the wording of the law might allow for a loophole by which human embryonic stem cell research could be funded. If embryos were first destroyed with private funding, then subsequent research employing the derived embryonic stem cells (propagated in tissue culture) might be considered eligible for federal funding. Because such research would require no new embryo destruction, the Department’s lawyers suggested, the legal requirement not to fund research “in which” embryos were destroyed would still technically be obeyed.

Though it might stay within the letter of the law, this approach would, of course, contradict both its spirit and the principle that underlies it. It would use public funds to ratify and encourage the destruction of human embryos by promising funding for research that immediately follows and results from that destruction. By so doing, it would at least implicitly state, in the name of the American people, that research that destroys human embryos ought to be encouraged in the cause of medical advances.

The Clinton administration considered this course of action, and began to draw up potential regulations to enact it. Upon entering office in 2001, however, the Bush administration decided to take another look at the options regarding embryo research policy, and put any possible changes on hold.

President Bush sought a way to allow some potentially valuable research to proceed within the limits of the principle (and not just the letter) of the Dickey Amendment, a principle the President himself believes in. He hoped that the particular circumstances of the situation might make it possible for the government to oppose what he takes to be an immoral act, while not simply putting to waste those among the already irreversible results of the act that might be put to use in the service of some moral good. This is the logic of the present stem cell funding policy: it seeks those benefits of embryonic stem cell research that might be attainable without encouraging the future destruction of human embryos, all the while upholding, and indeed more fully articulating, the principle of the inviolability of nascent human life that underlies the law.

2. The present policy

The current policy on federal government funding of human embryonic stem cell research, then, must be understood in terms of the constraints of the Dickey Amendment, and in terms of the logic of the moral and political principles that underlie that amendment.

At the time of the decision’s announcement, a number of embryonic stem cell lines had already been developed. The embryos from which they were derived had therefore already been destroyed, and could no longer be saved — the life and death decision had been irreversibly made.

The President’s policy, announced on August 9, 2001, would make available taxpayer funding to research conducted on those preexisting lines, but would refuse in advance to support research on any lines created after the date of the announcement. Moreover, to be eligible for funding, researchers could use only those preexisting lines that had been derived from excess embryos created solely for reproductive purposes, and made available with the informed consent of the donors, and without any financial inducements to the donors. The policy not only denies federal funding for research conducted on stem cell lines derived from embryos destroyed after August 9, 2001, but also for the creation of any human embryos for research purposes and for the cloning of human embryos for any purpose. The implicit message: The federal government — both a majority of Congress and the President — believes that nascent human life ought not be violated, and will not contribute to, participate in, or promote or reward its violation.

3. Moral foundation of the policy

Though it took place in a similar political context, and in the end took a superficially similar form, President Bush’s approach to the stem cell funding question differs fundamentally from that taken by the Clinton Administration, because the two began from two essentially different positions on the question of the morality of research that results in the destruction of human embryos, and therefore had essentially different purposes in mind for their policies.

President Clinton, like many Americans, did not believe that the destruction of in vitro human embryos is inherently or necessarily a moral evil, and, like nearly all Americans, believed that the potential promise (even if somewhat speculative) of cures and medical advances to help the sick and the suffering ought not be ignored. The first of those premises put him at odds with the principle that animates the law on this subject (the Dickey Amendment), but given his responsibility to carry out the laws as they are enacted, he sought a way to advance research within the limitations set by the statute. His approach to the funding of embryonic stem cell research, therefore, sought to answer a legal and political question: how can embryonic stem cell research be maximally aided within the limits of the law?

President Bush had a very different question in mind. Like many other Americans, he does believe that the destruction of human embryos is morally wrong. He shares the view that underlies the Dickey Amendment, but he also shares the view that medical research and the treatment of disease are enormously important, and should be encouraged within moral bounds. His approach to the stem cell question has therefore been directed at a different challenge from that which confronted the Clinton administration, and he has sought a way to answer a moral question as much as a legal one: Is there some way to oppose and reject a moral evil, while not simply putting to waste those among its already irrevocable consequences that might somehow serve a moral good? Or, put conversely, is there some way to use materials obtained by a prior unethical act to promote the moral good of healing the sick and relieving human suffering without being guilty of, or complicit in, an illegal or immoral act? In either formulation, the decision regarding the funding of research on already derived human embryonic stem cells came down to this question: Can one benefit from the result of an immoral act without oneself being or becoming complicit in the act?

The present funding policy is therefore not an attempt to answer the question of how the government might best advance embryonic stem cell research in light of the law on the subject. Rather, it is an attempt to answer the question of how the government might both oppose the (presumed) moral evil of embryo destruction and, without undermining that opposition, advance the cause of medical research. Whether one agrees with the premises defining the question, and whether one accepts the logic of the answer, any assessment of the policy must begin from an awareness of this starting point.

Seen in this light, a crucial and common misunderstanding of the policy may be corrected. From the very beginning, the policy has been described — even by many of its supporters and defenders — as occupying a kind of middle-ground position in the debate over the morality of embryo research. It has been termed a “Solomonic compromise.” But understood in its own proper terms, the president’s policy is not a compromise. Rather than an attempt at a prudential or political bargain, it is an effort at a moral solution.

The effort proceeds by drawing on a traditional approach in moral philosophy to an ancient and vexing question: Can one benefit from the results of an immoral act without becoming complicit in the act? This approach suggests that one may make use of such benefits if (and only if) three crucial conditions are met: (1) Non-cooperation: one does not cooperate or actively involve oneself in the commission of the act; (2) Non-abetting: one does nothing to abet or encourage the repetition of the act, for instance by providing incentives or rewards to those who would perform it in the future; and (3) Reaffirmation of the principle: in accepting the benefit, one re-enunciates and reaffirms the principle violated by the original deed in question.

As a plan for redeeming some good from embryo destruction that has occurred already, while not encouraging the future destruction of human embryos, the president’s policy addresses and meets all three conditions: (1) No federal funds have been or, by this policy, would be used in the destruction of human embryos for research. (2) By restricting funding exclusively to research on embryonic stem cell lines derived from embryos destroyed before the policy went into effect, the policy deliberately refuses to offer present or future financial or other incentives to anyone who might subsequently destroy additional embryos for research — this is the logic behind the cut-off date for funding eligibility at the heart of the policy. And (3) the President, in his speech of August 9, 2001, and since, has reaffirmed the moral principle that underlies his policy and the law on the subject: that nascent human life should not be destroyed, even if good might come of it. The policy as a whole is meant to draw attention to that principle by drawing a sharp line beyond which funding would not be available.

The policy therefore goes as far as it seems possible to go within the bounds of the spirit and moral principle behind the law — the principle that nascent human life should not be violated, which the president himself adheres to — and it also goes farther than the federal government ever has in the direction of funding work that involves human embryo research. To go further would not be to extend the logic of the policy or of the law, but rather to contradict them both: it would not be a difference of degree but of principle. Of course, such a change might well be in order, but a case for doing so must address itself to the moral argument and its principles, rather than just to the state of research and its progress or promise.

This character of the decision has been overlooked both by its opponents and by many of its defenders. As a result, the debate has tended to focus on the precise balance of benefits and harms resulting from the combination of the Administration’s policy and the state of the relevant science. It has focused on whether there are “enough” cell lines or on whether the science is advancing as quickly as it could, and has proceeded as though this Administration sought simply the same end as the previous one: that is, to allow for maximal progress in embryonic stem cell research within the limit of the law. Had the decision been based on that desire, then claims or evidence of slowed progress alone might constitute an argument against it in its own terms. But since the decision was grounded firmly in a clearly discernible (if controversial) principle, it does not appear simply to be overturnable on its face by a shift in the ratio of harms and benefits. Judgments made in matters of calculation and weighing of competing goods (and bads) are, of course, altered decisively by the changing weights of what is placed on the scales. But judgments made as matters of principle — of right versus wrong, rather than better versus worse — can only be altered at the level of principle. To argue with the President’s decision on its own terms, one would need to argue with its moral and political premises: namely, its view that the human embryo ought not be violated, its view, therefore, that this is indeed a matter of principle rather than of “balancing”, and its assessment of the significance of government funding of a contested activity. All of these are, of course, appropriate subjects for public debate.

The last of the three — the meaning of government funding — is an especially neglected element of the current debates, and deserves further clarification. It will require us to delve into the important distinction between government permission (that is, an absence of prohibitions) of an activity, and government support for an activity. This moral-political distinction lies at the heart of the stem cell debate.

4. The significance of federal funding

The national debate over embryonic stem cell policy often raises the most fundamental questions about the status of the human embryo and the legitimacy of research that destroys such embryos. For those caught up in this debate, it is easy to forget that the question at issue is not whether research with embryos should be allowed, but rather whether it should be financed with federal taxpayer dollars.

The difference between prohibiting embryo research and refraining from funding it has often been intentionally blurred by both sides to the debate. Proponents of funding want as much material support as possible for research efforts, and so they play down the availability of other sources of funding, so as to make the case that the work could not proceed without public money. They wish to portray their adversaries as opposed to important scientific progress, and so it is useful to them to shift the grounds of the debate in the direction of an argument about the legitimacy of the research itself, rather than the meaning of paying for it with taxpayer funds. All too often, they claim that current policy in fact prohibits all stem cell research. Meanwhile, most opponents of funding for embryo research are, in fact, also opponents of embryo research more generally, and they use the debate over funding as a forum for making their case for the moral status of the embryo. Some of them would be only too glad to see the research banned. The question of funding itself is therefore rarely taken up in full.

That question arises because modern governments do more than legislate and enforce prohibitions and limits. In the age of the welfare state, the government, besides being an enforcer of laws and a keeper of order, is also a gargantuan provider of resources. Political questions today, therefore, reach beyond what ought and ought not be allowed, to include questions of what ought and ought not be encouraged, supported, and made possible by taxpayer funding. The decision to fund an activity is more than an offer of resources. It is also a declaration of official national support and endorsement, a positive assertion that the activity in question is deemed by the nation as a whole, through its government, to be good and worthy. When something is done with public funding, it is done, so to speak, in the name of the country, with its blessing and encouragement.

To offer such encouragement and support is therefore no small matter. Aside from its material importance, the offer is also laden with moral and political meaning. In the age of government funding, the political system is sometimes called upon to decide not only the minimal standards of conduct, but also the maximum standards of legitimacy and importance. When the nation decides an activity is worth its public money, it declares that the activity is valued, desired, and favored.

The United States has long held the scientific enterprise in such high regard. Since the middle of the twentieth century, the federal government, with the strong support of the American people, has funded scientific research to the tune of many hundreds of billions of dollars. The American taxpayer is by far the greatest benefactor of science in the world. This is so because the American public greatly values the contributions of science to human knowledge, human power, human health, and the standard of living. We Americans have always been boosters of science and medicine, deeming it worthy of support for moral as well as material reasons.

But this enthusiasm for science is not without its limits. As already noted, we attach restrictions on federally funded research, for instance to protect human subjects. We also put limits on some practices that might offer life-saving benefits, for example by prohibiting the buying and selling of organs for transplantation. Also, as in the present case, many Americans have specific moral reasons for opposing certain lines of research or clinical practice, for example those that create human life in the laboratory or that involve the exploitation and destruction of human fetuses and embryos. The two sides of the embryo research debate tend to differ sharply on the fundamental moral significance of the activity in question. One side believes that what is involved is morally obnoxious in the extreme, and indeed may be akin to homicide; while the other believes embryo research is noble or even heroic, and is worthy of praise and support. It would be very difficult for the government to find a middle ground between these two positions, since the two sides differ not only on what should or should not be done, but also on the attitude from which the activity should be approached.

To this point, the only workable approach found has been the policy of federal neutrality, whereby the federal government does not prohibit embryo research, but also does not officially condone it, encourage it, or support it with public funds. This has allowed the political system to avoid forcing the question of whether embryo research is good or evil, to avoid compelling those citizens who oppose it to fund it with their tax money, and to avoid banning it against the wishes of those who believe it serves an important purpose. The approach is based, at least in part, on the conviction that debates over the federal budget are not the place to take up the anguished question of the embryo.

But the position is not only a compromise between those who would have the government bless and those who would have the government curse this activity. It is also a statement of a certain principle: namely, that public sanction makes a difference. The present policy is an articulation of the view that public resources will not be used to encourage the destruction of human embryos. While embryo destruction may be something that some Americans support and engage in, it is not something that America as a nation has officially supported or engaged in. It has generally not been deemed to meet the standard for public acclaim and taxpayer funding.

Of course, if the funding issue were merely a proxy for the larger dispute over the moral status of the embryo, then the principle of federal neutrality would appeal only to those who would protect the embryo, and would succeed only as long as they were able to enact it. The argument might end there, with a vote-count on the question of the moral status of the embryo. But some proponents of the present law suggest that the particulars and contours of the embryo research debate offer an additional rationale for the principle of federal neutrality on embryo research. Here again, it is important to remember that the issue in question is public funding, not permissibility. Opponents of embryo research have in most cases acquiesced in narrowing the debate to the question of funding. They do not argue for a wholesale prohibition of embryo research by national legislation, though many of them see such work as an abomination and even a species of homicide. In return, proponents of the Dickey Amendment argue that it would be appropriate for supporters of research to agree to do without federal funding. Many Americans believe that this is a life and death question, and do not want their country, in their name, to take the wrong side. Even for those who disagree, the character and intensity of feeling among fellow citizens on the other side surely must count for something.

On the other hand, it might reasonably be argued that part of living under majority rule is living with the consequences of sometimes being in the minority. Were the Congress to overturn the current policy of federal neutrality, opponents of funding for embryo research would not be alone in being compelled to pay for activities they abhor. We all see our government do things, in our name, with which we disagree. Some of these might even involve life and death questions, for instance in wars that some citizens oppose. The existence of strong moral opposition to some policy is not in itself a decisive argument against proceeding with that policy. But once more it is worth reminding ourselves that what is at issue is public funding of a practice that could be (and is) otherwise privately funded. The fact that another source of funding exists might reasonably set the bar somewhat higher for involving the public in the encouragement and facilitation of a highly controversial practice. If so, proponents of embryo research might need to show not only that it is a legitimate practice, but also that they are unable to procure sufficient funds from private sources, that the practice is so important to the public good that it should override the strong moral objections of a very substantial portion of the public, and that no morally less problematic alternatives exist to accomplish the same ends.

These concerns and arguments give the question of funding its own crucial significance, even apart from the more fundamental question of the legitimacy and propriety of the act being funded.

Conclusion

The Administration’s policy on the funding of embryonic stem cell research rests on several moral and ethical-legal principles, set upon the reality of existing law:

1. The law: The Dickey Amendment, which the President is required to enforce.

2. The principle underlying the law: The conviction, held by the President, a majority of the Congress, and a significant portion (but by no means all) of the public, that nascent human life should be deemed inviolable.

3. The principle underlying the desire to offer funding: That efforts to heal the sick and the injured are of great national importance and should be vigorously supported, provided, of course, that they respect important moral boundaries.

4. The significance of federal funding: That federal funding constitutes a highly meaningful positive statement of national approval and encouragement, which should be awarded only with great caution and care, particularly in cases where the activity in question arouses significant public moral opposition.

The significance of the policy is best understood in light of these key elements, and most reasonably measured against them.

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Endnotes

1.These two legal citations refer to the federal human subjects protections regulations, and the federal fetal research funding standards, respectively.