Thursday, September 4, 2003

Session 2: Stem Cells: The Administration's Funding Policy: Moral and Political Foundations

Discussion of Staff Working Paper, “The Administration’s Stem Cell Research Funding Policy: Moral and Political Foundations.”

CHAIRMAN KASS:  All right.  We move from the general question of the meaning of federal funding, to a session entitled "Stem Cells: The Administration's Funding Policy: Moral and Political Foundations."  The basis for the discussion is a very fine and lucid Staff Working Paper on the topic, one which, if I might be allowed a personal rather than official opinion, is the clearest and best explication of this matter that I, at least, have seen anywhere.

The paper provides a brief background history of the embryo funding debate, leading up to the Dickey Amendment, and the different approaches taken by the Clinton and Bush Administrations in executing that law, that law still setting the background for all of the discussions that follow.

The Staff Working Paper then explicates the present funding policy, and clearly articulates the moral legs on which it rests.  Among its most important contribution, in my view, this part of the working paper points out that the President's policy rests, at least in part, on moral principle, not a political compromise or a cost benefit calculation, and draws from this fact the following conclusion.  And I'm reading from page 7 of the Staff Working Paper.  Well, let me read the whole paragraph.

"This character of the decision, namely, that it's been based on moral principle, has been overlooked by both 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 is focused on whether there are enough cell lines, or 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 on 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 a human embryo ought not to be violated.  Its view, therefore, this is indeed a matter of principle rather than a balancing, and its assessment of the significance of government funding of the contested activity.  All of these are, of course, appropriate subjects for public debate."

Finally, the Working Paper also treats the issue of federal funding and its significance, the topic of our last session, and offers its own take on what kind of a decision, the decision to withhold or offer federal funding, really is.  I think it's perfectly compatible with Peter's paper, though there are some interesting different nuances.

The paper is now open for discussion, and let me suggest that we begin with questions of clarification, or questions that go to the accuracy of the explication offered in the Working Paper.  Once again, before we move into an argument about the issues, we should try to be clear and reach agreement on what it is that we're arguing about.  So if we could begin with those kinds of questions and comments, and then we can move to a more substantive discussion.

I should say, this paper is largely the work of Yuval Levin, who's had critical comments from others, but it's his very fine handy work, and if I get stuck in any places, I will feel it appropriate to call on him for assistance.  Robby George.

PROF. GEORGE:  Would it be possible for you or Yuval to give us a little more detail about the change in policy toward the end of the Clinton Administration, and when the Bush Administration took over.  There's a nice short summary of that in the paper, but I wonder if there's more detail that could be given.

CHAIRMAN KASS:  Let me try.  I'm not sure that this is much more than what's here, but the language of the Dickey Amendment says "no federal funds may be used for the creation of a human embryo or embryos for research purposes, or research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury, et cetera."

Reading strictly according to the letter, and reading, I think, in the spirit of what the paper identifies correctly as the basic sort of thrust of the Clinton Administration's view of the matter, the political question there was how can embryonic stem cell research be maximally aided within the limits of this law as written?

Well, the law as written says you can't fund research in which the embryos - an embryo or embryos are destroyed, discarded or subjected to risk, but it doesn't say that you may not fund research on cells derived from prior destruction.  So the argument would be if the stem cells were - stem cell lines were derived from embryos destroyed not with federal funds, and no further embryo destruction is now entailed in the further use of those cells, then those cells could be - research on those cells could be funded without violation of the Dickey Amendment.  That was the reading of the law by Council within HHS in the latter part of the Clinton Administration.  Rebecca, am I so far okay?

PROF. DRESSER:  Yes.  I was just wondering if Robby was interested in the proposed guidelines that NIH was going to adopt with Secretary Shalala.

PROF. GEORGE:  Yes, Rebecca, I was.  That's what I was interested in learning more about, because it was the - where it wasn't - what wasn't clear to me from the paper is what happened as far as implementation once the administration had decided upon this reading.  I know at the end it was kind of left hanging because there was a change of administrations, but how far did things go?

PROF. DRESSER:  Well, this is my recollection.  The NIH put together a committee which proposed guidelines for federal funding.  And I believe they went through a comment process, and then  I think they were formally published in the Federal Register, but they hadn't taken effect before the election.  And they did have some substantive provisions; such as - one which I think is of interest here is that no funding for stem cells from embryos created through cloning.  And they did have some other limitations, so it might be helpful to include some of the substance of them in this document.

CHAIRMAN KASS:  Thank you.  Janet.

DR. ROWLEY:  Yeah, because Shirley Tilghman  was the Chairman of that committee, and they met for quite some time before the recommendations were made.  And they were subject to federal comment.  And it's my impression that the members of that review board, which would review all of the research proposed to be done under this new permitted research was going to be reviewed by a committee that would be housed at NIH, just like the RAC is.  But it was so close to the election that, in fact, that review committee never met.

CHAIRMAN KASS:  Well, I think it would be important for us to get that information and make it part of the historical background of this chapter.

Rebecca, please continue.

PROF. DRESSER:  I had another question just about the term "loophole".  Is that something that was intentionally used, and do we really want to use it?  Let's see.  I think it was on the top of page 4, about the middle of the first full paragraph.  And it's been referred to earlier in this discussion as a loophole.  I mean, it seems a pejorative term.  Perhaps an exception in the area where the application did not - I don't - I'm just throwing it out for discussion.

PROF. SANDEL:  A lacuna.

CHAIRMAN KASS:  Yeah, it will be altered.  I think it's certainly fair to say that it was an attempt to use the statutory - to find openings in the statutory language that would permit activity against the spirit of the law itself.  I think that's not controversial, but I don't think we will strike anything that suggests that there's something improper about that.

PROF. DRESSER:  Well, I mean if it is a loophole, it's a loophole that the current policy also, to some extent, rests on.  Isn't that correct?  Because the current policy is a way of funding stem cell research consistently with the Dickey Amendment.

CHAIRMAN KASS:  Well taken.  Jim Wilson.

PROF. WILSON:  I think the text suggests for reasons it does not make explicit, and I emphasize the word "suggest", there was a difference in motivation between the Clinton and Bush Administrations, but it doesn't make explicit what the text suggests.  And as Rebecca just pointed out, however we may characterize Mr. Clinton's personal motives or Mr. Bush's personal motives, that the present policy is consistent with prior policy in the Clinton Administration; that is to say, a private funding led to the destruction of an embryo.  Then the cells from that embryo could be analyzed using federal funds.  And is there a difference?  And if so, it should be made explicit.

CHAIRMAN KASS:  Does someone want to comment on this?  Gil Meilaender.

PROF. MEILAENDER: Well, I think there is this difference, that the policy in place now in the Bush Administration does not reckon with the possibility that newly derived embryonic stem cell lines could become the subject of research; that is to say, the derivation/use distinction doesn't continue indefinitely.  Whereas, presumably with the policy of the previous administration, it could have - there could have been an indefinite number of stem cell lines derived without federal funding, but then the use of federal funds to do research with them.  And in that sense, there's a clear distinction.

PROF. ROWLEY:  But I think that's a point of specific information, that as we get more details about what the precise language was of the committee that Shirley Tilghman was chair of, we'll see whether, in fact, what you just said is correct or not.

PROF. MEILAENDER: I'm perfectly happy to have us see that.

PROF. BLACKBURN:  Just a clarification.  I thought it said at the end of that first full paragraph on page 4, it said, "Because such research would require no new embryo destruction", it seems as if the previous administration's did have that provision in it.

PROF. WILSON:  That's exactly what I'm trying to clarify.  That phrase put me off.  It was my understanding from my memory of the time, quite shaky at best, that it would have allowed continued destruction of embryos by private funding.  If that's the case, then this sentence is in error.  That's what I wanted to have clarified.  Yes.

DR. KRAUTHAMMER:   I think it might be just amended to read, "Because such research would require no new embryo destruction by federally supported research", and that would cure the problem.

PROF. BLACKBURN:  It needs to be clarified what it was.

CHAIRMAN KASS:  Someone was in the queue.  Mike, why don't you just - Mike Gazzaniga.

DR. GAZZANIGA:  Well, just a point of clarification.  The principle that you're referring to that must be changed in order for the President to change his position; namely, that the human embryo ought not to be violated, I was wondering if Michael Sandel would comment on that, given his argument this morning.  Does this argument force upon him a - force upon us a different way the President should have stated his principle?

CHAIRMAN KASS:  Do you want a clarification of the question that's put to you?

PROF. SANDEL:  I didn't quite catch the first part.

DR. GAZZANIGA:  Well, just the discussion we had this morning about, in order for the policy of his to be morally coherent, there had to be this assumption of the fact that he was not yet decided on the moral status of the embryo.  That seems to me, if that is true, if that argument is valid, then the principle that you're referring to in the paragraph you just read should be amended.

PROF. SANDEL:  Well, we're going to, I assume, get into this.  It seems to me that the whole issue here rests on the complicity issue, what is complicity, and in what kind of moral evil is there complicity if you use the fruits of the morally evil act for good ends?  And then the question is, well, just how morally evil can the act be for you to use the fruits of it, and not be morally complicit in the wrong?  But I think the issue of complicity is, that's the heart of the moral position here.  And we need to get into that, but I don't know that -

CHAIRMAN KASS:  Let's hold that - I'm sorry.

PROF. SANDEL:  But I think we're going to come to that, I assume.

CHAIRMAN KASS:  We will come to that.  Let's see if there's still questions of clarification.  Jim Wilson, sorry.

PROF. WILSON:  On page 5, there is an effort to distinguish the Clinton position from the Bush position.  And we assert President Clinton, like many Americans, did not believe that the destruction of an in vitro human embryo is inherently or necessarily a moral evil.  And in the next paragraph,  President Bush had a very different question in mind.  Like many Americans, he does believe that these are - these are statements.  It would be better if they were quotations of the Presidents so we'd know what, in fact, they said, if they said anything.

CHAIRMAN KASS:  Point taken.  Janet.

DR. ROWLEY:  Because to follow on, but skip to the conclusions under number 2, the conviction held by the President that nascent moral human life should be deemed inviolable, and we spent the earlier part of today saying that in fact we - it was our impression that he hadn't come to a decision on that.

CHAIRMAN KASS:  Yeah, I'm not - by the way, Jim Wilson's counsel is, of course, as it often is wise, and if we attribute opinions to various people, we should find the text.

I don't think, by the way, that - and I think we can find it.  I don't think that the argument that agnosticism - the argument that the President is agnostic on the question can be settled by the quotation that Peter gave from the fact that he heard two different opinions, and cited those opinions in the Address of August, 2001.  And he has, on other occasions, said things that are very much like this in public speeches, but we will find - we will get the evidence.  Rebecca.

PROF. DRESSER:  A question of clarification, that this first paragraph at the top of page 5, the very last sentence.  I wondered if that should say "nascent human life ought not be violated for research", because, I mean, that seemed rather broad.  And if I remember correctly, isn't there federal funding available for abortion under certain circumstances?  Say if the mother's life is in danger, so that seemed rather absolute.

CHAIRMAN KASS:  Point taken.  Robby George.

PROF. GEORGE:  Leon, a bit more if you know more, back to my original question, about the source of the cell lines funding on which was authorized by the President in his August 9th, 2001 Address.  Do we know the circumstances under which those cell lines were created?  Presumably, they were created - the destruction of the embryos to generate the cells to begin the lines was privately funded.  Is that right?

CHAIRMAN KASS:  That's my understanding, yes.  All those lines were checked out under Whitehouse direction, but by people at the NIH.

PROF. GEORGE:  And do we know when?

CHAIRMAN KASS:  When were they checked?

PROF. GEORGE:  No, when were they created?

CHAIRMAN KASS:  I think at various times in the preceding years.

PROF. GEORGE:  Going back five years, ten years?

CHAIRMAN KASS:  The first stem cell lines were derived and reported on anyhow in 1998.  That's the first publication.  Whether they existed prior to publication for a short period of time, I don't know.  Yeah, we have one of the pioneers here.  Elizabeth.

PROF. BLACKBURN:   And should we add some of the lines counted in the original 76 I believe were from foreign sources too, and those might have been from -

PROF. GEORGE:  Yeah.  I was wondering about that.

PROF. BLACKBURN:  Those might have been from those countries' equivalent of federal funding.  I'm not sure line by line about that, but that's a possibility.

CHAIRMAN KASS:  Yeah.  No, I mean what was - while speaking just about that question, and we need to get more information in here because I think it's going to be relevant to the document.  A certain kind of confusion was created by failure to observe the distinction between eligible and available.  Some 60, and then eventually it grew to some 70 lines were eligible, eligible in the sense that they met the criteria of having been derived prior to the date of the policy by informed consent, et cetera, et cetera, and not derived with government funds.

Available meant, in fact, that they were characterized that there were no commercial or other impediments to their being shared, so that there was a certain amount of confusion.  When people said there were some 70 lines available, what they meant really was that there were 70, 71, I've forgotten, eligible for funding.  I believe the number now actually available to the NIH is 12, so that of the 70 original  available lines, most of them from international sources, in fact, they are now a dozen of them that are actually available for use.  And we'll get some more information about - to fill in that part of the history.  Janet.

DR. ROWLEY:  And I think that's a very important distinction because when one uses the term "characterized", that means a different level of real scientific analysis to different people.  But that was one of the issues, that many of the so-called lines are not lines and that they cannot be grown indefinitely.  Secondly, their karyotype was not established, and so many of them may be abnormal and, therefore, not suitable, so that this is why you go from 77 down to 12.  And this is part of the concern about the availability.

CHAIRMAN KASS:  Okay.  Still a clarification, Jim?  Please go ahead.

PROF. WILSON:  Yes.  Janet raises a question that I thought will be answered in the document, possibly it should be answered in this document; namely, very practical questions.  How long, and under what circumstances does a cell line endure?  To what extent do we know the physiological origin of the cell line?

At some point obviously we may summarize  information about what has been done, what has been accomplished with these cell lines, but just practical terms.  Where do they come from, and how long do they last?  And will at some point, some President, if not this one, the next one, have to consider re.authorizing other cell lines to make up for a deficiency?

CHAIRMAN KASS:  All right.  Then if this exhausts the matters of clarification, I think we can now sort of get into discussion of the more substantive questions.  And maybe we should go back to this question of complicity.  Michael, do you want to proceed, or do you want to have the question put to you again?

PROF. SANDEL:  Well, the moral heart of the issue seems to be this question of complicity, and the paper brings this out at the bottom of page 5, and on page 6.  And it suggests an answer in the third paragraph on page 6.  The question is "whether one can benefit from the results of an immoral act without becoming complicit in the act."  That's the heart of the moral test of this position, and the discussion paper says that one may make use of such benefits if, and only if three conditions are met; one doesn't cooperate or actively involve oneself in the commission of the act, and does nothing to abet or encourage the repetition of the act by providing incentives and so on.  And in accepting the benefit when - re-annunciates and reaffirms the principle violated by the original deed in question.

One question I have, and it may be a small question, but at the top of page 5 there were some restrictions on eligibility for federal funding of stem cell lines that I hadn't been aware of until I read this, which are only those pre-existing lines.  It's not only that they must be pre-existing, but that they must be somehow certified not to have been derived from excess embryos created for reproductive purposes, and made available with the informed consent of the donors, and without financial inducement.

So an initial question I have is, if the conditions for non- complicity are correct and adequate, then why worry about these other considerations?  Presumably, these other considerations matter because even where you're using pre-existing stem cell lines, where the evil deed has already been committed, and where you're not complicit in that evil deed.  You don't perform it, you don't abet it, you don't provide incentives for its being committed in the future.  Even in those cases, there would still be complicity, or would they if you're using pre-existing lines that, let's say, where the donors have been given some payment?

That would create complicity, but the underlying evil act itself wouldn't, and that's very strange.  So the only way of making sense of those additional requirements of the pre-existing lines is that they somehow make it even worse, but could they make it even worse if the underlying moral evil were already tantamount to murder or homicide?  It seems unlikely if I'm not complicit - and the same way to think about this we've discussed before using the fruits of the Nazi experiments, medical experiments in the concentration camps.  Under what conditions can we use the medical data that came from these Nazi experiments without being complicit in them?  And maybe the answer would have something to do with well, we didn't cooperate.  We didn't abet the practice.  We don't encourage it in the future.  But then it would be odd to say, if that were the relevant analogy, it would be odd to say but we can only - we're only not complicit really if it turns out that the data was from these people who were tortured and abused, was made available, you know - oh, no they didn't give their consent.  Oh well, in that case, no, no, then we would be complicit even though we're meeting these other requirements.  Or if we're thinking of an example of using organs that had been extracted from prisoners, let's say, in a prison camp in some totalitarian society where it's reported that prisoners are killed for their organs in various countries.

Now would we say well - what would be the policy?  Would we say well, it's an evil to kill someone for his organs?  We're not going to desist from using those organs, provided that those organs - that the killings were done before a given date, so we don't encourage it in the future.  But we remove our complicity, provided we're not encouraging - we didn't cooperate in the killing and the extraction of the organs in this prison camp.  We don't encourage it in the future, because from now on we're not going to do it.  But we can use these organs to save lives.  Let's suppose they're still available, been preserved.  They're fresh enough so that they can - we'll use these ones.

And furthermore, we'll even provide federal funding for the use of these organs, provided you don't do it again, provided you don't it in the future.  Would we satisfy ourselves and say well, that's not really - we're not complicit.  We're just using what's available.  In fact, we're giving federal funding for those organs, but we're laying down these restrictions to make sure it doesn't happen again, and that we're not complicit.

I think that would be a strange moral position to take if we really did believe that these organs did come from human beings in a prison camp   who were killed to extract them, to get federal funding - but under these - I think we would still say we're complicit.  So that's simply putting this together with the discussion we had of Peter Berkowitz' paper.  What this suggests - the complicity discussion here suggests is that we would still consider it morally complicit to avail ourselves of the organs we found in that prison camp, even though we didn't kill the people, we didn't extract the organs, and we're not going to provide incentives to do it again, because from here on out, you can't do it.  But in the meantime, they're there, we can save life.  Let's get federal funding for these organs.

CHAIRMAN KASS:  Does someone want to respond directly to this?  Mary Ann and then Jim, and Bill.

PROF. GLENDON:  I think maybe there's a simpler explanation for these conditions, which is that there are a number of policies being followed here.  And one is that the government doesn't want to do anything to encourage the creation of embryos for other than reproductive purposes.  Another is, you always want to support informed consent to procedures.  And another is, you don't want to encourage commercial trafficking in human material.

I just don't think that there needs to be or were thought of as involved at the complicity issue.  I think the complicity issue—

PROF. SANDEL:  Let's just ask, Mary Ann, about that, what you've just said.  But remember, this is in the context of only pre-existing one.

PROF. GLENDON:  Well, I'm coming to that.  So the complicity issue has to do with pre-existing, to take your analogy to the use of materials that were obtained from victims of national socialism.  One of the reasons why the complicity issue is not as acute in that case as it is here, is that behavior is not ongoing.  It's finished.  Here we're dealing with an ongoing situation, and the risk of encouraging future production of these lines is greater.

PROF. SANDEL:  So what would you do with the organ case of the prisoners in China, hypothetically, which could be ongoing?

PROF. GLENDON:  I'm sorry?

PROF. SANDEL:  Well, how would you respond to the organs derived from prisoners in a prison camp in the complicity issue?  Do you think that comes closer to this example?

PROF. GLENDON:  If it's an ongoing situation.

PROF. SANDEL:  No, but if we say we're only going to use those organs that we came upon yesterday, and we'll get federal funding for those transplantations because the deed has already been done.  But we're not going to allow any federal funding for any organs from prison camp victims after August 9th, after today.

CHAIRMAN KASS:  That one I think is easy, don't you think, Michael?  Let me give you an American version, the eminent Dr. Kevorkian, mostly known for his interest in assisted suicide, actually had combined those proposals with a desire to get organs for transplantation.  This was a double-barreled project of his.

Imagine that you have the Good Samaritan euthanizers led by the good doctor, and that he doesn't get just ordinary healthy people.  He waits for the terminally ill but not yet dead, and the cadre come in and extract the organs from the almost dying, and you've got a freezer full of these.  And they're properly stored, and you catch them.  And the question is, you've got a freezer full of good organs.  You throw them out.  And if you use them, or even if you use them, and use them in federally supported hospitals, are you, in effect, complicit in the dirty deed that was done?

PROF. SANDEL:  What do you say?

CHAIRMAN KASS:  I say no. And I say no under certain kinds of specified conditions; which is to say, you round them up.  You punish them severely, and you make it perfectly clear in doing so that you're re-affirming the principle that they themselves have violated, but you can't somehow undo those deeds.  And the use of those organs to save life does not make you guilty of the act, I don't think.  That's, I think, debatable, but that would be a kind of analogy.

PROF. SANDEL:  But you would be complicit if this were not a case of euthanasia where people gave their consent, which meets one of these requirements.  But if, instead, it were a prison camp where there was no consent -

CHAIRMAN KASS:  Do that to me again.

PROF. SANDEL:  You changed the case so that we have euthanasia with consent that generates these organs, the freezer full of organs.   And I assume you did that to meet the requirement here.

CHAIRMAN KASS:  I didn't say with consent.

PROF. SANDEL:  So then it's not really euthanasia, or euthanasia against the will of the people.  It's murder.

CHAIRMAN KASS:  They're comatose.  What do they know?

PROF. SANDEL:  But to clarify the case of complicity, let's assume that these are people in a prison camp whose organs are taken out, and the organs populating your freezer are from victims of a prison camp or concentration camp.

CHAIRMAN KASS:  Yeah, I -

PROF. SANDEL:  Then there is no complicity.  Even there in availing, in using them to save lives.

CHAIRMAN KASS:  That's, I think, my - I think that this kind of traditional moral - these are sort of - this is kind of a traditional moral approach to this question.  It tries to deal with that, and I think would answer in the way in which I just did.

PROF. SANDEL:  But if even that's not complicit, then it would be strange to add these other requirements of the pre-existing organs in the freezer, that they be made available with informed consent, that there were no financial inducements and so on, wouldn't it?

CHAIRMAN KASS:  Gil, do you want to -

PROF. MEILAENDER: I was just going to say, I mean, I think Mary Ann's answer is still the relevant one there.  I mean, it would be possible to argue that that doesn't affect complicity, but there might be other things that one has concerns about, which we have traditionally had concerns about.  I think that that - that these are, in a certain sense, separable from the complicity issue, because complicity itself does not depend on the gravity of the evil.  It depends on the way in which one's will is aligned or not aligned with the act.

PROF. SANDEL:  So would you agree with Leon that there is no moral complicity in availing yourself of the organs from the freezer created in the prison camp?

PROF. MEILAENDER: I agree that you wouldn't be complicit in the technical sense.  You might still have reasons why you wish to distinguish that, the use of those organs from the first case.  And there would be powerful reasons why one might prefer to die than to get those organs in transplant, but I wouldn't say that someone who took them or used them was complicit in the moral evil.

PROF. SANDEL:   And would you go so far as to say that federal funding should be devoted to the use of these organs?

PROF. MEILAENDER: I can't even imagine how to think that through at the moment.  I mean, it's too far a stretch for me to figure that out, because Mary Ann is right, once again, that there would be a whole range of things I'd need to think about.

PROF. SANDEL:  But it's not such a stretch because that's morally analogous to the federal funding of pre-existing stem cell lines.

PROF. MEILAENDER: No, I think it's not.  I think that what we have to give thought to is what these other factors were, how much emphasis we wanted to place upon them.

DR. KRAUTHAMMER:  If I could make a point here.  If the President's policy had been not that we would only accept lines pre-existing on August the 9th, but we would accept in the future lines derived only from IVF, only from IVF for reproduction, only with informed consent, and with no commerce involved, then those three conditions would make sense.

What's hard to understand is, if the policy was one of saying that will not happen in the future because that would be aiding and abetting otherwise, but the policy will be that only pre. existing lines can be used, it is hard to understand why these conditions are attached.

Let's assume that there was a clinic, and there are clinics that create embryos for IVF purely for research, and one of those had developed a line, not for reproduction, before August the 9th.  Why would we then want to say that that line ought to be prohibited?

CHAIRMAN KASS:  Bill, and then Jim Wilson.

DR. HURLBUT:  When I looked at this, when I read this, my thought was . and this goes to your question and to Charles' comment . my thought was that all the criteria on page 6 could again surface if a different President took over say five years from now, and said well, now I'm going to issue the same statement, because in the meantime, there was no federal funding.  There are more cell lines created independent of federal funding, and so forth.  All three could theoretically meet the same criterion as the original cell lines.

Well, when I saw the President make his statement on August 9th, something struck me at the time, which I think maybe is the answer to this question.  And that was, it seemed to me that he was adding something else into the equation, not just that these cell lines were created under the conditions that did not have the three objections, but that there was one other thing; and that was, that they were created in a climate of a certain moral ambiguity and innocence, if you will.  And that it was before there was broad public debate, and that it was a very difficult subject, and difficult issue.  And that up to now, these were made, but now it's time to say we need to take seriously this issue, not the three before, which were clear moral principles, but this new issue of what do we do with these IVF spares and so forth.

That was the - it seems to me that that's why in five years from now another President can't turn around and say well, now I'm going to let another five years worth of - and keep the same position as the current President.  Does that make sense?

CHAIRMAN KASS:  Jim Wilson.

PROF. WILSON:  I'm not sure whether Michael's concern is with the wording of the language here with the substance of the problem he poses.  The substance of the problem, it seems to me, is easily managed.  If we find in a recently occupied prison camp organs that have been extracted by clearly inappropriate, even torturous means, and we discover in the same prison camp a young girl whose life is in danger because her liver has been destroyed, we transplant one of those discovered livers into the girl, provided it is medically suitable.  And we're not complicit in anything, especially since we're going to go about punishing as severely as we can the doctors and other barbarians who engaged in these illegal extractions.  So the substance of the problem doesn't raise, for me, the word complicity at all.

The interesting question is about the text.  And it has nothing to do with whether we are going to use federal funding or not for prison guards to extract livers in American prisons from unwilling persons.  It's whether the President, this President or some other President, is going to say the existing cell lines are running out.  We need more.  We don't have enough.  We're not sure of the paternity of some of these, or maternity of some of these cells and, therefore, should people donate more cells.  So I'm trying to clarify which of these two issues are you really talking about?  Could I get Michael to just to give a brief answer?

CHAIRMAN KASS:  Yeah.  It's a question to Michael.  Please respond.

PROF. SANDEL:  All right.  Well, just as a brief response, I think we're talking about whether the worry about complicity makes sense if you assume that . to go to the organ case from the prison . does the following position make sense?

You find all these available organs in the prison that were extracted by evil means.  You say we can use them without being morally complicit.  We can even use federal funding to use them, provided we resolve that no federal funding will be used for organ extraction in the future.  And furthermore, that it won't be legally prohibited for people to extract organs in this way in the future, but it will be - they can do it with private funding.  But it will be - but there will be no federal funding for any ones that are done that way in the future, only private funding.  That's the moral strangeness of the position if you believe that the analogy to the organ transplant is a good one.

There's no incoherence . this goes back to the discussion in the first session . there's no incoherence if you reject the analogy to organ extraction.  If people aren't being killed, but there's still a morally questionable activity, it's perfectly sensible to say we're not going to give it federal funding.  We'll allow the pre-existing lines without complicity.  It's morally dubious, but it's not killing people for their organs.  So if you put this worry about complicity together with the permission of doing it, provided it's not federally funded, I think it shows that the organ transplant, that killing people for their organs makes no sense.

PROF. WILSON:  Well, of course, but the assumption is, I thought, was that if we find prison guards who evilly extracted these organs, they would be punished, ideally shot.  The question, therefore, is are couples who go to an artificial reproduction center and donate and create fertilized eggs, and some are left over, should they be shot?  Well, I don't think anybody has made an argument for them to be shot.  So then the question is, what do we do with their leftover eggs?  And the question that raises for the President's speech is, obviously, why did we suddenly say that eggs only up until August 9th, 2001 voluntarily donated can be used, but no eggs voluntarily donated after August 9th, 2001 can be used.  That, to me, is a puzzle.

PROF. SANDEL:  Right.  Well, I share that puzzle.

DR. KRAUTHAMMER:  Well, that's the point I tried to make, is that I think by building in those conditions for the pre-existing lines, the President's policy does create sort of a logical problem.  Those would be the conditions you would expect if he had annunciated a policy that allowed ongoing use of discarded embryos.

In fact, I remember when I listened to that speech, which I must say was the most unusual Presidential speech I've ever heard.  I've never heard a Presidential speech in which a President seriously considered both sides of a serious issue.  Normally, when you hear a Presidential speech, you know exactly where he's headed on line two.  And I don't think anybody who listened knew which way he was going to end up on line two.  I didn't even know on line seven.  In the middle of that speech, I remember I turned to my son, and I said he's going to allow new lines as long as it's from discarded embryos, and he said no, he's going to make a line at August 9th.  Of course, he was 16, and he was right, so I give him credit for that, you know, sort of respect he gave to both sides.  But I, personally, would have come down on a position of allowing ongoing use of discarded embryos, and given the conditions he attached, you'd expect that would have been his position.  At least logically I think it would have been expected.

CHAIRMAN KASS:  Bill May, then Elizabeth.

DR. MAY:  Two comments.  One, I have a basic question about what the fundamental purpose of this council is.  Is it retrospective, trying to figure out what the mind of the President was on that occasion, or offering a kind of apologia for the President in relationship to his right flank; that is, those who worried about the moral consistency of his accommodation to pre.existent destroyed embryos and stem lines?  Or an attempt to offer an apologia in the other direction, hey, it could have been worse.  He could have extended a ban to the private arena, you know.  But that would all be retrospective debate, and it seems to me the council has an interest retrospective, but its basic interest should be prospective, what kind of advice does this council have to offer the President, which requires one to visit the issue of the merits of the case.

Now if we offer this retrospective, then I think we . for the sake of completeness so it doesn't simply look as though we're blessing the President's action in the past . we do have to deal with the prospective issue.  That's my first comment.  And whether our discussions, both this paper, if it stands alone without discussion of the merits of the case, whether it makes sense for us to issue this paper without revisiting this other issue, which we dealt with at the beginning of the council's deliberations.

My second point relates back to this retrospective glance, and the way in which we equip ourselves with moral language.  Earlier, Leon talked about right/wrong.  The tendency is we're talking there about absolutes not susceptible to compromise, as opposed to areas in which there are competing goods.  And there, one is dealing with issues which are susceptible to compromise.

As a matter of fact, the word "compromise" has different meanings in those two different areas.  In the first area, if it's a clear distinction between right and wrong period, then to compromise is to defect from one's duty, pure and simple, and maybe from one's vocation, as well.

In the latter area, we recognize compromise as a striking of some kind of balance and weighing.  But as I read this paper, there's a tendency to look back to the Clinton Administration and say well, its reflections were technical, political, and so forth, but in the second case, we're dealing with moral principles.  And then the contrast between consideration of moral principles and one's duty, one tends to see everything else as cost benefit analysis, harms, benefits, utilitarianism lurks out there in the wings.

My problem is, I am a duty.oriented thinker.  I think I am.  But one of my duties is to consider harms and benefits, I mean, because I've got a duty to beneficence.  I've got a duty to non. maleficence.  It's not my only duty.  That's where I differ from the utilitarians who weigh and balance all possible rules of the road in the light of what will produce the greatest net balance of good over evil.  But I am pluralistic in my understanding of duties.  And it isn't the case that I occupy high ground only when my duties are absolute. Because my duties are plural, that doesn't mean I'm a relativist.  It does mean, however, I am caught in circumstances where I may need to strike off a policy line and so forth, that recognizes a duty, a principle, reaches a territorial limit when it comes up against another principle, which in the particular case is more overriding, and that solution isn't merely in terms of weighing harms and benefits.

And furthermore, even when I reach a decision, which may have tragic dimensions to it, (a) I will have further duties of reparation; (b) the duty that yields to another duty, even under those circumstances, may maintain some pressures upon me, and how I pursue the particular line of duty that I face.  So I've offered two comments here, one is what is the basic agenda purpose of this council.  And second, whether we have too readily assumed on the one hand are those who are duty.oriented in their thinking, principle.oriented, and those duties do not admit of any exception as opposed to those who are merely awash in the sea of the relative, and all the precariousness of cost benefit analysis.

CHAIRMAN KASS:  Does someone want to join this comment directly?  Dan, Elizabeth.

PROF. BLACKBURN:  We've had examples of extreme situations where we've talked about organs taken from prisoners and prisoners being killed, but we do have a very, you know, on the ground example which is very widespread in society, so we give a multitude of pediatric vaccines to the population in general.  And we shouldn't forget the fact that a large fraction of those were based on fetal cells.  That's where they came from, and so we have made that decision in this case where I think the issue that you raised of relative potential goods, you know, has been weighed, and the decision has been made very clearly.  That's just a historical fact that we've done that.

CHAIRMAN KASS:  I have Paul.  Robby, are you still on the list?  No.  Gil, and then myself.

DR. FOSTER:  I just wanted to follow.up on one thing that I think Bill was talking about.  One - we've been talking about five a great deal.  I'm sort of nervous about trying to interpret what is the soul of Presidents, and so forth.  I remember early. on in this council, I used to say to Leon, before we became really good friends, I'd say well, what you think is this when we were arguing the whole cloning thing, and he would always respond, "You don't know what I really think."  He never explained it to me what he really thought, but he said - Leon, won't remember that.  And what I'm saying is, if we do such a paper as this, and also hear about the future, I think that under paragraph 3, it would be much more helpful to, instead of personalizing this to President Clinton or to President Bush, to simply say that this is what - in the Clinton Administration, this is what happened, without making a judgment about what his moral thoughts are on here.  I mean, how do we know what his moral thoughts are, or President Bush's, for that matter.  So I would certainly want to depersonalize this.  It puts it like it's a conflict between a previous President and the sitting President, and that's not what we're here to talk about at all.

And along the same lines, I do think that when we say that the majority of people want to do this, or a significant portion want to do that, I think there ought to be at least a footnote or something to give some sense of what the, you know, polls or percentages show.  But I certainly would like to depersonalize this.  It makes me very nervous to have somebody try to say what I'm thinking, and so forth.

CHAIRMAN KASS:  Paul.

DR. McHUGH:  I think this goes a little along the lines that both Bill and Michael, and Charles were saying, because I also don't want to say what's in the President's mind.  But I can tell you what's in my mind, especially after listening to the President, and also contributing to this council.

I thought that the President did an important thing at the time of his speech in August; namely, by enhancing a moral position, and bringing some moral distance to recognizing what had previously been a more casual approach to the embryonic life, human embryos, and wanted to call our attention to the fact that maybe we had been much too casual about our thinking about that.

I also, though, felt as a doctor, and as a person interested in conditions that might respond to stem cells, that he did an important - made an important addition to the science by saying here are some stem cells, and now the ball is in your court, scientists, to show us that this is an important tool for the treatment of, the success of some aspect of the developing human science that we could use.  We are not going to go farther along this road until something much more compelling comes from you scientists.  Okay?

Now although I have views about what might or might not ultimately lead to a further development like Jim was mentioning, I thought that this was a coherent and practical policy in relationship to where Americans were in this complicated matter.  He showed us that there was moral significance in the embryo, and he said to the scientists that claimed there should be total license in what they were doing.  Here you can do something and prove to us that you need more.  And ultimately, that's why I ask at this council again and again when people come in and say they object to the limits that President Bush put onto the use of these cells, I ask them always well, have you exhausted the cell lines that are now available to the point where you have a compelling case that there should be more?

I think when the American people come to that decision in relationship to real data and real experience, we will face another moral problem, I agree, but a problem that will be a more matured problem and, in fact, a problem that we scientists can look at and speak about from data.

CHAIRMAN KASS:  I have Gil, myself, and then Michael.

PROF. MEILAENDER: Two comments.   One, in terms of what our task is, whether prospectively or retrospectively, I think our charge is to monitor the stem cell research that's going on, that has begun in light of the President's policy announced in 2001.  And I would interpret that literally.  In other words, we're supposed to monitor and report on what, in fact, is being done.

We may have different views about whether that's enough that's being done, or too much being done, or just the right amount, or whatever, but it seems to me our task it to monitor that, and so we should keep that in mind.

The second is, the thing that I think is good about this Staff Paper is that it does show a way in which, again rightly or wrongly . I'm not worried about that right now . there is a certain kind of moral foundation built into that policy announced in 2001.  And the paper captures it nicely.

The general question is, well, will these cell lines be enough?  I mean, that's the way the question is always formulated.  It was formulated immediately, in fact, after the announcement of the policy.  And the one thing that's clear in all the complications of the complicity argument, is that a complicity argument will only work if the answer to that question is well, I guess they'll have to be enough.

In other words, if it's a shifting line, then you can't, in fact, make the complicity argument work.  The complicity argument depends on doing nothing to encourage future.  And as say, whether that's a good policy or bad policy is a separate question, but I think the document nicely captures what, in fact, is the essence of the policy.  It will not work as an argument about moral complicity, or avoiding such complicity unless the answer is well, it will have to be enough.

CHAIRMAN KASS:  Does someone want to piggyback quickly on what - because it looked like people were leaping to say something to Gil, and I'll yield.  Michael, did you -

DR. GAZZANIGA:  To Paul's point, I think we have to step back a little bit and keep in mind how science works.  And for every dollar invested, you get about a 1 percent return on a successful piece of science, so the compelling logic that you suggest there in come on scientists, it's your turn, is a little bit misleading in the sense that 1 percent of 12 lines finally hitting the ground here isn't much.  And you're really asking the scientists with their hands tied behind their back, you're giving them a couple of test tubes, one centrifuge for the whole nation.  You know, it's just not of the scale that any scientific community would go after a problem.  And that's what everybody is complaining about, and that's the underlying issue here.  It's not of the scale to find things out in an efficient and intelligent way.  That's the issue.

DR. McHUGH:  By the way, Michael, I know that, but because this becomes an issue of much more intense moral concerns, I think the scientists are going to have to work with a little sand in their saddlebags and should stop complaining about it.

CHAIRMAN KASS:  Let me try to respond to some of the things that have been very nicely said by several people.  Let me start with Bill May's, which is sort probably a meta.question about what we're doing here.

This document is hardly a report, and would be simply the . after an introduction, an opening chapter.  And there are criticisms properly made already about what's stated in here, both about personalization, any suggestion that only one side has moral principles will be eliminated, if there's any hint at that.  That wasn't the issue.

And indeed, for my money, the most important contribution that one could make here is to have - never mind how this policy differs from the previous administration.  It's terribly important if you're trying to discuss - if you're trying to monitor activities that are taking place under the current policy, you should be fairly clear what the current policy is, and on what its foundations are.  Because if you mean to try to propose some changes in the policy, you ought to be able to see what kind of arguments and what kind of evidence might be relevant to seeing that that policy is changed, so that's the first point.

I mean, to be sure, this is - and it's not meant to be an apologia, but it's meant to be an explication.  And I have read countless things, countless statements about what this policy is or what it rests on, which are simply wrong, simply wrong.  And we have an obligation, I think, as part of laying out of what's going on in this field to try to do the best we can as a preamble to our monitoring, to say under what aegis is this activity now taking place, and how do we understand it.  That would be the first point.

And I think I've partly given an answer to your second point about moral versus merely prudential or calculative.  We will adjust, I think, the way this is presented.

Next, let's see.  I think the next comment, I think, should go to - let me leapfrog the comments that are directed to Michael to come to Paul's remark.  Paul's formulation of this, and also echoed in part by Jim Wilson, is to say look, we've got a wait and see policy here.  Let the scientists go and do their work, come back to us in two years, five years, ten years, and we'll rethink this.

Now that's a sensible way to think about this if, in fact, the policy rests upon a kind of cost benefit analysis of the weight of the research as over against something else.  But it matters a great deal, I think, whether the policy is right or not is another matter, but it matters a great deal if it's really the case that the policy has been based upon a foundation such that empirical evidence on the ground of the state of the research could change it.  That's your wish, and I think is probably Jim Wilson's wish, but I'm not sure that it's a correct understanding of the foundation of the policy, and that matters.  I mean, that is probably implicit in what  Gil said.

Now let me try to say something with respect to articulated moral foundations of the policy, and whether or not the complicity argument works.  Let me, for the moment, bracket those possibly embarrassing, but I think Mary Ann may well have taken care of additional given reasons for maybe, maybe.  But Jim Wilson seems to be bothered by the fact that  this arbitrary deadline of the 9th of August, if something is wrong after the 9th of August, then it was wrong before the 9th of August.  But that, I think, can be really explained entirely on the complicity argument.

It's not that you've been complicit in the previous act, but if you say we will continue to fund research on lines derived after this date, we are, in effect, rewarding the subsequent activity.  We are participating in it.  We are in a way declaring that we will take advantage of the results of previous destruction, without being complicit.  We didn't cooperate in it in the first place.  We will not reward this activity in the future.  And, therefore, we are providing any encouragement.  And by the way, we're saying we don't believe federal funds should be spent on this at all, period.  We affirm the language of the Dickey Amendment.

DR. KRAUTHAMMER:  In what way are we encouraging if you continued to use discarded embryos after August 9th?

CHAIRMAN KASS:  With federal funds?

DR. KRAUTHAMMER:  Yes, there's no commerce involved.  I mean, assuming -

CHAIRMAN KASS:  You're, in effect, saying that people can continue to do so with the expectation that once the deed is done, the lines are available for research.

DR. KRAUTHAMMER:  Right, but what's the encouragement?  I mean, you go to IVF to have a child.  You sometimes end up with discarded embryos.

CHAIRMAN KASS:  Fine.

DR. KRAUTHAMMER:  What's the connection to the research in terms of encouragement?

CHAIRMAN KASS:  You would be offering financial reward after the fact to those who would be deriving new cell lines.

DR. KRAUTHAMMER:  That's my question.  I was assuming there would be no - we're assuming there's no commerce here.  If there were, you could simply say that we ban the commerce, without banning the use.

CHAIRMAN KASS:  You are rewarding the researchers who will be doing the research on those lines and, therefore, you'll be, in a way, countenancing the future act.  That, I think, is clear.

DR. KRAUTHAMMER:  But my question was about encouragement of the "original sin".  You can dispute whether it is.  I'm not - I mean, the argument that if you were to permit the use of discarded embryos created after August 9th, you'd be encouraging - creation of discarded embryos is a tenuous one, and I'm trying to pursue how that encouragement works, if there's no - if they're donated and there's no commerce.

PROF. MEILAENDER: You're encouraging not their creation, but their destruction.

DR. KRAUTHAMMER:  But they're going to end up being destroyed anyway, whether -

PROF. MEILAENDER: Maybe, maybe not.

DR. KRAUTHAMMER:  Maybe they end up in freezers eternally.

PROF. MEILAENDER: There's no good solution, I understand that.

DR. KRAUTHAMMER:  No, but I still have a trouble with -

DR. FOSTER:  Gil, entropy - there's no doubt that ultimately nothing lives forever in freezers or anything.  There's no doubt that those embryos are going to be gone, absolutely no doubt.  Entropy does not disappear because one objects to the fact that . .

CHAIRMAN KASS:  The issue is not about - it's not just about the destruction.  It's - the operative issue is may federal funds be used on research in which embryos are destroyed or damaged?  That's the language of the Dickey Amendment.

If you say in the future, federal funds may be used for the products of embryo, for research on the products of embryo destruction, are you not, in advance of that fact, saying you will reward the results of that act with research funds?

PROF. WILSON:  No.  I mean, we're struggling once again to redefine the special, but not conclusive respect that is owed to an embryo.  If we believe that an embryo at the fifth or tenth day of its existence deserves the same respect as a eight and a half month old fetus, or a newborn child, then the answer is that President Bush should not have allowed any research at any time, using any kind of money.  If we think the nascent human life in a five or ten day old blastosphere is meaningless, then they should use federal money to encourage people to produce them at random, and pay women to do it.

The position we have, I think many of us have tried to take, is that blastospheres - embryos created as a result of in vitro fertilization, left aside because they're not needed, headed ultimately to destruction, as Dan correctly says, are a continuing opportunity to possibly solve important human lives, provided these blastospheres are not kept alive for more than a certain number of days in their active stage.  That's what we're trying to do by way of defining special respect as an intermediate position.  And, therefore, I don't follow your argument.

CHAIRMAN KASS:  Rebecca, can you help?  I'll try one more time if Rebecca doesn't solve this for me.

PROF. DRESSER:  Okay.  I'm sure you'll get another chance.  This is the same argument that was played out with fetal tissue transplant research.  The whole concern was by making federal funds available for research, will this create a new incentive for abortion, so that there might be some women on the fence who might say well, since I have this option available that has some positive dimensions, maybe I'll go ahead and terminate the pregnancy.  So the way it eventually got worked out was, they set up a procedure where enough people were comfortable that the decisions would be separated.  That is, you couldn't raise the issue of donation for research until after the woman had made the decision to go ahead and have the abortion.

So here, I guess the question would be, are there individuals who go through IVF and they are deciding they've had a child or two, and they're deciding okay, well, here we have all these extra embryos.  Perhaps there would be people who might say if the donation for research option is available, well, okay, let's do that, because some good could come of this.  Whereas, if that option is not available, at least the federal funds are not supporting that option, then they might be more likely to say well, maybe we'll try to have another child, or maybe we'll give them to another couple to try to allow them to have a child.  So I guess that would be the way that there would be some sort of incentive created for destruction if federal funds, whereas, it wouldn't be there without them.

DR. KRAUTHAMMER:  I understand the train of logic.  I just - I think the universe of people who would be affected by that logic is rather small.

CHAIRMAN KASS:  Are you disputing that the formulation of a decision that - are you disputing the formulation of the moral foundations of this policy as articulated?  Never mind whether it's a good one or not, are you -

DR. KRAUTHAMMER:  Disputing the?

CHAIRMAN KASS:  The description of - that this was a question, given that these lines exist, given that the law prohibits federal funding for the creation of those lines, isn't the question that remains, especially when lots of one's supporters are saying this research shouldn't be funded, because if you fund it you're, in fact, complicit in the dirty deed.  Isn't the question that remains whether one could support research on the lines that exist, though the destruction has taken place, and I believe in the President's speech he alluded to the fact that those - that the embryos from which these lines came are already gone.

Isn't the question then, can one support research on these existing lines without, number one, being in some way complicit in the deed that created them?  And (b), can one not by saying no funding for any new lines, is one not asserting the kind of principle and removing any kind of reward for researchers would derive them subsequently.  I take it that's the way to make - whether you like it or not, I think it's a way to make morally consistent coherence out of exactly what was done.

DR. KRAUTHAMMER:  I think that was the intention of the final policy.  I'm not sure that the logic, the Point B that you raised really holds up to scrutiny.

CHAIRMAN KASS:  Why not?

DR. KRAUTHAMMER:  Because I don't think it's very realistic to think that if you were to use discarded embryos from IVF clinics on an ongoing basis, you are encouraging the creation of those embryos.  And, therefore, if - the prohibition on that seems to me to be illogical, given the original position.

And I think the point that Michael made, that in the original policy where they built.in those conditions for discarded embryos from lines created before August 9th, those conditions don't make a lot of sense because, as he argued I think with the analogy of the prisoners, however you would have derived earlier lines from anything, since we were clearly not complicit, having those restrictions does not make a lot of sense.  It seems to me those restrictions, no commerce, consent, and embryos created for the purpose of reproduction, those conditions logically apply to embryos, to stem cell lines derived from embryos produced after August 9th.

CHAIRMAN KASS:  It seems to me Bill Hurlbut gave - between Mary Ann and Bill Hurlbut, I think they've given a perfectly adequate answer; namely, those lines that existed prior to that date would have been - in fact, those kind of conditions would probably - the text of the guidelines produced by the Tilghman Committee would probably support this.  Those particular criteria would have been operative for permission - conditions attached to the lines available for funding previously.

DR. KRAUTHAMMER:  Let's assume that we discovered that one of our 12 lines came from an embryo created in a clinic where the parents were not given informed consent, or were paid . would we destroy those lines tomorrow?

CHAIRMAN KASS:  Would we destroy them, or would you -

DR. KRAUTHAMMER:  Would we not use them?

CHAIRMAN KASS:  Would you render them ineligible for funding?

DR. KRAUTHAMMER:  Of course.  And the answer would be no, so what I'm arguing is, those pre.conditions are not logical.

CHAIRMAN KASS:  Does someone want to join?

PROF. MEILAENDER: Let me try to join, because I - my problem is I'm incoherent.  And that is the whole purpose of a growing moral experience, to make yourself steadily more coherent over time.  And what I appreciated about the President's position, I really notice the same concerns that Michael and Charles are raising.

On the other hand, I felt that if the President had said we couldn't use any cells, and human stem cell research was - embryonic stem cell research was outlawed, that this message would be an inappropriate stopping of our moral development.  And even though I'm against embryonic research, by the way, I am against that, I feel that over time if the scientists have an opportunity to do their work, that they can show these benefits to us in some ways, and then we might be able to get stem cells in a way that would not offend me and my views about future embryonic research.  And that would be a moral progression along with a scientific progression, and that's why I support this idea.  And why I don't go quite along with you, Leon, when you say that if I take this view, that ultimately I'm going to say well, eventually I'm going to want to do that research but start killing off those embryos.  No.  I want to be able to say here are some stem cells, here are available stem cells, here's what we can do with them.  And then we have to find a way to get similar stem cells in less morally obnoxious fashion.

CHAIRMAN KASS:  We are close to the end.  Michael Sandel, anyone else in the queue?  Janet.  Michael first, and then Janet.

PROF. SANDEL:  Bringing the two sessions, what we've been trying to do, as I understand it, is to identify or draw out the moral logic of the position that the President took.  What would be the best way of making moral sense of a position that prohibits federal funding on new stem cell lines, but does not ban embryonic stem cell research done privately.  And that even extends federal funding to pre-existing ones.

What assumptions make moral sense of that position?  And the argument has been that it's not possible to make moral sense of that position, if you assume that embryonic stem cell research is infanticide, is like yanking organs from infants.  It's not possible to assume that because in that case, there would not be a good reason not to ban the practice, short of civil war.  It also doesn't make sense of the restrictions, the much discussed restrictions on the pre-existing lines, because if complicity isn't a problem with the - if complicity with infanticide or prison extracted organs, if that's not a problem, then it certainly - then dealing with consent or financial inducement is not necessary.

And so the best way of making sense of the position is on the assumption that the status of the embryo is in the category of the intermediate view, that we've much discussed here.

CHAIRMAN KASS:  Or in doubt, right?

PROF. SANDEL:  Either in doubt, or the intermediate view.  And the other part of the discussion has been taking that assumption as the best way of making sense of the position.  Either it's in doubt, or the intermediate view, some version of the intermediate view is correct.  And then trying to apply that assumption in ways that Paul did, and that Charles and Jim did, to suggest the practical implications for future federal funding beyond what's already been embodied in the policy.  And so it makes  perfect sense of the position construed in this way, which I think is the most charitable way of making - to say as Paul did well, maybe the reason for the restriction now in the federal funding to the pre-existing is to say to the scientists the ball is in your court.  Show us what you can do, and then come back to us.

That makes sense on the intermediate view, or in the view of doubt, because it says look, the embryo is not to be toyed with for nothing.  It's not to be used wantonly.  But if you can show really significant and morally compelling, and scientifically promising things can be done well, then given the intermediate view, or the view of - the agnostic view, then we may revise the policy in the light of what you can show us.  So Paul's extending the underlying principle in that direction, and Charles is suggesting an extension in another direction.

If what underlies this policy is some version of the intermediate view, then that would give reason to consider the use now of leftover spares from IVF clinics, if the intermediate view is the one that's underlying this policy anyhow.

Now, of course, you would reject Charles' position, if you reject the intermediate view, but the whole discussion today, going back to Peter's paper, shows that this policy itself only makes sense if you accept the intermediate view, and so it's open to the kind of question that Charles and Jim, and Paul have raised.

CHAIRMAN KASS:  I think there are, and they'll speak for themselves, I'm sure. Not everybody shares your conclusion that the conversation has shown that last point.  Various people have suggested that they're either settled practices, or they're questions of prudence as to what you can try to do when.  And if you're suggesting that the authors of the Dickey Amendment are somehow being morally inconsistent, while at the same time insist on an absolute ban of all embryo research, that doesn't necessarily follow as a matter of consistency.

You seem to suggest that people of principle have to be fanatics in order to prove that they're men of principle, and that if they don't sort of push for the whole hog, you sort of suspect the grounds of their judgment.  It seems to me that we live in a complicated society where sometimes people of profound principle will, just as people who might favor this research, might be willing to cede publicly that their fellow citizens who oppose it on deep moral grounds have enough standing to say that the regime ought not to officially pronounce its blessings on it.  So it seems to me that in these kinds of matters where there is settled practice, and the embryos are in the freezers, and people are donating and the research is going forward, that Members of Congress, either as a matter of respect or as a matter of the sense that they cannot now muster the will to stop this, muster the support to stop this, would settle for this matter.

I don't think the conclusion that you draw from the existing arrangements implies what you say it implies, but -

PROF. SANDEL:  May I quickly, I'm not suggesting that there's any - I don't think that people are fanatic to insist on their principles.  I think that people who both oppose federal funding of abortion and who also argue for banning abortion are not fanatic, they're principled.  And it's a position that makes perfect sense against - given a certain view of when human life begins.  There's nothing fanatic about that, any more than there's anything fanatic about abolitionism.

PROF. MEILAENDER: But there's also nothing unprincipled about not pushing dogmatically forward to get everything that one might think best at any given moment.

PROF. SANDEL:  It depends what's at stake here.  If murder is at stake, if infanticide is at stake, and that's what you believe, then you would push forward.

PROF. MEILAENDER: That is not -

PROF. SANDEL:  If you believe it's short of infanticide, then there would be good reasons for not pushing forward, and I think that's what the President very reasonably has done.

PROF. MEILAENDER: That's not necessarily true.  I mean, I don't know who the "you" is in that sentence.  It may be that that's what you would do but, you know, to construe the argument as having gone in a certain way is mistaken.  Not everyone thinks that holding certain positions means that they - that you must, in a sort of a dogmatic spirit, push for the whole of them at any given time.  You may have reasons, both moral and prudential, for stopping at certain places.

CHAIRMAN KASS:  Janet, you've been patient.  I'll give you the last word.

DR. ROWLEY:  Well, I'm not sure that I'm going to have necessarily the last word, but I would like to make two points.  One does follow on from the discussion that we've been having, and it does relate to the way the paper, or some of the tone of this particular draft.

I think it is important as one looks at some of the statements, that when one talks about the embryo being inviolable, you know, this should be modified because, as has been pointed out by a number of the participants, that may be an inappropriate word to use in the context of this report.

My major concern is that the report stops short of discussing the consequences of these decisions.  And it's okay for Paul to say well, scientists have to put up or shut up.  I think Michael's point was well-taken, that to put up requires money.  Now the report indicates this is not a problem, you just do it privately, so you don't need federal funds, though there are some federal funds available.  But I think that at the present time, the amount of federal funding of research, and we'll find out from Dr. Zerhouni fairly soon, is fairly minor as compared with what really needs to be done in this particular area.  And I'm not sure whether, in fact, this Staff Working Paper will be followed on by a second paper that does deal with the consequences of this policy, or else the consequences of this policy need to be included within this to make it a - put it in, I think, a more appropriate or — that's the wrong word — a more complete perspective.

CHAIRMAN KASS:  Thank you.  We are at 12:30.  We will have Dr. Zerhouni, and then Dr. McClellan in the session from 2 to 3:30.  Both of these men are taking time out from very busy schedules to join us, so let's be sure to start promptly at 2:00.

(Whereupon, the proceedings in the above-entitled matter went off the record at 12:32 p.m.)