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Thursday, April 25, 2002

Session 3: Stem Cells 3: Ethics of Human Stem Cell Research

Dr. Gene Outka

CHAIRMAN KASS: Well, if I sing a song, or make some announcements, maybe we will get the full numbers, but this is the third of our three sessions on stem cell research, having spent the morning hearing two presentations on the science.

And we now turn in this session to ethical questions in stem cell research, and we are very fortunate to have as our guest Professor Gene Outka, who is the Dwight Professor of Philosophy and Christian Ethics at Yale University.

And for a long time one of our most careful students of the ethics of biology and medicine among many other things.

Apart from our interest in the merits of the case, a paper written on a subject of concern to us, I have confessed in the chairman's cover letter, in a sentence which has a missing word, that I have an additional purpose in mind here, namely as just as those of us who are not experienced in science, need practice in grasping the concepts and methods of scientific analysis, so those of us who are not experienced in ethics would need some practice in working with the concepts and ways of ethical analysis. And Professor Outka's work is nothing if not careful, analytical and disciplined, and we are very thankful that he could be with us to discuss his paper.

All of us have had a chance to read it, and I exhorted you to read it more than once, and there is a lot packed in it. And Professor Outka is going to lead off with a few remarks, after which I have asked Michael Sandel to make comment that would open our discussion. Thanks very much, Gene.

DR. OUTKA: Well, it is a great honor for me to be here, and I enjoyed sitting in enormously in the morning sessions, and noted that although the focus was on scientific matters, moral matters also arose from time to time, as when Dr. Gearhart told us that he doesn't give the same moral status to the embryonic entity as he does to the fetus.

And I think that illustrates one of the claims that I actually make in the paper, which is that on this subject, whether we like it or not, we all have to be moralists in one way or another; that certain moral determinations are unavoidable.

And in-part that is because the moral positions that we take have such direct and sometimes colliding implications for the policy and political recommendations that we make.

And I contrast that with certain other cases where you could have some theoretical debates and disagreements might abound on that level, but you could when you turned to practical and political matters, you could come to some modus vivendi or something of the sort, where the theoretical disagreements don't translate into necessarily practical political disputes.

That is not the case with this subject I contend, and so we all have to be inclined to engage in moral reflection, and although moral reflection has its own esoteric features in the hands of at least some, I think that this session may be more egalitarian in a way, because I, like Samuel Johnson's dictum, that we are perpetually moralists, but we are geometricians only by chance.

And by that I take him to mean that moral matters, that there is a fundamental equality about our reflection on moral matters, and it does not require a special talent in the same way.

So that then leads me to say a few things about this paper, which we are going to discuss. I tried to do several different things in it, and I tried to give some kind of an account of some of the major points of disagreement, and I have a spectrum of views from the right to the center, to the left.

And I myself then plum for a particular region of the center, and along the way though I do try to show how debates about abortion and debates about stem cell research converge and diverge.

And finally I propose a nothing is lost principle, and let me say a little more about that, but I think probably the most economical way to proceed is simply to indicate for you some of the normative conclusions that I put forward in the paper.

And not tarry over the questions about whether I do justice to those either more conservative than I am, or more liberal than I am. Spokespersons for both positions can speak for themselves later on.

So let me just then lay out some of the claims that I make, and that will get us started at least. I make some claims about the status of human life from conception forward, and I argue that once conceived each entity is a form of primordial human life that should exert a claim upon us to be regarded as an end and not a mere means only.

And I say that it is one thing to allow that we need not yet ascribe full moral standing or equal protectibility to embryos. That is to say, I deny that abortion and embryonic stem cell research are morally indistinguishable from murder.

But I claim on the other hand that it is another thing to instrumentalize embryos through and through when what we intend in the actions we perform exhaustively concerns benefits to third-parties.

And I take that to be one indication of sheer instrumentalization, where the actions that we perform we can only justify, and justify exhaustively by virtue of benefits to third-parties.

That is to say that I deny that abortion and embryonic stem cell research are morally indifferent actions in themselves to be evaluated wholly by the benefits that they bring to others.

I then go on to conclude that to conduct research on embryos that creates them in order to destroy them clashes directly with the judgment that entities conceived have irreducible value.

So that is on the one hand. I want to say that the case for sheer instrumentalization is to be resisted, but on the other hand, I also think that we don't confront a single either/or as some conservatives and some liberals suppose, to the effect that we should forbid all embryonic stem cell research, or we should permit it all.

I consider instead a more nuanced possibility, or at least I think it is more nuanced, where we may distinguish creating for research and only employing for research.

And the latter of employing for research allows us to consider in vitro fertilization as a practice in our culture, and employing for research connects with the datum of discarded embryos, where I want to say that the original creation of embryos has a non-instrumentalist rationale, namely the promotion of fertility.

So that what we intend does not exhaustively concern benefits to third parties. But yet the aftermath allows us to pursue benefits to third parties when we may do so without from the start creating in order to disaggregate.

And the way that I try to speculate about the pros and cons of this conclusion is to invoke the nothing is lost principle, which I think illuminates a morally significant distinction between creation for research and employment for research.

The nothing is lost principle says that we may — that although it takes the prohibition against murder seriously, it allows two exempting conditions. The first is that the innocent — that some innocent will die in any case, and the second exempting condition is that other innocent life will be saved.

And applying that to the matter at hand, I say that we cannot choose whom we save in the case of discarded embryos. They will die if we do nothing.

And we cannot save them by killing others or letting others die. Yet, we may save others by virtue of the research. And yet on the other hand, and why this remains incurably in the middle, while the nothing is lost principle permits attention to the possible benefits to third parties from research on discarded embryos, it does not permit the concern about the status of embryos to recede to a platitude.

And where such concern never has efficacy and can always be trumped, and that is one of my tests about saying that a commitment to in this case embryonic life is serious only if it trumps something whenever there is a conflict.

It does not have to trump on all occasions, but it has to trump on some occasions. And where I want to say it trumps is where it disallows the creation of embryos only and exclusively for the sake of, and in order to, disaggregate them.

I speculate on some of the difficulties that this position generates and trying to face those I hope honestly. Some of the difficulties I regard as more demanding than others, but I do rehearse some of them.

But I think it would take us too far a field to review those now. So let me just content myself with having summarized that part of the case.

CHAIRMAN KASS: Thank you very much. Michael Sandel will lead us off with some prepared comments. Thank you.

PROF. SANDEL:

Well, let me first of all add my thanks for really a fine paper that has so many virtues of the best work in moral philosophy, and its close reasoning, and its careful reasoning, and in it directing our attention to some really central moral questions.

And it also has, the paper does, and the proposal of the appeal of staking out a middle ground, of trying to find an alternative to either/or positions, that it exudes the spirit of compromise, which is appealing in and of itself.

And more than that, the kind of compromise that it offers has a certain kind of intuitive appeal, which is faced with these hard moral questions about the status of embryos, it is on the other hand the goods to be had from research and possibly curing disease.

And the intuitive appeal is to say, well, the spares, the excess embryos left over from IVF clinics, they are going to die anyhow, and so we may as well get some good use out of them and do some good.

But we shouldn't therefore consider it morally permissible to create for the sake of the research or curing of diseases new embryos. We should just use the spare ones and that is the nothing is lost principle.

There is something very appealing about that compromise and intuitively persuasive. But since I don't find it persuasive, I want to see if I can press a little bit and offer a concrete case to illustrate why I don't think the principle works, or is persuasive.

The first thing to notice — and this struck me I think only maybe in my second reading of the paper — is that the distinction, the crucial distinction is not as we might think from our common discourse about these subjects, between fertilized eggs left over from the — well, the distinction isn't between the IVF fertilized eggs, or embryos, on the one hand, and cloned ones on the other.

To the contrary, the morally relevant distinction here cuts across the distinction that we are familiar with between the ones that come from the IVF clinics, and the ones that are created as clones.

Because the crucial distinction is why the embryo was created. So if we imagine an embryo, a cloned embryo, created for reproductive purposes, and then we consider it spares in that process, it would be all right to do research on those cloned ones, provided that they were created for the sake of reproduction.

But it wouldn't be all right to use cloned embryos created for the sake of research. Likewise, it would be all right to use embryos created with sperm fertilizing an egg in an IVF clinic, provided that it was created for the sake of reproduction.

But it wouldn't be all right to use an embryo created when a sperm is brought together with an egg in sexual reproduction in a clinic if the purpose of the clinic bringing the egg and sperm together was to create an embryo for research.

So the key here, and what is carrying the moral weight, is not how the embryo was created, but why. Scientists may use excess embryos, however created, provided that they were created for the sake of reproduction. But scientists may not use embryos created for the purpose of research or curing diseases.

Then the question arises why or the reason, or the motive for creating the embryo determines whether it is permissible to use them for research into diseases.

Now that is the heart of the question; why the motive matters, and why the motive for the creation makes a moral difference. And the way to explore this question would be to put aside cloning altogether.

Let's imagine two cases; of traditional sexual creation of an embryo, or in a clinic, or in a lab. In case one, a woman comes to an infertility center and donates some eggs because she wants to help infertile couples have a genetically related child.

And the clinic brings together her eggs with donor sperm and creates some embryos, some of which are implanted, and some of which wind up being spares.

In case two, a woman goes to a clinic or to a lab, and donates eggs for a different reason. She donates them because she wants to support stem cell research to cure Alzheimer's and Parkinson's.

Her eggs are brought together with donor sperm, and made available to scientists who are engaged in this research.

In both cases, the motive of the woman who contributes or who donates the eggs is to advance a worthy end; helping an infertile couple have a genetically related child in the first case, and advancing scientific research in the other.

And in both cases, she contributes knowing that at least some of the embryos created from her eggs will be sacrificed, will be discarded or destroyed.

Now, according to the nothing is lost principle, what do we say about the availability of these two embryos, or sets, or batches of embryos for research?

Well, the nothing is lost principle in the paper tells us that it is okay for scientists to extract stem cells from the first batch, but not from the second. And the question that I have is why.

The answer that the paper seems to give is, well, in the first case, they are spares. They are excess embryos. But then it is not so clear to me what counts as spare.

Well, strictly speaking, a spare is an embryo not needed for reproduction that is going to die anyhow. So we may as well use it for some good. But by that definition of a spare, both batches of embryos are spares.

Once they exist, they both meet the nothing is lost principle. It is true that both batches of embryos that we have here are going to die otherwise, and we might as well get some good use out of it.

So that can't be — well, maybe that is too limited of an account of what you mean here by spare embryos, because by that definition they would both be spares, both batches.

So maybe there is a further condition of an embryo being a spare embryo; namely, that it had been created in the first place for the sake of reproduction. That would limit us to batch one.

But then the question is whether that condition adds any moral relevance or interest. The idea must be that the intention of the donor confers some morally relevant difference.

Moreover, a morally relevant difference that somehow filters all the way down to govern what a scientist may morally do. Well, what could that difference be?

How could the motive, the different motives in these that led to the creation of these two batches of fertilized eggs, or of embryos, how might that work? Why would the motive make a moral difference?

Well, there are at least two possibilities that I see from the paper. Maybe the motive makes a difference in the moral status of the embryos that result. Maybe it makes a difference therefore in the respect that the embryos are due. But why would that be?

How does the different motive in the two cases confer different moral status on the embryos in batch one than in batch two, such that the ones in batch one are properly open to use, to be sacrificed for a worthy scientific end, but not the ones in batch two?

There doesn't seem anything different in the moral status of the embryos in batch one and batch two. Well, maybe the difference then isn't in the moral status of the embryos that result from these different motives.

Maybe the difference is in the way that the scientist who would do the research is complicit in the destruction of the embryos that is a necessary feature of the research. But how does the motive that the donor had in creating the two batches change the degree of complicity of the scientist?

And here I am drawn to our Footnote 12, which cites our colleague, Gil, in a question that he put, which I think is a perfectly relevant question here if you are trying to work out some difference in the complicity.

Just because there are some embryos that somebody else has decided to destroy or to discard, why does that remove the complicity of the scientist who does the killing, and Gil's example, who is cited in the paper, seems to me to be a very good one.

If the Nazis decided to gather people in the concentration camps and had determined that they be killed, it wouldn't — that fact that they were going to die anyhow, wouldn't justify a doctor coming and yanking out their organs to save some innocent people.

He would not be less complicit or she, that doctor, in doing or in yanking out their organs to do a good thing simply because somebody else had decided that those people would already be killed, regardless of how you regard the moral status of the embryo.

It seems to me the degree of complicity isn't affected by the motive of the person who created the embryo in the first place. Well, the only other possible answer that I can think to the question why does the motive of the donor confer some morally relevant difference on these two batches, is — well, maybe to recur to the underlying intuition of the paper, which is that embryos should be treated as ends, and not only as means.

And therefore to sacrifice excess or spare embryos in connection with IVF is morally permissible, because the donor didn't know which of the embryos created would be sacrificed, i.e., treated as a means, even though the donor knew that some would be.

But even if that marks out a morally relevant difference for the donor, and the donor's willingness to sacrifice embryos for the sake of various ends, it is not clear how this makes the embryo that results more open to use by the scientist.

So my question is going back to these two scenarios, these two batches, created for different motives, to test my motive matters, is what moral difference does the motive make.

CHAIRMAN KASS: We have to decide on a procedure it seems after a wonderfully rich comment like that. The only fair thing to do is to ask Gene if he would like to respond now or later.

DR. OUTKA: Well, I think it was a wonderfully rich comment, and probably since it was a rather complicated one, it might be best at least to maximize the chances that I will forget less of it if I go ahead and respond now rather than wait, because there are a number of points that come up.

And I thank you very much for your care in putting these questions to me. I guess I don't really want to use as you suggest — and I don't use I think the language of motive. There is a wide question about why the embryo is created, but I don't think that is satisfactorily accommodated by calling it a motive.

What I wanted to do was two things. I wanted to take seriously the notion of the injunction that comes to us in religious traditions, but also in some philosophical ones, above all, Kantian ones, that treating people as ends and not merely as means.

And I wanted to say that that generates a certain case for inviolability, and so I connected that injunction to the ethics of killing. So the first thing that we are talking about I think is more the morality of actions, rather than the morality simply of motives.

And I want to say that certain actions may be licit if one can say that the rationale for — let's say in the case of IVF clinics, being in the mess that we are in with respect to them doesn't have to do with actions that we ourselves perform.

We are actually dealing with the after effects of an entire industry, and so that would already distinguish the status of what we are contemplating there from the status of contemplating a direct action ourselves when we do X in order to do Y.

And I want to say that a prime case for treating an entity as instrumental through and through is when we do X in order to destroy them for the sake of the benefits that destruction will bring to third parties.

I want to say that that is an instrumentalist action through and through. So I would prefer to use the language of ends and means, and the morality of actions, and specifically the prohibition against killing, rather than I think the language of motives.

And which does not seem to me to quite capture those points. Now, in regard to your very interesting example, of case one and case two, it would be the case that if a woman donates eggs for reproduction, she there is donating her eggs for an end that isn't menial.

I mean, there she is donating her eggs for the sake of a couple who want a child, and so nothing that the couple contemplates, or nothing that she does contributes to a case for creating in order to destroy.

Whereas, if she gives her eggs to support stem cell research — and that is her only reason, so that she is giving her eggs in order to do that — there it seems to me that she runs the risk of violating the thing that I am objecting to, which is creation in order to destroy.

So the relevant fact is not simply that they are both spares. The relevant fact has to do with the morality of the two different kinds of actions.

And where the ends have to then be also distinguished, and you say that both ends are worthy. One is to help a couple, and one is to promote research. But I am precisely objecting to the second kind of so-called worthy end if it means that you may directly create a life in order to destroy it.

That seems to me to be a trumping action; that is to say, the objections against a trump, the good aim of promoting research. Whereas, nothing about helping a couple involves a creation in order to destroy. So it is not subject to the same kind of objections.

Now, you also then list some possibilities about how these different cases might be distinct. I think the batch one and batch two — I hope that I have given a different account of why I make a distinction between those two cases.

Your reference to Gil Meilaender is a very important objection to me in correspondence about whether or not nothing is lost allows to much or permits too much.

I strain there, and I grant that I strain, but what I want to argue is that in the case of embryos slated for destruction, and who are frozen in perpetuity, or eventually to be discarded, we have a peculiar condition of perpetual potentiality.

And that distinguishes them from some of the other possible uses of nothing is lost, which I disallow. So there the argument would be that they are the peculiar features of entities that are characterized as having perpetual potentiality that distinguishes them.

That is not certainly an adequate reply, but that would be the shape I think of my general response.

CHAIRMAN KASS: Michael, please come back and maybe one more round would help, and other people would like to get in on this.

PROF. SANDEL: Well, there are two issues here. The last point was an attempt to show that in the first case the woman who donated an egg to help a childless couple, that her act was morally permissible.

Whereas, the second woman's act was not morally permissible because it instrumentalized the embryo in a way that the first one didn't. Now, that is one issue, and I would like to come back to that issue maybe later.

But even if you are right about that, it still would be true that the nothing is lost principle, from the standpoint of the scientist, must regard both batches of embryos as spares in the relevant sense that they are going to be discarded or destroyed anyhow, and why not derive some good from them.

So even if you made out the first distinction between the acts of the woman donor, and there are questions about that, but independent of that, still how does that limit or change the scope of the scientist's responsibility, such that — there are certain eggs or the eggs in batch one, because they were not conceived instrumentally, are open to use.

Whereas, the eggs in batch two, the embryos in batch two, because they were conceived instrumentally, are not open to use. Why is that?

DR. OUTKA: Well, the key thing there I think I think is that I was talking about the rationale of in vitro fertilization clinics by and large, and rightly or wrongly, characterize that rationale as being able to sort of claim that.

Their dominant aim was to address the problem of infertility, and not to provide embryos for research. That is the overall generalization, and I know that there are a lot of questions to be raised about that, and at the very end of the paper, in the last version of the paper, I raise some of those questions myself.

But nonetheless I would stick to that. So I would think that your second case, your second batch, would not come up very much. I mean, I am obliged to you for thinking that it might. I guess I was talking about in vitro fertilization with that overall rationale.

You are talking about women who would donate their eggs simply to support stem cell research, and they would do that independently of whatever the scientist did.

And I would agree that in such a — and I think they are pretty rare cases though, that scientists would not be complicit.

PROF. SANDEL: They are rare only because IVF happened to get going sooner, and it has generated a hundred-thousand of them. But once stem cells get going, there is no reason to think that there won't be a hundred-thousand of those out there.

DR. OUTKA: I doubt it very much. I mean, there are lots of questions actually about the pressure placed on women to donate eggs, and the morality of egg donation is actually I think a really important subject that has not been discussed by ethicists.

But the important point here is that since you don't have such a class, what I am objecting to are researchers, scientists, who become complicit because they themselves do the creating.

PROF. SANDEL: Through cloning, but morally speaking, what do you say about the case where a lab takes or invites women to donate eggs, whether it pays them or asks them to donate them for the purpose of stem cell research?

DR. OUTKA: If it is inviting them, I would have to look at that. To the extent that it takes initiative, to that same extent it becomes more complicit, and therefore more subject to the objection that I am raising.

PROF. SANDEL: But you would agree that from the scientist's point of view how it got there, whether it was from someone who gave it for reproductive purposes, or from someone who gave it for stem cell research purposes, from the scientist's point of view, do you think that makes a moral difference?

DR. OUTKA: Well, I do if they are inviting a woman to donate eggs so that they may take those eggs and fertilize them in order to destroy them for the sake of, and so yes, then they are complicit.

PROF. SANDEL: Well, the lab. I am assuming the lab does and then the scientist goes and gets the — whether the scientist, or whether she goes to the lab and says give me some of your spares from reproductive donations, or says give me some of your spares from people who actually wanted their eggs to go to this purpose, do you think it is worse in the second case for the scientist to do that?

DR. OUTKA: I think it is worse whenever there is an active role played in an action which I regard as disallowed for reasons given. Now, there are a lot of nuances here, and I know that there are a lot of conservatives who think as I say in the paper, there will be some colluding going on between people who run in vitro fertilization clinics, and scientists who want spare embryos.

And I agree that there is a kind of performative problem there, and I tried to discuss that. So I am not saying that there aren't shades here, but the spirit of the paper is this.

That we do have an action where we are creating in order to destroy something, and that does seem to me that it should give us pause. It is not the same, and it won't simply be justified by saying, well, look at all of the third parties who are going to benefit.

If that is what we are saying about it, and we are creating in order to destroy for that reason, then let's say it very clearly. But let's say that we are then treating some entities totally instrumentally, and make no bones about it.

That is the first part of the spirit of the paper. The second part is to say, all right, it is the case that there are enormous benefits to be derived from embryonic stem cell research.

Let's see whether or not we can mount a consistent moral argument that will allow us to draw on some of those, but to keep some limits, so that we are not simply tolerating anything, or losing all of our criteria for distinguishing.

That is the spirit of the paper. Now, some of these cases will involve as I say gray areas, but I don't think that those gray areas by themselves will invalidate that two-fold part of the case as such.

PROF. SANDEL: Just a brief reply. If doing something to help a third-party is instrumentalizing, then all of the embryos in batch one are also morally impermissible because we are imagining a case where the woman goes to the infertility clinic to donate her egg for the sake of a third-party, for the sake of another couple having a child.

So that is doing a good thing for a third-party, and so that is instrumentalizing isn't it in just the same way as the second case?

DR. OUTKA: But there is no killing involved. She is donating her eggs in order that they may take those eggs and fertilize. That is life enhancing. This is as I said —

PROF. SANDEL: Provided that there are no spares that are destroyed.

DR. OUTKA: No.

PROF. SANDEL: The issue arises only because — if it were a one for one, if there were no spares, no excess, then the issue wouldn't arise. We are talking about the woman making the donation to help the third-party have a genetically related child, knowing that there will be some fertilized egg, some embryos, that will be sacrificed, discarded, as a consequence of her doing that.

DR. OUTKA: But you know how long, and perhaps too long in the paper, that I agonized about precisely that recognition. That that is a case where we foresee under present circumstances that more embryos will have to be created for promoting this end of conception, and fertilization, than we would like.

But we say that we foresee that, but we don't directly intend it, and there is still a claim that I think needs to be — I would still want to try to make, which is that there is a morally relevant difference between foreseeing the inevitability of excess embryos, and lamenting that, and wanting it over as soon as we can, et cetera.

And creating again in order to kill, or to destroy, and I still think that there will be a difference there.

CHAIRMAN KASS: There is a long queue that is prompted either by the paper or the comments. I have Jim Wilson, Mary Ann Glendon, Alfonso Gómez-Lobo.

DR. WILSON: Let me begin with the language of motive, because though he may not have intended it, I think Professor Outka has in fact used the language of motive on page 24, where he talks about creating an embryo exclusively for research, the motive of the person.

Or creating it exclusively for fertility, the motive of the actor; and then again on page 35, creating for research, motive, and creating for baby creation, motive.

I think it is well to get the word motive out of our language. I hope that Mary Ann Glendon will forgive me if I use an inept legal analogy, but in the criminal law, we don't ordinarily determine guilt or innocence on the basis of the motive.

The man lies in wait to kill a woman, and shoots her from a distance, and approaches closely to make sure that she is dead, and finishes her off with several bullets to the head.

We don't ask in the court whether he did it to collect her insurance or to prevent her from carrying on her experiments in dogs, since she happens to be a biologist at a local university laboratory.

We might take motive into account in the sentencing decision, but that would be up to the probation officer. It seems to me that to modify the circumstance that Michael laid out for you and with which we have been struggling, suppose now the woman donates eggs in an IVF clinic, and they are all fertilized.

And suppose before picking the egg she wishes, she does what I think is in fact not impossible, and may indeed be commonplace, she has each fertilized egg tested for its likely hair color, or intelligence, or sex, or whatever of the embryo that will be produced.

And having selected the egg she wants and has it in place, she looks at the other people and says kill the rest. In fact, particularly kill those two. One is going to have Down's Syndrome, and the other one is going to have cerebral palsy.

Doesn't that put the IVF eggs in exactly the same position as the eggs created by a woman who has done it solely for the purpose of creating somatic cell nuclear transfer for the purposes of biomedical research?

In fact, does it make it worse, because now not only are the eggs that she has picked out with the doctor's consent going to be destroyed, they will not be destroyed in a way that will help anyone else.

So that to me the leftover egg solution to this problem doesn't work. The leftover egg solution doesn't solve the moral difficulty.

DR. OUTKA: Shall I try to respond to each of these as I —

CHAIRMAN KASS: Well, I think that these are all solid, and —

DR. OUTKA: Oh, yeah, very solid. I am indebted to you all, and let me say though that I think the statements that you read really are precisely about motive.

Let's maybe use the language that is closer to what I actually use in the paper, which is intention rather than motive. Now, I have always been drawn to an old assumption about the doctrine of double effect.

I am not sure that it is going to work, but I have always been fascinated with this claim, and I think there are some cases where it worked, but it doesn't always work.

And that is that certain action descriptions entail certain intention descriptions. Now, that is much closer to the timbre of my argument than the language of motive, because what I want to say is that an action, where you actually create in order to destroy, if you describe that action, it is hard to avoid identifying one intention.

And that intention is to destroy, and so I don't — I am going to continue to try to resist of saddling me with the language of motives here, and I don't think the statements that were cited really do that.

Let's think about intentions with respect to actions more than about general motives. With respect to your case, Professor Wilson, of all of the eggs fertilized. That it seems to me is — I have gotten a little bit of a bee in my bonnet about this.

The suppose this or suppose that, as a kind of test for measuring the adequacy of an argument, this hypothetical case that you cite is I think not at the moment within the realm of possibility.

So I am not sure that I have — that I am obliged to respond to it in precisely the terms that you have set it out. The fact of the matter is that we do have a situation where one of these embryos is going to be chosen to be implanted and brought to term, and the others will not be.

That is the datum that we are dealing with in trying to make moral sense of, and I would have to stick with that one, rather than speculate on all of the eggs being fertilized, and then if she chooses only one, rather than all of them, she is guilty for what she does to the other.

I think that changes the terms of the example so far that it is not any longer precisely comparable as a test of what at least I want to argue.

DR. MCHUGH: Leon, I have to interrupt just for a second. I just don't understand when you say the intention, or any intention, is in order to destroy. Nothing is being made here in order to destroy.

Will you explain that a bit further? I just got stuck on that. In none of these cases is anybody creating anything in order to destroy.

DR. OUTKA: That is a very important point and thank you for mentioning it.

DR. MCHUGH: Sorry to interrupt.

DR. OUTKA: No, no, no, I'm glad you did. If I am wrong about this one, then a lot of things go by the board, and I could be wrong about this one. I actually had wrung my hands about it quite often.

It involves a description of what is done that does include my importing a kind of conclusion about what is in effect going on that researchers might not immediately consent to.

But it does seem to me that if you ask a researcher why are you creating this entity, and the answer is, well, I want to do something to it, which will certainly kill it, but I am doing it for the sake of third-parties.

Then that seems to me to be an instance of instrumentalizing it. So the in order to destroy, or in order to disaggregate, is internal to the description of the act I want to argue. Now, one might try to get at the position by challenging that, but it is hard for me —

DR. MCHUGH: You just used the word intention, that it was intention in order to destroy. I mean, you had several intentions.

Perhaps, and I might accept that, but there were several intentions involved here. But you put it all on the basis of in order to.

CHAIRMAN KASS: Could I lend a hand on this? I mean, had you not raised the question, I would have at some point.

DR. MCHUGH: I am sure that you would have.

CHAIRMAN KASS: But I think I can — if I am right, Gene, let me have a try. I think the proper way to state the intention is we create these embryos — and by the way, I don't think this paper is primarily — I don't think it is at all about somatic cell nuclear transfer.

I think the question really should be taken up universally, regardless of how the embryos come to be. I think that Michael is right about that, and this paper was written without even a reference to it.

But the researchers — and there have been people who have come forward to — well, people have come forward to donate their eggs and embryos for the sake of research. And the researchers who go to work on that wouldn't say that we want these embryos in order to destroy them.

We want these embryos because we want to use their stem cells for understanding or for treatment. But it is the unavoidable and inescapable entailment of that intention that the embryo be destroyed in the process.

If there was some way in fact to get the stem cells without destroying the embryo, people would be delighted I assume. And it seems to me that you can make the same case as follows.

This is not to say that the embryo is the human being, but if you were to say that you too, out my heart in order to save my friend, Wilson, here who needed a transplant.

And that you weren't taking out my heart in order to destroy me. All you were really trying to do was to save him, but if there was no way to do that without destroying me, then that material fact of your intent becomes embraced in the overall act with great clarity.

So I think that I myself would not describe this as saying to create it in order to destroy it. I would create it in order to do something else, but the necessary and inescapable entailment of which is the destruction, and therefore you embrace that intrinsic aspect of the act.

I think that is a better way to do it and it doesn't try to gain mileage, if you don't mind, from a more lurid expression that implies that the people are in the destruction business because they like destruction. I don't think that is the flavor or the intent.

DR. OUTKA: No, I take that as — I will regard that as a friendly amendment, and certainly agree with it. I think the reason that I used that language was simply to underscore that it is unavoidable that we can't ignore this as part of a full characterization of the act.

CHAIRMAN KASS: Sorry to have intruded. I want —

DR. OUTKA: That was very helpful. Thank you.

CHAIRMAN KASS: I have Mary Ann.

PROF. GLENDON: Well, doctor, you were very kind when you started out to adopt an egalitarian approach, and suggest that we are all on a equal footing with respect to the moral dimensions of these very difficult problems.

I must say that I feel a little backward maybe because I am a lawyer, but I am still — from the very beginning, from my very first meeting, I have been struggling with a problem that maybe you can help me with.

I am having a hard time seeing the difference between what is done — forget about motive and intention, but what is done in in vitro fertilization, and what is done in creating an embryo for research purposes, and let me explain why.

I think that in both cases the procedure is done with full knowledge that embryos will be destroyed. Now, many people, and not just at this meeting, but at previous meetings, many people have said that the difference is that in vitro fertilization is done for a worthy end.

And I think you or Professor Sandel said to help couples with infertility. Well, we all know that that is not quite right. That very often it is not couples. I don't know whether couples are predominantly the ones, but certainly a large proportion.

But leaving that aside, there are a number of factors that I can think of that to my mind call into question a casual assumption that what we are dealing with here is such a worthy end that it would justify the destruction of embryos.

I will name some of them. One is — and I am naming these as a constellation, and not that each factor would be decisive in and of itself. But it is an extraordinarily expensive procedure.

It is highly uncertain in outcome. It has unknown long term health effects for women who are subjected to massive doses of hormone injections, and the evidence coming out now is suggesting that children born from this procedure may have an unusual proportion of defects and disabilities.

And then finally as I said, it involves creating an embryo with the certain knowledge — or creating embryos with the certain knowledge that some of them will be destroyed.

So I guess that my problem is that not only that I wonder how that can be easily said to be a worthy end, and then I guess more seriously, if we accept the creation of embryos with the certain knowledge that they will be destroyed for purposes of in vitro fertilization, doesn't it become or haven't we gone very far down the road indeed toward justifying the creation of embryos for research purposes?

DR. OUTKA: Well, I thank you very much for that question and I think it is forceful and important. And my perhaps only flagellations at the end of the paper suggest that I feel its force.

But for better or for worse, let me at least sketch the lines of a reply, even though I don't think this addresses all the things that need to be addressed in your important set of objections. One is that I do think that there are two things in conflict here. One is infertility, and the other is excess embryos, and we welcome neither. I think that is where we have to begin.

But I indicate that the datum leaves me deeply disquieted, and I don't easily assume that it is simply a good. I agree with you that it is expensive and uncertain.

It nonetheless is something, and I have talked to a few people who have been through it, and who have actually — it has resulted for them in children, or grandchildren, and they are nonetheless very thankful for it.

But I suppose the spirit again of my approach is to say, look, this is a practice about which there are many, many questions. But I am a little uneasy with the grand — now that a lot of people are beginning to realize this, and are quickly denouncing it, they often use the language of we.

That we are responsible for this, and this isn't like a contingent disaster. This is something that we have created by our own hands, and I would register a slight disquiet with that, too, because I don't think that we did it.

I think that most folks who have the gift of fertility don't worry very much about this. And so this was developed — and I agree that we didn't object to it, or resist it, but it was developed by people with vested interest in it, both the infertile and those would were prepared to create these industries in order to address that problem.

And now it is time it seems to me to air whether or not the current arrangements can be justified, where you have 10,000 new spare embryos being created every month, et cetera. I mean, there are a lot of questions that have to be asked.

But I would also say that in the case of nothing is lost, I do observe that nothing is lost sometimes can be justified even in response to an evil practice.

I mean, there are some interesting cases. For instance, in Jewish rabbinic literature, about acquiescing to the demands of the tyrant under certain circumstances. So you can invoke that nothing is lost even when you don't think that the situation that got you to here is admirable, or free from a certain amount of evil.

And I think that it is in that spirit that I will want to say that however we got here, and whatever we should do from now on, we do have this datum of a hundred-thousand embryos frozen in perpetuity, or slated for destruction, and we do have to reflect about that.

I am not sure that is a very satisfactory reply, but it is to evidence a good deal of sympathy with your reservations, without I think ignoring that one datum.

CHAIRMAN KASS: Gil Meilaender.

PROF. MEILAENDER: Gene, as you know, I think it is a very nice paper, and as you also know, that doesn't mean that I have no questions about it.

And there are several things that I wanted to ask about, but I want to stick with the nothing more is lost, because it is central to your case, and which I take it to mean — I mean, if we were thinking about what other kind of language would we use to describe that, it means with respect to the particular human subject, human entity, that we are talking about, that there is nothing that we can do that would further diminish its life prospects. I mean, that is just by the nature of the case.

DR. OUTKA: And also nothing much we can do to help its life prospects.

PROF. MEILAENDER: Yes. And there are a number of analogies that we might think of. I want to come around to one of them in particular, but there are a whole number; the condemned person, whose last appeal has been lost; the irretrievably dying person, who has only days to live; the permanently unconscious person; the fetus in the process of abortion, or after a decision for abortion has been irrevocably made.

I mean, there are a whole number of such, but let's take the anencephalic infant. I take it that there is nothing that you can do to further diminish its life prospects.

I don't know whether you are prepared to think that under those circumstances that it may be instrumentalized for various research purposes, but I would like to sort of hear you reflect on it, since in a certain way it almost seems to me that the case might be stronger for that than for the spare embryo.

The spare embryo is sitting around waiting to be instrumentalized because we made some choices. The anencephalic infant is just there. I mean, it is not any choice of ours that got it there, and it almost seems to me that the argument would be stronger.

So I would just like to hear you reflect on that, and see how you would think about that in relation to the kind of argument that you make.

DR. OUTKA: I know that is a first-rate question, Gil, and since the anencephalic infant case came up in connection with that suggested in your correspondence to me, I should have been more careful probably in how I used it.

My unsatisfactory response to this is that I see the logic of saying that in some ways, since we didn't have a role in bringing this about, there might be greater warrant for using it.

But I guess the context of my discussion of that, of pairing them, was the context only of saying that we are unable to do anything for them. That there is a kind of cessation of the injunction to treat them as ends rather than means. We are limited in what we can do.

Our love can't affect very much, and I really only wanted to make the comparison in that connection. I didn't want to sort of suggest that in such cases that it would be quite all right to go ahead then and use anencephalic infants for research purposes.

But I think that you are right in suggesting that that would have to be a loophole that I would have to close. I mean, I am worried about this datum of the hundred-thousand spare embryos.

I mean, there is a kind of overwhelming fact to go back to the earlier question that I think we need to say something about. Is there anything that we are doing that is preferable morally by freezing them in perpetuity.

And my one place where I do not understand the conservative concern about them is that I don't know what people who don't want to destroy think they are saving that is significantly different —

PROF. MEILAENDER: Gene, can I just make one suggestion?

DR. OUTKA: Yes.

PROF. MEILAENDER: We are not embracing their death as our aim.

DR. OUTKA: Right.

PROF. MEILAENDER: I mean, just as a hypothesis, might that not be what someone would reply?

DR. OUTKA: They certainly could reply, but the result of that is this peculiar situation of perpetual potentiality, and so the witness looks very marginal to me. It almost looks like it doesn't have very much to do with them.

It simply has to do with a refusal to do something that would bear on them, but at that point — and I would agree that my application of nothing is lost, and it might have a slightly consequential sound to it there.

But I would be willing to risk speculating about consequential steps there if there was something to be done that might do some third-parties good.

But in any case, back to your excellent example. Yes, I would have to say that I would have to be careful, and if the logic of the position involved my saying that there would be some even stronger case for doing something before the infant died, then I would have to address that and modify the position so that that consequence was not allowed.

How I would do that is a nice question, but I think I probably could devise a way to do it that would not be unlike these other ways that I have tried to devise of saying, look, this is a very special case, this class of perpetual potentiality types.

And it is not to be generalized from to allow nothing is lost to generally be invoked to harvest organs from the living, or from those whom the government has condemned as criminals, or whatever.

I do accept that there is a whole range of those cases that I don't want to allow in, in my use of the nothing is lost principle for the sake of talking about embryos discarded.

DR. KRAUTHAMMER: Could I interject?

CHAIRMAN KASS: On this point?

DR. KRAUTHAMMER: Yes, on this point, and a suggestion for an answer. And that would be that there is a fundamental moral difference in the status of an embryo and of an anencephalic child.

The child is a full human being, and anencephalic or not, a comatose person is a full human being, comatose or not, and we don't tear them apart for their parts.

They are inviolable, and so I don't think it is a terribly strong objection. An embryo has an intermediate, if you like, moral status, but certainly is not the moral equivalent of a child or an adult who is in a coma.

So I don't think that you open yourself up under your argument, professor, to tearing up people who are in comas or who are anencephalics.

DR. OUTKA: I will accept that as another friendly amendment. Thank you.

CHAIRMAN KASS: I have Alfonso next.

DR. GÓMEZ-LOBO:: I'm afraid that I am going to disagree with Charles here, but he knows that. Going to Michael Sandel's point. I would put it in very simple terms.

Namely, if you go into a lab and you have an embryo in a dish there, and you would not be able to tell whether it was created for research or for reproductive purposes. There is nothing in the being itself.

And what I am trying to do is this, is turn the discussion back to what I think is the key point, namely what kind of being we are dealing with here. There were parts of the paper where you, Professor Outka, seemed to be treating embryos and fetuses as if they were different entities.

And I think at a given moment you would talk about these entities and these other entities. And it seems to me pretty common sensical that we are talking about stages. Every fetus was previously an embryo, and an embryo developing naturally will become a fetus.

These are names that have been coined for certain periods in the live of what, of a human being, if we are talking about human embryos. Just the fact that we can talk about ovine embryos shows that the world embryo doesn't tell us what sort of thing it is. We need the word human there.

Now, if that is the case, then of course the big problem is if we have one human being, and you agree that from conception onwards that we have a human being, then why this "diminution of value" in one stage, and then from then onwards — I don't know, is there an increasing value?

You seem to take implantation as the breaking point, and I have heard that before. Of course, you are familiar with the work of Tom Shannon, I assume, right? You quote him.

DR. OUTKA: I cite him in a footnote.

DR. GÓMEZ-LOBO:: Sure. Sure. Now, the real critical question is this. Are Shannon's arguments convincing? Is it the case that there is such a decisive break there that we may — I think you would be more consistent totally to disregard the value of the embryo, or to say, well, it is part of a human being, and therefore it is equally valuable as that same human being at a different point.

Now, I don't know if we want to get into the discussion of potentiality in the individuation.

But those would be the key points it seems to me, because if a human being starts its conception, if we have there the basic genetic information that is going to carry this organism through the phase in which we find ourselves, then of course I see no reason to think that there might be less value at that point than at another point.

In a way, it seems to me that people like Robertson are a lot more consistent at times, and say, well, let's respect — or Mary Ann Warren for that matter, but let's respect them after they are three years old, after they are rationale, or something along those lines.

So the point that I am trying to focus in is why or on what grounds establish this magic break point at 14 days?

DR. OUTKA: Well, thank you for that question. I actually think your characterization of the position — well, I would want to offer the following amendments to it, but then let me talk about whether I think I have given anything like adequate arguments for the positions that I take.

But the great or the only bright light that I see in this range of possibilities is conception. So, conception is the point at which someone becomes a kind of primordial part of the human race, and an embryo has the genetic wherewithal to become a person just like the rest of us given the right opportunities.

So conception is the first and the brightest line for me. Implantation is none of the other subsequent discriminations that I also defend are anything more approximate, but they are approximate.

So I don't actually make as much of the 14 day period as Shannon does. I don't have this big commitment to individuation versus the other. I stay with conception.

But I do say that there is approximate discrimination at the point where implantation occurs, because now we can describe this entity as a power under way, a self-developing power under way. You can't say that about the embryo.

DR. GÓMEZ-LOBO:: Why?

DR. OUTKA: Because it is not implanted. It isn't yet a self-developing —

DR. GÓMEZ-LOBO:: That's a circular response.

DR. OUTKA: No, it's not. A self-developing power under way means that if left to its own devices will, and if not interfered with, come to term.

No embryo is going to do that prior to implantation. It won't. I mean, that is not circular. With respect, I don't think so.

DR. GÓMEZ-LOBO:: A fetus left to its own devices won't survive either.

DR. OUTKA: In one way it will, in the sense that it certainly depends upon the woman, and I have tried to argue that the one person in all the world for at least the first 20 weeks, and that makes the circumstances of pregnancy sui generis in my view.

It is a satisfactory analogy that are entirely satisfactory elude us. But nonetheless, there is now a natural process where if the woman doesn't do anything but live normally, that entity will come to term.

And that is not a generalization that you can make about the embryo. You can only make it about the fetus. So I do think that there is nonetheless a difference.

PROF. MEILAENDER: Leon, may I just ask one question of Gene with respect to his response to Alfonso. Given what you have said, why did you accept Charles Krauthammer's comment as a friendly amendment since you have just — it seems to me — committed yourself to a very high estimate of the embryo, if not from conception, at least from the time of implantation?

DR. OUTKA: Well, then it is no longer an embryo. It is a fetus. There is a —

PROF. MEILAENDER: Well, his distinction was at birth, and that was the friendly amendment that you —

DR. OUTKA: Well, I know that it was, but the embryo, though it has irreducible value, I want to argue still — that until it becomes a fetus, it has moral standing, but not the same moral standing that a fetus has.

CHAIRMAN KASS: By fetus, you mean simply implanted?

DR. OUTKA: I mean implanted. So there is a irreducible value, but not the same kind of moral standing that a fetus has. I try to lay this out. Whereas, equally protectable value, only occurs when it is viable.

CHAIRMAN KASS: Could I intrude myself in this just because I think that we spent most of the time here on the nothing is lost point, and the distinction between using the spare and creating for.

But it seems to me, and I am intuiting from the silence of some of our colleagues, whose manner of making a living I am aware of and you are not, but that we might like some help from you on something else in this paper, which actually has to do with the question of the evaluation of the status of the pre-implantation embryo, which is after all central to our business, whether we are talking about cloning for biomedical research, or down the road to embryonic stem cells.

So central to your — I mean, I think if I understood the paper, you make a lot out of — the reason that you do not regard either abortion or the destruction of embryos as murder, though you regard the embryonic life as having irreducible, but not necessarily, therefore, equal value if I am not misunderstanding.

And that turns on some notion of potentiality, which you develop richly, and there are people in this room from previous discussion who have used the term embracing it, and others use it dismissively.

You would, I think, make a contribution to our ongoing discussion if you could say a little bit more about that notion, and to do it in a way in which it might be persuasive, and not to the moral theologians in the room, but to those of us who studied some science.

Can you help? How does the notion of potentiality, how does it help us think about this thing that we have before us created in vitro if it is not a full person, which if I understand your paper, you don't claim that it is?

That seems to be the core of your teaching to us about its value, and if we don't understand that, I think we may miss this. So can you help?

DR. OUTKA: Well, I can try, but I'm afraid that I will probably reiterate what is already on the pages. But maybe to refresh our memories, I say that potentiality applies to embryos and fetuses.

And I take fetuses first, and I say that potentiality refers to what they are not yet, and also what they are. And I try to keep fairly low flying here, in terms of trying to offer a descriptively accurate characterization of them.

They are not yet an equally protectable life because by virtue of this dependence on one person in all the world, and I do make quite a bit of this, and that pregnancy does have this very special feature.

Only the woman can help in a certain way. She is strictly non-transferable. There is no one else in the world that can help if she doesn't. Now, in a way that is a natural fact about us, but it is also a very peculiar natural fact, though it is very common.

It is kind of numerically common and yet it is striking in that there aren't precise analogies to it. And I want to argue then that during this early period she is allowed special discretion by virtue of this absolute dependence that one entity in the universe has on her, and only her.

But potentiality also refers to what the fetus already is, and what the fetus already is, is this power under way, which I realize has not convinced all of you of its accuracy.

But nonetheless the fetus is very connected to the woman, and still totally dependent upon it, but nonetheless again if she lives a normal life, there is a self-developing quality to the fetus, which if simply left alone will result finally in an entity just like the rest of us.

That is also a natural fact about it, and it is this peculiar combination of what the fetus is not yet, and yet is, that represents its peculiar status in the world.

And so I want to say that to kill it causes it incomprehensible harm, and that is what makes abortion and infanticide so serious, because there is nothing that we can ever do to compensate, or make amends for that action to the entity.

But I also then want to argue that embryos are like fetuses with respect to having this reducible value. They have the genetic wherewithal, but they are not yet a power under way.

Now, I take it that given the overall assignment that you all have as a council, you want to see whether or not, and especially your scientific colleagues, or members of the council have any reactions to that with respect to its scientific adequacy, because that is part of your assignment, is to get clearer on that.

So I would ask any of you who care to, to comment on whether you think that is a useful description, or wildly inaccurate, or somewhere in between.

CHAIRMAN KASS: Does someone want to join on that? I mean, there are people still on the queue, and I jumped slightly. The question of potentiality came up here, and I know that it would be a shame if you left without our having a chance to address that, because it seems to be part of the case for the moral work that we had here. Paul.

DR. MCHUGH: Well, just a moment on your question of potentiality. I want again to underline something that the professor said. He said that this has the potential if left alone.

Well, that of course doesn't apply to, for example, the human development from somatic cell nuclear transplant. You have to do even more to it than just produce it to get it to be human.

And I just wanted to make the point that sometimes potentials depend upon further human actions. And the council knows why I am fussing about this, but I want to be sure that I heard you correctly when you said the potential here is if left alone, this entity will follow a course with —

DR. OUTKA: Well, you are perfectly right, but that applies to fetuses.

DR. MCHUGH: Yes.

DR. OUTKA: It does not apply to embryos. I mean, that is the difference between the two as far as I can see. If you don't do something in addition to an embryo, i.e., implant it, it will never be a power under way.

CHAIRMAN KASS: Bill Hurlbut, and then — well, are you going to speak to this particular point about the science?

DR. HURLBUT: Yes. The first thing is that I think we need to come to the point of using the same terms. Scientifically speaking, at least in current literature, the term embryo is used for the first eight weeks of development.

But I sense that you are using it pre-implantation and then —

DR. OUTKA: Yes, I am. But I think that has almost become in a way a de facto use. Do you have a sense of that as well?

DR. HURLBUT: They are not using a term — people are using a term, and Elizabeth suggested that we use this in various contexts, pre-implantation embryo, or pre-embryo, but that actually has its historical derivation from the term pre-implantation embryo.

And scientifically speaking, an embryo is from conception until 8 weeks. There has been a little fuzzing over the history of it. But basically the distinction that is trying to be put in place there scientifically is that approximately 8 to 10 weeks the organization is set, and it is not just getting bigger after that, but it is much more like that.

The early development of form and organization are taking place. One little scientific comment and then I want to ask you a question. I personally don't understand why you feel that in a natural setting at least the pre-implantation embryo has a different moral status than the implanted embryo.

The fact is that the pre-implantation embryo is drawing nourishment from its mother, and as is evident from the varied result that you get from putting it into a different medium for a while — larger offspring, for example, and more twinning, or example.

And so I can't quite see why that really makes a difference. But that might be the wrong point to address. What I would really like to know — and this is a very vexing question to me. I have sat in this council now for — this is the third meeting, and every meeting the issue of potential versus actual, and accrued, or accumulated status keeps coming up.

And I feel the good intentions of those who bring it up, and I got in a little discussion with Mike Gazzaniga about this the first week. I felt the weight of it when Janet Rowley said it several times.

I keep wanting to know, and wanting to ask of other people why they assign a particular characteristic of accrual as being the moment of implicit dignity; and why the various sides of this equation can't find some meeting point.

So I would really like — I would personally very much value an exchange between you and somebody at least on this panel, or on this council, who is taking a position of accumulated or accrued personhood, or something of that nature. Do you understand what I am getting at?

DR. OUTKA: Well, I think so, but let's be sure I do. I mean, my position is — well, I hope nuanced, but it is hard to pin down, because I both want to attribute irreducible value to any entity after conception, and still make as you say some distinction between the embryo and the fetus.

And I accept by the way your pervasion that by embryo I mean pre-implantation entity, and that's what I mean. And if there is an acceptable way to refer to that and that makes for clarity, I would happily accept it.

And you may be right that the embryo is dependent upon the woman, too, in a way that I ma not fully doing justice to. It is perhaps significant that I am thinking of embryos as potentially in a state of limbo by virtue of in vitro fertilization clinics.

I mean, that has made me more aware of implantation as a kind of stage that is discrete in some ways. So I may be overdoing that. You are certainly right that unless we are talking about embryos created that way, or conceived that way rather, we are not talking about an entity that is not also dependent like a fetus is on the woman.

But now let's go to your basic concern, and maybe you had better repeat that for me, because I am not sure that I do have it clearly, and it is clearly an important point to you and to some others, and I want to promote whatever I can by way of clarity about your ongoing discussions.

DR. HURLBUT: Well, I would really, really like personally to hear a good deep discussion on the issue of the moral significance of potential.

And I don't know if it is too much to ask for specifically from one of my colleagues. For example, if Mike Gazzaniga would actually jump in here and engage this, because a lot hinges on this subject.

And a few of us are deeply enough trained philosophically to know the real or the deep thoughts on what this term so factual and potential actually mean.

DR. OUTKA: Well, I don't think that even the philosophers, however deeply trained they are, have come to any agreement. This is why in a way I felt more emboldened just to say, look, whatever position you take on this status of the embryo and the fetus are going to have major implications for a position that you take on stem cell research.

But there is so much disagreement all the way down the line, and yet those disagreements matter so much, I am going to tell you what my own views are.

Now, I don't defend them altogether, and that goes back to something that came up earlier. There is a booklet in which I talk about abortion, where I defend them a bit more.

But some of that defense is still to come, but nonetheless I think I am clear now on the general lines of the argument, even though I haven't fully justified all the parts of it.

CHAIRMAN KASS: Let me say — and because there are people in the queue, and we are moving toward the end of this session, I want to let the people who have asked to speak, to give them a chance.

Could I simply say that this question of either absolute or prima facie, were tied to something actual or potential, it is not going to go away. And that we had better put it on the agenda for ourselves.

Lots of people had a stake in this discussion, and I think Professor Outka has in fact, if we revisited those 3 or 4 pages of the paper. He has given us something to chew on, but I suggest that we perhaps bracket it for now.

I just wanted to highlight it as important, and unless someone really wants to join in on and solve this one, let me suggest that we take the people who are waiting.

And let's try to do this in about 10 minutes, and then break. I have Robby, Frank, Janet, Michael, and Rebecca. That is rather long for the time that we have, but let me ask for a certain concision if I might. Who was the first? Robby? Please.

PROF. GEORGE: Thanks, Leon. Well, I will then lay aside the discussion and I was going to go right into the questions that Bill and Alfonso raised, but let me lay those aside right now, because I have another set of questions that will take us back to Michael's original comment and the exchange with Gene.

And perhaps I will write to Gene with my own two cents about this question about the status of the embryo. But back to the set of distinctions that Michael was calling into question, Michael Sandel.

I take it that our position is that once there exists an embryo, who will not be implanted, and whose life will soon end one way or another, then it is either — and you can tell me which, and I don't know whether it matters.

It is either not instrumentalization to disaggregate the embryo for good reasons, or if it is an instrumentalization, it is not a wrongful instrumentalization.

I don't think you have declared yourself on that, and I don't think that much turns on it, but do you want to say which way you will look at it?

DR. OUTKA: it is probably closer to it. I think that is a fine question, and I haven't really thought about it, but I think it is probably closer to not a problematical instrumentalization. I think that is probably what I would say.

PROF. GEORGE: Okay. I take it then, if I were going to try to defend a position given that point against my point, I wonder if you would accept this way of defending it.

I have to confess in the end that I don't think it can be defended, but I am just trying to see how far it can be defended against Michael's particular critique.

Then I think you would have to say that the morally bad thing is in — and I am sorry to use this language, but I think it is in the spirit of what you have been saying. I am not going to talk about motivation.

But the morally bad thing is in the intention to create the embryo as an object. That is to say, to create the embryo as a means only. Is that right?

DR. OUTKA: Yes.

PROF. GEORGE: So that in way you have distinguished creation by whatever means, and Michael has to be right that the means don't matter, but the creation of the embryo for reproductive purposes from the creation of the embryo again by whatever means for research that would involve its destruction. Yes? Okay.

PROF. GEORGE: Then I think what has to be defended to make that out would be the idea that embryos created for purposes of reproduction are not created as means or objects, but are created as ends in themselves, even if we know that some of the embryos that are created will in fact not be implanted, and therefore will be subject to licit disaggregation. Right?

DR. OUTKA: Yes. That is okay. Licit disaggregation is probably all right, but note the somber quality of this, of accepting all of this. This is mournful stuff. I mean, I mean I am not happy about it.

PROF. GEORGE: No, I understand.

DR. OUTKA: It is not licit in a kind of pure moral sense at all. It is like we have this aftermath, and what do we do with it.

PROF. GEORGE: That it is permissible and that is the key. We may be unhappy about the whole thing, and regret how it came about. Okay. Then the question becomes can we distinguish the treatment of the spares created, again by whatever method, in such a way as to make sense of the idea that despite the fact that they are going to be discarded, and therefore subjected licitly to disaggregation as ins in themselves.

And how does that argument go? Does that argument have something to do with the idea that each has a chance of being the one implanted? Does it have to be an equal chance, and that gets us into Jim Wilson's problem about embryo screening?

DR. OUTKA: I don't think I have fully worked out what I want to say about that. In part, it is because I see the moral calculations that I am trying to defend as working in response to decisions made by others, which I don't necessarily either rejoice over, or even approve, but where I am nonetheless forced to now deal with them.

And what it is maybe licit to do to them. I mean, there the status of fetal cadavers would be a sort of — well, the use of fetuses terminated in abortion decisions would have a similar kind of status for me, where I am deliberating about things where I am not wholly happy about this data, but I am going to have to now confront it and make some determinations with respect to it.

And I am trying to offer a moral case for doing that. But I think that sometimes the force of some of these questions implies that one is more of an actor with respect to what is being decided about than one is.

And I would want to be wary about that, and I think the way that you put that almost hints at that, and I would want to resist it.

PROF. GEORGE: Oh, I am willing to grant you that, but it seems to me that then on the other side, by the same terms, we have got Michael's scientist.

You know, he was not involved in any of this, and he is just facing a batch, or at least one embryo that is now in the condition that objectively from your vantage point renders it legitimate for disaggregation.

And he is willing to do it and doesn't see any moral reason not to, because it seems to pass the test that you set out.

DR. OUTKA: I said that there were gray areas.

CHAIRMAN KASS: Let me just remind you of the — I mean, I would still like to get other people on the queue, and so if you could —

PROF. GEORGE: I'm sorry, I will —

CHAIRMAN KASS: Well, I mean, could we ask the following? This sounds like a nice dialectic. Would you be willing to put in writing, and Gene, would you be willing to respond, and we share this exchange?

PROF. GEORGE: I would be intending to write to Gene about the status of the embryo issue anyway, and we can —

DR. OUTKA: That's excellent, but these are very important questions.

PROF. GEORGE: Just a final point on where we would go and why I think it is relevant. I mean, I am just wondering if at the end of the day what you have got left to say to Michael as a scientist is really a practical or prudential matter; that simply if you go ahead and experiment or use it to disaggregate these embryos, you will be encouraging other people to do.

DR. OUTKA: I am not sure — I am going to try to assimilate Michael's scientist's case into the general case that I want to make about the appropriate use of discarded embryos. That is what I am going to do with it.

I am not going to allow it some kind of independent status that derails the basic distinction that I want to make.

CHAIRMAN KASS: Frank.

PROF. FUKUYAMA: Well, I apologize, but I am going to have to leave as soon as you respond to my question, as I have one last class to teach this afternoon.

DR. OUTKA: I won't misinterpret your departure then.

PROF. FUKUYAMA: This is in a way a devil's advocate kind of question. But I am struck in these discussions of bioethics often that you begin with a moral rule or principle, and then as we have done, have a very subtle discussion about the application of it.

But there is no prior agreement on that principle, and the one here is the Kantian distinction between a means and ends, which we have all been — I mean, nobody has questioned that basic framework.

Now, I personally would much prefer that you be a Kantian than a utilitarian, and so I am not hostile to Kantianism, but it has got a lot of problems.

I mean, for one thing, pure Kantianism presupposes a dualistic ontology that I think no natural scientist sitting around this table would be willing to accept.

I mean, noumena do not obey the laws of physics. You know, laws of natural causation. But I think also Kantian ethics is a big mess, because if is ethics of intentionality.

I mean, I don't really see under Kantian ethics how you can fight a "just" war. I mean, when Douglas MacArthur was a division commander in France, he once said I will give a thousand men to take that hill.

I mean, if that is not pure instrumentalization, and every military commander that has ever lived has had to make a decision like that, and if that is not instrumentalization, I don't know what is.

And this came up — I think Mike Gazzaniga brought this question up in kind of our e-mail discussion prior to this meeting, that making the distinction between treating human beings as means and ends just begs a lot of questions as to where you make that distinction.

I have heard, for example, people argue that since Kant believed that the noumenal quality had to do with our ability to reason that it is actually only fully adult human beings that deserve that kind of protection.

Which means actually that you could experiment on infants, and a lot of other people by those rules. So I just would like to hear you defend why we should start from a Kantian premise rather than some other kind of premise.

DR. OUTKA: Well, I mean, my reasons are actually much lower flying than you might fear. For one, it did come up in the literature that I was reviewing.

Doerflinger mentioned it. In his case, and in mine, too, there is a kind of Christian — but I think you could have some more generally religious. I think you could have some specifically Jewish or other kinds of formulations, too.

So it is set in a larger framework, and that is point one. It was handy because it had already been cited, and I was desperate to try to find some ways to tie into what I had already presented for reasons of space.

But I don't think that it commits. I don't want to be committed to Kantianism, per se. I want to be committed to the second formulation of the categorical imperative is one potentially felicitous way to identify some things we should continue to care about.

But I will sort of reserve the right to interpret it in my own ways, and also stress its importance for our purposes only with reference to illuminating this, the problematical character of doing something to X in order to, or with Leon's friendly amendment, and as part of our plan to create in order to destroy, or some variant of that.

That seems to me to be objectionable, and this was one way to try to make that point. So low flying acceptance, your cautions are very well taken.

CHAIRMAN KASS: Very briefly, Janet, and then Rebecca.

DR. ROWLEY: Actually, one of these is a response to Jim Wilson, who unfortunately has stepped out. But I think it is not correct to say that the mother to be walks in and looks at a petri dish and says that I want that egg, and that one, and not the others.

My impression is that is not how it happens, and there is no way at the present time for us to suggest or to screen for hair color or intelligence, or any other features.

We can screen for sex, and we can screen for known genetic abnormalities that might actually be relevant based on family history. The other issue that keeps coming up again is we are preserving these eggs in perpetuity.

And for me perpetuity is hundreds and thousands of years, and I think that is not what the IVF embryos — their fate and future is. One question that I personally am sorry that I didn't get a chance to talk to, or ask to John Gearhart, is how long can you really keep frozen embryos and expect them to be viable when you thaw them out.

Now, I suspect it is some number of years, but I don't know precisely if these embryos are kept in liquid nitrogen, which is very expensive, and you have to keep replenishing it in the tanks at major costs to someone or some institution.

It is also clear that he said that at least in his experience that one does look at the embryos that are developing as a result of a particular in vitro fertilization for a family, and selects those that appear to be the best.

And he didn't define exactly best, but presumably either are growing somewhat larger, or have more cells, or whatever features are used.

And the leftover ones are not as good, and that they have a much lower efficiency or viability than do the ones that are selected for implantation.

So I think for us to say that every single embryo left over from IVF has the potential to go on and develop into a robust embryo fetus and child is probably totally incorrect.

And I think that we ought to be a little more careful in how we frame some of these things, because I think we are not taking into account some of the other issues.

DR. OUTKA: If you all ever find out that question about perpetuity, and how long that actually is, I would be very pleased to know.

DR. ROWLEY: Well, what do you think, Liz?

DR. BLACKBURN: Well, enzyme solutions, which are much, much more biologically simple than — not only cells, but blastocysts, or stages around them, and enzyme solutions will go "off" as you store then for a couple of years, even with care and liquid nitrogen.

So there must be some sort of half-life, and so it is maybe a few years. I honestly don't know from IVF clients how that is going to be an assist, but just based on the precedent of even less biologically delicate material, I would be surprised if it was more than a few years.

DR. OUTKA: That is a very important question. The United Kingdom, I think, discards them more decisively doesn't it?

DR. BLACKBURN: My accent is Australian.

DR. OUTKA: Sorry.

CHAIRMAN KASS: It is no longer that united.

DR. BLACKBURN: I am jumping ahead to your inference. I don't know. I don't know what the policy is. So I am just speaking from my very direct laboratory experience of delicate biological material, which is much less delicate than these.

CHAIRMAN KASS: Look, we need to break. I want to give Rebecca the last word if I might.

PROF. DRESSER: I didn't try very hard, but I was trying to find out the answer to this question, and I did see last year that there was a report of a healthy live birth from an embryo that was stored — I believe it was 9 years, and they presented it as if this was the longest duration that they were aware of.

But obviously it is difficult on how you do the research to find out the answer. I was interested in the fourth point that you mentioned at the beginning, where you were going to focus on four points, and the fourth point was this issue of political and legal context.

And you mentioned this issue of whether there should be a different policy for private funding and public funding. And I know that is not really your specialty, but I wondered if you had any thoughts for us on that fourth point?

DR. OUTKA: Well, nothing really interestingly beyond what is on those pages. I mean, I am distressed at the amount of liberality out there in the private sector, where it really is just taken as a matter of course that a thousand research flowers may properly bloom out there.

And I think that really is making too many decisions by default, but that doesn't help us very much. And I did remark though that I think that a number of people have come to the conclusion that if you try to impose some overall governmental criteria, you are going to get conclusions that certain people regard as too conservative and constraining.

And so it is better to leave it alone, and I am not myself prepared to just accept that without further adieu. But much more work would need to be done on that.

PROF. DRESSER: But you wouldn't take the step that, well, that your position should be the position that should be our public policy?

DR. OUTKA: No, I would not necessarily presume to that, but I am a great admirer actually of Canadian ways of managing their health care. I just have to confess that.

And I do note in the last version of this paper that the position I take is actually closer to the recently announced Canadian one than it is either to the more restrictive policies that the United States has, or the more liberal permissive policies that the U.K. has.

So on this, or on Canada's attitude towards reproductive technology, and all of that, it seems to me that they have been more responsible than we have.

CHAIRMAN KASS: I want to thank Professor Outka for an excellent paper, and for a very forthcoming and lively discussion, and for all of you for actually sitting patiently through what is a long and for many of us an intellectually challenging and stretching session.

Thank you very much for being with us, and we will take a break for 15 minutes, and then have our last session.

(Applause.)

(Whereupon, the meeting went off the record for a break at 3:15 p.m.)


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