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Friday, January 18, 2002

Session 6: Human Cloning 3: Policy Issues and Research Cloning

Discussion of Cloning
Working Paper #4
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.)

  - The President's Council on Bioethics -  
 
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