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Meeting Transcript
January 18, 2002

    Loews L'Enfant Plaza Hotel
    480 L'Enfant Plaza, S.W.
    Washington, D.C. 20024

    January 18, 2002

    COUNCIL MEMBERS PRESENT:

  • Leon R. Kass, M.D., Ph.D., Chairman
    American Enterprise Institute

    Elizabeth H. Blackburn, Ph.D.
    University of California, San Francisco

    Stephen L. Carter, J.D.
    Yale Law School

    Rebecca S. Dresser, J.D.
    Washington University School of Law

    Daniel W. Foster, M.D.
    University of Texas, Southwestern Medical School

    Francis Fukuyama, Ph.D.
    Johns Hopkins University

    Michael S. Gazzaniga, Ph.D.
    Dartmouth College

    Robert P. George, D.Phil., J.D.
    Princeton University

    Mary Ann Glendon, J.D., L.L.M
    Harvard University

    William B. Hurlbut, M.D.
    Stanford University

    Charles Krauthammer, M.D.
    Syndicated Columnist

    William F. May, Ph.D.
    Southern Methodist University

    Paul McHugh, M.D.
    Johns Hopkins University School of Medicine

    Gilbert C. Meilaender, Ph.D.
    Valparaiso University

    Janet D. Rowley, M.D., D.Sc.
    The University of Chicago

    Michael J. Sandel, D.Phil.
    Harvard University

    James Q. Wilson, Ph.D.
    University of California, Los Angeles


    INDEX

    Opening Remarks
    Leon R. Kass, M.D., Chairman

    Session 5: Human Cloning 2: Ethical Issues in Clonal Reproduction
    Discussion of Clonal Working Paper #3

    Session 6: Human Cloning 3: Policy Issues and Research Cloning
    Discussion of Clonal Working Paper #4

    Session 7: Public Comments

    Closing Remarks
    Leon R. Kass, M.D., Chairman



    OPENING REMARKS


    CHAIRMAN KASS: The agenda for today is as announced in the briefing book. We will have Sessions 5 and 6 of this meeting, both on human cloning. The first, from now until about 10 o'clock, on the ethical issues, the ethical issues in clonal reproduction, and then, after the break, the policy issues in clonal reproduction and opening discussion on research cloning. After the break, at noon, we will have a final session for public comments, and I do not know— Have people signed up already? Anyone who would like to make a public comment should please notify Diane Gianelli who is in the back of the room, our communications director.

    Yesterday we spent most of our time on questions related to how to do bioethics in the hope that we could enrich the consideration of these questions, beginning with a discussion of The Birth-mark, exploring the aspiration to perfection and its problems and limits. Then we went on to Gil Meilaender's paper which raised a series of questions, talked about certain aspects of the character of human life that are relevant to consideration of bioethical issues. And then, in a somewhat loose and chaotic discussion, we tried to talk about the context into which human cloning fits by having discussion about the meaning of human procreation and what one might value there.

    I think had we followed Michael Sandel's original suggestion to begin, really, with the objections to cloning, we might have gotten farther in the search for what we positively affirm about this, in the way in which one generally does not think about health until one has to confront disease, and then one comes to think about what it is that one is missing. But this morning's session, I think, is the opportunity at least to do that head-on.


    SESSION 5: HUMAN CLONING 2: ETHICAL ISSUES IN CLONAL REPRODUCTION


    CHAIRMAN KASS: The first session this morning is on the ethical issues in clonal reproduction, and the texts for discussion, though they are meant really as a springboard for discussion, are Working Paper 3 which is in two parts at your Tabs 2E and 2F.

    And let me say something since there might be some misunderstanding about the working papers. These working papers are not the official work of this Council. They are not part of any report, or anticipation of any report. They have been prepared by the staff at my direction to try to outline as best one can the arguments both in favor, the arguments in favor of human reproductive cloning, and the arguments opposed to it.

    Similarly, when we come to the discussion of the policy options, there is an attempt to at least raise the kinds of questions that either have been raised, or might be raised, about the various legislative alternatives that are before us. And similarly, with respect to the question of therapeutic cloning, or research cloning, which we can only get into briefly today, to trigger some conversation. No one is standing behind any or all of these arguments. Those arguments have been prepared by searching the literature to see what people have said about those matters, and they have put these arguments before us in these several working papers. I remind people who have picked up copies of the working papers that we ask that these be treated as not for quotation or attribution, precisely because of their status as working papers for the discussion by this body.

    I trust that members have read the two parts of Working Paper 3, the arguments for and against reproductive cloning. I do not know that I want to summarize these, but we might turn pages together. The structure of the first working paper, the arguments for reproductive cloning, sets forth reasons that have been offered by one or another advocate, summarized on page 3 and 4. Some of these arguments have been to enhance human reproductive freedom, and to provide treatments for infertility, and to avoid the risk of known genetic disease, and the like. And other arguments have, in fact, been made. Whether these are appropriate or not remains to be discussed. For example, to allow people to replicate individuals of great genius, et cetera, et cetera. Those arguments are made. Whether the biology would support that or not is a long question.

    Then there is in this paper arguments against a ban on reproductive cloning, multiple arguments made, and the rest of the paper, the structure of the rest of the paper beginning on page 6 to the end really are arguments against the arguments against cloning. In other words, they are an attempt to neutralize the arguments that are made against human reproductive cloning in anticipation of the arguments that are going to be made by the antagonists in the next part. We have chosen to present these, by the way, as separate briefs rather than as an ongoing dialectical discussion partly to sharpen the focus to begin with.

    In Working Paper 3b, the arguments against reproductive cloning, there are eight separate kinds of arguments here, questions having to do with safety, questions of consent, especially the bizarre question of wondering about implied consent to do the experiment on the child-to-be, or to have a child become a cloned child. Then, questions about the relation between reproductive cloning and the prospects for enhancement or quote unquote "eugenics"; arguments about nature and respecting the natural way; arguments about manufacture and commodification, touching on things that we did discuss yesterday; arguments about identity and individuality, also touching on things that were at the heart of the discussion yesterday, including arguments having to do with the child as a surprise; some discussion about family relations and procreation.

    And finally, if I may stress something which I think will be welcome to at least some people who spoke yesterday, a last point generally ignored in the discussions which usually focus on individual rights, a discussion, arguments, about the impact on society, pointing out that while the use of reproductive cloning might be a private choice, it is a public act in some way. And the question is whether a society that clones human beings is a different society, even if it is a minority practice, just as the question could be raised whether a society which permitted the buying and selling of babies, or the buying and selling of organs, even if done on a small scale, would be the same society. The question is whether this should be discussed simply in terms of rights, or whether the larger social considerations should enter.

    That by way of warm up. I think that for this discussion, (and it is obviously just the first of several such discussions we are going to have), I think it would be best if we went around and asked people to say how they respond to these various briefs, as if one were a judge hearing this argument, and to indicate which of the arguments one thinks are better or worse, and which ones seem just irrelevant.

    With this, I will stop. I am mindful of comments by Michael Gazzaniga and Paul McHugh yesterday, particularly, Paul, your remark about reading The Birth-mark as a young man, and thinking that that reaction was superior; and Michael Gazzaniga's remark almost saying that, look, this is a repellent idea. What is there to discuss? And there is a question whether or not these arguments are adequate to the task, but we are a public body, and we are, I think, compelled to try to give reasoned arguments for whatever judgments we might reach, though it might very well be that the analytical discussion does not support the conclusion that one intuitively might reach. But that is a risk one takes, and I think we should just proceed.

    So, consider yourself presented with these briefs, and let's hear what the reaction is. Is anybody persuaded by anything in here one way or the other?

    DR. ROWLEY: In 3a, I think it is important to, on page 5, to separate out what we are discussing in terms of reproductive cloning, and things like artificial insemination, and IVF, because I think they are different. And the reproductive cloning, as we are discussing, or as it is generally referred to, is taking the intact nucleus of an individual, and that is then the nucleus that becomes the genetic material of the resulting embryo, whereas both artificial insemination and IVF have two partners, male and female, sperm and egg, that are joined together. So, the individual formed from the union of the sperm and the egg is a totally different and unique individual, and I think it is very important to make sure that we do not appear to confuse these.

    CHAIRMAN KASS: No, that is very welcome. I do not want to cut you off. You are going on to other things?

    On this particular point, I think certainly in the public discussion of this, people— Part of the reaction to the arguments that we should ban reproductive cloning is that this would, in fact, have a chilling effect on other assisted reproductive technologies, and that in fact, in the Congressional testimony, various members of Congress wanted reassurance on this question, and some of them were not even satisfied that if you move against reproductive cloning you are not also threatening these other things. But I think it is easy to make the distinction. I think the distinction can be clarified, and it is one of our tasks. But this is an argument that has been advanced, and yesterday's discussion, in fact, between Jim Wilson and Gil raised the question of whether the argument that is being used here does not also apply retroactively to that, and that does at least mean that we have to be mindful of the relation, and the need to make these careful distinctions, lest we do too much.

    PROF. SANDEL: This is really just a question in response to— Do we take it for granted that having a chilling effect on other reproductive technologies would be a bad thing? I think listening to some of the arguments that were made yesterday against cloning, at least some views around the table would not take it for granted that having a chilling effect would be a bad thing on these other—on IVF and so on. So that, at least, should be open as we explore the grounds, and it may affect which grounds we most want to emphasize.

    CHAIRMAN KASS: Very good. Point well taken. Rebecca, please.

    PROF. DRESSER: I understand you would like us to focus on ethical issues right now, and save policy for later?

    CHAIRMAN KASS: Yes, I think we should make a separation on this. And the plan really is, this is the first explicit discussion on the arguments pro and con reproductive cloning, and then, in the second session, we will take up the policy options constrained— I mean, there are lots of policy options, but we have constrained ourselves because the policy options now under consideration which we ought not to neglect are these three legislative alternatives, do nothing, partial ban, complete ban. So, let's confine our discussion here to the arguments in Working Paper 3a and b.

    PROF. DRESSER: Okay. Well, I would like to request that a little more attention be given to the human research ethics considerations. It is briefly mentioned, safety issues, but I think a richer exploration of what we in bioethics are familiar with, the Belmont Report. There are these basic principles governing research on human subjects, and I have a lot of concerns about the ethics of studying this in humans.

    Respect for persons is one of these principles, and that requires that we protect people who are incapable of making their own decisions. And even if you are someone who says that the embryo does not merit protection, if you are getting into the situation where you are talking about a child to be born, the intent is to have a child through this procedure, you know, there are real questions about what kinds of animal evidence do we need to justify this, would it ever be sufficient.

    Also, respect for persons means respecting the autonomous choices of people who can make their own decisions. This requires accurate disclosure to, say, prospective parents who might want to try to use this technology. I believe there has been a lot of exaggeration about the possible success, and I believe there are distorted beliefs about how well this would work. And so, I have those concerns.

    And then, beneficence is another principle which says risks to the human subject must be justified by benefits, either to the subject, or to society in general. And so, I think here is where we can talk about the value of the benefits that would flow from this.

    And then, the other primary principle is justice, and here we want to talk about how would the benefits from this technology be distributed. And I guess I would also raise concerns about allocation. As I mentioned yesterday, I am concerned about allocation of scarce resources for scientific research as well as health care. Is this really something, given the many other priorities we have in scientific research as well as health care, is this something we ought to invest a lot of resources and scientific energy in. So, those are things I think are not addressed in detail here that I find important and would like to have considered.

    CHAIRMAN KASS: Let me interrupt with a procedural point. I will, unless instructed otherwise, take these comments as the basis of an invitation to members of Council to go home and submit to— We have the notes, but if you would like to elaborate on that, anyone would like to, it would greatly enhance the drafting of the next materials for our discussions. So, if you would like to get us some materials on that, that would be very, very welcome.

    Robby George.

    PROF. GEORGE: Thanks, Leon. I just have two quick points. The first is to endorse the point that Michael Sandel made this morning, which I interpret really as a concern that the Council be willing to follow the argument wherever it leads. I think we could probably best serve the President and the nation, particularly at this point in our deliberations, (we may have to narrow things down the line), but in having a kind of Socratic attitude toward these questions, and let's just see where they go in the course of argument.

    The second point is a point about the language in which the debate over cloning is framed. Commentators on contemporary moral debates ranging from assisted suicide to homosexuality, abortion, all the hot button issues, have observed that largely these debates are framed as attempts to control the language of the debate. They can produce terms that resonate with a broader public to make them work on one side of the debate or the other. Of course, that is entirely understandable, and I think not inappropriate in political debate. But it tends to obscure, when the debate becomes a debate over language, it tends to obscure the real understanding of people whose concern fundamentally is not to win, but to understand.

    I say this by way of introduction of a position that I want to state on the record, and that is that I myself do not believe that there is a distinction between reproductive and therapeutic cloning. And I think that the distinction, and the use of those terms, is unfortunate. As I will argue later, and at future meetings, I think that all cloning is reproductive, and that no cloning, strictly speaking, is therapeutic. And I appreciate the fact that in the working papers the staff has been sensitive to the fact that there is a debate even over the appropriateness of the use of these terms, and has used quotation marks in a way that does not bias the question in one way or another, but simply marks the fact that people disagree about the terms, and that disagreement reflects an underlying moral disagreement on the subject of cloning.

    So, I want to say that while I will cheerfully respect people's use of these terms, and will be willing to use them myself to make myself clear in the context of the debate, because reasonable people do disagree with me about this, and believe that there really is a significant moral distinction between reproductive and therapeutic cloning such that those terms and the distinction between the two are useful and make sense, I just want to put on the record in advance that I think the distinction itself is morally problematic. It is not one that I myself accept, but I am happy to carry on the debate.

    CHAIRMAN KASS: Please, Elizabeth.

    DR. BLACKBURN: Robby, I would like to place myself as one of those reasonable people who does disagree with you, because I think it is very important in defining what it is that therapeutic or reproductive medicine involving cloning is versus—sorry, non-reproductive versus reproductive cloning, which has the clear, stated intention of producing a child. I think that it may be very helpful for this debate if we look very carefully at what stages in human development are involved in each of these, and how we think about those stages in human development because I think that is a very important part of this debate in weighing the cost-benefit ratio of both reproductive cloning on the one hand, which I really believe is distinguishable in my mind from the kind of process that would be involved in regenerative medicine cloning.

    So, I do not think it is semantics over words. I think we will need to look carefully at what it is we are dealing with in terms of the cells and material.

    CHAIRMAN KASS: Michael.

    PROF. SANDEL: I would just like to direct a follow-up question to Elizabeth on that. Those of us who are non-scientists would benefit from having some fuller idea whether now in a promissory way, or maybe in some future session, on what that enquiry might consist of.

    DR. BLACKBURN: I think this would be a useful thing for this Council to consider, some accessible explanation which does try to go into a little bit more detail. We had a very brief outline in our working paper which I think is not sufficient to explain, perhaps, the essential issues. So, I do not know what form this would take, but I think it would be very helpful.

    PROF. SANDEL: I think it would be very valuable if we could have some way, particularly for us non-scientists, because it is very abstract. We are used to these very abstract discussions about the status of embryos at different stages, but actually to have some scientists, whether through a lecture, a slide presentation, written materials, or whatever it might be, really to make more concrete what exactly the stages in human development are.

    CHAIRMAN KASS: Excellent. I mean, I think the background working paper was by everyone's account simply a start on this, to give people who might be simply unfamiliar with the terms some of the basic elements. I do not think there is anything in there that is wrong. I mean, I think there might be things in there that are vastly incomplete. I do not think we have made any gross errors there on the science. But we will have the benefit of the National Academy's report on this which I am sure will have a great deal to assist us with. But I think on the basic biology, perhaps, Elizabeth, you and Dick Roblin on our staff could perhaps speak even before you leave the meeting, and we can sort of talk about ways to get this material.

    DR. BLACKBURN: And I am quick to suggest perhaps other members of our Council as well might join us in this endeavor, because I know I will be beyond my own personal expertise, and so, any other volunteers would be very welcome.

    DR. GAZZANIGA: Excuse me. I would like to add my voice of disagreement with your position. You know, the whole issue of this, where we get into the stem cell therapeutic cloning versus the reproductive cloning bumps up against so many sort of facts that are on the ground now, and the whole issue could be looked at in terms of transplant medicine.

    So, we now have, as you all know, transplantation of organs going on. How it works is a patient is declared brain-dead by the neurologist, and the surgeons are right there harvesting the organs for transplantation, the heart, the liver, the lungs. And so, we have right now a culturally accepted way of, once we recognize someone is brain-dead, their organs are free to be used to save other lives.

    In the young embryo, up to (if I have this right; I will double check) but I think it is up to the fortieth day, there are no neurons yet formed for the cerebral cortex, for the brain. Basically, you have a brainless entity. So, in some sense, the laws that govern the next-of-kin to donate the heart, the lungs, to other people from a brain-dead human, the parents of the IVF extra embryos could donate their brainless blastocysts to be used for stem cell use, and for other medical good. So, one could obviate this whole problem by casting this picture in terms of recognized transplant law, which there is laws on this and so forth, and see the problem from that point of view.

    CHAIRMAN KASS: Let me— I can see where this last intervention could go, with a long discussion on that. We have noted that there is a terminological issue. One of the real contributions of this Council would be a careful exploration of those terminological matters, reaching conclusion if we can, laying out the alternatives if we cannot, but it is an important contribution.

    I do not think anybody ought to be trying to win the moral argument by redefinition. I think there is too much of that that goes on. We would be irresponsible if we did not try to sort these things out, and recognizing the ambiguities, and the differences of the perspectives, try to call things by their better names rather than their worse.

    But look, I have the sense that people are once again uncomfortable grabbing the nub of the question before us. The question before us is not therapeutic cloning. The question before us is what even Robby George is willing for the sake of our proceeding with the discussion to call cloning for baby-making. That is the question. That is where we have the arguments here laid out. And we have heard from Rebecca, who thinks that we have shortchanged the human research ethics aspects of this discussion, and would like to see more. And I think we would like to hear more on the merits.

    Stephen, and then Jim.

    PROF. CARTER: A couple of, three really, small comments. Although first I should say that if we are going that way, I am probably a reasonable or unreasonable voice who would associate myself with Robby George's position. So, I did not want him to think he was alone at the table. But that is not really the intervention I intended.

    I think Rebecca raises a very good point about one aspect that we should look at very closely. However, I do think that whatever our conclusion may be, that even those of us around the table which I am willing to bet on being the majority, (but I may be wrong), who think there ought to be a ban on human reproductive cloning, should be very cautious.

    Government regulation has a long and unbroken history of hitting the wrong targets, and it is not merely a matter of a chilling effect. Indeed, that is a phrase that probably gets a little bit overused. But, sometimes the direct effect is to hit a target other than the one that was planned or expected to be hit. The history, for example, of the regulation of speech is a good example of this, the regulation of speech, whether we are talking about speech codes on campus, or seditious libel 200 years ago, or other things of that sort.

    And so, I think that we ought to tread very carefully when we urge the state to get into the matter of the regulation of scientific research. That is, as to the subject. When I say subject, I mean the topic of the research, or the area into which one ought to look. I am not saying for that reason that we should not endorse the ban on human cloning. I am simply saying we should be very cautious, and we should be extremely clear in our terms, and mindful of the tendency of regulation to grow vastly, and clumsily, but rapidly, beyond the original limits of those who favor it for a discrete purpose at a particular time.

    CHAIRMAN KASS: Point well taken. But if I may also, it is on the topic for the next session, namely the question of the ban. Here, the question really is the moral argumentation for and against reproductive cloning. We might conclude that we do not like it, but we should try to do nothing about it, and that is a perfectly reasonable option. There are lots of things that go on in society that we do not like.

    Jim Wilson, and then Mary Ann, and then Gil.

    DR. WILSON: I would like to try to get the argument back to the ethics, but in the form of a question to Robert. I may have misunderstood what he said, but he expressed a concern about this distinction between regenerative cloning and reproductive cloning, and I can well understand why he would be uncomfortable with those words. But there are two implications, two somewhat different implications.

    One implication is that there is a slippery slope. If you start engaging in regenerative cloning, you will wind up with full cloning, and this, I think, led Michael, properly, and others, to say let's learn more about the biology here so we can figure out how it is going. The other implication is that once a sperm enters a cell, it is a living human being, and therefore, nothing can be done, and therefore, the argument stops there.

    And so, what I want to ask Robert is which of those two views is he expressing?

    PROF. GEORGE: Thanks, Jim. Yes, it is the latter. It is the idea that once we have a human embryo, we have a new human being who is a subject of rights and protection, rather than an object to be manipulated. So, that is why I think it is a mistake to use the language, although for these purposes I am happy to do it, subject just to this proviso, that I think there is a problem with it. I think we can usefully, nevertheless, use it in these discussions. I am happy to do that if it will advance the debate. But I think since the clone of the new human being is not going to be the beneficiary of the procedures, it is actually not true, strictly speaking, to refer to this as therapeutic cloning. I can make a much longer—there is a much longer—

    CHAIRMAN KASS: I do not want you to at this point, because I think the issue is clear, but the terminological niceties at this point are not advancing the discussion of what we are supposed to discuss, if I may be so bold.

    The point is very well taken, and I think Jim's intervention helps you to clarify what the issue is, and we will meet it.

    I think it was Mary Ann— You were actually going to speak to the issue, Jim, or—

    DR. WILSON: No, I just wanted to clarify.

    CHAIRMAN KASS: Will someone, please? Mary Ann?

    PROF. GLENDON: I hope you will consider this speaking to the issue. I want to make some observations about the structure of the arguments for and against the ban. It seems to me that the observations are not only pertinent to this issue, but to many issues that may come before the Council.

    The arguments for the ban are arguments in terms of limits on freedom. The arguments against the ban are in the familiar language about freedom, various kinds of freedoms. In that kind of debate between freedom and limits, one notices that when you talk about freedom, we are in a familiar, common language that is shared by Americans of all sorts. But when you start to talk about limits on freedom, that common language disappears, and if you look at each argument separately, you will find that the separate arguments may appeal to some people who believe in that particular limit, but not to people who believe in another limit. I think this is going to be a general problem for our Council, that there is a shared American vocabulary and discourse about freedom, and a lot of difficulty in finding common ground in which to talk about limits.

    That relates to a second kind of problem: who decides about limits? If you do not want legislatures to decide this, then you are making a decision about probably the role of business and the market. Do we really want such issues of great gravity to be decided by market forces?

    If you resort to the institution which in our constitutional structure very often has the job of working out limits to what appear to be absolute freedoms in the Constitution, but we all know they are not, then you are going to have the decisions made by judges. This whole range of questions lies beneath this argument for and against a ban. And there perhaps is (this will be my final observation) there perhaps is something to be said in a society where the great majority of people for different reasons have a deep feeling that something is morally repugnant, there is something to be said for having that decision made by the institution that, however imperfectly in the normal, democratic process, reflects the sentiments of the population.

    CHAIRMAN KASS: Gil.

    PROF. MEILAENDER: Yes. A comment on some of the arguments in the working papers. Let me start with the arguments against cloning. To me, in certain respects, the most powerful arguments are two that are in a lot of ways related, the one that is number 5 on page 11, manufacture and commodification, and number 7 on page 17 about family and procreation. They are linked in a lot of ways. I mean, there are different nuances, but the commodification argument talks about the sense in which reproduction in the normal way endows each new generation with the dignity and freedom that those who have come before had, and the sense in which cloning which starts with a particular kind of product in mind might change that. The other argument about the relation of the family relation talks about the normal reproductive process, acknowledging at least tacitly a certain kind of humility before what it is that results, and accepting a certain kind of limits over one's power to control the next generation. Those two arguments are related, and I think they are powerful ones, and deserve to be taken seriously.

    Over against that, in terms of Working Paper #4 cloning, and I was trying to find this— Someplace in one of these working papers, it mentions it, and I could not lay my hands on it right at this moment. But there is kind of a burden of proof issue, I think, that really emerges, because to me, the most powerful argument in a sense that emerges from the Working Paper 4 cloning is not so much some single argument as it relates to what Mary Ann just said. I mean, why try to stop people from doing this? You know, it is not going to be a large number of people who do it. Can you really demonstrate that your concerns are so great that you should impinge on people's freedom here? I mean, there is kind of a— One gets worn down by that argument which is so powerful in our society, which makes me think that in some ways, really, the crucial issue is the last one that comes up in that working paper against cloning, the one that you noted in your opening remarks, the impact on society question. That is to say, is it really just a free, private choice? Are there kind of larger— Are we learning to think as a society in different ways? Even if very few of us do it, I mean, in some way or other one comes to that. But it is the burden of proof issue, I think, that is really crucial in weighing the clash between the arguments set forth in the two papers.

    CHAIRMAN KASS: Good. Janet, and then Michael.

    DR. ROWLEY: Well, I would like to just follow up with you, Gil, on these concerns that you have raised, particularly on manufacture. And I guess what I am trying to say here, the question is, the implication is, that reproductive cloning would replace the normal intercourse that leads to pregnancy in general. And I was wondering how you think that is going to be prevented so that reproductive cloning becomes the norm in society.

    CHAIRMAN KASS: Gil, do you want to respond?

    PROF. MEILAENDER: I have no desire to prevent that.

    DR. ROWLEY: If you do not, then why is it even an issue? I mean, I understand, and I have been educated by the Chair that these are arguments that have appeared in various fora that are collected here for our consideration. But I think at some point it is also—it would be helpful if the Council reviewed the various fors and againsts and said this is a reasonable argument to support a position, and this is really not a reasonable argument to support a particular position. So, I just want your views on that.

    PROF. MEILAENDER: It relates to what I said at the very end of my remarks relating to that impact on society issue, and in a sense, one has to decide about that. In other words, the question is whether the fact that, if it turns out to be that, that just a few people do this means that it is of very minor importance in the way a society learns to think about the children who are produced, whether produced through cloning or in the normal manner, or whether it trains us all to think in different ways. That is to say, whether it remains a rather isolated, private choice, or whether it has public effect. That is the issue one has to think about finally.

    CHAIRMAN KASS: Yes, I mean, I think some arguments depend upon the scale of use as to whether it is socially important, and others might simply say a society that tolerates certain kinds of minority practices might arguably be a different society. I mean, there would not be a lot of incest, I suppose, if there were not a prohibition against it, and yet, we feel strongly to enunciate the societal view on that. I mean, I take it that is at least a question here, and I really mean it as a question, not as something settled.

    I have forgotten the queue. Was it Bill, and then Michael, or Michael and then— Michael, and then Bill, and then Stephen. I am sorry, Frank. Excuse me.

    PROF. SANDEL: Well, I want to address directly our Chair's question, but then also, draw from that an observation about the character of our discussion.

    The direct answer is one thing that strikes me looking at the arguments for reproductive cloning is that they really, except for one or two, are not very persuasive. The only one here— Infertile couples have other ways. They can adopt children, or use other means. The only one that is weighty, really, is allowing people to have children without the risk of known genetic diseases. That is "c". And maybe "e", people who would want to have transplant donors for a desperately ill child. None of the others are really very persuasive.

    One of the things that strikes me about the reproductive cloning discussion is that intellectually it is not very interesting because the arguments for it are not very compelling. The arguments against it, discussing the objections, is very interesting, and there yesterday we got into discussions of nature, of procreation, of family, of human will, mastering mysteries, strangeness, commodification, repugnance and its moral status. Those are interesting questions. But the reason they are interesting, unlike these arguments about reproductive cloning as such is that something was at stake in the discussions that we were having about how best to account for the repugnance. And the reason something was at stake, and it was intellectually interesting, and it mattered to know, is it because we worry about family, or about the asexual character, or because destroying the mystery, or because exalting the human will? The reason those were interesting is that which of those reasons were compelling and sound have consequences for other related issues. And everybody knows that. And that is why, and this is the comment on the discussion, why Leon, you have been heroically and masterfully trying to rein in wild horses who keep trying to pull this discussion in other directions. And I think the reason for that is, and you have good reason for wanting to do that, because the instinct is if we get into so-called therapeutic, so-called research cloning, and these other areas, then there are more compelling arguments for doing it than we have here. These are weak arguments on the whole for reproductive cloning. Nobody is really taken with them. The other arguments are stronger, and the counter arguments matter, which of those theories we really adopt. But the fear is that we are going to get stuck on the moral status of the embryo, and we do not want that. But I think the gravitational pull that you are very adeptly and skillfully struggling against by the Council suggests that that is where the real interest lies.

    CHAIRMAN KASS: That is one possibility. The other possibility is that a bunch of professors prefer to discuss the question rather than answer it. And the meta-questions are very interesting, but if we constituted ourselves as a body that had to, on balance, having heard the arguments, or consulted our intuitions, or thought about this, come to some judgment on balance what to think about reproductive cloning—

    I mean, maybe you are right, Michael. Maybe everybody in the room has already decided that reproductive cloning, who needs it? Let's talk about the other things. But if that is the case, we should hear it.

    PROF. SANDEL: Well, is there any really important good that anybody thinks would be advanced by reproductive cloning? If not, let's get on to the objections, and why they are interesting, and what the consequences, which objection matters, what has for these other things. What is the human good that is advanced, does anybody think, by reproductive cloning? What is at stake? Even in the public debate, nobody really thinks it is terribly important.

    CHAIRMAN KASS: Any takers?

    PROF. MEILAENDER: Leon, it is the good of freedom. I mean, I am not an advocate or anything, but that is the good that people get. The particular—

    (Simultaneous discussion.)

    PROF. SANDEL: Yes, but that begs the question. Freedom for the sake of what end? What worthy end?

    PROF. MEILAENDER: Well, you do not find, and I do not myself find that the particular examples of the kind of use of that freedom given there is reasons why people might want to do it. It is not terribly compelling. I do not disagree with you on that, but that does not alter the fact that if you are going to interfere with someone's freedom, you need a compelling reason. That is the good that is at stake.

    DR. KRAUTHAMMER: In a free society, the burden of proof is on those who want to stop it. So, you do not have to have a good argument to clone; you have got to have a good argument to say why you should not.

    CHAIRMAN KASS: Bill, then Frank, and Stephen. Bill, Stephen, and Frank. Excuse me.

    DR. HURLBUT: I want to take up these two comments. I do not know a single scien— Well, I know one, actually. I only know one scientist who is even remotely in favor of reproductive cloning. I think on a policy level, reproductive cloning, at least for the foreseeable future is not an issue. But to me, we are losing (and this is affirming what you said) a very good opportunity to do something at the foundation of our process, on the launching pad of this whole endeavor, to think about how we do ethics.

    If I look back at our working paper, on page 2 it speaks of giving a "new form to human procreation" at the bottom of page 2. And then it says, "In their desire to empower human will, they seek to break the mold of natural human limitation-and we must think of where a new standard of human behavior and dignity might come from."

    Well, as a physician, I was trained that medicine was to cure disease, and alleviate suffering, and I remember Galen said, "The physician is only nature's assistant." So, I tend to look at the natural world, and I see it, as I tried to say yesterday, somehow not just creating freedom, but a context of constraint to that freedom that gives us some meaningful life. In other words, if you think of freedom as a biologically produced capacity, with both earthly, and perhaps transcendent significance, it has to be understood in a natural context. That natural context has been constraint, as well as open possibility historically. Now, our technology gives us new powers over the limitations of nature, and so, we need to ask ourselves if we move off of the frame which has formed us, and there is no question in my mind anyway that our minds have been formed by the realities of the natural world, then will we find a meaningful, full flourishing of human life in the places we may enter?

    The question below all this to me is how do we do ethics in the opportunity for so much change to basic human reality? How do freedom and flourishing, full flourishing, actually coordinate in an age of biomedical technology? So, I think we should return to the fundamental questions raised in this working paper as to why some of these efforts toward reproductive cloning, however irrelevant it may be for establishing actual laws right now— I think it is a done deal. I think we are going to outlaw reproductive cloning, or at least put a long moratorium on it. But it still would be very instructive to us as to how to do ethics.

    CHAIRMAN KASS: Stephen, and then Frank, I think is the way I had it.

    PROF. CARTER: Again, let me try to address myself to the right question this time. Although in addressing that, part of my answer will explain why (Inaudible.) addressed the wrong question, I think.

    I think it is correct that it is very hard to identify reproductive cloning as a good, and therefore, it is hard to defend it morally. So, if it is simply a moral question, it is not so much the nays are going to have it, but the nays are going to have more interesting arguments. That is why Charles is right, and Gil is right, that the good that has to be weighed is not the good of cloning, but the good of freedom. And so, the moral question. The reason why we slide over into the ban, therefore, is that if we are simply talking at the level of morality, my moral objection to something you are free to do may result simply in your turning your back, and that is where we slide over into the ban. So, that is why the burden of proof issue matters.

    I do think, though, that if we want to stick with the arguments in the paper, actually I disagree with Michael on which of the arguments pro are the more powerful ones. I do agree that we can reject most of them. For example, the fact that people want to do a thing does not make it a good, does not change its moral status at all. The fact that people want to do a thing really a lot does not change it. The fact that people deeply desire and are wounded if they cannot do it, does not affect its moral status. So, the fact that people want it does not make it a good, nor does the fact that people will do it anyway make it a good. Nor does the fact that people will do it in another country make it a good. The moral aspect of a thing as a good or not a good is not affected by people's desire for it, and in most cases, except for some hormones, not by their need for it, depending on how we define need, either.

    So, it strikes me that the only arguments that need to be taken seriously, I think, on the pro side are on page 4, argument g) which we rather trashed yesterday, but nevertheless, I think is actually an argument about a possible desirable good, because we could argue that maybe having these individuals of great genius is a good, in which case that would be a serious argument. But nobody thought that yesterday, not many people thought that. Or h), if not for the fact that most people seem to think that h) cuts the other way, that it allows to prepare for the unpredictable nature of the future. That is, you could imagine, for example, a future circumstance in which there had been some disease that was ruinous to the gene pool, and it turned out that only by cloning individuals could we reproduce the race at a level that would allow the race to survive. You can imagine situations like that. But there again, it is not the cloning that is the good; the cloning is the tool that allows the good to be done, if one takes that as an argument.

    So, what about the negative arguments which are described as interesting? They invite our attention to these larger issues, and so on, and I suppose they do. But I have to confess that I do not find most of them very compelling. Interesting, yes. Inviting our attention to mystery, yes. But not very compelling, except really for one that is kind of buried in one of the others, and that is, the question of how reproductive cloning would affect our view of the human itself. Not of the cloned human, not of that individual. This is not the question we talked about yesterday, but whether our view of what it means to be human is affected by the use of this technology, which is a question we have confronted as a society in the past, sometimes well, sometimes badly.

    For example, in the time of Darwin, for example, this was one of the arguments very fondly pressed against the widespread dissemination of Darwin's theories, precisely that it would dramatically alter our view of the human, and that was a true objection. That is, it was a fact that it would, and it did, I think, alter our view of the human. Now, the question was it altered for the better or worse is not at issue; just that it altered it.

    So, having said all that, that is why I think that in the end it is the instinctive revulsion that people feel, that Mary Ann mentioned earlier. The instinctive repugnance, I think, deserves an important place in the moral debate. Not necessarily a decisive place, but sometimes there are important moral questions that it is extraordinarily difficult to reduce to argument. The enlightenment tradition teaches that it is important to be able to reduce our repugnances to arguments, but I often think that is a flaw in enlightenment tradition.

    CHAIRMAN KASS: Thank you very much. I think it was you, Frank, next.

    DR. KRAUTHAMMER: Could I just say one sentence, Leon? That I agree with you, Stephen, about that the repugnance is the core of the objection. But unless that repugnance is unpacked rationally, I think we will lose the argument, because in a free society the compelling imperative of freedom has to be counter-argued. If it is not—if you cannot produce a rational argument beyond repugnance, freedom wins, I think. It will win politically, and it will win, in a sense, intellectually. So, I think we need to find ways to make that repugnance understandable, transmittable, reproducible, by argument.

    CHAIRMAN KASS: Frank, Mary Ann, and Paul.

    PROF. FUKUYAMA: One way of thinking about the moral question is what you might call a kind of common law approach which is to look at analogous situations, and you yourself mentioned this, Leon, earlier in the case of incest. Because I think that actually of all the laws that we have on the books, the one that the cloning battle would be the most comparable to is the law prohibiting incest, which is a law that limits reproductive freedom. Brothers and sisters cannot produce children. And thinking through this, if we did not have incest laws and one came up before Congress, I am not sure it would get passed these days. But it is interesting sort of thinking why we have this law on the books, and it may help us in thinking about the cloning matter.

    Now, I think that, you know, the reason that we ban incest is a combination of the yuk factor. I mean, people just instinctively do not like it. There are various medical reasons about, you know, you are more likely to transmit recessive genes, you know, on both sides of the parents. But it is also similar to the cloning ban in that there is probably not a lot of people that actually want to commit incest.

    But it does seem to me that if you thought about it, there are cases you can imagine to yourself, sympathetic cases. Let's say brother and sister came from a broken family; they grew up separately; they met as adults, and it turned out that this was, you know, the one exact, perfect match for them. And why should society in that case prevent them from getting married? The medical issues could probably be dealt with. You know, at this point you could probably screen to make sure that they were not, you know, transmitting a terrible disease.

    So then you ask the question, well, is this really a rational law that would prevent people in this compelling case from getting married and having children? And I think what society has decided in the case of the incest ban is— Well, actually, I do not know. I mean, that is something I think that we ought to think about. I mean, what are the reasons that we maintain this ban? Because I do not think it is simply the kind of pragmatic medical one. I think it is a combination of an instinctive, you know, dislike of the practice, the idea. And I think most people would take seriously the public argument that even if we allowed one brother/sister couple to produce children, that that somehow, you know, would be a public act that people would not like.

    And the other thing that I think is important thinking through that analogy is how you balance these different competing interests. Michael, you said that you did not see any compelling interest in favor of reproductive cloning. I have a friend that e-mails me constantly because he wants to be able to clone, you know, his son. He wants a back-up copy of his son in case his son gets killed. He gets horribly indignant at the idea that anyone is going to restrict this, you know, ability of his to create this back-up copy. You know, I have run into quite a few people that are really, really extremely— I mean, and they, you know— And you can come up with reasonably sympathetic scenarios where it would be in someone's interest.

    And I think, you know, in a way what we need to do is step back and think about how you balance these various different kinds of considerations. I do not think it is simply the case that even if someone has a strong interest in doing something, that you simply disregard that. I mean, in a certain way, enough strong interest, you know, amounts to a moral claim at a certain level. But I do think that the incest case does provide a certain precedent for society taking a low-probability event, and balancing both pragmatic, and you know, revulsion factor interests, and coming up with, you know, a ban that receives a fairly broad consensus.

    CHAIRMAN KASS: I think that was a warm-up for you, Mary Ann.

    PROF. GLENDON: I think that the incest example is very helpful here. I wanted to react to Charles's suggestion that we need to have rational arguments to support an instinctive feeling that people may have.

    I am going to publicly confess I do not have instinctive revulsion about the idea. What I do have is a worry about unforeseen, unintended consequences, what happens, and how do you put that worry into a rational form.

    I think in the case of reproductive cloning, as with incest, one might be able to come up with six different arguments that would have a plausible claim to being called rational, but they would not appear persuasive to every person who would sign up for one of the six. So, on the one side, the side against any ban, you have arguments that boil down, essentially, to one widely shared argument, the one you mentioned before, the argument for freedom from government regulation. That is easy. And the problem on the other side of the case is not that the arguments are not rational, but they will not be recognized as persuasive by everybody in the group, and I think that is true of incest.

    St. Augustine was against incest because he thought it was natural to love people closely related to you more than you loved strangers, so that in order to spread the love around, you really had to have exogen—

    (Laughter.)

    I mean, you cannot concentrate it all in a selfish way. That might be persuasive to some people. It is rational. It is not an irrational argument. But not everybody who opposes incest would oppose it for that reason.

    So, maybe I will come back to the idea that in a democratic society, where many people share a common position but for different reasons, the way we decide that is by voting.

    CHAIRMAN KASS: Paul. Do you want to comment on this, Jim, or—?

    DR. KRAUTHAMMER: Could I just make one point on that? Could I just make a one sentence response? That it is remarkable that in the Congress, the vote was unanimous against the reproductive. Not a single member of Congress. So, it means that you may have six reasons, each of which has a constituency of 70, which add them all up, and you get— But it is amazing to me that you cannot find a single person in the House who will not oppose a ban on reproductive cloning. It means that— I would infer there is a revulsion deep underneath it which would explain that incredible— If it was just lining up the rational arguments, you would expect a few people out there who would be on the other side, and there are none.

    CHAIRMAN KASS: Paul McHugh, and then Jim.

    DR. MCHUGH: As Frank said yesterday, sometimes you are always anticipated if you just wait long enough. And the argument though, I want to continue on this line, that is, that we should be looking for rational reasons to explain our revulsion of these behaviors, which would be the social behavior of reproductive cloning.

    And by the way, it is not hard to find other examples in which we were not completely persuasive for everybody, but ultimately began to see reasons for controlling behavior, and stopping behavior. The obvious one, of course, is slavery in which we eventually had to see how corrupting it was to every sense of humankind.

    But you know, we also argued the case against polygamy very powerfully, and we, I believe most of us, argue strongly against prostitution. Now, there are plenty of people in the world, I do not know "plenty", but there are enough people in the world that think polygamy might not be a bad idea, particularly if they are men, and similarly, about prostitution. Yet in all of them, coming back to what Rebecca said, the argument against all of those was the issue of the use of power over the weak. And I submit that reproductive cloning is repulsive, and primarily repulsive because our imaginations see us as using power over the weak, that is the child that will ultimately be produced for our purposes as an idea of ours, rather than from nature.

    CHAIRMAN KASS: Jim.

    DR. WILSON: Yes. I largely agree with what Paul said. I want to expand a bit on the incest argument, because I think it is related to what he said.

    Incest is universally condemned by all cultures in the world. I do recall one poll that showed that 21 percent of New Yorkers were in favor of it, but there is no other part of the world where this can be found.

    (Laughter.)

    Incest has been tested in the kibbutzim of Israel. You have boys and girls growing up without parents. They dress the same, they play together, they take showers together, and by the time they reach the age of puberty, they start to withdraw from each other, and they do not get married. And so, one of the problems with sustaining the kibbutzim is they are not getting married there. I think this natural revulsion is reinforced by law. But if it is so natural, why a law? And why not have an exception, as Frank indicated, for the unusual case?

    I think the reason we have the law is that there are some people who will try to violate the incest, and in the United States of America, that happens to be the fathers of attractive, young daughters. All of the cases of incest, the predominant number of incest cases we have, are fathers exploiting in a sexual way their daughters, and that is a number that can grow. And so, instead of saying we will let the judges dec— We reject the idea of having no law, because this group exists, and instead of saying the judges have the right to expand the law in suitable cases, a testimony to the faith and farseeing-ness of judges that I do not happen to share, we simply say since there is a risk here, we are going to enforce the law as a way of protecting vulnerable people.

    And as Paul said, there is another group of vulnerable people here, children who are being raised to be models, copies, of some other thing without really having a chance to vote on it. So, the incest example that has been raised is, I think, very important. You can, in principle, think of an exception to it, as Frank has done. But I think when you reflect upon creating a system that would recognize the exception without undergirding its deterrent effect, the argument disappears.

    CHAIRMAN KASS: Dan, Elizabeth, and Robby. We have a long queue. Let me write this down. Dan, Elizabeth—

    DR. FOSTER: I have listened with great interest to the discussion yesterday and today. I have to say that some of the discussion yesterday about the meaning of procreation after sexual intercourse as having powerful ethical and moral issues was one that I did not resonate with. I understand the sacred nature of it, and I understand that one as a matter of religious faith may believe that that is true. I think the great mystery is here about the issues of life itself.

    I do not know whether the moment that the sperm joins the egg, that life is created. I do not know whether that is pre-life, or life. I had many discussions with the late Jesuit moral theologian Richard McCormick about this, and he himself was unsure. Most embryos, as you know, die before, spontaneously, before they are ever born. So, I think some of these things are vested in mystery. We may proclaim with enthusiasm that this is life, but I thought that Michael's argument about the neurons and so forth— Is potential life the same thing as life? I do not know.

    So, my concerns were not so much about the moral and ethical issues of the way in which a child was formed as the question, the critical question before us, about a clonal reproduction. My predominant objections at the moment precede the moral issues that are involved, although I know that Leon really wants to discuss this. He noted that the climate for moral discussion is more rich now than it has been.

    I am vastly more concerned about the issues of safety, as Rebecca is. I think it is going to be a very long time. I think this is an incredibly risky procedure now, but it might not stay that way forever. But for now, that argument alone would be sufficient for me to say that I would want to ban this. There are not enough studies that have been done. I am not saying ban. I mean, to not make it— We are going to talk about that later.

    The second thing I want to say is, that I think one should not ignore intuitive public opinion, the common morality, which I know there is a problem there. The problem with the Beecham-Childress model of bioethics is that it is based on a moral viewpoint that does not hold in, let's say Vietnam, or whatever. It is a way of thinking, and the principle is not what Rebecca talked about, but it does not solve specific moral problems, or that it emphasizes autonomy and non-malevolence out of things.

    But I read a book one time that I thought was not a very good book, but there is an important point in it that the late C.S. Lewis said. He said that two people are getting on a bus. One is an old lady who is crippled, and one is a young, healthy person, and there is one seat in the back of the bus, and the young person jumps on the bus, and goes and takes the seat. And everybody on the bus says, "That's not fair. Get up and give her the seat." And the question is, why? Because there was an intuitive sense that the— I mean, the law of the survival of the fittest, that was perfectly right for him to do. But there was a sense that there was something wrong about that.

    Now, as far as I— Unless somebody corrects me, I believe that Germany has completely forbidden the progression here. We have the document about California here. We have all sorts of polls. I mean, there is sort of an intuitive sense, as has been mentioned here, that this is not the right time to do this. It does not mean that there might never be a time that you could do—

    I think one could argue, as Stephen said, if there were a bioterrorism, or a vast nuclear war, it might be worthwhile to have some clones available to do something. I mean, we did not destroy all the smallpox virus in the world, and that turns out now to be a wise decision so you can make some vaccine for bioterrorism. So, I think there are conceivable situations.

    The follow-up to that might be that there are certain circumstances which might be restricted morally or legally where the cloning might be a good thing in an individual case, where you could completely ban manufactures of armies, let's say, if somebody wants to make a super-race as Charles said, and so forth, that you could ban and destroy that.

    So, I would think that another healthy thing would be to say that what we decide here is now, and may have implications for the future, but it does not have to be fixed in stone. If we make a wrong decision, and other things come along that change it, either morally or ethically, you can change that.

    Finally, I think there is a danger here of what I think Erik Erikson calls "pseudo-speciation", and what he meant by was for humans, or a group of humans, to project out onto all humankind that they were like the humans that were thinking. In other words, so that an American professor sitting here tends to think about how one looks at the world and people in the light of their own understanding of what are big issues.

    William James once said that serious questions— I am speaking to this issue of arguing in terms of freedom or non-freedom, or restriction of freedom. William James said that serious questions have three components. They have to be momentous, not trivial, and they had to be forced, not optional. Everybody had to decide on them. And there were then lively options. I mean, we can clone, or we can not clone. There is a lively option here. It is a momentous question. But I do not think that the public, at least the sort of people that I deal with every day, are really interested in an ethical discussion of freedom and restrictions of freedom. I think they are going to decide this on much more practical and pragmatic grounds, that you can say this is not safe now, or it might be dangerous along these things. I think if you cast this argument in some sort of ethical and philosophical way, it is not going to resonate with the mass of the people that we are here to represent.

    So, those are random and unlinked points, but that is where I stand about it. I think that this group has— I mean, we have a danger. I think one of the things that people always worry about is certain religious groups are so sure they know every truth, like when the world is going to end and everything else. We have to be sure that we do not act like we know all the truth about what life is, and when it begins, and all those things as well.

    CHAIRMAN KASS: Thank you. One tiny thing. I would not say the question of safety is a non-moral question. The question of safety is a fact, but it translates into a serious moral concern of not doing harm. I was coming to your aid.

    DR. FOSTER: Mr. Chairman, my wife tells me I need aid all the time, and I appreciate you trying to help me out. I do not believe that I said that safety was not a moral issue. I think it is a high moral issue. If I misspoke, then a synapse went wrong. I need to see Michael, and tell me that I better get a PET scan or something like that.

    CHAIRMAN KASS: Elizabeth. Yes, it is Elizabeth, please.

    DR. BLACKBURN: I had actually been prepared to take up that safety issue, too, and particularly in light of what is on page 5 of the Working Paper 3 at the very bottom of the page. And I think because safety— We have to look at evidence in terms of safety. And then, the next line says— Let me read you what it said in terms of—this was an argument pro the safety of human cloning, or about it. "Safety is possible without requiring overly reckless experimentation:" And I think Dan's point is that, you know, at this point in our history that is far from being the case. And then it said, "Parallel with IVF."

    That, to me, is perhaps a dangerous thing to put here, because IVF really does involve sperm and egg, and the proper imprinted genomes that can function. Cloning involves the issue of, you know, potentially non-functional genomes. And so, what I am saying is that if somebody looked at this argument, they would say, "Oh, well, there is a parallel with IVF because safety is possible." And I would say we are a very long way away in practical terms from that being the case. And so, this—

    CHAIRMAN KASS: Yes, I think I can explain the meaning of your point. I think I agree with you completely. I think the point is that people have argued publicly, look, IVF before it was tried, people were saying (I was one of them) this is a hazardous potential experiment on a newborn child. We were playing dice with new life. It turns out, the procedure is very safe. Nobody knew that in advance. And I think that people have said how do you know that cloning is not like that? Well, we have lots of evidence, I think, to suggest that cloning is not like that, and that evidence is very important to this discussion. But this is the way some people have been talking in the public realm. That is why I think it is put there.

    Elizabeth, do you want to respond?

    DR. BLACKBURN: No, no. I agree. I was just saying that as written here, we are having to unpack rational arguments, and if someone looked at this argument, I think that this would be not based on really, you know, good available evidence.

    CHAIRMAN KASS: I have— Have I lost a page? I think it was Robby next, yes?

    PROF. GEORGE: Leon, I think Michael wanted to get in just on this point. Could he go ahead of me?

    DR. GAZZANIGA: Well, just quickly, to go back to Charles' point. There could be a long list of safety reasons spelled out as to why this is a bad idea. Cloning has been going on a long time with corn, and they have made genetically identical corn, and the agriculturalists were very happy with this. Then they planted it, and the entire corn crop would be wiped out because there was no genetic diversity when a new organism came in that would attack that particular piece of corn. So, cloning has been basically abandoned as an idea in agriculture, because it shut down genetic diversity.

    And one can see this is a big problem in the cloning of animals if you read the papers carefully, and get to the back of the papers. So, the whole reason why we have bisexual reproduction is to create the genetic diversity that allows you to defeat bacterial challenges to the organism. So, one could go down quite a rational list as to why this— Seven reasons why cloning looks like a good idea sort of comes from The X-Files, and does not really come from scientists who have thought about this a lot.

    CHAIRMAN KASS:We are at ten o'clock, time for a break. I am going to run over a few more minutes here; we will take a little bit longer break, because I have a list of Robby, Rebecca— Oh, my goodness. Robby, Rebecca, Stephen, Michael. You cannot all speak in five minutes. Be succincter than usual and maybe get most of them in, and we will start the next session with whoever is left over. Robby.

    PROF. GEORGE: Thanks, Leon. At the appropriate time, which is not now, I would like to go back to Michael's argument about brain-death. It is an argument that has been floated and developed in some detail by the Oxford philosopher Michael Lockwood, and rebuttals have been offered by John Finnis and Patrick Lee, and I have offered one myself, and I think it is a question very much worth debating, as I say, at the appropriate time. It also might be possible for the staff to distribute the published versions of these debates. I do not know if Michael has written himself on it, but these other people have, and it might be a good thing to distribute among us. It is a very interesting argument.

    I want to say a word on behalf of reproductive cloning, not because I believe in it. I do not. But I do believe in meeting the best argument for the other side, and giving it its full due. And it seems to me not to give it its full due to frame it in terms of freedom, although I acknowledge that even people who do have the pro reproductive cloning view do appeal to freedom. I think they appeal to it because it is very powerful as rhetoric in our particular political culture. But I think behind it is something more powerful, and that is the idea that the children—whether to have a child, and whether to have this child rather than that child, or a child with this set of attributes rather than those, these rather than those, profoundly affects the shape of one's own life.

    When people argue for reproductive freedom, it is not simply an argument for the value of the exercise of the freedom. These arguments which I constantly contend against, these arguments are arguments for having a certain sort of course of life in my one and only future, as they suppose. And to have a child is going to profoundly affect the way my life goes. And to have a retarded child is going to very profoundly affect the way it goes. To have a really intelligent, Harvard-bound child profoundly affects the way my life will go, and darn it, I want my life to go in a certain direction, and that is not unreasonable, the argument goes. It is not unreasonable for me to want that. That is not an unreasonable want, and that is something that other people should respect, not only by way of stepping away from any kind of legal ban or prohibition, but even stepping away from any kind of moral judgment. It is just not appropriate to cast moral judgment on my judgment of how my life should go. And when one acknowledges that whether to have a child, or what kind of child to have, shapes that in a fundamental way, then it is wrong to cast a judgment, even in that direction. As I say, it is not an argument that I accept, but I think that is the argument that has got to be engaged, rather than just an abstract claim to freedom. And it is an argument which I think several of the arguments that the staff has so helpfully canvassed here on page 3 sort of gesture toward.

    CHAIRMAN KASS: It is the pursuit of happiness in which you are so interested.

    PROF. GEORGE: The pursuit of happiness, yes. Happiness now being the idea that I want my life to go a certain way.

    DR. KRAUTHAMMER: Is not that a way of saying I want it because I want it? Well, now you are making my argument. I mean, this I think is the argument—

    CHAIRMAN KASS: Charles, let's go in a queue. Rebecca, please.

    PROF. DRESSER: Four brief points. I think we do need to do more than just dismiss the arguments in favor of reproductive cloning with the goal of speaking to as many people as possible. I think we need to explain why if we agree that these are not persuasive reasons, we need to do more than say, well, those are not important.

    Second, I guess I take a little bit of exception with Mary Ann in that I do think there is a shared language in which we speak of limits on freedom, and that is, if freedom harms others. And then, certainly in criminal law is all about restricting people's freedom because it harms others in various ways. I do not think a lot of criminal law is all that controversial.

    So then, the question here becomes, well, what kind of harm are we talking about, what is the probability of harm, is it an important enough harm, and is it likely enough that many people could agree that freedom should be limited. And so here, I think the focus would be on what is it— The harm of being a genetic copy, or nearly a genetic copy, how is that different from other kinds of harm that we can imagine visited on children had in the normal way, or any kind of assisted reproduction that is somehow not as bad, and therefore we do not interfere with people's freedom to use those techniques?

    I had thought of polygamy and incest as other analogous cases, but I think we also want to think about cases that may not get the same kind of support. And at one point in our history, interracial marriage many people, probably if you had a vote, the majority of people would say, "Oh, that is repugnant. We do not want to permit that." So, I think it is very important to test these intuitions, and come up with more than just a repugnance.

    That is all I want to say. Thanks.

    CHAIRMAN KASS: Okay. Stephen, and then Michael.

    PROF. CARTER: Thank you. I have a couple of brief points. I want to say a word about the mystery that we have spoken of a couple of times, and I also want to ask the Chair a question.

    In terms of the mystery, the instinctive revulsion, and things of that nature. It does strike me that sometimes there are arguments that lose a lot in translation into the ordinary language of academic discourse, say. I think of Martin Luther King's advocacy in the civil rights movement, for example, which is often incorrectly described by historians who have read very little of it as thought it was sort of a secular, public, political campaign. Actually, it was a public ministry of one sermon after another spoken in explicitly religious terms with constant reference to the Creator or to God with occasional throwaway lines about one secular argument or another, but there were few of those. And I think this helps account for the success of the ministry, that these were arguments that resonated with a lot of people precisely because they appealed to a part of the human conscience that often cannot be reached, at least not successfully, or not reached passionately, if we restrict ourselves to the arguments that might be cast in the terms of ordinary rationality. I really do believe, and I think that King believed correctly, that there is a place in the human heart where sometimes if that place can be touched, without further argument we simply know right from wrong.

    Now, one of the virtues of rationality on the other hand is it helps us sometimes sort out those instincts. That is, I do not think the fact that we cannot point to a rational argument to defend an instinct suggests that it is a bad instinct. I do think that sometimes rational argument can undo a bad instinct, so that if you take the case, for example, of, say, the bans on miscegenation, it may be the case that those bans which were instinctively felt, and very powerfully defended for a very long time, that those bans were probably undone as much with rational argument as with an appeal to passion, although it was a rational argument about passion; it was a rational argument about something that people could readily identify with as another deeply held instinct about men and women freely choosing whom to love and whom to marry.

    Now, the reason I make this point about instinct is that I think that for a lot of people, the opposition that they feel to reproductive cloning, and here following Dan's advice, I am thinking about a lot of people who are not present at the table, and a lot of the reason, Charles, that you find this unanimity in Congress is not really because there are six rational arguments, and people are choosing up among them. I think a lot of it is some deeply held instinct. I am not suggesting the Council is bound by that instinct, or that it ought to control us, only that we ought not dismiss it, and that, in fact, it is something that we should consider very importantly as we consider questions both of morality and policy, without regard to whether we think we can fully explain it or even justify it.

    CHAIRMAN KASS: Michael, then Bill.

    PROF. SANDEL: Just a quick word about the freedom argument. In this discussion, it has fallen into the unlikely hands of Gil and Charles and Robby, otherwise capable hands.

    PROF. MEILAENDER: All friends of freedom, I might add.

    PROF. SANDEL: And we have run together the moral and the regulatory issues. Insofar as the freedom argument is a plausible argument in connection with cloning, it is a plausible argument against banning cloning. But it is not a plausible argument for the morality of cloning. That is the point I meant to make before. Nobody trying to decide whether making a baby by cloning is morally desirable would be helped one way or the other by being told that he is free to choose either way. That is all I meant.

    CHAIRMAN KASS: Finally, Bill.

    DR. HURLBUT: Picking up on what Stephen said, and returning to the issue of incest as an example of how a kind of natural morality emerges from a given biological structure of human reality. Obviously, it seems at least to me, obviously morality is in our minds and hearts and spirits because it is in the service of life. At least that seems like a good biological assumption, whatever other approach you want to take. It seems to me that when we speak of moral disgust, as I said yesterday, disgust seems related somehow to gustation, the concept of spitting out something that is poisonous. It obviously is in the service of safety. So, repugnance is deep in our minds. It is deeper in some sense, or as deep, as any reason we can come up with. So, if we try to look at the relationship, just now looking evolutionarily at the origins of spiritual, religious, and moral awareness, we would perhaps give greater weight to those things which we cannot fully articulate. Repugnance, or the so-called yuk factor, is objected to as a basis of moral thinking by some people, but those same people usually favor the parallel sub-rational reaction of compassion. The point is that something informs us deeply by the structures of our mind, and the circumstance we live in.

    Now, to an example of that. Incest is a very interesting subject with regard to moral awareness. It happens that one of the great authorities on incest is in the program in human biology I teach in. Arthur Wolfe(?) has written extensively on this. So, how does incest work? It turns out, at least according to him, and he is pretty well accepted, I think, it turns out that if you take a situation like the kibbutz which was referenced earlier as a situation in which incest almost works inappropriately in making people not willing to marry people who are not genetically related to them. You understand, they grow up together, and then they do not want to marry.

    Well, it turns out that in China there is something called minor marriage, where the bride is selected for the husband-to-be when they are about two years old, and they grow up together like brother and sister. It turns out that their marriages do not work out well, because they have grown up in a context where they are not attracted to each other. For some reason, there is not the mystery that flows, that is essential for normal sexual relationships to be compelling, at least. So, here the structure of natural life informs moral impulse in the service of the flourishing of life. A minor marriage shows us how in a natural setting, your natural brother and sister would not be attractive to you.

    Now, there have been times in human history when incest was accepted culturally. There was a time in Egypt when one-third of marriages were between brothers and sisters. So, sometimes cultures do override these things. But for the long view, something sub-rational maybe, or a combination of rational/sub-rational seems to emerge.

    Just one final point on this. Antonio DeMasio(?) has written extensively on where does our reason come from. He speaks of hot cognition, reason informed by emotion. He says the mind had to be first about the body, or it could not be. He speaks of this hot cognition as meaning we are embodied beings whose reason is not detached from the meaning of our lives, from the sense of being a someone, from having a sense of personal biography.

    What I want to suggest is that the very structure of natural life is what places that reality in its— It is such a hard problem, because we know that nature is not perfect. We know that medicine and human freedom has a role in what you might call healing, remediation, hacuna lum(?), or whatever that phrase is in Hebrew, where the healing of the world is part of our mandate of freedom. But if we move off of the context of our natural flourishing, we are liable to lose the grounding of our moral instincts.

    CHAIRMAN KASS: Thank you. Look, we should take a break. I want to try to pull a thread or two together on this subject, because we are going to move explicitly to the policy question without interruption.

    From here, I thought this was really a very rich discussion, and lots of very, I think, relevant and interesting things were said, including the resistance to taking up the topic directly, because one learns something from that. If I am not misunderstanding the sense of the discussion, there is some feeling that one ought not to simply be dismissive of these other arguments in favor of reproductive cloning, and that they ought to be taken seriously, and the best case be made for them, but that we ought to have the responsibility of addressing them and analyzing them, that there is not a lot of enthusiasm around the room on moral grounds. I am not talking about legal or policy grounds, however to say that even those exceptional cases are fully somehow justified or override these other matters, and with respect to how to present the case against reproductive cloning insofar as we want to do that, we are exhorted not to simply override or distrust this inarticulate, sub-rational, instinctive, I do not know, intuitive sense, but that we do have some kind of an obligation to try to articulate it as best we can, and that mindful of the fact that at the end maybe it is as Charles says, there are half a dozen reasons. In this field, you do not have syllogisms, syllogistic proofs. You are only going to have plausible argumentation in any case. Some of those arguments are going to appeal to some people, some will appeal to others, but that we do ourselves a service if we try to develop the best of those arguments as we can, at least for ourselves, and to see how it goes further.

    So, this is with a view to the next time we return to this topic. I would like to ask people who have spoken to develop their thoughts if they can, to submit them by e-mail, share them around. I think I also hear implied in this that while we have had an initial kind of presentation on the one hand, on the other it would be useful sometime down the road to weave together these two papers in the kind of way in which you have a kind of dialectic consideration in which points made by one side are then addressed side by side, so that we have a better chance of seeing where the argument turns out. So that people will submit things on the points that they have either made, or that on reflection they think are important that no one has made, or that someone else has made badly, but that we will strive to amend these papers, to develop them further so that they will be the basis for the next discussion on the moral question of reproductive cloning.

    If there is anybody here who is an enthusiast for this, and has been too shy, feeling that we have not provided a hospitable climate, or if you think— What we also, I think, should do, if there is not an exponent of reproductive cloning here, is to try to find in the existing literature— We do not have to reinvent the wheel; there are arguments out there. We will find that literature, we will circulate it so that all of us are familiar with it.

    PROF. SANDEL: Or maybe find Frank's friend.

    (Laughter.)

    CHAIRMAN KASS: Is that all right with respect to procedure on this? Let's take until 10:30 and reconvene.

    DR. WILSON: You said their e-mail address. Do we have that?

    CHAIRMAN KASS: Oh, yes. The e-mail addresses will be waiting for you when you get home, a full roster of everybody here with their addresses.

    (Whereupon a brief recess was taken.)


    SESSION 6: HUMAN CLONING 3: POLICY ISSUES AND RESEARCH CLONING



    CHAIRMAN KASS: All right. We come to the last of the cloning sessions, and the last session before the public comment session, and this is a session devoted to policy considerations. Again, the working paper has been prepared not because it represents any even tentative view of this Council, but to stimulate discussion.

    There are lots of policy options for any of the matters that might come to our attention, and it would be very nice if one could have a de novo discussion of it. But once one embarked on the discussion of cloning, we discover that we do not start de novo, but we start in a world in which the policy discussion has been framed for us by legislative options. And it would be irresponsible of us to pretend that that was not the case, and therefore, in this case, even if this might be the unique case, we come at the policy questions in the light of the question of legislation. I think Frank Fukuyama said yesterday, and I agree with him, legislative bans are if ever useful, going to be rarely useful in these complicated areas. So, this might be an exception, but here we are.

    I would like to divide this session into two parts as the working paper has divided it. First, to look at the major legislative alternatives, and then, an initial discussion of research or therapeutic cloning, some scientific, moral, and policy questions. On neither of these topics, and we can say this with certainty in advance, are we going to get very far today. This is meant really to— This whole meeting on cloning has been meant to sort of lay the table, and to get the parts of the discussion opened. Lots more work is going to have to be done on all of this.

    The relation between these two parts I would like to put my own personal spin on, although others can dissent from it. The moral and practical questions connected with research cloning are partly connected to the question of reproductive cloning, primarily because they come up in the context of legislative bans that have been proposed. That is an unavoidable fact of life. But the moral questions connected to cloning embryos for research are not that different from the moral questions of creating embryos for research by IVF or some other means. In other words, the ethical issues of the questions about therapeutic cloning are not that different from the scientific and medical issues, and ethical issues, connected with all embryo research. And it is somewhat uncomfortable, I think, to have to be thinking about the reproductive cloning question, and large questions of embryo research at the same time, but there is a confluence of the two subjects.

    So, we will not shortchange that subject at all, but I regard the major activity of this body to have been to take up the really novel thing, which is this new proposal, new mode of human baby-making. But we would be irresponsible to pretend that this other matter is not central to the debate, and we will, therefore, try to do it as responsibly as we can, though I hope that we do not have to at great length take up all aspects of embryo research, but people on the Council might think otherwise, and it may turn out to be not feasible to do so. But you will see that the question of research cloning comes up in the context of the policy considerations, rather than as a separate matter.

    Now, pertinent to this discussion, and I will start the policy discussion in a moment, I repeat, the National Academy of Sciences report is out, and so is the report from California, and I will see to it that we all have these materials within the week. And I think we will want to have people come to speak with us about that, and to indicate, I think, their view of how the discussions of the research cloning fit into the overall discussion that we are having here. So, it may be that this preliminary place of putting it in the context of policy may have to be amended, but the reason it is there I think I have articulated.

    All right. Part I, the legislative options, and the staff has laid out, in fact, the three options: no ban, a partial ban on reproductive only, and a ban on all cloning.

    Mindful of the kinds of arguments that Stephen Carter made about intruding government regulation, and especially legislative bans, we have taken up and made, I think, a series of good points in favor of a position which said there should be no legislative action whatsoever, summarized on page 2 and 3. But as Charles has pointed out, everybody in the House of Representatives was for some kind of ban or other, and therefore, it seems that at least if we want to think in the context in which we find ourselves, the real legislative alternatives are the ban on clonal reproduction only which would prohibit the attempt to initiate a pregnancy, or a ban on cloning in toto beginning with the creation of the embryonic clones.

    I do not think it is necessary to summarize the arguments here. I mean, you may like some of them, or not like them, but I think people have tried fairly, at least in this case, to state the positions that have been heard on various sides, and I would simply like to open the discussion with, I guess, one further comment.

    As I see it, the gist of the arguments are one: whether if you are seriously interested in stopping reproductive cloning, an attempt to do just that would be sufficiently effective. There is the effectiveness argument. There is on the other side an argument which says the ban on all human cloning is too costly in terms of what it would cost us in scientific and medical research. And the third point would be the moral argument having to do with the question of creating embryos solely for research, and with the added peculiarity in the law in which it would become a federal offense not to destroy them. That would be the novel wrinkle of the law which explicitly sanctioned the creation of embryos for research, and then made it a crime to implant them. I think those are the three major pieces of the discussion, but other of you may have other points, and I think the floor should just be open, and let it go where it will.

    Elizabeth, please.

    DR. BLACKBURN: I am going to confront right away the idea that you said perhaps in the last sentence or two. You said cloning for medical research. I think that misses an essential point. What is the point of the research? It is not for the self-indulgence of people who just like to, you know, putter around lab benches. It is truly to relieve human suffering. That really is the end goal of this, and I think we should not leave that out of sight.

    And I am actually concerned when I read the working paper. I am concerned that I felt a bias in the writing. There was the quotes "therapeutic" cloning. But there was never quotes around other words. You know, I just want to raise that, because I know you will say that, of course, these are only beginning working papers, and I am glad to hear that. But I just wanted to say since you did say today is about laying the table.

    CHAIRMAN KASS: Please.

    DR. BLACKBURN: The table was laid with some silverware that, you know, I am a bit concerned about, and that was the way this was written. So, I do want to hear when we talk about medical research, I think we should not uncouple it from its inextricable goal which is to try to relieve human suffering.

    CHAIRMAN KASS: Point not only well taken, but I think if it is in any way not made explicit here, it should be understood.

    I think to explain the quotes, by the way, the language has been much convoluted, and much argued afore, and we have put— We did not know what right name to call this, and we put reproductive cloning in quotes, and we put research cloning in quotes, and I think the glossary there has been an attempt to try to indicate that there is a difficulty about the right language. The therapeutic intent is perfectly laid out in the discussion of the research cloning in that section, but I take your point completely.

    DR. BLACKBURN: Words carry freight with them, and research means something, I think, which does not always imply what I think in this context is very important to keep in mind, what is the research's goal. That was all I wanted to do.

    CHAIRMAN KASS: I mean, it has been very puzzling, Elizabeth, that at the very beginning of these debates in Congress, the proponents of therapeutic cloning, we will call it, were very eager to have the word "therapeutic" cloning used. But now many of those people have retracted from that term because they like the presence of the term "cloning" less than they like the benefit that is gained from calling it "therapeutic". And we need, I think, to sort this out amongst ourselves. But let me not belabor it. I take your point completely.

    Where were we? Jim, Robby—

    DR. WILSON: I need help from the scientists here, because I am uninitiated with respect to what we now choose for the moment to call therapeutic cloning. On page 3 it says a ban on clonal reproduction only would begin with a ban on an attempt to start a pregnancy by banning the transfer to a woman's uterus of a cloned human embryo. And it suggests that therapeutic cloning, or whichever you wish to call it, can be done entirely in a petri dish. That is to say that a woman's uterus is nowhere necessary. It also leaves the question open— And is that true? I want to make sure I understand the facts. Secondly, how long does the fertilized egg have to grow before it can produce cells useful in therapy? Or do we know the answer to the question?

    CHAIRMAN KASS: We know the answer to that. They grow to the blastocyst stage, at least with respect to the stem cell kind of research that people want to do. It grows to the blastocyst stage, a couple of hundred cells, age about four to five days.

    DR. WILSON: It would be nice to have these things recorded here, because those of us—

    (Simultaneous discussion.)

    DR. HURLBUT: I am sorry. I am not quite sure what the question is.

    DR. BLACKBURN: Oh, I was hoping Bill could say something addressing the issue—

    (Simultaneous discussion.)

    DR. WILSON: —how long a fertilized egg has to grow before it becomes useful for therapeutic or regenerative purposes.

    DR. HURLBUT: Just what Leon said, the blastocyst stage. They take the inner cell mass, which is the part that will become the embryo, and that forms around four to five days. It is usually put into the woman's womb five to six days, and implants approximately six days in humans. Much later, by the way, in cattle, which is why some of the studies done with cattle do not parallel with the stage in humans.

    DR. WILSON: But it is transferred into a woman's womb, uterus?

    DR. HURLBUT: It does not need to be.

    DR. WILSON: Does not need to be. But it could be under some circumstances.

    DR. BLACKBURN: But it is not.

    DR. WILSON: Thank you.

    DR. ROWLEY: I think it is important just to clarify that, in fact, if you are talking about using this for medical purposes, you would not put it in the womb, because you would never be sure you could get it back out, or what had happened to it in the meantime. So, in fact, you would never do that.

    DR. WILSON: Thank you.

    CHAIRMAN KASS: Robby, I guess. Yes?

    PROF. GEORGE: Elizabeth and I share the same underlying concern, but we draw different conclusions from it, and therefore, read the documents differently. Both of us, I think, are concerned that language not be used, or definitions not be manipulated in order to win a debate, so that I see the quotation marks around words that I would prefer not to use, because I think they prejudice the debate against what I think to be the truth of the matter, and I am reassured. Elizabeth sees the quotation marks, and she is the opposite of reassured, because she sees the quotation marks as themselves indicating a prejudice against a term which she thinks is appropriate.

    So, we are a little bit, I think, at loggerheads about what follows, how the staff should be instructed to write, precisely in order to achieve the goal that you, Leon, and Elizabeth and I have in common, and I am sure everybody would share it, of making sure that you get a fair representation of competing points of view without the definitions or language prejudicing it.

    CHAIRMAN KASS: We will work at it, and we will do the best we can, and if we do not do it right, you will tell us.

    I am going to exhort the group to take up the question on the agenda, which are the legislative options. Charles, is that you?

    DR. KRAUTHAMMER: Well, let me just engage the issue directly. I think there are two main arguments for the full ban on cloning which would include both reproductive and research or therapeutic. The first is, and I think it is outlined in the paper, it is hard to imagine that if you allowed this to happen, if you allowed it, what would become an industry of cloned embryo creation, that you would not result within a fairly short period of time, I would guess, in implantation. It would be, of course, banned, but it is hard to imagine that with hundreds, thousands, of embryos floating around, with all that interest, that you would not have one implanted in a woman which would present us with that extraordinary dilemma that under law that embryo, that fetus, would have to be destroyed, which of course, none of us would want to contemplate.

    So, I think the path from therapeutic to reproductive is clear, and I think it is inevitable. There is a principle in Jewish jurisprudence called the fence. Siag(?) is the word. You make a fence around the Torah. You protect yourself from sinning by expanding the bounds of what constitutes a sin. For example, you are not allowed to engage in commerce on the Sabbath, but the rabbis expand that so that you cannot handle or touch money, knowing that if you handle or touch it, you will inevitably find yourself in a position where you may end up engaging in commerce. So, you expand the boundaries of what is impermissible as a way to protect yourself against committing the core sin.

    The core sin here, which I think all of us would agree on, is that reproductive cloning is wrong, ought not happen. And I would argue that the way to build a fence around it is to not permit the creation of an industry of embryos. That is argument number one.

    The second is not an argument about the contingency, or how it might expand, but an argument about what happens when you allow the creation of cloned human embryos for their destruction. And here I would like to, if I could take a second, to talk about the history of the argument about stem cells. In the original debate about stem cells which led to the President's speech, you found a fairly wide consensus that we ought to allow this research because of the benefits that would happen, and that we might permit the use of the discarded embryos from IVF clinics because they were doomed to be destroyed anyway. However, and the argument I think here was fairly consensual, we would not want to countenance the creation of embryos to be destroyed and essentially mined for the purposes of creating stem cells. And we were assured by the advocates of stem cell research that we would only be using discarded embryos. It was a sort of morally reasonable argument: if the embryos are going to be destroyed anyway, let's use them. I think a lot of us who supported the stem cell research proposals agreed with that, but were afraid we might actually be on a slippery slope.

    Well, here we are on the slippery slope. If we countenance the creation of cloned human embryos for the sole purpose of their exploitation and destruction, we are entering a whole new era of the commodification of the human embryo, of its exploitation, and its use as a commodity and as a thing. And I think that is extremely dangerous. It does not require that one believe that life begins at creation. I think as Michael Sandel said yesterday, it is not an on and off proposition. Personhood either is or is not at the moment of zygote creation, or in this case with the beginning of the cloning process. You do not have to believe that the original cell is imbued with a soul or with personhood to believe that its exploitation and destruction starts us on a very dangerous and destructive path of exploitation of our own species.

    So, I think those are the two arguments, and I think that that might be a basis for the start of a discussion of the ban.

    CHAIRMAN KASS: That is very useful, I think, as a way of starting the discussion. Someone want to respond directly to Charles?

    DR. WILSON: I have a question.

    CHAIRMAN KASS: Okay, sure.

    DR. WILSON: Charles, or other people here with scientific knowledge that I do not have. Are discarded cells, fertilized cells, embryos, that are the result of in vitro fertilization, sufficient in number and quantity to support all present and likely future forms of research?

    DR. KRAUTHAMMER: The answer, I think, is yes. I think that is undisputed.

    CHAIRMAN KASS: Janet, or—

    DR. KRAUTHAMMER: It is a huge number. I mean, we do not know how large it is, but a fraction of that would support present research for perhaps half a decade or more.

    DR. WILSON: Do others have other views?

    CHAIRMAN KASS: We have a couple of— Janet, or Elizabeth, or Bill? Janet, would you want to comment?

    DR. ROWLEY: Well, I cannot speak with any certainty about the number that we have. As you may be aware, at the time of the President's proclamation, if you will, in August, it became apparent that there were potentially 60 embryonic cell lines. That is not embryos, but lines that had been derived from embryonic stem cells. The concern at that point was that most of them had not been well characterized, so we did not know, for instance, were they chromosomally normal, or were they aneuploid, and this is a critical issue if you are trying to do research. We did not know many of the other characteristics, and the concern is that as studies proceed, there may well be need for even some known genetic variants with defined mutations that would allow you then to do further studies on the response of these mutant cells to various therapies which would inform you as to how better to treat patients, so that I think that the comment I made yesterday, which is we are asked to make judgments about matters that we do not have the basic knowledge required to make any informed decision. This is the problem that we face.

    DR. KRAUTHAMMER: But Janet, Jim was asking not whether existing stem cell lines were enough to support research.

    DR. ROWLEY: Or are there enough embryos. I do not know. How many embryos are there?

    DR. KRAUTHAMMER: He was asking whether discarded embryos would be enough to support current research.

    DR. ROWLEY: Exactly. Do you know how many? I have no idea how many there are that are available for use. Some of these are covered by various forms of consents of the donors which may preclude their use. I do not know that figure.

    CHAIRMAN KASS: Bill, on the facts?

    DR. HURLBUT: The figure estimated is there are a million embryos in frozen storage now. But the fact is that you can only derive stem cell lines from those which have been already developed to the blastocyst stage. That is generally thought. That is a lot smaller number. Who knows? Maybe a hundred thousand. Those have only been done in the last two years. And the fact is that even when you try to do this, deriving stem cell lines is very difficult to do.

    Look, there are many good, scientific reasons to do therapeutic cloning. Let's not fake ourselves out about that. The argument is whether it is morally good to do. That is another question. But I do not think we should preempt the question by saying, oh, we have got enough, we can go— Well, maybe that is a practical matter, but it is not a very good scientific approach.

    DR. : But are not 100,000 enough?

    DR. HURLBUT: The problem is—

    DR. KRAUTHAMMER: How many do you need?

    DR. HURLBUT: You could do a lot of science with specifically produced types of cell lines. For example, one of the big efforts now in advanced cell technology is to clone specific individuals so that you could do studies with those cells back into the same individual for immune reasons. That might not be necessary, but it is at least— If you are going to talk science without moral constraints, you would probably be scientifically more open to not restraining anything. But we restrain all sorts of things in science, so let's not preempt that either.

    CHAIRMAN KASS: We have to try to be clear about a number of distinctions that are operating in this area. One is the distinction between the extracted stem cell lines for which there is now federal funding. Then there is the question about the number, usefulness, availability of other spare embryos from which lines can be, are being, developed in the private sector and can be used there.

    But we have here to consider the question about the cloned human embryos, and the special benefits from doing research possibly on embryos created by somatic cell nuclear transplantation or cloning. And there are arguments that have been advanced that suggest that no matter how many spare embryo lines there are, there are added benefits from doing the research on these kinds of embryos. And that is why the arguments for therapeutic cloning, or research cloning, are independent, are in addition to the arguments for stem cell research, and we are going to have to try to— These are related questions, but in our context of talking about cloning, we should think especially about the question of (I cannot help but use the quotation marks, Elizabeth. I will try to fix it.) therapeutic research cloning.

    Someone was going to— It was a request for information. I would like someone now to respond, if they are ready to. Charles, at least, has staked out a position and made two kinds of arguments as to why he thinks that a complete ban would be the more desirable.

    DR. WILSON: Could I begin by asking them a question now that I know one more fact than I knew ten minutes ago?

    CHAIRMAN KASS: Please.

    DR. WILSON: Charles, you said, if my notes are correct, that we should not countenance creating cells that would die.

    CHAIRMAN KASS: Creating embryos, he said.

    DR. WILSON: Pardon?

    CHAIRMAN KASS: Creating embryos, embryos.

    DR. WILSON: Well, how does that differ from creating through in vitro fertilization embryos that will die?

    DR. KRAUTHAMMER: There are two distinctions. The first is that in IVF, you are not creating them with the specific intent to kill them. You create a number, you find the ones that work, and you do not use the others. It is in a sense a side effect. It is as if you had IVF where you never implant a single embryo. The analogy to cloning is IVF where you implant the (Inaudible.) and you destroy them all. I think that is morally different from what happens.

    DR. WILSON: How is it morally different?

    DR. KRAUTHAMMER: Because your intent is to create a life, and as a result, you have a side effect in which some end up being discarded, and I think that is different from creating all of these embryos with the express intent of simply destroying and exploiting all of them.

    CHAIRMAN KASS: I have Stephen, Michael, and Gil. And Paul.

    PROF. CARTER: Just a small point, partly in response to what Charles said. I think that what Janet and Bill have said needs to be taken seriously for the following reason. On the question we discussed in the previous session about the morality of the practice, it is not clear to me that a civil judgment whether it is right or wrong to do the cloning is going to turn in an important way on the question of the availability of alternatives. However, when it comes to the legislative process, if one of the arguments in favor of allowing what some have called, (let's put it that way, Robby), what some have called therapeutic reproductive—therapeutic or regenerative cloning, if one of the arguments in favor of that is the necessity for scientific research, then from the point of view of whether there should be a ban or not, it matters a great deal whether the necessity in fact is present. Because if it is present, then the argument may count in the legislative process. If it is not present, then there is the concern about is there some other ultimate goal.

    However, having said that, I just want to emphasize that one of the problems that I think we will not be able to avoid in this debate, and any debate about a scientific process, is that the future is very, very hard to predict, and benefits and costs both of basic research can be very, very hard to predict, and there have been many times, historically, obviously, when we got surprising benefits from research that was problematic on other grounds.

    The only reason I mention that is that I think, again, we should be very careful when we speak of the issue of a ban, or of building a fence, to make sure that we really know to the best of our ability what it is that we are fencing in, and what it is we are fencing out.

    CHAIRMAN KASS: Michael Sandel.

    PROF. SANDEL: Charles invokes the doctrine of the double effect to reply to Jim, and the difference he sees between using embryos created by IVF is that those were created with the aim of reproduction. Tell me if I have this right, Charles. They were created with the aim of reproducing, and the discarded ones are leftovers. And it is morally more permissible to use those, you say, than the others because in the other case, the embryo is being created for the sake of the research which will kill it. That is the moral difference.

    But the doctrine of the double effect, which is just this idea that if you are aiming at a worthy aim, it is possible to justify a morally troubling side benefit. That doctrine of double effect could be employed to save the thing that you are against because the people who create embryos, whether through cloning, or through IVF, for the sake— You could imagine people creating embryos through IVF who wanted to contribute to scientific or therapeutic research, and they would invoke the same doctrine of double effect, not implausibly, to say our aim is not to create an embryo or a life for the sake of destroying it. That is not the telos. Our aim is to create an embryo that will give rise to stem cells that will cure some disease, and we recognize it is very likely, maybe even certain, that an unfortunate side effect which we regret is that it will die.

    Now, you might say it is so likely that it is a certainty. Where is the room for the double effect? But that is true of the IVF case, too. So, as long as there are multiple embryos produced in IVF for the sake of reproduction, the double effect is not any— There is no more space, there is no more moral space, for double effect doctrine to get going in that case than in the other case. So, I do not think the double effect doctrine can save the one, and condemn the other.

    DR. KRAUTHAMMER: Well, I do not want to monopolize this, but if I can—

    CHAIRMAN KASS: Briefly.

    DR. KRAUTHAMMER: Well, I think, first of all, in cloning, the effect is 100 percent. There is no— It is not a side effect; it is the effect. The only way to get the stem cell is to kill the cell.

    PROF. SANDEL: But what gives the doctrine of the double effect its moral weight, is that it puts the weight on the intention, not on the effect, and that is the only reason it works in your other case, is not it? Because is not there a certainty that with IVF you do not just produce one embryo that you know will lead to a child? Is not there a certainty there that you are going to have to produce some that will be discarded?

    DR. KRAUTHAMMER: I am not sure it is a certainty. It is certainly a high probability. But the point I think that is important here is that what you engage in is a kind of desensitization to the process of destruction, and I think it seems to me that it is far more, desensitization is far more certain, is far more powerfully affected when you are creating for the sole purpose of destroying, exploiting, to help someone else. In other words, it is purely nothing but an instrument. It is nothing but something to be dismantled and strip mined, as opposed to IVF, which I must say, if we were having an argument here 20 years ago about IVF, I would probably raise these same concerns. It is a settled practice.

    PROF. SANDEL: But why do not your same moral concerns condemn IVF for the same reason? There is no space for the double effect to get going, the doctrine of double effect.

    CHAIRMAN KASS: Very briefly. There are two things, it seems to me. Charles is trying to make, whether successfully or not, some kind of a distinction, and if that distinction cannot be made, it cuts in two directions. Either what he has accepted before—

    PROF. SANDEL: I agree very much, yes.

    CHAIRMAN KASS: The two gentlemen at the end of the table are masters of the argument of double effect, and if I give them half a chance, we are going to get a long lecture on it, and I do not want it.

    (Laughter.)

    PROF. MEILAENDER: (Inaudible. No microphone.)

    CHAIRMAN KASS: I know that.

    (Laughter.)

    But I saw Robby's hand go up, and I knew what was coming, right?

    PROF. GEORGE: Fair point, Mr. Chairman.

    CHAIRMAN KASS: We should provide some written material on this, because it is an important aspect of the moral argumentation, and there is no reason why it should be the private prerogative of some of us. Let's get the writings out on this.

    But Gil was on the list from before. Paul, Rebecca, Janet, and Mary Ann. Is your light on for—?

    DR. KRAUTHAMMER: No, I do not want to monopolize it. I would carry it on. I do not know if you want to go on with it.

    CHAIRMAN KASS: Well, look, I think on the general point, Charles at least has raised the question about— And he did not even— He, in a way, raised the question, what happens when you allow the creation of embryos for use and destruction. The question is whether that should cover just these, or those, but that is a piece of this discussion. And he has, in a way, framed it.

    Some people will find this a persuasive concern. Others will say we can find the right boundary at the appearance of neurological cells, or something like that, where we can live with this. But I think the question has been posed, and this kind of discussion, while complicated, does not seem to me to undermine the importance of the question that has been raised.

    DR. KRAUTHAMMER: I mean, all it implies—

    CHAIRMAN KASS: So, I mean, if—

    DR. KRAUTHAMMER: It implies that people who oppose reproductive cloning, research in cloning, ought to be campaigning against IVF. I do not think that follows.

    CHAIRMAN KASS: Okay.

    DR. KRAUTHAMMER: You can simply argue it is a settled practice, and we ought not complicate our moral lives by going on in the same direction if you want, or we can argue about distinctions between the two processes. But either way, I do not think it affects the argument.

    CHAIRMAN KASS: Let's go forward, if we could. Gil, Paul, Rebecca, Janet, Mary Ann.

    PROF. MEILAENDER: Before we ever got involved in double effect, I already was on your list because I wanted to say something about and in support of, but from a little different angle, Charles' second argument, which I do not think, at least in terms of what I want to say about it, requires talking about double effect language at all. Indeed, I am not even sure that double effect language is good language to clarify what is going on there.

    What I wanted to note is this. We have had considerable agreement, by no means unanimity, but considerable agreement among lots of people who do not agree just generally on these questions, that the use of spare embryos for research could be looked upon more favorably than the deliberate creation of embryos for research followed by destruction. I know there are complicated arguments about it. One does not have to be persuaded by it. But I just note that we have actually had a good bit of agreement on that point. A lot of people who do not agree on general things have agreed on that. And the point has involved not a complicated argument about double effect, but the notion that these spare embryos are at some point going to be discarded anyway. The question is simply whether they should die through being discarded, or whether they should die by being made the object of research. I mean, we have had considerable agreement about that. I am not saying it is persuasive, but we have had it.

    What I want to notice, and it comes to Charles' second argument, is that there be a kind of peculiar thing about the position B in these policy options that would say are you for banning clonal reproduction but permitting whatever we call the other thing, research or therapeutic cloning, or whatever, in that in a sense, under the guise of doing something restrictive, under the guise of saying, well, now we are going to ban clonal reproduction, one would actually be giving greater approval to the deliberate creation of embryos for the purpose of research followed by destruction, something that, in fact, there has been a good deal of hesitance about, and a good bit of squeamishness about. It would be a very peculiar result that what you would be adopting is a position that on the face of it looked as if, you know, we were doing something restrictive, but that would in fact, in terms of the kind of a rough consensus of opinion that has been going on, would turn out to loosen the restrictions. I take it that in a way, that is what Charles' second point was about. I think that would be a peculiar thing. Or at least if one did it, one should realize what one was doing. I hope that is clear.

    CHAIRMAN KASS: In scribbling, I lost my page. Paul.

    DR. MCHUGH: Thank you. I am going to lead the discussion just slightly in another direction, only to pick up on what I said yesterday. I have not made my mind up at all about what should be legislation in this arena, but I do think that the crucial thing to keep in mind for all of us is that the burden of proof for changing what we do, and how we should act, has to be on those that propose that we move in that direction, and legislation might or might not maintain that burden of proof. If we do that, I think we will gain the support of the American people for the animal research that is going on right now in stem cell research, and we encourage that, and we want to wait for what directions for human stem cell research those animal results command.

    Now, yesterday I said that it was very important that we have people come and talk to us about just what is happening in the therapeutic stem cell arena. And one of the problems that is present in our discourse now is the presumption that stem cell therapies work simply like transplant cells, that you replace the cells that are lost by the stem cells that you grow.

    Now, the animal research is quite clear that that is not always, in fact, not often the way a therapeutic phenomenon occurs. Right now, excellent research, excellent animal research is going on at Johns Hopkins by John Gearhart and others on animals that have a form of amyotrophic lateral sclerosis, the death of cells in the spinal cord, anterior Hans cells, and they are demonstrating in mice that stem cells will alleviate the symptoms of those mice. However, they now know that those stem cells do so not as transplanted anterior Hans cells, but because they become biological pumps producing important trophic factors that support the failing cells of the host, rather than replacing the failing cells with healthy neurons.

    Now, if stem cells are capable of doing this good because they produce trophic factors, that is, chemicals, we can see a future after all, in which with certain diseases anyway, these trophic factors can be supplied without the need of having them delivered by cells with all of cellular problems, and all of the things that cells bring besides their generation of trophic factors.

    I believe that we are often proposing our future on a lack of adequate scientific studies, and the hypotheses those scientific studies command. So that, I think, is tremendously important for us to understand, that stem cells are probably going to do many other things than we think they are doing, and that some of those things will or will not require— After all, we do not need the mold any more to produce penicillin, and that is a great thing, and we may not need the stem cells to produce some of the therapeutic advantages that we have.

    As I say, I have not made my mind up about issues of legislative banning and the like, simply because I want to learn more from the conversation. But anything that will continue to enhance our capacity to think into the future will come, in my opinion, from extended animal research, and the results that they show.

    CHAIRMAN KASS: Thank you. Rebecca, then Janet.

    PROF. DRESSER: I will just mention another moral distinction that has been invoked to differentiate leaving IVF embryos in the freezer, believing that it is certainly likely that at some point they will deteriorate and quote "die" versus destroying them, either just taking them out of the freezer, actively destroying them, or destroying them in research, is act versus omission, or active/passive. Now, whether that is a significant distinction or not is another question, but that is another set of concepts that have been used.

    I would like to mention a fourth legislative option which is— I am not an expert on this, but I have read enough to know that some people really question whether the FDA has jurisdiction to regulate human reproductive cloning, because there is debate over whether it is a biologic, this thing, or whatever it is that we are talking about is a biologic. So, another basic concern that I have is that Congress should clearly indicate that they want the FDA to regulate this, and treat it just as they do drugs and devices.

    CHAIRMAN KASS: Treat what, Rebecca?

    PROF. DRESSER: Well, reproductive. That is, if there is an effort to implant a cloned embryo and create a child, I want that to be regulated in the private sector as well as the public sector, just as the development of a drug or another biologic is, so that if you are going to implant this embryo into a pregnant woman, I would like to see the HHS regs on research involving pregnant women and fetuses apply to that study.

    Certainly now, the FDA requires proposals to test drugs in human beings to be reviewed by an IRB, and to meet the human subjects regulations. At some point, this future child should be considered a human subject, and so, these questions about is it safe enough, is there enough basis to try this in a human, would apply. Any private company that tries to clone an embryo and bring it to term who did not go through the FDA would then face fines and other things that already exist.

    CHAIRMAN KASS: They have never regulated IVF, have they?

    PROF. DRESSER: No. I also think that is something they might. But the FDA is now saying that they have jurisdiction, and they, in fact, sent a letter to one of these people who said that—

    CHAIRMAN KASS: I think that has been— It is now in dispute what they are saying. I mean, I think there was some talk that they claimed jurisdiction that appeared in the testimony. In the last week, I have heard the controversy. We could look into this.

    PROF. DRESSER: But in any event, it is a question of Congressional intent, so Congress could make it clear that they want this to happen, and that would be another option.

    And that also, I think, would not run into questions in terms of constitutionality and federal jurisdiction questions that I think really— I do not know if it would be appropriate to have a commission paper to look at questions about whether a federal legislative ban would pass a—you know, the Supreme Court would approve it, because we have potentially the quote "reproductive rights" here, individual rights. We also have, some people say, the right to conduct scientific research, certainly in the private sector is protected by the First Amendment. And also, you know, medicine in general is considered a matter for state regulation, so what is the federal government doing coming in and imposing this on the states?

    Those are all questions I would have as a lawyer, and I am not an expert on that, so I would want those to be considered.

    My problem with the term "therapeutic cloning" is that I want us to present this in a way that the public gets an accurate impression of the uncertainties here. I do think it is important to say there are potential medical benefits, and that could be a justification for research cloning, but it is very uncertain at this point whether these things will pan out. It is not therapeutic at this point to anyone. It is very much in the early research stage. It is not clear that we are going to need genetically identical stem cells if this does go forward. So, you know, which way that cuts on our ultimate position is another question, but I do want to get some— I think this has been oversold to the public in terms of how close we are to a cure, and how close this is to actual therapy, and I want to make clear the state of the science.

    And finally, another moral consideration that we need to bring in here is that research cloning requires oocytes, and so, where are these oocytes going to come from? We know that there already is demand for oocytes to help people have children. This would create another need for these oocytes. We have been struggling with this issue about should there be payment; if so, how much? And so, this would take us further into that debate as well, and those things need to be addressed.

    CHAIRMAN KASS: Good. Thank you. Look, I am going to just recognize Janet and Mary Ann on this topic, and then, I think we should spend some time explicitly on the therapeutic cloning research, on the research cloning question. Janet, please.

    DR. ROWLEY: Well, I certainly support Paul and Mary Ann in their call for more research in these areas because it is true these are very early days. And the question of how important this may be medically is totally unresolved which is, I think, a reason for us to urge caution, that we do not prevent American scientists from trying to help to resolve these issues, because scientists in other countries already have approval from their governments to move and study these questions.

    Now, maybe you say that is fine, let the Brits do this, and when they find the answers, we will come hat in hand to try to get the results. But I think as a scientist, I would feel very unhappy if, in fact, my colleagues were not also given the opportunity to participate in this. So, that, I think, urges us to be very cautious in whatever stand that we take.

    I welcome the chairman's suggestion that we help with the text of the working paper. I agree with Elizabeth. I found many of the terms pejorative and judgmental, and I think it is inappropriate for a paper which is in theory to inform us neutrally about the facts, that much of the text contains what I would consider very serious scientific flaws.

    I do urge us, and the chairman has already said that we will invite others to come and help with our general education because I do have a copy of the National Academy draft report, not the final report, and their recommendations in the report itself states what we have already been emphasizing, that this is just at the very beginning of a very complicated process of understanding the use, or the lack of use, or those situations in which it will be useful, and those situations in which it will not be useful. And so, the Academy has recommended that stem cell research be continued and supported, and publicly funded, supported, and human stem cell research, so that we are able to answer some of these uncertainties.

    And Paul had his example where the cells themselves were not needed. It was clear they were providing chemicals. Another paper that came out in the Proceedings of the National Academy this month on Parkinson's disease using a rat model and murine stem cells, showed that it was the murine stem cells that actually provided the chemicals themselves directly from the murine cells that helped to treat the animals, so that certainly in some circumstances, the cells themselves are going to be needed.

    CHAIRMAN KASS: Thank you very much. Mary Ann.

    PROF. GLENDON: I think Charles introduced a very important word into our discussion when he brought up the idea of desensitization as a way of talking about the broader social effects of actions and decisions we might take now. Sometimes when people are trying to make that argument they use the expression "slippery slope", which actually is not helpful here because if you are on a slippery slope, you know it. You feel the breeze going by, and the problems that we are dealing with here usually involve changes that are so gradual and imperceptible that you do not know what has happened until you end up desensitized, and we have a history of racism, and a history of eugenic practices in other contexts that show us how easy it is to become desensitized.

    So, for that reason, I wanted to raise a question about the relationship of desensitization to settled practices because, Charles, you said, if I understood you correctly, that 20 years ago you would have raised similar concerns about IVF, but now it has become a well settled practice. And the question would be whether that having become a well settled practice has already desensitized us to a certain extent to misuse of our own species.

    And here, I will just raise a research question for us later on. One of the reasons why I would like to look into what other countries are doing on this is that we have been told that Germany has been extremely hesitant about going down this path. My own research suggests that countries that were under German occupation are very hesitant. Well, there is a reason for that, and the reason has to do with a lot of factors peculiar to the civil law systems, but also with history, and the idea that maybe we should be thinking about heightening sensitivity as well as the potential harm of desensitization.

    CHAIRMAN KASS: Thank you. Do you want to respond immediately to this?

    DR. KRAUTHAMMER: No, I will wait.

    CHAIRMAN KASS: Michael, go ahead. These will be the last two comments before I turn the discussion.

    PROF. SANDEL: Well, I agree entirely with what Mary Ann has said, and by challenging the dis-analogy, the moral dis-analogy, Charles was offering I was leaving open the question of which direction one pursues it in. I think we should first see whether the analogy is morally sustainable, and then if it is not, we may have to examine settled practices. Or we may have to reconsider the unsettled practice. So, I think that is a further step, but we have to get clear on whether the moral analogy works or not, because it does raise yet another possibility that we have not discussed.

    So, just to replay the bidding quickly, the question arises, is therapeutic cloning morally different from medical research carried out on embryos created for that purpose through IVF. And I think most people would agree, no. Here we are talking about embryos created for that purpose, not for reproductive purposes.

    But then the question is, is therapeutic cloning different from research on extra embryos created for reproductive purposes, and that is where this question about whether there is a morally persuasive distinction arises. My argument there was that they are morally on a par. They are morally on a par because both aim at worthy ends, reproduction in the one case, relief of suffering in the other, and in both cases there is a certain but undesirable side effect, namely the death of embryos. It is an undesirable side effect for anyone who regards an embryo as other than a thing. Quite apart from whatever else one considers the embryo to be, it is undesirable.

    So, one issue is whether you can create a dis-analogy there. But a further question is, are these two ends— Do we take for granted that these two worthy ends are equally worthy? We take for granted as settled practice, as Mary Ann was saying, that the worthy end of human reproduction justifies IVF. That is the settled practice Charles was describing. But if the dis-analogy cannot be made out, if Charles's dis-analogy does not hold, then we have to compare, or we might find ourselves comparing the relative worth of those ends, and we may find, or an argument could be made, that depending on just what the medical promise is, and the scientists have to tell us about that, it might be that a more worthy end to aim at is to create through IVF embryos to have some great breakthrough through dread diseases. I do not know. Depending on whether that is plausible, whether that could happen, that might be more morally important than creating embryos through IVF for the sake of creating a baby. There are other ways of having a child, adoption for example. Maybe the morally stronger case is actually the creation of embryos through IVF to relieve human suffering, if the science actually tells us plausibly that that great good really would be achieved, in which case we would have to weigh that.

    But all of this is consistent with Leon's point that to break down that analogy does not answer the question, well then, in which way do you go.

    CHAIRMAN KASS: Charles, last word on this, and then we are going to move.

    DR. KRAUTHAMMER: I do not want to turn this into a seminar on this issue, although I would be happy to have one with Michael anywhere, anytime, but not here.

    Let me just make one point. The distinction that Michael is overlooking is that in cloning, it is 100 percent destruction. In IVF, it is not. And that makes it important because in cloning, the cell is created only as a means. In IVF, you are creating a series of embryos hoping that they will become a child. You are creating all of them in a sense to be an end, but you do not know which one. Some will make it, and some do not. And that, I think, is a fundamental distinction. It is not as if you are creating a single embryo in IVF and the others are helper embryos who will die and be discarded. All of them are candidates. One will make it, others will not. And in fact, the ones who will not will end up in the freezer, and they can be implanted. So, it is not as if it is a means to an end necessarily. That is the only possible outcome in cloning, and that is why I think turning it into purely a means, purely an instrument of our will to another end, I think is the fundamental moral distinction. And as Mary Ann indicated, it starts a real process of desensitization, and it could end up quite badly if we do not stop it at the beginning.

    CHAIRMAN KASS: Please, Elizabeth.

    DR. BLACKBURN: It is just a factual interjection, not to argue against or for what you are saying. But in fact, there is a process of twinning, whereby an embryo is taken to a four cell stage, and this naturally happens in identical twins, can happen, and now there are two embryos. I am just going to raise the question: What if one is for a purpose that somebody finds different and appropriately moral, and one is for, you know, using for therapeutic cloning? Because, so Charles, I am just saying, it is actually not 100 percent inevitable that the embryo would be destroyed, because it could have an identical twin produced, you know, at a two cell— Is that right? Two cell stage, or four cell?

    DR. HURLBUT: Actually, you can get twinning all the way from the two cell stage up to the primitive streak and beyond, which is conjoined twins.

    DR. BLACKBURN: Just a fact. I am not trying to argue for or against.

    CHAIRMAN KASS: Let me— We have really run over on this, though it has not altogether been run over because I would observe that with very few exceptions the group as a whole has been somewhat more leery than in previous sessions of grasping the nub of the question, of the legislative alternatives for discussion. There are lots of good reasons for that. It may be that one has not thought through the moral argumentation sufficiently, or that people are leery of legislation. Many people are much more interested in the moral arguments, and let somebody else worry about the policy questions.

    But I remind you that we do have a charge here, not only to think abstractly and philosophically, but to try to be helpful to the people whose burden it is to make these decisions, whether we would have put them in that position or not. And we do find ourselves in the middle of this kind of debate. And it is too early, I think, for us to come down on this, but I think we would be irresponsible if we did not air it out in here as to which of the legislative, including a fourth possible alternative, makes the most sense to the people here.

    In some way, the sticking point in this discussion has really to do with the importance of what one would be giving up if one enacted the strict ban that Charles has argued for. He has made two parts of the argument, and I think has been willing, he did not say so, but I think he is willing in fact to say, look, I grant that there might be various kinds of scientific and therapeutic benefits that come from allowing the cloning of embryos for research, but given what he cares about in this legislation, he is willing to pay that price for this kind of good, and that is open to discussion.

    It does seem to me that we need some clarification, however, some explicit discussion, and we can just barely open it up today, to really talk about this matter of the non-reproductive cloning, with apologies to Robby. And here in the last part of this paper, and all we can really do is at least barely get it discussed, in this section of the working paper beginning on page 8, we make it perfectly clear that we are aware of the fact that this is somehow central to the current legislative debate. And it turns out to be of interest, I think, for this body well beyond what we might have to contribute to that debate. Because as the discussion has already proceeded, it is clear that this is a test case, maybe a good test case, for thinking about how faced with the uncertainties both of the scientific promise on the one hand, and with the moral hazard on the other, prudent decisions should be made.

    There are some people who would argue that the burden of ignorance on the promise means you should do nothing. Some people would argue that the burden of ignorance—that the moral hazard being sufficiently great, you should do this and revisit. There are moratoriums, there are bans that are doing nothing. A lot depends really, since we are going to be necessarily deliberating in the presence of considerable ignorance, both about the scientific promise and the medical payoff, as well as about how many of these moral worries really are moral worries. That is the way in which policy decisions and political deliberations take place, not in the way in which people of science like to do business. But that is where it is. So, I think it is worth our while as an example, to sort of think this one through, and to begin to talk on the side of the research therapeutic cloning.

    There is a section in here which describes the idea. I think it is at least the idea which has been most highly touted. There are other avenues of research to be done with cloned embryos that have not been given as much promise, but the major one has been the individualized, hence presumably rejection-proof cells for re-transplant and regenerative medicine. The idea of that is here, the idea behind it, and how do the advocates of research say this will work. And then we have a series of scientific, conceptual, and practical questions. Will this in fact work? Is it necessary, or are there alternative ways to get around this problem? Discussions of terminology, a mention of other kinds of perhaps even more beneficial research from research cloning than this particular one that has been touted. And then, a series of moral, prudential, and social considerations.

    And finally, concluding with something that Paul and Mary Ann have mentioned in the past, that in some ways, what is at issue in this policy question is a burden of proof question, and ordinarily in these matters, we place the burden of proof on the opponents of going forward with anything, whether it be technological innovation, or scientific discovery. Some people are arguing here that precisely because a cloning ban would shift the burden of proof to those who show why it would be necessary to have it, that that is a good thing, given what the stakes are. Others will insist, look, that this is a perilous threat to scientific and technological progress dealing with freedom, and the law might not hit the target, and various other reasons.

    It seems to me worth our while to look at the particular subject of therapeutic cloning now, at least to get us started on it, and perhaps Janet, or Michael, you would like to start off on— Tell us something about, in brief, why you think it is— Let me place the burden on you. Why is this work necessary, since if as Rebecca suggested, there might be some things that are desirable but not necessary? Could you help get us started in thinking about that?

    DR. ROWLEY: Well, I would, because I think the way you phrased it, you then put the burden of proof on people who are in favor of proposing a ban, which is, I think, correct. I think the burden of proof is why when we now allow this to go forward, you think it should be stopped. So, the burden of proof is on those who want to stop it, I believe. But that is not the question you asked me.

    I think that it is impossible to tell you now what the benefits of therapeutic or regenerative medicine might be. But that, in my view, is all the more reason to allow it to move forward in a thoughtful manner because the potential, if this potential is realized, will be extraordinarily important in many of the degenerative diseases which will face Americans in the future, as well as some of the other diseases that face young people as well. And I was very heartened with Michael's discussion that you have two moral goods competing with one another, or two moral considerations competing with one another, and that in fact, one moral consideration that this could be of benefit to a large number of people may outweigh the moral harm of destroying an embryo, if in turn that is how it ultimately comes to pass. And I think, and it is very clear in the Academy report, we are just at the very beginning of something that is potentially very important. And I would like also now to just refresh people's memories about other medical breakthroughs, and I will use my own personal experiences, because it is currently relevant. Studying chromosome abnormalities in leukemia cells, I discovered a translocation. This translocation in the genes at the translocation breakpoint were then identified, and the effect of the translocation on the function of these genes was identified. This led to the search, the informed search, for an inhibitor of the abnormal function of the gene involved in the translocation, and this is now a very important treatment for chronic myelogenous leukemia. Namely, the drug is SDI 571, or Gleevek(?). Finding the translocation was 1972. The drug is used in 1998. So, you are talking about almost 30 years from a discovery to treatment.

    We cannot be impatient in this. And there are a lot of failures, and it took many people in a number of countries to really bring this to fruition, and we have to keep that perspective very clearly in mind as we are talking about this. And again, one of the terms I was concerned about in the report talks about the imminent use. Nobody is talking about imminent use of these stem cells for regenerative medicine in patients as the present time.

    CHAIRMAN KASS: Michael, did you want to follow?

    DR. KRAUTHAMMER: Could I make—? Sorry, just one sentence on that. A lot of people in Washington who have been advocating on one side of this issue have argued often and repeatedly about imminent use. They say those of us who are against this research, or who want to ban it, are preventing a cure for Grandma or Grandpa or whoever, and the strong implication if not explicit statement is that this is around the corner, and we will be harming people today who could be helped tomorrow. And that, I think, is unfortunate. I think it is misleading.

    DR. ROWLEY: Well, I do not disagree with that, and I think that helping to educate people as to the actual facts will be useful as well.

    CHAIRMAN KASS: Thank you. Michael Gazzaniga, please.

    DR. GAZZANIGA: I think what Janet is reflecting on reminds me of what Charles Townes, the Nobel laureate in physics, said. He said, "The wonderful thing about a new idea is you do not know about it yet." And so, we, those who are laboratory scientists, are constantly surprised and overjoyed at what might be learned.

    I want to go back to my earlier comment this morning, because I think one of the duties is to set the stage as to whether the ethical, moral problem is as deep as we have been led to believe. And I want to again just reiterate for us to think about and discuss this model of the transplant. Because we have societally in place now this major, almost bizarre but routine, daily happening that during the course of one year in the United States, there are 8000 heart transplants carried out on people who are declared brain-dead. The heart is assigned to either a bank, or a family can assign it to a particular person. It is harvested by a surgeon in an otherwise live person. They take the heart out, and carry out the transplant. And this goes on routinely, and with great support by the American people.

    Now, in the blastocysts, we have to come back to the fact that we are talking about a 200 cell organism that is basically the next-of-kin are the two parents. And the next-of-kin could be asked, we are going to have to destroy this, or we can destroy it, or you could make it available for stem cell research. It is your call. There is no brain, so there is no issue there. Do you want to do it? And they say yes or no. And if they say yes, then I think one also confusion that may be on some people's mind here, we are not talking about cloning the embryo. We are talking about cloning the stem cells from the embryo. That is what is being cloned for potential medical use.

    CHAIRMAN KASS: After the embryo is created by nuclear transplant.

    DR. GAZZANIGA: That is different. But I would suggest that for the near future, that the hundreds of thousands of IVF frozen embryos are going to be the source of the biomedical community's interest. So, I think that is just not a relevant point.

    So, if you get people thinking in terms of the transplant model, if you educate people that this blastocyst really is brainless, would thinking change? You know, there is a saying in Washington, what did you know and when did you know it. We are sort of all locked in by our culture, and I am wondering if Aquinas knew— We could change the phrase and say, what did not he know when he said it. And if these people who did a lot of our moral thinking early in our human history knew what we now know today, I wonder what they would think. And I think that it is our duty to at least put those facts out on the table, and let this group and the larger American community try to sort it out.

    CHAIRMAN KASS: Does not it affect your analogy that in the case of soon-to-be-pronounced brain-dead prospective donor of an organ, that that being has no future, whereas this blastocyst is not yet brain-dead? Sorry, not yet brained, but on the way. Does that bother the analogy?

    DR. GAZZANIGA: It does not bother me. But—

    (Laughter.)

    CHAIRMAN KASS: Should it?

    DR. GAZZANIGA: You remind me of my mother. The notion of potential energy, of course, is there, the potential of what could happen. But I just think that is just something you are comfortable with or you are not comfortable with, and that just does not bother me.

    CHAIRMAN KASS: Stephen, Bill, and then we will break soon so we can have proper time for the public comment. Stephen?

    PROF. CARTER: Thank you. First of all, I suppose that since this is the mode today, I also need to say a word about some of the terminology in the debate, especially in the last few minutes. I am very troubled by the term "burden of proof" I should say. I think that it suggests a kind of legalism that is not appropriate in these discussions. We might, perhaps, say "burden of persuasion" which also is just a legalism, but less so.

    Here is why I think it is a better term. At this point in our deliberations, we are talking about policy. We are talking about how to respond to items that are on the legislative horizon, that are imminent in some sense. And legislation has a momentum of its own, often driven by where legislators believe the public is at a particular moment. So, the burden of persuasion is a practical burden, not an ethical burden, and as a practical matter, it rests on those who are trying to push things differently than the way they seem to be going. So, if we think that there is a roller coaster toward a ban, then the burden of persuasion politically rests on those opposing the ban. And that is one point I wanted to make about that.

    But let me say a word about this distinction. Let us call it a distinction between cloning that is and is not meant to lead to human live birth. How is that? Let's call it that. It strikes me that one's view of the distinction between what is meant to lead to live birth, and cloning that is not depends deeply on the reason that one is troubled by cloning that is meant to lead to live birth.

    We said a few minutes ago, well, reproductive cloning as it has been called, everybody seems to be against it. I am not sure that is true, but people seem to be against that. It strikes me that suppose one is against that because of a sense that we are somehow tampering with natural forces in a way that we should not. That concern would not necessarily carry over into cloning that was not intended to lead to live birth. In fact, one could easily draw a distinction, and say that the tampering with natural forces is more serious if you intend to produce a human being. So, there the distinction is clear.

    On the other hand, you can imagine someone whose view is that from a very early stage, and possibly from the moment when the sperm enters the egg, that you have if not a human life, certainly something other than a thing to be used as an object with certain societal responsibilities to protection attaching to it, and if that is the case, then it strikes me that the case for banning so-called therapeutic or research cloning is stronger than the case for banning reproductive cloning. Because at least in the reproductive cloning case, you tend to create a live birth. In the other case, you intend to create the embryo, harvest the cells, and destroy the embryo. So, it matters a great deal what one's ground is for this supposed consensus on the reproductive cloning ban to decide how one feels about the so-called therapeutic, the ban that I said is the research that is not intended to lead to a live birth.

    CHAIRMAN KASS: Bill, you want to wind this up for us?

    DR. HURLBUT: I have a little problem with what you said, and I feel the weight of it. But when Dr. Rowley was speaking about this potential research, I just felt more than affirmation, because I mean, she probably knows more than I do about science and trained as a physician. But my instinct, and my sense is that this is going to be more than just a possibility; that we have discovered a new continent of possible therapeutic use. We have stepped on to Plymouth Rock, and to say that there is nothing out there, no resources, is probably underestimating. My own feeling is that stem cell research might turn out to be the greatest therapeutic tool in the history of medicine. I think we have to be extremely, extremely careful not to preclude any positive possibilities here.

    But the problem is that it is unlike any time or any question in medical history. We are dealing with the most powerful, fundamental question of all. We are dealing with the sanctity of life. And I do not use that term lightly. I think that if you start by saying, okay, it has no moral status until it has brain waves, then you might ask what kind of brain waves. At two months, it apparently has some early neuronal firings. Okay, other people say it is only six months that it has actual human-like brain waves. Other people said a few years ago, in the history of medicine, that infants do not have consciousness. We do not need to give them anesthetic when we do operations. You remember that. So, then the question comes, well, when? And what kind of brain? And what kind of mind? Is the mentally retarded person a human being? Is it nothing? If it is nothing, and I must admit it is a rather odd society where we can on one side of the medical center do abortions up until 24 weeks, and actually beyond, and on the other side, cannot do medical research on a little clump of cells. I mean, that seems like a strange discontinuity. Of course, there are other issues involved, other interests and so forth.

    But we have got to get it together as a society. We have got to figure out what developing life actually is. What is the status of it? Is it nothing? In which case, why do we oppose the idea of going beyond the 14 day stage that they are talking so— You know, oh, it is an individual then, and so forth. Actually, ask the logical question. If we allow abortion in this society the way we do, which we do, and I am not arguing against that at this point, and maybe we should never have argued against it. I am not interested in laws; I am interested in ideals anyway. Sorry, I guess I do not belong on the committee.

    But here is the question. If we allow this, and we say that the status of the embryo is an open matter, then why should not we not only create embryos in order to take the cells, what some people call harvesting them for their spare parts, but why should not we actually implant those embryos into the womb until it has what you would define as the human mind? Why should not that—? I mean, suppose somebody said, as it was made years ago, a desire for somebody to have their father's sperm impregnate them so that they could grow a tissue-compatible kidney donor for their father who was dying of kidney failure? We all know that horrible story. Well, what is the reason why not, actually? Why could not we implant it? Why 14 days? Why 30 days? Why ever?

    The question is a profound question. I am not trying to preempt the discussion at all in saying this, just to put the weight on what is actually at stake here. What is potency? I would not use the word "potential", by the way. I would use the word "potency". When you have the joining of sperm and egg, you have the initiation of the most complex chemical reaction in the known universe. What weight do we place on that?

    Just one final point. I am worried about it, and I am not pretending I have the answers. But it seems to me that we should take weight of this argument, that if it is April 15th, and we are in Central Park, and the sign says "Do Not Pick the Flowers", and we go to the flower bed, and there is a bud coming up but it has not yet formed a tulip, we might ask ourselves, does the sign that says "Do Not Pick the Flowers" preempt us from picking the bud?

    CHAIRMAN KASS: I am not even going to follow.

    DR. HURLBUT: What?

    CHAIRMAN KASS: I will not presume to follow. Let's take 10 minutes, and we will have the public session. I will look back on this session at the beginning of the next.

    (Whereupon a brief recess was taken.)

    SESSION 7: PUBLIC COMMENTS

    CHAIRMAN KASS: Why do not we begin? We have in this last session of this first meeting the opportunity for public comment, and I think I will— We have asked people to sign up who would like to speak, and I do not want to keep them waiting longer than we already have.

    I think I will forego an attempt to summarize that discussion, except to point out that it is perfectly clear that there are— This is not an argument between morality and immorality, but an argument between powerfully competing goods, and the question is whether one can find— And to add further, it is unlikely, perhaps we can work for it, that we can find a position in which something is not sacrificed to something else. And there are probably people who are simply constitutionally unwilling to make any sacrifices on things that are of profound importance to them. We will find out as we go along.

    I am certainly not unhappy to see develop the most powerful statements on the legislative alternatives, just as I am on the ethical argumentation, and Council members are invited on the matter of the legal issues to be submitting things, and we will circulate. And it is my hope that we will be able to—that we will all read the scientific information prepared by the Academy, use that as a point of departure, not as the whole story by any means, but they have done an exhaustive study, and we would do very, very well to inform ourselves with the help of that report, and at least be as clear as we can be given the uncertainties of the future about what the promise of that research is. That will not settle absolutely the moral question, or the policy question, for at least some people in the room, but it behooves us to be well-informed, as well-informed on that as we can be, and I trust that that is acceptable.

    We have, if my list is correct, a list of either seven or eight people who have asked to speak. I think the custom at the National Bioethics Advisory Commission was that people would be given five minutes each, and I will try to hold you to that in the interest of making time for everyone who would like to. I believe the microphone for use is behind the end of the table, and if I could ask my colleagues at the end of the table as a courtesy to our speakers to turn around.

    Also, I would like to ask people who have cell phones in the room to please turn them off. There have been several people who found them disconcerting. This is not a Luddite argument, but a matter of courtesy.

    The first member of the public— And by the way, let me say in general that I think I am speaking for all of us, that I regard these public parts of the meeting not as an onerous burden that law requires, but as an opportunity for members of this Council to hear from our fellow citizens whose thoughts are at least as relevant as our own. So, we look forward to hearing from everyone. What you say will figure in our deliberations, and strong statements are, of course, welcome because people have strong views, but I am going to insist on civility.

    The first statement is from John Wertman, Consortium of Social Sciences Association, if my information is correct. Is Mr. Wertman here? Mr. Wertman? I will return and see if he might—

    Father Joseph Howard of the American Bioethics Advisory Board. Is Father Howard here? Thank you.

    PRESENTATION BY FATHER JOHN HOWARD

    FR. HOWARD: Dr. Kass and distinguished members and scholars of the Presidential Bioethics Council, I am Father Joseph Howard. I serve as Executive Director of the American Bioethics Advisory Commission, a division of American Life League in Stafford, Virginia. Our commission was formed at the same time the former Clinton Bioethics Commission was formed, and consists of 21 distinguished scholars, men and women, scattered throughout the nation, including two professor emeriti of human embryology.

    The view of our commission on what constitutes bioethics is that bioethics involves analysis of biomedical, technological issues such as abortion, physician-assisted suicide, cloning, gene therapy, adult and human embryonic stem cell research, and in our view it should provide both a valid, accurate scientific as well as moral analysis in accord with a respect for the absolute dignity of the human person from fertilization until natural death. These issues, as you are well aware, are very critical and cutting-edge. For example, just recently it was reported in an eminent scientific journal that a patient in a gene therapy trial had the virus used to transfer the gene show up in his semen, indeed profound implications involving germ cell lines.

    On the issues of human cloning, we have great concerns as I am sure each of you do, not only involving somatic cell nuclear transfer, but also parthenogenesis, the experiments recently reported by Advanced Cell Technology, blastomere splitting, and de-individuation. Our position, again, is a clear one of banning all types of human cloning, both reproductive and therapeutic.

    It is the goal of the American Bioethics Advisory Commission that over time we would hope to collaborate with your Bioethics Council, and I look forward to the members of our distinguished commission as well as myself getting to meet each of you, and hopefully, working with you in some capacity.

    Thank you.

    CHAIRMAN KASS: Thank you very much, Father Howard.

    Next on my list is Richard Doerflinger of the National Catholic Conference of Bishops.

    PRESENTATION BY MR. RICHARD DOERFLINGER

    MR. DOERFLINGER: Thank you, Mr. Chairman. Actually, our name was changed recently to U.S. Conference of Catholic Bishops. We decided to recognize there are actually other national bishops conferences in the world, and so adapted our name accordingly.

    I am grateful for the opportunity to address this Council. I want to start by saying I am a little bemused that some apologists for the biotechnology industry have announced before a word was uttered that this panel is stacked. This is the sixth such government advisory panel I have addressed in my 20 years of representing the Catholic Bishops Conference on these issues. It is actually the first such panel whose conclusions I could not predict by looking at the list of members.

    At the first meeting of the NIH Human Embryo Research Panel in 1994, the chairman announced at the first meeting that if any member opposed federal funding of human embryo research, he or she should leave the room and not come back. That was a government panel the Washington Post did not criticize for being stacked. We all have our own explanations as to why.

    At any rate, because I do see this panel as having an open mind on the issue, I want to suggest that one of its most important tasks may be just to provide us with the language, or the way of speaking, that will clarify rather than conceal the realities of the cloning issue. I think too many slogans have been used in the debate to obfuscate and to hide reality, and I think a primary example is the sentence "I am against reproductive cloning, but for therapeutic cloning." I think in most people's minds this conjures up a mental image of two completely different procedures, one producing live babies, or even adults, a la Michael Keaton in the movie Multiplicity, the other producing therapeutic research material. Some groups have now decided to avoid the word "cloning" altogether when referring to what it wants to protect calling it, for example, "nuclear transplantation". This is scientific nonsense, of course. Human cloning proceeds by nuclear transplantation regardless of what someone may intend for the clone in the future.

    The biological reality is that all cloning of multi-celled animals, including man, occurs at the embryonic stage. All human cloning is embryo cloning. Once the cloning procedure has been done, a new organism genetically similar to the donor of the body cell has arisen. We may have disagreements about the moral status of that organism, but we should not deny that human cloning, a key event in a form of asexual reproduction, has already taken place. Moreover, at this point, as some have already said, there is no therapeutic indication for human cloning, and as documented in the printed material we have provided to the Council, there may never be.

    If we could agree that—if we can agree, and that is not settled either, that human cloning should not be allowed, the question is not which cloning should we ban. It seems to me the question is best put as should we ban the use of the cloning procedure in humans, or should we ban what amounts to the normal and ordinary process of allowing a human embryo to survive in a womb when that embryo came from cloning. A ban solely on reproductive cloning is not in our view a ban on cloning, but a ban on gestation and birth. Instead of banning the creation of the cloned organism, it bans its later survival. On further reflection, this is an odd proposal. It is as if a slave owner in the antebellum South had forced abortions on all his female slaves, and announced that in one generation he had banned slavery.

    Many experts, some of whom are on this Council, have persuasively, I think, argued that such a ban would be ineffective, even at preventing cloning for live birth. While it will take months of experimentation to produce cloned embryos that could be expected to survive in a womb, once that is achieved it would literally take seconds to transfer those embryos to wombs. The woman could do it herself. And once that is done, the only way to enforce a ban on live born clones is, presumably, to imprison the woman and coerce an abortion.

    But the moral problem about such a ban, I think, is equally important to recognize, for such a proposal would effectively have the government mandating the destruction of a class of humans at the embryonic stage. We would define a class of developing human organisms it is a crime not to kill.

    This week, a Washington Post article, the same article that spoke of this panel in the same breath as the Taliban, said that in the view of some experts, if Congress decides to ban all human cloning out of respect for the embryo, it will be imposing a particular fundamentalist view on public policy. That is ridiculous in my view, for members of Congress with widely differing views on the embryo have already voted for a complete ban on human cloning.

    One can cast such a vote both because it is a more effective ban, and because one recognizes that the embryo deserves some recognition and some respect, that Americans should not be required to treat the embryo as toxic waste to be discarded upon government mandate in our zeal to ban human cloning. It is the agenda of "ban reproductive cloning only" that in the end, I believe, requires us to hold just one narrow view of the embryo, the view that the embryo is garbage. Or that he or she is to be hunted down and destroyed as Public Enemy Number One. No clones left alive, therefore no cloning. I doubt that anyone could create a fire wall to prevent that attitude of contempt from affecting our dealings with older humans who may arise from such procedures in the future.

    In conclusion, I believe we should work to stop great evils, but also ensure we do not create even greater evils in the process. It is important to ban human cloning, and equally important to do so in a morally and legally responsible way. In short, we should not resolve this issue by blaming and penalizing the helpless victim of the process, at whatever stage of development. We should ban cloning by forbidding people to make a clone, not by forbidding them to be a clone.

    Thank you.

    CHAIRMAN KASS: Thank you very much. The next person on my list is Elisabeth Breese Brittin from the Parkinson's Action Network and CAMR. Thank you very much.

    PRESENTATION BY MS. ELISABETH BREESE BRITTIN

    MS. BRITTIN: Thank you. Thank you, Dr. Kass, and thank you to all the members of the commission.

    My name is Elisabeth Breese Brittin. I am here both as the Executive Director of the Parkinson's Action Network, and as a board member of the Coalition for the Advancement of Medical Research. The Coalition represents 60 different national organizations including patient advocacy groups, a number of universities, and scientists and scientific organizations.

    First, I just want to say on behalf of both of those groups, we want to thank this distinguished panel for your time in coming to consider these very difficult and very important issues. We are concerned, however, that there are no patient representatives on the commission, and just want to urge you to keep the patients in mind as you go about the work that you are doing.

    One of the things that we think is important for you all to consider is the fact that time is not neutral for people who suffer from these diseases, for people who have Parkinson's, or ALS, or Alzheimer's. Every day they get worse, and they are degenerating. And although these are issues that have to be considered very carefully, and there are a lot of concerns, a lot of things that need to be debated and discussed, and we certainly do not want to short-circuit that, we want you to keep that in mind, that these are folks that are struggling and suffering with these diseases every day. In fact, the two organizations that I am here on behalf of represent literally millions of Americans who suffer from a wide variety of diseases.

    One of the things that has been expressed during the meeting in the last couple of days and I have heard often is the fact that there has been so much hype about the promise of stem cell research, or therapeutic cloning, that folks think that these cures are around the corner, and that we have built expectations that cannot be fulfilled. And I just want to say as somebody who speaks to people with Parkinson's every day, that I actually do not think that is true. I think that people recognize that there is a long way down the road from doing studies on mice to doing actual—going to their neurologist and having this be a treatment that is available to them.

    But I can tell you that my father was diagnosed with Parkinson's disease before I was born, and died my first year in college. And I have an uncle who died from Parkinson's disease just three months ago. So, this is not something that is going to save my loved ones, but if another generation does not have to go through what my family went through, I think that is a huge blessing, and I think that what we really want is the scientists to be able to go forward with this research, to be able to see where it leads, to see if, in fact, it does offer the hope that we have talked about. And what we want to do is have that go forward, and not slow it down unnecessarily, and let them do their work. And I can tell you from talking to the patients and the scientists, they are perplexed. They do not understand why they cannot see where it leads, and see if in fact this is the promise that would change so many lives and offer so much hope to people all around the world.

    So, thank you very much.

    CHAIRMAN KASS: Thank you very much.

    This next might be a mistake on the sign up sheet, but my list with a question mark has a Travis Earle. Is Mr. Earle here?

    MR.EARLE: I did not sign up.

    CHAIRMAN KASS: You signed in, but I think on the— Okay. Clear. Next is a Kevin Allman from the AAAS. Is Mr. Allman here? That might also have been a sign up attendance rather than a desire to speak. Sean Tipton, the American Society of Reproductive Medicine.

    PRESENTATION BY MR. SEAN TIPTON

    MR. TIPTON: Thank you. I, too, want to thank all of you individually for your service on this commission, and for the opportunity to address you today. I am Sean Tipton. I am the Director of Public Affairs with the American Society for Reproductive Medicine.

    The American Society for Reproductive Medicine is pleased that President Bush has recognized the need to examine the ethical implications of the rapid advances in the biological and medical sciences. It can be difficult to determine where all the new biotechnologies are leading us, but it is important to try.

    The field of reproductive medicine in particular has been advancing at a very impressive pace despite the lack of federal funding for much of the research. For some, these advances raise questions about the nature of personhood, parenthood, and even life itself. Every day ASRM members grapple with these bioethical questions in the real world as they counsel their patients on the best medical treatments for them. Our doctors are called upon to discuss with their patients the ways their choice of treatment will work within the patient's own system of ethics and beliefs. It is crucial that the voice of the patient be heard as this commission goes about its work. Working in a pluralistic society, it is important that all points of view be heard from.

    Since its founding in 1944, the ASRM has been dedicated to promoting applied and basic research, and the highest standards of patient care. To help guide us in this effort, ASRM early on established an ethics committee. Its present members include medical doctors and researchers as well as professors of law, ethics, political science, and clinical social work, and one member of your Council.

    Our ethics committee has done reports on a variety of topics including cloning, the use of embryos for research, and the use of donated gametes. We will be happy to make these reports available to you as well as the committee that authored them.

    ASRM is opposed to any attempts at human cloning. However, the knowledge we may gain from further research into early human development by studying the human embryo, eggs, embryonic stem cells, and therapeutic cloning is too important to ignore. Studies in these areas may be essential to the development of new techniques in regenerative medicine, a field that holds the promise of using a patient's own genetic material to cure their disease. Such research must continue, preferably with the support and oversight of the federal government.

    ASRM's leadership and its ethics committee are committed to working with the President's Council on Bioethics, and are looking forward to providing whatever assistance we can on scientific, medical, and ethical issues.

    CHAIRMAN KASS: Thank you. And Mr. Tipton, we would be very happy to have copies of those reports. We will see that the members get them. Thank you.

    Next, Bill Saunders from the FRC, the Family Research Council.

    PRESENTATION BY MR. BILL SAUNDERS

    MR. SAUNDERS: Thank you. The Family Research Council welcomes the appointment of this President's Council on Bioethics and such a distinguished group. We feel that it is a critical moment in the history of this country, and that members of this Council have a great opportunity to help the American people to think about very important issues. Some of these technological and scientific changes come so quickly that we move forward before we have had time to reflect. So, I welcome your deliberations as I have heard today and yesterday, thoughtful, serious wrestling with the issues.

    I encourage you to take your meetings, if you can, outside the Beltway to cities around the country, because I believe it is at this moment that we need to reach the American people so that they stop and think about things. They need to carefully consider them. You have the opportunity to do that, and I think if you went to other cities, Indianapolis, Tacoma, Washington, wherever, you could reach people, you could engage people in thinking about issues that will determine their future.

    So, we welcome the appointment of the Council, and we wish you well. Thank you.

    CHAIRMAN KASS: Thank you very much.

    I will go back. John Wertman? Is Mr. Wertman in the room? Is there anyone else who would like to make a public comment and whose name we do not have? All right.

    CLOSING REMARKS BY DR. LEON KASS

    CHAIRMAN KASS: Let us spend just a couple of minutes, we actually are a few minutes earlier than adjournment, but we, I think, should at least speak a bit about our future plans, and truth to tell, it was a difficult enough task in short order to get this meeting organized that certain questions about the future have been left in abeyance until now.

    Members of Council should have received, I hope all of you did receive, a series of provisional dates asking you to hold those for possible subsequent meetings. The advertisement for the frequency of meetings of this Council was we would meet 6 or 7 times a year, roughly, and that would mean spacing things out; following that, if you simply did it slavishly, we meet next in March. But I would like to propose that we, in fact, have a meeting in February. And the reason for doing that, I think, is that we have really opened things up here. The conversation—

    I will simply speak for myself. I have really been delighted with the seriousness and the thoughtfulness of the exchange. There are differences of opinion in here, probably deep differences of opinion, but I have the sense that there is the making of good will for collegial exploration, and that it would be a shame not to take advantage of this momentum, and to move the conversation forward.

    I do not think that there has to be a lot of new paper prepared by the staff. And I have said it before, but it should be said again, the staff did super-human work to produce these papers in two weeks. Multiple drafting, and sessions with the minimum kind of equipment making it possible. And we can revise certain sorts of things, but I will not promise any additional staff papers. We will have the Academy report distributed. I hope we can get someone from the Academy to come.

    In the light of materials we receive from you, we can structure the agenda so that we can actually bite the bullet on some of these questions. I do not mean closure, but focus in on some of the things that we have opened up, skirted around, come back to.

    The original dates scheduled in February— Let me say, generally I think we should meet Thursdays and Fridays, and people who are planning their academic calendar for next year would like to know that. So that would be helpful down the road. And except for the February meeting, all the other spring dates we proposed were Thursday and Friday, in fact.

    It turns out that we made a change for the February— The original dates for the February meeting were 12th and 13th, but it turns out that I notice that three or four members of Council are appearing in Washington for another event on the 12th, and I think Dr. Rowley is— Janet, you are going to be around also. Rather than make people go away, or hang around an extra day, I would like to propose that we meet Wednesday and Thursday of that week, the 13th and 14th of February. There are a number of you who are already here, and it will, I think, save travel time.

    I apologize to those of you who are going to be inconvenienced, or who cannot make it. I wish we could have had clear notice. The original thought was we could not possibly produce new materials for you in two weeks to send out for a February meeting. But I think we can revisit these materials with profit. We can highlight for you, or you can help us highlight for one another, for ourselves, which parts of these documents, and what supplementary materials we need to read and look at.

    So, if that is all right— I guess the other way to do this would be to go around the room and find out when there is a good date, but let me do this by authority from the Chair, and apologize to those for whom that is going to be a big burden. Please.

    PROF. CARTER: So, we should assume the same basic format, starting the morning of the 13th and running a day and a half?

    CHAIRMAN KASS: Let me see. The people who are in here on the 12th for meetings, you, Jim Wilson, Robby George. Janet, you are in on Tuesday? All day.

    DR. ROWLEY: I would be finished two or three in the afternoon.

    CHAIRMAN KASS: On Tuesday. Well, other people are busy until about three. Am I right? I think it is foolish to try to start something Tuesday afternoon. We will begin early on Wednesday, and work through until midday on Thursday. Is that all right?

    Other comments, perorations, warnings? Suggestions, by the way, not just about the substance but about the procedure are welcome. They will not necessarily all be followed because they might conflict with one another, but I would like to hear from you about the way these meetings could be run to greater advantage as we go along.

    I apologize for the crush yesterday. We worked ourselves pretty hard with few breaks, and maybe the conversation in the afternoon flagged some, but I thought that with a night's sleep, today was very fine, and I look forward to the next.

    Robby, did you have something?

    PROF. GEORGE: Yes. I was just thinking, it would not be a matter of the staff preparing more original paper, but if people were interested in pursuing, as I would like to do at some point to offer rebuttal of Michael's argument about the brain and brain life, the staff could simply reproduce materials that are written out there, and circulate them.

    CHAIRMAN KASS: Oh, absolutely. Anything that is going to be produced. I mean, I want to hear from as many of you as possible, as have things that you would like to contribute of substance. And you could indicate whether you want— I trust you will want this shared. Maybe something is simply for private communication, though it is a matter of public record if you submit it under the Freedom of Information Act. I trust that most of the things you would want to send to the Chair, you would want to send to all our colleagues. And you can either send it directly, or we can send it out centrally. But written materials, a page, two pages, five pages, whatever you produce, we will circulate. And depending upon the volume, we will produce some kind of an agenda, organize those topics for discussion, so that we can proceed fruitfully.

    I do think that we have to proceed on several tracks at the same time, and one is to continue the arguments, and try to develop a mode of presentation of the discussion on reproductive cloning. Some people think it is a dead question; others are not so sure. How we choose to talk about it is itself, I think, an important issue not yet resolved.

    And we want, I think, to consider the legislative alternatives which includes the no-legislation alternative. And loathe though some of you are to be thinking in those terms, I exhort you to try, because it is part of our business to take that up. And we will have a fuller discussion of the issue of cloning that does not lead to reproduction as a central part of this meeting.

    Stephen, and then I have one more comment, and then we will break.

    PROF. CARTER: Should we then make any assumptions one way or the other about the other proposed spring meeting dates that were circulated?

    CHAIRMAN KASS: Oh, yes. Let's think in these terms. I thought we probably— I mean, it may turn out to be wrong, but I thought before this meeting we might skip February and meet January, March, April and May, hoping to have something reasonably good written toward the end of the spring. But I think maybe we should think in terms of January, February, March, and May, and leave the time between March and May for a fair amount of drafting and writing to be circulated, subject to change. Do not give away those dates, please. But let's make that the working operation.

    I know it is a lot to ask of people, and many of you are vastly overextended, and the gift of your time is precious to us, and I do not want to abuse it. I am even loathe to call a meeting sooner than two months, but I think the subject matter, and the group process, demand it. So, with your indulgence, let's do that.

    One final word. I think the difficulty here, just to reiterate, we do have very powerful moral goods, and not just interests, that are at stake in this discussion. The progress of science is not a morally neutral good, and certainly, the relief of human suffering and the cure of disease is a moral calling, and a high moral good, and I do not think there is anybody in the room, even if they wanted to ban cloning at the base, would dispute that.

    There are other powerful moral goods that enter into our deliberations, and the trick is going to be to find both the rich enough language to describe those, so that even if we trample some of them, we are aware of what they are, to describe these things in full. And that was part of the meaning of the point of departure yesterday, philosophical, and somewhat amorphous, and difficult to talk about as it was.

    It seems to me that when and if we make recommendations, and perhaps even conflicting recommendations on the policy side, it would be very helpful to the policy makers to understand as fully as we can help them to understand, the full meaning, and the full costs of doing whichever thing that they do. And that is a task for us. Not simply to speak in terms of the names of the goods which we privately defend, whether it be the life of the embryo, or the good of medical research, but to take upon ourselves individually the burden of speaking to the concerns of the others in this room, and to see whether one can somehow acknowledge and accommodate it, and learn how to grapple with it for ourselves so that we finally own all of the positions around the table, including the ones for which we would personally come down.

    I do not think anybody has argued in this room for anything that did not have weight. And that means that however one comes down on this question, it is important for each of us to be able to acknowledge in our own thinking, and in the arguments that we put forth, the weight of the other considerations. I think that is both judicious, and I think a real public service in a climate, and in a town, if I may say so, where it is just winners and losers, and you do not really have to respect the deeply held considerations of the other side.

    If we can present a kind of model moral political deliberation that does that, I think we would have made a real contribution, at least to those who would care to pay attention, and I hope there will be quite a number.

    Thank you very much for two wonderful days, and bless you for doing it. The meeting is adjourned.

    (Whereupon, at 12:53 p.m., the meeting was adjourned.)




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