Since its first meeting in February, at which I also submitted testimony, the Human Embryo Research Panel has discussed many complex and interesting issues. But the most interesting and most important issue of all, the moral status of the human embryo, was given a premature and dismissive answer by the end of that first meeting — or perhaps it was answered as soon as the membership of this panel was chosen. For it was at that first meeting that chairman Steven Muller said it was inappropriate to include on the panel any member who wishes to protect human embryos from experimentation outside the womb.¹

Given such a view, it is not surprising that the panel decided to view the living human embryo as a special kind of "human material" or "human tissue," as an object rather than a subject of research.² While the panel has spoken of treating the embryo with "respect," one panelist has rightly said that the word is a mere "slogan" in this context.³ After all, the panel has decided that human embryos may be created and destroyed at will, dissected while still alive, and disposed of in a "biohazard disposal mechanism" when they have outlived their usefulness.⁴ It is no exaggeration to say that the panel thinks researchers may do to a human embryo things that shouldn't happen to a dog.

Be that as it may, I would like to raise the question: Aside from the aforementioned personal predilections of the panelists themselves, what basis can the panel show for its dismissive view of the embryo and its expansive approval of lethal experiments?

Can that basis be found in Congress? At least one panelist has written to critics, claiming that Congress has already decided to fund human embryo experiments — this panel is only setting guidelines as to how such experiments will be conducted.

But this is just not true. All that Congress has done, through enactment of the 1993 reauthorization act for the National Institutes of Health, is to drop a procedural barrier to the funding of human in vitro fertilization as a treatment for infertility. Congress said nothing at all about unrelated and destructive experiments on live human embryos already produced by in vitro fertilization. Still less did it have any intention of authorizing experiments in procedures like cloning or parthenogenesis, which produce embryonic life without using fertilization at all.

Is this basis found in NIH's own regulations? On the contrary: Since 1975 those regulations have treated the early human embryo as a human subject at least from the time of implantation (around 7 days after fertilization), and they have prohibited federal funding for any non-therapeutic experiments that may pose a significant risk to the embryo. Since 1985, Congress has insisted that these regulations incorporate a principle of equality: The unborn child who may be intended for abortion must be protected from research risks to the same degree as a child intended for live birth. The Human Embryo Research Panel has not even begun to explain why all these principles can be turned upside down when the embryo happens to be outside the womb. Why can such an embryo be subjected to lethal experiments at 14 to 18 days after fertilization or even later? Why, in this context, do parents' lack of interest in that embryo for reproductive purposes automatically make him or her into appropriate "tissue" for a federally funded experiment, when this kind of reasoning is absolutely forbidden if the embryo already resides in the womb? The panel has given no answer to these questions. It has simply set aside the existing regulations and produced its own standard from whole cloth.⁵


Can one find precedent in other federal or state laws governing treatment of the human embryo, or in the laws of other nations? Quite the opposite. In current constitutional jurisprudence, a human embryo outside the womb is far more protectable than one inside the womb — because in the latter case efforts to protect the embryo's life may run up against the right of privacy of the mother. So in its Webster decision in 1989, the U.S. Supreme Court allowed Missouri to assert a compelling interest in protecting life from the moment of conception — so long as that interest does not contravene a pregnant woman's right to an abortion. Similarly, Louisiana has been able to define the human embryo as a juridical person with a right to life — so long as it is outside the womb. An embryo created by in vitro fertilization in Louisiana is a person, then becomes a non-person after being transferred to the womb, and then re-emerges as a person at the moment of being born — what one might call being born again. In any case, according to the panel's own invited advisor on legal issues, at least 9 states have laws banning experiments on human embryos (not just public funding for such experiments), and so do many other industrialized nations.⁶

Can a basis for this standard be found in science? No, because the human embryologist specially invited to advise the panel on this matter testified that human life is a continuum from fertilization onwards.⁷ No basis was found for drawing strict dividing lines at 14 days, formation of the "primitive streak" or any other point. The panelists themselves, along with their invited expert on ethical issues, have referred to such dividing lines as mere "pragmatic" lines, as political "compromises" with no agreed-upon basis in fact.⁸

Is such a basis found in moral philosophy? One might think so at first, because the panel has spent considerable time constructing what it called a "multi-factorial" standard for personhood. Under the guidance of one of its members, Professor Ronald Green, the panel decided that a member of the human species must meet a number of criteria — developmental potential, sentience, cognitive ability, etc. — before demanding recognition as a full "person." Understandably, the early human embryo was found to fall short.

But this approach to personhood was advanced by philosopher Mary Anne Warren over a decade ago, and was brilliantly rebutted in the 1983 volume of the journal Soundings. The author of the rebuttal cogently observed that once one begins applying such a list of criteria, "it seems to be true that if the fetus is not a person, neither is the newborn or young infant."⁹ That perceptive author was none other than.... Professor Ronald Green.

In his 1983 article, Professor Green went on to propose a "Copernican revolution" in our understanding of such moral issues. There is nothing "out there" that objectively determines which human beings should be respected as persons, he argued. Rather, such determinations are essentially free decisions by "the community of mature, rational human beings." That community must engage in "complex ‘balancing decisions' that involve us in weighing our broadest interests in protecting an entity against the restriction on our liberty which this protection necessarily involves."¹⁰

By Professor Green's own account, this panel's decision to set certain criteria for personhood, and to use those criteria to reject any significant protection for human embryos, is not an objective finding but a social construct, built from the personal values and prejudices of the panelists themselves.

Our final question, then, must be this: Is the panel's decision based on a social consensus on the values and interests involved? This is a particularly important question in Professor Green's account of moral decision-making, for he has written that a social decision to protect or destroy the unborn should involve all who are "reasonably mature individuals with roughly ‘normal' intellectual and reasoning powers, the kinds of persons we allow to serve on juries or to make social decisions generally."¹¹ Has the panel attended to the wishes of such a broad cross-section of Americans?

The answer, of course, is no. This panel's conclusions represent only the consensus of 19 individuals who were chosen with an eye toward their pre-existing support for embryo research. Public opposition to the panel's approach has been obvious during the public comment sessions at these meetings, and the more than 13,000 letters it has received from the general public are so overwhelmingly negative that the panel chairman's secretary refers to it as "the hate mail."

In short, this panel has no firm objective basis for its conclusions. And if the resolution of this issue requires a subjective social consensus, a community decision about values and priorities, the panel's unrepresentative makeup makes it a very poor instrument for making that decision. The real community debate — the fair debate — on whether taxpayers' dollars should support such experiments must take place in forums far broader than this.

Endnotes

¹ NIH Human Embryo Research Panel, Transcript, 2/3/94, pp. 97-8 (Steven Muller).

² Transcript: 4/11/94, p. 10 ("valuable human material" - Ronald Green); Id., p. 22 (similar to the use of "fetal tissues" or other "tissue material," because "You're not dealing here with a research subject for whom mistreatment could be fatal" - Ronald Green); 2/3/94, p. 108 ("tissue" - Alta Charo).

³ Transcript, 4/11/94, p. 40 (Dr. Bernard Lo).

⁴ Transcript, 5/3/94, p. 22 ("biohazard" - Dr. Mary Martin); Id., p. 29 (discussing "the deliberate creation of embryos that will be used for research and then destroyed" - Ronald Green); Id., p. 48 (research in genetic diagnosis of embryos demands that the researchers "discard" embryos - Dr. Brigid Hogan).

⁵ The panel has explicitly recognized that harmful experiments will be allowed on these ex utero embryos that are forbidden in federal regulations for all other human embryos and fetuses. See Transcript, 5/3/94, p. 14 (authorization for harmful experiments will be "substantially broader" than for other embryos and fetuses - Patricia King); Id., p. 30 (this is "not going to be as tightly regulated as research on children or fetuses" - Dr. Bernard Lo).

⁶ See testimony of Lori B. Andrews, J.D. in Transcript, 2/3/94, pp. 11, and documentation she submitted to the panel: "State Regulation of Embryo Research," by Lori B. Andrews, J.D., and "Cross-Cultural Analysis of Policies Regarding Embryo Research," by Lori B. Andrews and Nanette Elster.

⁷ Transcript, 2/2/94, p. 63 (Dr. Jonathan van Blerkom).

⁸ For example: Transcript, 2/3/94, p. 27 ("compromise" - Carol Tauer); Id., p. 60 ("pragmatic" decision - Bonnie Steinbock); 4/11/94, p. 23 ("reasonable compromise" - Carol Tauer).

⁹ Ronald M. Green, "Toward a Copernican Revolution In Our Thinking About Life's Beginning and Life's End," 66 Soundings 152 (1983) at 156.

¹⁰ Id. at 159, 160.

¹¹ Id. at 158. I do not share Professor Green's approach to moral decision-making by social consensus, which would have provided little help to Jews in Germany in the 1930s or to African-American slaves in the U.S. in the 1850s. My view is that human society has no right to deny moral or legal respect to any living member of the human species. But since the panel has been guided by his approach, it should be aware of the ways in which it has failed to respect the internal demands of that approach.

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