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Thursday, June 20, 2002

Session 3: Human Cloning 12:Public Policy Options

CHAIRMAN KASS: I think we're all here. We're expecting Charles Krauthammer who is traveling and I hope he hasn't been unduly delayed, but he said he'd try to be here for this afternoon's session.

We're in the middle and I don't think I'll even hazard a summary and just allow us to continue where we were. And people who I had on the list previously included Robby George, Bill Hurlbut, Mike and Paul — Bill Hurlbut, Mike Gazzaniga and Paul. Have I omitted somebody who — okay.

Robby, would you like to start?

DR. GEORGE: I want to respect Frank's desire not to get into the big debate, at least not here, but I did want to at least offer a clarification from my point of view about what the debate is about because I think that the examples that Frank raised when he was talking about the political and civil rights of children and the question of the status of human corpses, I do want to clarify what I think the debate is about that we've been carrying on, at least to some extent in submissions that many of us have made to the Council.

I think it's about the question of what confers upon the human being at whatever stage of development, a status that is sometimes referred to as inviolability and whether one and the same substantial entity can be morally inviolable at some stages of development, but not morally inviolable at other stages of development.

So as I see it, we've got a dialectic going on, at least between those of us who think that the embryo deserves full moral respect than those of us who think that the embryo deserves intermediate status or I think what we've been referring to as special moral respect.

And the argument has been going back and forth and I do hope that it will continue to go back and forth because I think it's kind of hanging in mid air. Those who have argued for the special respect view have presented some arguments including the question of an argument based on the possibility of monozygotic twinning prior to 13 or 14 days of embryonic development. The question of the high rate of natural pregnancy loss, our emotional responses to miscarriages as distinguished from the loss of children at later stages of development and so forth and I think that those of us on the other side have proposed responses and counter arguments to those various points and I hope that this debate will continue because I think that it's an important one.

Of course, there's also the point that Michael Gazzaniga has pressed about the importance of brain development and there's been a response from me and from others to that as well and I think Michael has now responded to our response, so perhaps on that one the ball is in my court and others who have my point of view. I actually have something drafted to submit on that. Perhaps others do as well. But I do think that this debate should continue and that we shouldn't simply say well, look, we're not ever going to convince each other on something like this. Perhaps we won't convince each other, but I think we can better inform each other and who knows, but that minds yet could be changed one way or the other.

That was my first point. The second point I would like to frame as a question to the scientists on the Council, I have heard that there's at least speculation that it might be possible to avoid the basic question that vexes us, at least some of us on research cloning of the moral status of the embryo. By the deliberate create of entities possessing a human genome, but lacking other features such that people who believe that the — as I do — that the human embryo, strictly speaking, is morally inviolable, would not consider the entity to be — that has been produced to be a human being or an embryo strictly speaking, but that nevertheless, the entity could develop in such a way as to make the extraction of stem cells possible. And I wonder if scientists on the Council just happen to know the factual answer to the question whether that is within the realm of possibility.

The third point is completely unrelated to the other two. And that is the question with respect to what we've been calling reproductive cloning and anticipating as a moratorium or ban on reproductive cloning. What is it that we would be proposing to ban when we propose to ban reproductive cloning? Would the crime or offense be the creation by somatic cell nuclear transfer of an embryo with the purpose of implanting the embryo? Or would the crime or offense be the implantation of an embryo that was created by or brought into being by somatic cell nuclear transfer? It seems to me that quite a lot from an ethical viewpoint might depend on which of those is what, in fact, is being proposed. So it's something that I hope will at least clarify and if we have different views on what it is that ought to be banned, perhaps those could be gotten out onto the table.

PROF. SANDEL: I'd just ask, Robby, a quick question. Which of those do you think would be ethically less objectionable?

DR. GEORGE: The ban or moratorium on creating, on synthesizing or creating, bringing into being an embryo by somatic cell nuclear transfer with the purpose of implanting.

CHAIRMAN KASS: I have to tell you, just as a legislative matter, I shouldn't be telling you, you should be telling me, that if one wants to prescribe a certain activity one wants to prescribe it precisely so people will know what it is that is wrong and approving intent is difficult and to make the crime to create the embryo with the purpose of implanting it would lead to the following situation. Person 1 produces the embryo with the purpose of using it for research, gives it to Person B who then implants it and neither of them does anything wrong. Anybody who wanted to prevent this activity would never write the statute the way you would find it morally — easy to support. That's the difficulty.

DR. GEORGE: Well, I do think it would be difficult to draft a statute and any statute that you drafted would have loopholes and there would be cases where people would actually get around the law. I do think you could probably draft it in such a way as to impede the development of a commercial human reproductive cloning industry.

CHAIRMAN KASS: Point taken.

DR. GEORGE: I wonder if anybody knows the answer to the question?

CHAIRMAN KASS: Did someone respond to the first question about, if I understand the question, is it possible to produce — precisely because they're not embryos, they might be — they would not be inviolate and therefore, but they might be perfectly good for all the research that one would like to do.

DR. GEORGE: The closest thing I can think of to it in nature would be a hydatidiform mole, but a hydatidiform mole that or like entity that would be sufficiently differentiated to make possible the extraction of stem cells.

Does anybody know anything about that?

DR. BLACKBURN: I think there might be an issue in which the DNA would be the same, but what's called the imprinting of the DNA which can lead to these abnormal outcomes like the hydatidiform mole, that would be different, so that would have some commonalities with the normal embryo that had been normally imprinted, but it wouldn't be the same.

I honestly don't know what you're referring to, but perhaps that's what you're meaning.

DR. GEORGE: That is it. If I understood you correctly, I think that is what I'm asking.

DR. BLACKBURN: So the imprinting that is happening is probably, as we've seen in various written documents, much of the source of the problem with getting cloning, for reproductive purposes to work in animals, that it doesn't happen very well, even with somatic cell nuclear transfer of a diploid cell into say a human egg, well, this hasn't been done, but into a mouse egg.

So I'm not sure whether you had that in mind or Bill had proposed something. I didn't know whether that was what you had in mind as well.

DR. GEORGE: Well, maybe Bill could say.

DR. HURLBUT: Well, on the end of my comments for my moral position, I added what I call a speculative proposal. I apologize for the length of it and maybe some of you didn't get that far. But it was what it took for me to think about the issues.

And I formulated that with some conversations with scientists, Paul Berg sparked some of my ideas and Irv Weissman, and others, and talking with developmental biologists, and then thinking about the theological issues, theological objections and some of the traditional medical and legal objections, it struck me that if the objection hinges on the potential of the embryo, that actually what we're going on about here in our disputes about the status of the embryo is pretty much the meaning of potential, whether potential is in a sense actual or sort of theoretical.

Well, if you could render the potential not there in a certain sense, then you couldn't say that there was in any sense personhood present or human inviolability, even if you don't say personhood. So it struck me that if you could do some simple gene transformation, alteration of the cytoplasm or maybe even alteration of the culture medium, that maybe there would be a way to say we've created what Paul's been on to, an artifact.

And I have to say I sympathize with it to a degree to what Paul says because it feels like a lab procedure to me. But what troubles me with Paul's point of view is that you could implant that entity and it would become, I'm convinced, a person. Paul, whether you think fully human or not, I don't know, but I'm inclined to give it that.

So what if we could render it sort of disarm — I hate to even use the word embryo, but disarm it and take it to the most extreme. If you could do a nuclear transfer that was missing a chromosome or something like that that wasn't necessary for the production of anything — or put it another way, it was essential for the production of an embryo, but wasn't essential for the production of say a kidney, well then you could do this lab procedure without having the moral problem present. You think, Robby?

DR. GEORGE: This is precisely what I'm asking. And what I'm interested in right now is not the ethical issue, but simply the factual — the question of whether such an entity could be brought into being. And by that, I mean is there some lab that could do it tomorrow? Is this the kind of thing that if people put their minds to it, could be accomplished in the foreseeable future.

DR. HURLBUT: Well, I've had numerous conversations with scientists about this and it sounds to me like this could be done. Not only that, but scientists told me yesterday that you could first render the gene inoperable and then reverse it when you had the stem cell isolated. I know it sounds like a technicality, but so what? There are important principles here.

And I see this as a way to go forward with the science even better than what's proposed in a sense because we know from — I don't think so much hydatidiform moles. We know from teratomas that you can get whole portions of a body like teeth, fingernails, hair wrapped into an ovarian tumor. So we know that you don't have to have the whole embryo present to generate partial parts.

So what I'm interested in is parts apart from wholes and partial generative potential. And Janet and I were talking about this over lunch and based on a preliminary conversation seemed like Janet — I think there were some possibilities. What do you think, Janet?

DR. ROWLEY: I haven't had any time really to think about how one would do this practically. It's certainly in the laboratory, there are ways of putting genes under the control of say tetracycline and in the presence of tetracycline, the gene is operative and when you withdraw it, the gene becomes inoperative or vice versa. There are a number of different strategies called that lead to conditional expression, but how you could get such a system to work reliable such that you could put such a genetically altered nucleus into a somatic cell nuclear transplant into an oocyte and expect the oocyte to grow under those circumstances to give you a multicellular embryo, I'm totally ignorant of whether such a strategy could work or alternatively when you do just removing genes through homologous recombination and just alter a single gene which can be done in the laboratory and obviously mice are developed and live with such altered genes. But how applicable that is to the human situation, I'm totally ignorant of.

DR. HURLBUT: Well, let me give you a suggestion. Suppose you rendered a gene essential for angiogenesis. This is the production of blood vessels. Suppose you rendered that gene inoperable. Clearly, you'd never get an embryo, but you don't need that gene because for stem cell, simple stem cell transplants, they don't need to generate their own blood supply, so you could theoretically deactivate a gene essential for embryological formation that was not essential for the uses you wanted to make of the cells or tissues, and claim a good moral position and also good science at the same time.

What do you think, Elizabeth? Is this maybe a break to the impasse?

DR. GAZZANIGA:: I think this is nutty.

(Laughter.)

DR. GAZZANIGA:: That's a technical word.

CHAIRMAN KASS: Next argument.

DR. GAZZANIGA:: The notion of doing a gene knockout that will selectively hit — let's go for your pet topic, the soul, so therefore this thing that — this blastocyst doesn't have it and the notion of doing away with the embryo by not giving it the genes for the blood supply — well, it's just another form of doing the deed. So I just think this whole — this does sound Frankensteinian to me and it gets into all kinds of convoluted reasoning that doesn't make much sense.

DR. HURLBUT: It's not at all —

DR. GAZZANIGA:: On the positive note though, on the positive note and going back to Mary and the dilemma this morning or suggestion, I guess it was. A lawyer never has a dilemma, they just have suggestions. I looked up what moratorium means because I thought we were sliding around with the definition and the definition is a legally authorized period of delay on the performance of a legal obligation. So I assume that's correct. That would mean that if one signed on to a moratorium, it would men that they would be open, I assume, once certain issues were cleared up to go ahead with the intent of the act for which there is a moratorium, for which a moratorium has been placed on it. Is that going too far?

PROF. GLENDON: That's one definition.

DR. GAZZANIGA:: Definition 2 is a suspension of activity. Is that what you mean by it? So it's another — you mean there's truly an equivalence between ban and moratorium.

PROF. GLENDON: A temporary ban.

DR. GAZZANIGA:: But temporary then means you're ready to go to action once all the issues have been cleared up.

CHAIRMAN KASS: Let me clarify. Since the term comes from headquarters. It wasn't taken from the dictionary. It was meant to indicate a ban for a limited period of time which unless the ban were reinstituted would automatically lapse, whereas a ban which doesn't have a fixed limit on it requires someone to make an argument to lift the ban. That's the difference.

DR. KRAUTHAMMER: And the word already has a historical use. It isn't as if it came out of a dictionary yesterday. We have had a moratorium on nuclear testing. Everybody understands what that means, the temporary ban which if and when it expires, is reversed.

CHAIRMAN KASS: Let me say this is not the place, I think, to argue out the possibility or impossibility of these modified beings that may or may not be whatever they are and that it would make them suitable or not suitable for experimentation. The possibility has been noted. It is at this point speculative.

DR. GEORGE: I think, Leon, that it is relevant. I'll tell you why I think it's relevant.

CHAIRMAN KASS: How would it be relevant to deciding in the next week, month, three months, six months, one way or the other on what is before us?

DR. GEORGE: I think it could affect someone's judgment as to whether they think a moratorium is appropriate.

CHAIRMAN KASS: I see. In other words, if he told you scientists are working on this and they will find you something —

DR. GEORGE: That within two years you could, it's realistic, that there could be an unobjectionable entity from which we could extract stem cells and even the people like myself who believe in the inviolability of the human being at the embryonic stage as well as all other stages wouldn't have a problem with this. That might lead some people who might otherwise be for going forward right now with it to the thought that well, gee, our fellow citizens do have some grounds for their moral objection. I don't happen to share it, but if there's a way to avoid putting them in the position of — that they would be in.

CHAIRMAN KASS: I understand. Thank you.

DR. FOSTER: The one thing that I would say and I agree, we need to move on is that within the realm absent some miracle from the deity to speculate that within two years that you would get something like this working, all these chromosomes act in all different ways. I mean one of the problems of the genome is that you can't take some isolated thing out and expect to get the VEGF which is the key angiogenic early has many other effects in the embryo than it does in forming blood vessels. Everybody knows that. And as a consequence, to say well, I'm going to knock out — that's vascular endothelial growth factor, you know. VEGF is just one of the angiogenic. It does many other things. It controls other genes and so forth so the idea to me, I'm not a developmental biologist, but I certainly would be skeptical that many scientists think this is — I mean I'll check this out myself, I don't know, because we have very good, but I think to put an early time limit on that would be very unrealistic. It would — and then even if it's a good idea, I'm not sure that it's going to apply in the short run, Robby. I just don't know, but I'd be very interested to know what Paul — I'd be interested to know what Paul Berg said about this or others. I just don't think that's possible.

DR. HURLBUT: Let me clarify it. I didn't mean to say that Paul Berg is endorsing this, but I've talked with him about it. I've talked with Irv Weissman. I've talked with other developmental biologists. I agree with what you say, largely the genes operate in important ways that are much more complicated than one gene, one trait. I'm not arguing that. But we do know from teratomas that it's possible to produce parts apart from the integrated whole.

I think what I'm trying to do here in suggesting this is I don't think inappropriate or nutty. Frankly —

DR. FOSTER: By the way, I did not say nutty. That was Mike. So turn —

(Laughter.)

DR. HURLBUT: Well, let me just say this. Frankly, I wouldn't be very satisfied, personally, if after the effort we've all put into this and the importance of the issue are taken account of, that this Council comes out with just a more articulate restatement of what the public already knows are the central issues. I personally think if we could define the boundaries of the moral problem more clearly and at least make some, clear some territory for if you could do this, you would have the consensus, I think that would be a real contribution and I don't think what I'm suggesting is unrealistic and neither did certain developmental biologists I talked with. And I think it's important that we work for moral consensus in our society as we go forward. This is a much more hotly debated and deeply felt issue than is sometimes acknowledged within the scientific community. And I think it's our moral responsibility to see and listen rather than just spend 30 seconds on a subject. If somebody comes up with a proposal, I think we need to explore whether it's a reasonable way to proceed and not just label it nutty.

DR. BLACKBURN: Could I add something? I see a parallel which may be a constructive one. In the debate on recombinant DNA, I think — Bill, correct me if this is correct analogy, but the proposal that was made and was enacted earlier was to have strains of bacteria which were unable to survive outside the laboratory. So I think that is an analogous situation to what Bill is saying.

Now the difficulty that we've been alluding to, Robby, is this internet work sort of behavior of genes. I'm just thinking of a gene that one of my colleagues found to do with the immune system. It was key. He thought it was absolutely only involved in the immune system, but it turned out to be involved in the development of the nose and all sorts of other things as well.

So I see the idea, I think, and am I understanding that you're saying that you think that something that would allow a certain portion of the development of the embryo, that you'd know it could never become a full person, would be an acceptable proposal? Am I correct?

DR. GEORGE: I would put it in different language, I think, Elizabeth. But I think you understand where I'm going. In other words —

DR. BLACKBURN: If it could never live to be a baby.

DR. GEORGE: No, not that it could live to be — in other words, it would not be — it would lack the epigenetic primordia for self-directed growth to the next more mature stage on the continuum of life. That would — in the way, for example, that a teratoma would, despite possessing a human genome. Right?

DR. BLACKBURN: I think the concern would be to sort of make that a condition because as Dan says that mightn't be easy to put into practice.

DR. GEORGE: This is really my question.

DR. BLACKBURN: At least if it were one of the proposals out there to — I think it's something to consider, but I think at this stage it wouldn't be realistic to say oh, we could do this now, so therefore let's make this the way to do it.

DR. GEORGE: Oh no, I understand that. I'm not asking whether it can be done now. Although I think — if we knew the answer to the question, is it reasonable to suspect or to hope that this could be done in the next few years. I think that if the answer to that question were yes, it could factor significantly into the thinking of some people about what policy they think we ought to adopt now even if they don't share my view about the inviolability of the embryo.

DR. BLACKBURN: I think people could try, attempt to do it, but I think there would be absolutely no guarantee that it would —

DR. GEORGE: No guarantee. I understand that.

DR. BLACKBURN: Right.

DR. GEORGE: How would be obtain better information about that, about that possibility? I mean is it out there and we just don't happen — the people here just don't happen to do that kind of work or is this just something nobody has ever thought of?

DR. BLACKBURN: I think it would a type of the work that I had alluded to in the morning session where one would be doing somatic cell nuclear transfer type of development of stem cells. And then using the kind of approaches you are talking about and saying ah, can we now modify that process. I think it would be very hard not to do the kind of research that would involve somatic cell nuclear transfer and getting to say stem cells out of it, to get the answers out. But once one had the answer out, then one could say, okay, well, there is a way that now would be doable perhaps. But I don't know — I can't think of how you could find that out, actually without being in control of the beginning material for the experiment. Could you do it with excess IVF embryos, for example? I can see that might be tougher.

I haven't thought about it enough either to be honest.

PROF. SANDEL: Could I just ask Robby a quick question. On the first part of his comments, not on this issue.

DR. GEORGE: I want to say — go ahead that's fine. Go ahead, Michael.

PROF. SANDEL: Going back to the moral status —

DR. GEORGE: The moral status, yes.

PROF. SANDEL: Would you say given your view of the moral status of the embryo that cloning for stem cell research is morally worse than reproductive cloning, where after all, no person is killed?

DR. GEORGE: Oh yeah, I thought I had made that clear. If I hadn't — yeah, I'm sorry.

Just a final note on that since Michael raised this question of the soul, I hope jocularly. It has circulated, I mean sometimes it seems to be an assumption that those of us who are — who believe in the moral inviolability of the embryo believe that on the basis of putatively revealed propositions, religious propositions or theological propositions about the presence of a soul, I don't think that that's the case, as a matter of fact. And as far as I can tell, I think Daniel alone has raised the question of the soul or presence of the soul as relevant to a determination of the moral status of the embryo. I certainly have not in any of my — we've now had four meetings. Any of my interventions, I don't think any of the submissions that have been made have raised that issue, so I don't think that we've got here a debate about revealed truth.

CHAIRMAN KASS: Could I intervene here? We've got about another hour to go on this topic. There are people in the queue. I don't want to demonstrate disrespect to the suggestion that's been offered. I understand both why it matters to Bill, Bill Hurlbut, that if there is, in fact, a way to use our science to get around what is for many people a profound moral objection to doing this, that would be very nice to think about and to do, right? That's a creative thought which hasn't generally appeared. I also see its relevance for someone like Robby who by and large wouldn't be in favor of anything other than calling for a ban. I'm simply assuming. He might go along with something more temporary. One of the things that might lead him at least to think about it is if he thought the intervening time might actually provide him with an alternative, might provide us all with an alternative, now not available.

I think if I could say that that's — and if there's great uncertainty with varying degrees of skepticism around the table, but without a lot of evidence at the moment, and if people would like to gather further evidence on this matter and maybe Bill would like to provide it, I think we should have it, but there's no way in the world I think that we here can do much more on this than we've done and I think we should, if it's all right, I would like to move back to the options themselves that are here and not the various possible reasons that might ultimately be one way or the other.

Bill, you're next in the queue, so you can just rebut the Chair's admonition that we try, I think to come back. There's still people who want to have their first say on what they think we should do. But the floor is yours and if I've done you an injustice, please correct it.

DR. HURLBUT: A fortuitous sequence.

CHAIRMAN KASS: It's just there.

DR. HURLBUT: Actually, I'd like to first ask Janet a question and maybe Elizabeth too. How important is it that we come up with a solution that opens up the possibilities for federally-funded research? Obviously, we could do nothing and the private research would continue, but how important is it for federally-funded research to be opened?

DR. ROWLEY: Well, I think it's extremely important for federal funding to be available to scientists on some of the issues we have said are important to get answers on which we cannot at the present time obtain answers because of the lack of funding and I point out that this has been a ban for a number of years. I know Clinton reaffirmed that there could be no research using embryos and embryonic stem cells.

There is now, of course, with President Bush's allowing the use of cell lines, I understand that the first serious of grants has actually been reviewed and funded, I believe from NIH in that particular, using that particular source of cells, but I think that many of the questions that we would like to know the answers to, to come to a much more informed judgment ourself are presently prohibited, so we just have to wait for scientists in other countries where they do have the opportunity to do this research to provide us with the information.

DR. HURLBUT: Can I ask Elizabeth the same question? How important is it that we able to do things like nuclear transplantation at the university level, not at just the currently accepted private level?

DR. BLACKBURN: Well, some of my points this morning were addressed to why I think that kind of research is very important. As to the setting of it, I think that if one grants that the research is important to be done, then the university setting which is an open setting, where there is review, where there is critical input, much better information made the quality of the sciences generally going to be much better, will use the resources that the country has in terms of its brain power to do it right.

So my view, that's the way research really does get done right in that kind of environment because I think while there are talented people in industry, they're not guided by the same sets of imperatives, necessarily, and one also doesn't have access to it and the information about what the quality control has been in the same way as the more open sort of scientific community which is exemplified by universities. In my view, it's very important.

DR. HURLBUT: So I want to make the point that this is what I've heard from all the scientists I've spoken with that we need to open up the broadest possible, morally acceptable science at the level of basic research because without that, first of all, as William May said earlier, that it's hostage to proprietary interests and secrecy if it's in the private sphere only. Is that what you were implying, right?

That's unfortunate, plus there's kinds of research that can be done at the university level that won't be done in the private level. And the science can go forward more rapidly if it's broadly published, so this is why I think it's very important that we not — that we define our moral boundaries carefully, that we see if we can find a way scientifically to work within those moral boundaries. I'm not very political and I don't want to pretend I know what's going to happen, but I think I'm awake enough to know that even if our counsel were to unanimously vote in favor of all kinds of cloning, that that's not going to happen because our President has plainly said that he will not favor that. So it would take, at least I guess two-thirds of the Congress to override that. And that doesn't seem imminent.

So it seems to me very worthwhile for us to try to define what the moral boundaries are and seek, at least to tell scientists what they might work toward. I just feel like that's the direction to go and if it takes a little bit of speculative proposal, so be it. At least it clarifies to us what our moral positions really are.

CHAIRMAN KASS: Mike Gazzaniga. You were on the list before lunch, maybe you ate too well. Okay. Paul McHugh.

DR. MCHUGH: Yes. When I came after having read the draft of Chapter 7, the moratorium idea seemed perhaps right. There are a number of reasons I thought that. One of them was Mary Ann's point. It would continue the conversation and perhaps win people over even to my idea that this is a better way of looking at these clonotes and that the clonote and the zygote were distinction with a big difference. But even more so, a period of time we've already talked ourselves and we're still making progress in the conversation and so more time perhaps would do as well.

I also felt that a moratorium might also show some respect from each of our points of view to the other points of view about not only of our members here, but of the feelings of people in the country, feelings that derive from their points of view, some of the feelings that derive from their religious points of view, that that might be able to be done during a moratorium. And it would be a clear gesture of ours to the sense that we are pluralistic society and that there are voices that we want to respect and that thirdly, that there would be more opportunity for research that would go, particularly in animal research that would do a number of things for us. Particularly, I thought it would reduce the hype around this and get us knowing more about what we had and what we could accomplish and it would, for example, also bring up more issues in relationship to the adult stem cells.

But in the conversation today and this morning, I began to wonder whether a moratorium was really the right thing because a moratorium, I think has to have a particular meaning. You have to — really, it's not just the inchoate feelings that I have about what might happen during this time, and what I might wish, but it has to have some meaning and for a reason not only to have it, but to give it a particular time. And it was when I thought about the time that was going to be given to what has sounded now more and more like a ban, I begin to worry about time because time is of the essence in this, if like me, you have to talk to patient populations about the possibility or the probability or the may be possibility of their treatment.

Remember, if this work goes forward and the science goes forward with it in any time, there's still going to be lots of other times that are required because we're talking about therapeutics and you're going to have to get into the FDA business and the Phase I, Phase II, Phase III and we know that there are years and years that are going to come. Even if we have a terrific discovery tomorrow, there's going to be years and years of trials before it will be available and for the patients that we're talking about time is of the essence.

And so as I thought then about the moratorium and I listened to Rebecca and to Frank and to others, it seemed to me that perhaps we were talking against what I feel and hope for patients and for this possibility and that maybe the idea of working, considering a de facto moratorium as we work out the regulations would, in fact, accomplish all the things that I had wanted for a moratorium. It would, by giving a further arena of debate as we were talking about licensing and things of that sort, allow people, well, allow people to listen to me more about what we were feeling; think about what Bill has proposed. By the way, I think this idea is a very good idea. The coincidence of it, showing that this idea is just around the corner was that the day before I received Bill's e-mail and old friend had raised exactly the same question to me, but I didn't have Paul Berg to go to, but when I got your kind of reinforcement, I thought yeah, well, that's what our talking is supposed to do. It's supposed to bring these things up for us to consider. And since we heard this morning that it takes four, five, six years from even the beginning of some gesture in this to get a regulatory body up and running, that would accomplish pretty much what the moratorium would be trying to do, it seemed to me.

So that given the fact that time is of the essence, that there are very important things both at stake in the moral issues, but also at stake in the clinical issues, I'm moving towards issue 3 and feel that it would accomplish all the things that I had wanted to accomplish when I came.

CHAIRMAN KASS: Alfonso and then someone else.

DR. KRAUTHAMMER: Excuse me, could I ask a question just on the meaning of 3 of Paul? You then would say ban present regulation with the understanding that there would be a moratorium imposed until the regulations are issued or would you be permissive in the interim? Prohibitive in the interim, rather than permissive?

DR. MCHUGH: Yes. Because it would be licensing that would be at issue in the regulations, I would be prohibitive during that time.

DR. KRAUTHAMMER: Is that how we are to understand Option 3? Because as I read it, I would have assumed the ban plus regulation means that research cloning would be permitted and then regulated at a later date. I just want to understand what you mean by that.

CHAIRMAN KASS: Certainly, I think that since no one in the current debate has been proposing that we set up a body like the Human Fertilization and Embryology Authority, the more liberal of the bans being proposed in the Senate on reproductive only, at least to this point have barely gestured in the direction of regulation. The original bill, even the modified bill talks about certain rules at the NIH that govern experimentation on human subjects and that means everybody but the embryo. I gather that there's some proposal now that there might be an amendment saying nothing past 14 days, but no one over there is thinking about setting up a regulatory agency that would then have to take these things under consideration prior to the existence of which nothing would happen.

So I read Proposal 3 as not being — the people who tried to collapse Proposal 3 and Proposal 6, I think did so erroneously. Proposal 3 would be some new legislation now that's set forth a few conditions, but that didn't really establish the kind of regulatory system that the British have. It's perfectly possible for that to be modified by saying look, I don't want to join a moratorium for any reason other than my interest in regulation and therefore we beef up Proposal 3 to include precisely that this research is prohibited, unless and until a regulatory body was in place and that addressed the questions of commercialization that addressed the question of duration, of licensing, of all of those things that one saw that seemed to be common practices in the British and Canadian system. That's a possible recommendation that we could make, but as it appears here, we could dress it up that way if that is the way people would certainly like to go.

Janet?

DR. ROWLEY: Yes, I'm surprised at your statement because certainly the National Academy report recommended that there be a regulatory body that would be established and I guess I had assumed that in the Feinstein bill, there was something about regulation, but I don't remember the details.

CHAIRMAN KASS: I don't think that's accurate. There's some reference to guidelines that are operative.

Rebecca, do you know, do you recall

off-hand?

PROF. DRESSER: I think you're right, although I would like to see it again, but that's my recollection.

I didn't interpret 3 the way you were interpreting. I interpreted it in the more restrictive way, so I don't know if Frank had that same interpretation.

CHAIRMAN KASS: Well —

PROF. SANDEL: I also want to address this because it seems to me that this Council can define Option 3 —

CHAIRMAN KASS: Absolutely.

PROF. SANDEL: However it wants to. Moreover, we already can easily imagine language that would provide exactly the understanding about licensing and noncommodification that Rebecca and Frank and Paul and Charles have raised just now. The language wouldn't be hard to draft. We could say that it would have — a regulation would have to include (1) establish a number of days, whether it's 14 days or other; (2) license and conduct prior review of all research involving cloned embryos or for that matter all human embryos; (3) register and track each individual cloned human embryo; (4) establish a list of what may and may not be done with cloned human embryos once they're created and so on; (5) oversee corporate, academic and industrial cloning for biomedical research; (6) monitor and regulate or for that matter the buying and selling of cloned embryos and human oocytes; (7) establish guidelines — we would have to work very hard to develop language of that kind.

CHAIRMAN KASS: To be sure. In fact —

PROF. SANDEL: Mr. Chairman, I didn't want to refer to any documents because I know we don't do that —

(Laughter)

— so I simply offered seven descriptions of the regulatory regime that this Council could perfectly well adopt.

CHAIRMAN KASS: Correct.

PROF. SANDEL: And the licensing one, in particular, is the one that triggers what Rebecca called and Frank the de facto moratorium because if we say that it should be permitted only under conditions of regulation where one of the regulations, perhaps the second item in the list we would devise, says license and conduct and according to that position, the Council would be saying there shall be no research done on cloned or human embryos for that matter, except in such time they're duly licensed by a proper authority.

DR. MCHUGH: The time — excuse me, please. I just meant the time would be being spent in an appropriate, discussive way with a goal in mind and in a fashion that just a flat out moratorium would not. There would be work. There would be debate. There would be change, but there would be progress.

CHAIRMAN KASS: Let me make a small comment. I'm on the list for my own comment in a moment, but I would just simply remark on the oddity of developing this massive proposal for regulation on cloned embryos alone and —

PROF. SANDEL: Why would be restricted to that? Why couldn't we say for all embryos?

CHAIRMAN KASS: But here is how we started on a project that was really primarily interested in the question of cloning to produce children. It turned out that we ran into the embryo problem as a complication of trying to figure out what to do about that. In my view, the proper context for the discussion of the ethics and the policy about cloned embryos belongs in the embryo research question, not somehow as a little tiny piece of the cloning question, although there are people here who disagree with me because cloning is cloning. But now it would turn out that one in a way envies these other countries where they have at least, in the case of the Brits, they put everything around the embryo so it's the fertilization and embryological authority. The Canadians talk about reproduction and have put the context somewhat differently, but they at least have larger contexts in which they can plug this question. We would be trying to invent the whole thing, attached to a question of public policy connected to cloning. I'm not saying it's wrong. I'm not saying we shouldn't, but it would seem that this is part of a piece for a longer term matter, rather than something that — well, certainly as I speak I can hear the counter arguments.

PROF. SANDEL: In that case, you can offer it, Mr. Chairman.

CHAIRMAN KASS: Let me see. There are people who want to jump in the queue, but Alfonso is waiting and then I am after him. Are there small things to what's just been said because we should have it?

Gil, on the list; Rebecca; Frank. Alfonso.

PROF. GÓMEZ-LOBO: Okay, just a minor reminder here that we're already talking about regulation, but we're talking about experimentation on human beings without consent and with destruction. Now I know that immediately raises the problem, but I want to raise the problem of the moral status of the embryo. I don't think, and Frank you'll forgive me, that it's enough to say we will not come to an agreement. I don't know. You may produce arguments that are so clear that I may be convinced. I'm open to that. But I think that moral skepticism is a very serious matter. Let me just give you an example. There was a woman in Spain in the 16th Century where there was skepticism, I mean it wasn't clear of the status of Native Americans, whether they were human beings or not. And that cost thousands of lives until you had someone who decided not to be skeptical, Bartoleme Las Casas and that's very important in this case. I just cannot sit back and say look, we don't know or we can't agree. I think if anybody in this republic has to make the effort to hash it out it has to be this one.

Now I want to make an objection of that with what Bill Hurlbut was saying because I think — I see something very admirable in that and I'm not going to go back to your adjective, Mike, because it's really a bona fide effort to do this, to say look, for us the science is tremendously important. We have a tremendous trust in what is being done and although some people say it's a hype, it's an exaggeration, I'm personally willing to bet that it's very, very important and that a lot of good is going to come from it. But there is this matter of making it compatible with a very deep-rooted principle of our civilization is that you just don't kill innocent human beings for the benefit of the rest of us.

Now how can we make that compatible? Well, any exploration of that along the lines of saying well, if there's an organism that we have reason to think is not human, then that would be a solution. Then we would not have a problem. Then that would be wonderful. Whether it's feasible, whether it's an allusion, I don't know, but in a way it's a goal. It's an end. It's a way of preserving a very basic right and of course, I could go back and discuss with Frank the question of evolving rights and why I think it's an incoherent notion. I think much of it and I'm just suggesting it now, has to do with the kinds of rights and the kinds of goods we consider. Sure, your voting rights come with age, but there are other more basic rights such as the right to physical integrity that we have to respect even in a small child. So I think that there's an allusion there that because certain perhaps secondary rights have to do with our age, that that would entail at some basic rights or rights of noninterference with basic goods would be affected.

Now that's exactly the kind of discussion I would love to have.

PROF. SANDEL: Could I just ask Alfonso if that leads him, that those considerations lead you to favor a ban or a moratorium?

PROF. GÓMEZ-LOBO: I'm really flexible because the — as Mary Ann Glendon said, a ban is just a moratorium of a different sort. If a moratorium means that this is not going to be done, either destruction of early human embryos and there's going to be a chance in the country to rethink it and to have discussions, for instance, like the one I would like to have, surely that would be a favorable situation.

PROF. SANDEL: Just a quick follow-up, Alfonso. If you regard embryonic stem cell research as morally tantamount to infanticide, yanking organs out of an infant for good ends, would you also favor a moratorium rather than a ban on infanticide for that purpose?

PROF. GÓMEZ-LOBO: Well, I don't think anyone thinks — is proposing, infanticide at the moment, but there are people proposing stem cell research with destruction of the blastocysts.

CHAIRMAN KASS: Why don't you go first and I'll go next?

PROF. MEILAENDER: Yes, because what I had to say really does follow up on this in some ways. A lot of the discussion has really centered on the question of whether 3 and 6 are distinct policy options or whether in a sense, they roughly collapse and I would like to keep them separate and it seems to me that there's a good reason for that. Unless I just misunderstand what's been going on.

As I understand 3, even on the restrictive McHugh, Sandel, Fukuyama interpretation, what it means is is that the moratorium, the moratorium means that we intend to go forward with research cloning, but we need time to figure out the circumstances under which and the limits on which, on the basis of which we will go forward.

If that's what it means then that's saying that some of us really don't need to enter into that conversation any longer. The crucial question has been answered and it's over. We're not thinking about extending the conversation or trying to prolong it in order to reach better understanding or more consensus.

If what the moratorium means is we don't know whether at the end of this time we'll say yes or no to this, and during the time of the moratorium some of us will come up with model legislation for what regulation could look like and thereby stimulate discussion. Some of us will keep working on animal studies. Some of us will try to persuade people that it's a bad idea to do it, but everybody is in the conversation, so that the two different understandings of what a moratorium means are quite different in that respect. To collapse 6 into 3 is to say that really we've made what at least some people regard as a fundamental decision and they don't have anything to contribute to the conversation any longer. To leave 6 as an independent option means that everybody continues to be a contributor to the argument, or so it seems to me anyway.

CHAIRMAN KASS: That certainly and I'm glad you went first, because that certainly is part of why I think that Option 6 is the preferable option for us at this time.

My own thinking goes something like this, it's partly informed by principle. It's partly informed by the fact that there is this deep disagreement, and it is modestly informed by my concern that once again we will not be able to do anything at all on the thing I care most about, namely a ban on cloning for reproduction because of the continued division over this other matter which divides us.

Let me see if I can put together certain things which I would stipulate as, if I say they're facts, I'm only going to raise the flag and someone will shoot them down, but let me call them assumptions, close enough to the facts. First of all, Council is unanimous in opposing cloning to produce children as far as I know. I don't have any dissenters from that. Maybe some are for it only temporarily, maybe they wouldn't want a moratorium on it. Maybe some would want a ban, but that's number one.

Number two, the Council has been of many minds on the question of cloning for biomedical research and don't simply divide neatly into those who approve it and those who disapprove it, not only because of whether we approve with enthusiasm or approve with concern, but there are even some people who might approve the research, but who might not be willing to approve it just yet either because of the absence of a regulatory scheme or because they think there might be at the moment lack of sufficient evidence to sustain the claims for the unique value of cloning for biomedical research or because they are concerned to ride roughshod over the powerfully held opinions of colleagues in the absence of sufficient evidence. So there are a variety of positions out there. And of the people who declare themselves in opposition, some will do so because they will always be in opposition unless Bill Hurlbut's proposal or something like it could be met and others are opposed to — would be in favor of a ban or oppose it because even if they don't hold the embryo to be inviolate, they worry about, and this I think is Charles' position, they worry about us starting down the course of treating nascent human life as a natural resource for the benefit of others with what some people call the "slippery slope" but what Bill Hurlbut has called establishing a principle that our subsequent practice will merely catch up with once it turns out that going further is even better for Paul McHugh's patients.

And then there are finally some people and I include myself among them, who are worried about permitting cloning for biomedical research because they're concerned also that once the embryos are available there, it will be much more difficult to in the absence of regulation to certainly police what's done with them and there's a slightly greater risk how much is an empirical question, but I don't want to find out that this will lead to cloning to produce children.

That, I think, is an accurate assessment of where the Council has been. I would note another thing that figures into my consideration is the great uncertainty about the research, not just with cloned embryos and clones, but even with stem cells all together, embryonic adult, we just don't know. Everybody has said that and it's agreed.

And there's no question, I think all of us have seen the promising benefits of this research though it's still too early to tell.

These uncertainties cut sort of in two directions. I mean on the one hand, Paul McHugh has said several times they ought to temper something of the immodest claims that the miracles are just around the corner and they place a very high — they should place a certain kind of higher demand on the cautious accumulation of evidence and yet they should also temper people with their equally immodest assertions that we can know in advance that there will be a morally nonproblematic way of doing what needs to be done. I mean the uncertainty question, it seems to me, goes in both directions and doesn't settle anything but it should make us very, very modest, I think, about what it is we do.

Next point I think which is very important and doesn't show up in the question of federal funding. Legal proposals to ban cloning for producing children which then tacitly and then in some cases even explicitly would allow cloning for biomedical research would be different from simply allowing it without legislation at all for this reason. You would have the official legislative endorsement of crossing this boundary, of creating embryos solely for research. To this point, we don't have this. It's not illegal, the private sector can do it. We have federal funding of the stem lines, but we do not have — we have no official government policy which says it is all right to cross this boundary and we would do so explicitly and officially, approve crossing this boundary, a boundary that the previous federal advisory body, including the NBAC, said should not be crossed at least not with official government sanction. See, that's an important political step. Whatever you think about — wherever you come out, that's a statement of our whole community.

Last point, I think that's also a fact. You may not value the fact very much, but it is a fact. And the other fact that's important to me is having watched now in 1998 and again in the present time, seeing the Congress struggle to try to enact a ban on cloning to produce children and with what looks like very likely a failure once again, a failure that nearly everybody supports and we might be overtaken by events, a failure that is the result of the fact that we have a standoff between and I say this without meaning to disparage, the zealous proponents of biomedical research and the zealous opponents of any research that destroys cloned or any other kind of human embryos. And zeal, I mean to be a praiseworthy term. There are moral goods here that are being passionately defended. That, I take it, is our situation.

How to solve the situation, assuming you want to get passed this impasse at the very end which is very important to me. Let's get an agreement on what it is there is an agreement on which is a ban on cloning that would produce children. Let us recognize, let us get us a little extra insurance in the absence of regulation by not allowing the cloned embryos to be produced period. And let's have time for the following important public reasons. Several of them have been said. One is the question to get a little extra research so that the scientific case could be made more compelling so that it isn't just the promise, but we've got models with cloned embryos in animals where you've actually produced some kind of therapeutic value. Or let's show that — we can spell it out. I don't want to spin out the scientific possibilities.

There would be time and there would be an incentive to develop the regulatory mechanisms if one of the reasons for the moratorium was explicitly to say to those people, you want to do it? Go out there and devise the — go out and devise those regulations that would be able to persuade people that you could lift this moratorium without really running grave risks of any of the harms that people want.

We haven't had really, there's been an interesting debate. We don't normally have these things and unless you think it's just deplorable that the country should try to decide about these things — I don't mean we here, I think we've done pretty well, but it's been interesting to see the nation struggle over this little tiny question, but to wrestle with things that really are about terribly important things, but it hasn't been conducted all together on the highest level. You don't somehow really try to win the moral argument, either by having the Bishop threaten the candidate in Missouri or rolling out Christopher Reeve and Michael J. Fox in the Senate and have that serve in place really of a deliberation about where the boundaries should be. It seems to me that with — that the argument can continue and if you got the reproductive cloning issue off the table, that ban stays in place. Then the argument would have to be thought out where it really is. You couldn't somehow use people's disgust over cloning to produce children to try to try to smuggle through the back door a ban on some embryo research. And you couldn't — and you would have to take up the embryo research question two part, and then try to figure out what's the right way in this country to regulate embryo research across the board and not sort of fight it all out over this little tiny matter.

It also seems to me and here I make this appeal to the scientists. You might think I'm wrong, there are cowboys out there and there are disasters that are in the making and it seems to me that a moratorium that was undertaken not just as a stop gap measure, but as an invitation to the scientific and technological community come forward, join the process, help the community design those kinds of boundaries and standards that we all would be willing to live by, it seems to me the scientific community could only gain an increased trust and support of the nation as a whole.

If I really thought, I mean, if I really thought that we really were turning down the manna from heaven tomorrow or the next couple of years in cloned stem cell, cloned embryo research, I might have more hesitancy, Paul, but I really have the feeling that at the moment, I mean it's uncomfortable to say that any kind of scientific research would be banned and it makes me uncomfortable notwithstanding what you might suspect of me. It makes me uncomfortable and I don't like the jail time. I mean I would never — but it seems to me to ride roughshod over this moral boundary on a mere promise of the absence of the evidence when so many of our fellow citizens would be offended by this, I think it calls for a delay affirmatively, not as some kind of fall back measure. We simply — we don't have a consensus on this and the question is how can we move toward getting — we may never get a consensus, but we can at least have this argument prolonged on a higher level, perhaps even stimulated by something of the way in which we would contribute to that discussion.

I don't think that's a mere compromise. I think that's to somehow dignify what this debate is about and to try to let it go forward without undue sacrifice and in fact, really inviting the scientific community to come forward and say look, you're right, you've raised certain kinds of moral hazards for us. We respect that. We'll help design ways in which those things can be respected without crippling our research.

Now — sorry for — I think it was semi-coherent. I've been worrying this for months. There was a line — was I last? I guess I'm last, so Michael Sandel and Michael Gazzaniga.

Excuse me, oh, there was Rebecca. I'm sorry. So eager was I to speak I didn't write her name down. I'm sorry. Please.

PROF. DRESSER: Well, I'm not sure I want to follow that, but it was very rich. Just a couple, a few comments. I agree with you, certainly on the uncertainty, I agree with you. And I agree with you that this is really a broader issue in terms of embryo research in general and it would be certainly intellectually more appropriate to tackle the whole question. So I know I've heard some discussion. I don't know whether this Council is going to take on that topic in the near future, but it sounds as though we might. So one way to address that would be to say something, if we were — if the people who wanted to endorse some version of 3 were to say the regulatory principles and procedures appropriate to such a regulatory system applicable to biomedical research cloning would also be relevant to the general question of the use in embryo research and so — of embryos in research, generally, and so really in order to move forward with 3, we have to think through what the process and procedures, in general, ought to be and then we could start working on our thoughts about that.

Another point, I guess another reason why I have more difficulty seeing differences between 3 and 6 is because for me, at least, a regulatory system does not have to be very permissive, that is, I could imagine a regulatory system that would have a process and principles in place that were extremely demanding and would demand an exceptionally compelling showing of necessity before something would be allowed to go forward and a showing that would have to be accepted by people not only from the scientific community, but from a broader group of people. So I could see — and this, I guess, leads me to my last point which is in some ways I think you're talking about the work that could go on during a moratorium is very similar to what some of us would think about the work that could go on during a process of thinking about what a regulatory system would look like which would involve scientists talking with other people in the community to figure out what kinds of principles would work, what kinds of a showing would be acceptable, a lot of these details that we've been struggling with a little bit today. So in some ways it just sounds as though your thoughts about a moratorium would also include some of this process going on informally that some of us are thinking about well, if we took 3, then there would be some process of proposal, notice and comment, public discussion, probably revised proposal, you know, on-going in a more official way. So whether it would be informal or formal, might be more the difference.

CHAIRMAN KASS: Good. Thank you. I have the two Michaels and Mary Ann. Charles, we haven't heard from at all. Let's just go in order. Mike Gazzaniga and then Michael Sandel and then —

DR. GAZZANIGA: We're all sort of just weighing in here. The rationale that I would follow would be pretty much what Liz said this morning and maybe to add a little flavor to it to go to your Option 2 and not that I would do that, but that by during the establishment of the regulations not to have any police around which would be a way of social engineering to get the regulators to work fast and get their job done, in other words, I don't know — I just wouldn't know how one would recommend, with regulation, and then put various specific moratoriums out on activity.

But I do want to just say one last thing. And remind the Council why I think the scientists here are so clear about this and the reason is that we know and everyone knows if they think about it, the most and I've said this before, the most conservative group of people in this room are scientists — maybe not the scientists, but science. It moves slowly. It checks. It double checks. It's out in the open. It will be the thing that moves this question along and you have to start because it's slow in its activities and in how it actually establishes truth. So I think you can have policy discussions, philosophical discussions, ethical discussions for 10 years on this, why not? They're tough questions, but if you don't let the science go forward it will be in a factual vacuum.

CHAIRMAN KASS: Michael Sandel, Mary Ann and Charles, and Frank.

PROF. SANDEL: Well, Leon, you asked whether your statement was coherent. I would say more than coherent, it was an eloquent statement of the case for the moratorium/ban which however one wants to describe it, it's been articulated here today. Some of the defenders of the moratorium define it as more or less interchangeable with the ban that Mary Ann and Gil and Alfonso and Leon, you made a strong case for at least some version of a moratorium which in this discussion today has essentially become merged with the ban and I think it's a powerful statement and set of considerations.

I would just like to address two of them. One is that you feel it would have the moratorium/ban would take the reproductive cloning issue on which there's wide agreement off the table and so it wouldn't muddle the other discussion. But that seems to me true of all of the proposals we're considering. All of the proposals, policy proposals would ban the reproductive cloning and therefore take it off the table. And so that's not uniquely true of the moratorium/ban.

The second thing I'd like to address is a point that you raised, Leon, and that Mary Ann and Gil and Alfonso raised, the idea that a moratorium would allow the moral argument to continue. I think it's very important that the moral argument continue and that the moral/policy argument continue. I think it's a mistake to assume that any of these proposals would prevent that argument from continuing. I think the reason we are tempted to think that a policy decision of one kind or another would somehow prevent public discourse in wrestling with these moral questions including the moral status of the embryo which I think should be preserved as a live argument and debate in public discourse, regardless of what policies are recommended or enacted. The reason I think that we — people fear rightly the danger of kind of shoving off the public agenda that question or related questions is what happened with the abortion debate, but there's a big difference. The abortion debate — the Supreme Court decision did contribute, it seems to me, to taking off, out of public deliberation the question about abortion and the moral status of the embryo, precisely because it took that decision out of the legislative arena, out of the democratic arena, but nothing — we are not a Supreme Court and if there is a decision taken, a recommendation by this Council, enacted into law by the Congress or by some state legislature, the debate is still open in a democratic society as all such debates are open and should be open. So we're not facing a question here of a Supreme Court ruling that's going to say no, there can be no more democratic deliberation about this question, forget about it except for journal articles and philosophy journals. This will still be and should be the subject of continuing discussion including on the most fundamental of the moral questions that we've discussed here.

I think the question we should ask ourselves is not are we by one policy recommendation or another going to suddenly prevent public debate on this question. I think we should ask ourselves how can we frame the alternatives that have developed over this 6-month period in a way that not only will permit, but will give focus and structure and maybe inspiration to continued public debate about these ethical issues.

I think that we sell ourselves short, if we think that offering two major policy options, some favoring one, others the second, whether it's called the moratorium or a ban, developing the reasons as we've developed the ethical arguments and the various sides, that in itself, would be not only a contribution, but it would be a way of giving focus and inspiration and animation to a continued public debate on this question. We're not the Supreme Court.. We're not foreclosing. Whatever of these we choose or whatever pair of them, we recommend, we're not going to be foreclosing public debate on these moral questions and shouldn't. The question is how can we give it structure and focus and I think listening to the comments this morning and today, we're basically there. We basically, I think, have thrashed it out to their two clear positions and people have developed — have defended the two positions broadly speaking, whether you want to call the second a moratorium or a ban, that can be up to the final drafting, but I think that we've really identified the major alternatives, both ethically and in terms of policy and I don't think we should underestimate the public service that that constitutes.

CHAIRMAN KASS: I have Mary Ann, Charles and Frank, in that order. Please.

PROF. GLENDON: As I recall, the reason that we took up cloning was not because —

CHAIRMAN KASS: I wish somebody could remember.

PROF. GLENDON: Not because there was any logic to it, but rather that because there was pending legislation and we were asked or thought it was a good idea to address ourselves to that problem because it was so current.

But especially listening to the discussions this morning of how other commissions and other countries have approached these issues, and listening to the discussion this afternoon, it seems to me that maybe where we are is that we're ready to make a policy recommendation on cloning for reproductive purposes, but the second matter, cloning for research purposes really, logically belongs within the general question of embryonic research which other countries and other commissions have taken up systematically. So I guess what — thinking out loud and maybe this is zany, but it seems to me that maybe what this Commission ought to do is unlink the policy recommendation about reproductive cloning from the more complex issue of embryonic research of which cloning for medical research purposes is a sub-issue and take that up systematically.

CHAIRMAN KASS: Can I just — boy, would I love to do that, but I don't think one can make — I don't think — well, I mean you could say look, we make a recommendation that we would like to see cloning for producing children banned and the world will not because even the National Academy of Sciences thinks that. So — but then you sit down and try to give effect to that and you can't do it without trampling on this other tirade. If we could do it, fine. Part of the reason I think — part of the reason for wanting to have some time where you don't explicitly give permission for that to go ahead, not just that it doesn't go ahead, but that you've sort of explicitly sanctioned it by law, that's one of the advantages, it seems to me, for the moratorium, so that the next time the question comes up, the no baby making part is there and this could then be dealt with in the context where I think it properly — I absolutely am sympathetic, but if we're asked to make a recommendation that actually could have — could be implemented, we're in the soup. That's the real — Robby, George and I, 18 months ago because we started in different places, had an agreement that we would sit down and try to draft legislation that was like Item 2, absolutely silent on the other question. Write a legislation that would just ban cloning for baby making and didn't say a peep, one way or the other, didn't imply anything about the other. I mean better people — in fact, I even asked Michael Sandel if he had had a shot at it, because I thought he thought it was a preferable — I don't know if you tried. It's very hard.

I'm sorry, I've abused the privilege of the chair. I wish we could do that. I don't think we can make a responsible policy recommendation and simply say this other thing isn't here. It's attached to this like a barnacle.

PROF. GLENDON: Can I?

CHAIRMAN KASS: Please.

PROF. GLENDON: I wasn't suggesting that we say the other thing isn't there, but that this Committee should take the time to systematically —

CHAIRMAN KASS: I see. Forgive me.

PROF. GLENDON: — View the second issue within its proper context of embryonic research.

CHAIRMAN KASS: I see and therefore not have a full policy recommendation.

PROF. GLENDON: And make a policy recommendation later.

DR. KRAUTHAMMER: But Mary Ann —

CHAIRMAN KASS: You have the floor, actually, Charles.

DR. KRAUTHAMMER: Yes. If we were designing a seminar on the question of embryo research we may not have chosen in advance that cloning be the entry point, but in fact, it has been the entry point just by historical accident, if you like and I think that, in fact, if you look at all of the documents that have been produced in all of our discussion, we have done a pretty thorough investigation of the issue of embryo research, even though it focused on the cloning aspect.

I think it would be a pity to throw away everything that we've done which is quite extensive, I think, quite remarkable. I've looked at the documents that were produced. I think there are major contributions to the national debate and I think we ought to — given that we have spent all this time and gone deep into the issue, both the science and the ethics of it, I think it would be a mistake not to go to the next logical step which is to issue a recommendation on the basis of what we've said. I'm sorry, I missed the discussion this morning, I was out of town and I — perhaps I'm stepping back here, but I just want to step what my position is on the question and that is, as you know, I oppose research cloning really on two bases: (a) I think it crosses a new moral frontier which is the creation of a nascent human life for its exploitation and use by others; and secondly, because I distrust and this is just based on experience and observation of what happens in Washington when with the regulation I distrust our ability to establish a new line, a line that will hold.

But these are both credentialed judgments and they are subject to review, given new facts and new history that we will be creating in the future. So I would come out at position 5 where I would prefer a ban on both, but I could live with 6 which would be a ban, plus a moratorium. I see the difference. You probably have had this discussion. I'm sorry that I'm late. I'm probably repeating it, but in a democratic society obviously all bans are temporarily. They can all be reconsidered, so that the difference between a ban and a moratorium is simply that when we do inevitably reconsider this issue, a ban means the burden of proof is on those who want to undo it and a moratorium means that the burden of proof will be on those who want to institute a ban. And as a proponent of the ban, I'd be quite willing, happy, to restate, refight the fight in the future, if necessary. So I would be for 6.

CHAIRMAN KASS: Frank.

PROF. FUKUYAMA: Well, just one last comment on why I prefer 3. Gil was saying that 3 made the decision in principle in favor of embryo cloning and therefore in a way it foreclosed that discussion. I understand that point, but I think that you need to consider the question of whether 6 may not actually lead to the same result faster because it's one thing if you assume — okay, we have a two to three-year moratorium. Either people are convinced by Alfonso and Robby about the moral status questions which I think there's close to zero probability of, or adult stem cells or some other approach seems very promising and the embryonic stem cells seem less promising which may also happen, but there's also the possibility that after that period of time the embryonic stem cell research from animal studies or from other countries will seem so promising that in fact, once the moratorium expires you will go right into unregulated embryonic cloning. I mean that that pressure — the moratorium period will be used to build pressure for that. And at that point, you're going to have the cloning and you won't have a regulatory structure in place. And so that seems to me a risk that you have to consider if you go for number 6.

Now on Leon's point that it seems a little strange to want to create this huge new regulatory structure just to deal with the cloning issue, I actually regard that as an opportunity because I actually think that there are many issues out there much more important than cloning that will need a regulatory structure: pre-implantation, genetic diagnosis, you know, germ line, when we get to it, creation of hybrids, I mean, all the things, issues that these other agencies deal with that we ought to be as a Council thinking about where we don't have rules, where we don't have an institution capable of dealing with that and so I welcome the fact that this gives us a good excuse to actually set this kind of institution up or think seriously about what such an institution would look like.

Charles, a couple of years ago wrote this article where he said about stem cells that people ought to be more worried about where the stem cells are going, rather than where they came from and I think that's absolutely right. I mean it's where they're going that creates, for me, all of the really frightening possibilities. And for that, you are going to need a broad-based regulatory institution that will not hold back therapeutic technologies, but will put some kind of long-term societal control on ethically questionable things that go way beyond this particular embryo cloning thing. So I would say the issue is not just embryo research, it's embryo in general and new biotechnologies, in general. Because I think, for example, if you looked under this rock of the American IVF industry, you'll find exactly the same sort of things that Patricia Baird found when the Canadians looked under their IVF industry, that there's a lot of stuff that is going on that doesn't get a lot of attention, but really probably needs further regulation. So all of those are issues that are tangential to cloning, but I think we need to address, so that's why I think that number 6 is actually a good excuse to get us into this.

CHAIRMAN KASS: You meant 3, right?

PROF. FUKUYAMA: I'm sorry, 3 is a good excuse to get us into this.

CHAIRMAN KASS: The only thing I would say and — yes, please. Are you going to respond? The only thing I would say is that the general sort of political economic climate in this country is not Canada and that is to say, the ease of doing something like what they've done there given our absence of bureaucracy and the laissez-faire attitude in the industry is — means that one shouldn't be too sanguine about how easy it — we can sit here and recommend whatever regulatory agency you'd like, but if you think that — if you saw how unhappy the industry that had basically not much interest in cloning for biomedical research was about this, wait until you see what happens when you sort of threaten the whole activity in which they're engaged because to do this thing right, you're not just interested in dealing with the area of federal funding. I mean if you really want regulation, you want it across the board, and let's not be naive about how — it's very easy to kill legislation in this town. It's very hard to pass it and especially something which goes against the grain of the leading zealots for doing these things.

PROF. SANDEL: Was that also zealot in the complimentary sense?

CHAIRMAN KASS: Yes, yes. Dan, I'm sorry.

DR. FOSTER: I think I would just like to say that I will support position 3 and having heard your very eloquent presentation including at lunch when we talked privately, the key issue for me has to do with the inviolability of the embryo. If you believe that, then you have to say no cloning at all. You simply have to say that. This is the same thing as destroying or sacrificing a human. You have to say that. I don't hold that view. I don't even know what the evidence is for that view. I mean this is in that broad space between — that Russell talked about, this no man's land. People can say what they think it is, and one follows the logic of the reasoning and see whether it's valid or not. So that's out.

I think that — I once gave a speech where there was an argument and I ended with a confession of faith, not a religious faith, but you might claim that I'm making a religious faith. I said I thought it was an argument about whether science should exist in medical education and so forth that I thought that in the end science would win and that is because you cannot squelch truth ultimately.

I have a high confidence in what has already been said in the practicality of the scientific communities, sometimes even in the biotechnology community. And that is I do think that they're cautious and things that don't work quickly get dropped. In the first place, they can't get published and secondly, they don't work. Even with such a hopeful thing in the treatment of cancer as the angiostatin, you know, the stuff as Bill was talking about to stop the growth of blood vessels to stop — stuff to cure cancer, I think it was $35 million to the rights of that that a biotech company paid. They dropped it like a hot cake because it didn't work. Even a biotech company dropped it like a hot cake.

I don't think that the new evidence that we need to make a decision after a moratorium of three years or six years or 10 years can be forthcoming without the kind of comparative investigation that several of us spoke about this morning. Scientists do not wish to look at things in isolation. They look to the whole truth. They would like to look to the whole truth, whether stem cells, adult stem cells are better or cloned stem cells and so forth. And to put a moratorium on this simply begs the question of the information that one wishes to make. We have all the information we need to make a moral decision. I mean because the arguments have been made ad nauseam. If I've heard one time that we were once an embryo, I must have heard it even in the course of this conversation multiple times. The argument is almost always the same. The same people, different people speak, but it's the same message. So I think that we ought to just have — we ought to just vote for what we think.

I said in a very short public statement in an e-mail that if I was convinced that this was an inviolable thing, I would be with Gil or whoever. I wouldn't do it, no matter what the promise was. But I happen not to think that's true and therefore for not only individual patients, but for humanity itself and so forth, I think we ought to let the facts that science gives us tell us what to do.

Now do I think this ought to be regulated? Yes, I do. And how long it takes to do that, I don't know. And maybe we'll just say that the American scientists will wait for the English scientists to do this, but in one sense, I don't want this to sound wrong, but in one sense I have confidence in the — maybe because the society in which we live more confidence in the caution of the scientific investigation with American scientists who are influenced by all the moral issues that we've talked about here, about making these judgments as well. That was almost never talked — but I did want to say the reasons why I think we ought to go ahead and we ought to do it in terms of what we think the embryo is and what we think the risks, is this a line? Leon thinks this is a bright line that we're making life and then killing life. Do we believe that? Then I don't even know why you want to do a moratorium. If you believe that, then you ought to just have a permanent ban and try to defend yourself.

But it is my confession of faith that finally you cannot stop what biological or other truth is and we have to simply see if these things work and I would like it much better if we could work on it and get the answers and if it doesn't work, let's get on to Bill's view or something else along those lines.

DR. KRAUTHAMMER: Dan, if I could just make one point. For some of us, the reason that we oppose this is not because we see a bright line between life and nonlife and creation and believe it's the destruction of a person. And our concerns are rather different. They're about the possibilities of what this research could lead to. So I just want to clarify that it's not — this is not a debate, if you like, a recapitulation of the abortion debate. For some of us, it's a debate about what might eventuate, rather than say origins of the cell.

DR. FOSTER: Well, thanks for that clarification. I know that you feel that way. You've told me that previously.

I think that the issue that we worry about would be the one that it would make it much easier to make human beings for rogue scientists or other scientists to do that and that's a — there are evil people around and there are things like that will happen. I somehow think at least in the developed countries, maybe that doesn't — that that would be — I mean there's such a universal — some people have used the term here revulsion against that, a revulsion which I hold, I might add, that it would not — that that would be easier to police and to prevent than — you know, than maybe what you think it would be. I don't know.

DR. KRAUTHAMMER: What I worry about is not what the rogue scientists will do, it's what the good scientists, the good society will allow itself to do.

CHAIRMAN KASS: Robby George, we're going to wind up very soon. If there are any people who want to add something before a break, Robby, a comment?

DR. GEORGE: Yes. Dan, I appreciate the frustration of hearing the same argument from the same people, time and time again, and particularly, the point that the being that is now you or me was at the earliest stage of his existence an embryo. And we have heard it time and time again. But I don't think I've heard the counter argument to that. The point of the assertion is the claim that we have our inviolability and our dignity by virtue of the kind of entity we are, rather than by virtue of some acquired characteristic that may or may not come with fuller development and which different people have in different degree. I think it's therefore incumbent on people who take the position that the embryo is not inviolable, is not fully one of us to say what it is then or to say in virtue of what it is that those human beings who have inviolability and dignity, who have achieved whatever it is you need to achieve to have inviolability and dignity have. That — Michael Gazzaniga, I think, has put something on the table with brain development and there has been an exchange about that and if that's the general position, then at least we know what the argument is, but I don't think it's enough simply to say I don't accept the claim that the embryo is inviolable. I think if you're going to reject that claim, given that reasons have been advanced for the claim, it is incumbent to say in virtue of what then, if it's not the kind of entity we are that gives us our inviolability, in virtue of what it is that we have our inviolability. Because if people on my side of this debate knew that, what it was, then either we'd be persuaded by it or we could give our reasons for why that — as far as we can see, doesn't work.

DR. FOSTER: Sure and I know we have to quit and I respect the argument. I would say that I would put myself in a position that I'm agnostic because I don't know how to answer that question and you tease me a little bit about bringing in the issue of the soul. I was just repeating an old story from the Bible and saying at least the person who wrote it, that the soul came in later. That's all I meant. I didn't mean that I — I wasn't trying to introduce a revelation in here. I carefully said that I didn't know who wrote this and that it was old, but it was very interesting that it was into the intact human that God breathed life and that the human became a living soul and it's just a story from Genesis. That's all I meant by that.

So the reason that I don't — it doesn't make sense to me and I really followed at some point I wrote a little short paragraph about that that along the lines that this was a potential human being incapable of doing, becoming life itself because it wasn't implanted or anything else. It had no organ, no brain neuron, it had no sentience at all and as a consequence, common sense, just mere common sense said to me that biologically at least, this was pre-human and not human and as a consequence I did not think that it had the same inviolability that I might make at the time 40 days later. I don't know what the time is, but let's say 40 days or whatever, which I would move away.

But I speak of this in an agnostic position and one of the things that concerns me so much is the absolute certainty that some people have that they can do that. I'm not speaking about — I'm sure you're probably worried about this as much as I am, but some people are absolutely certain that the moment — we've heard this expressed here, that the moment that the sperm hits the egg, that that is inviolable.

Now I heard Bill quoted this — when Gil and I were talking a little bit later about the estimate that every year, if you just look at a one to one loss — if for every child born, there's one that's not born. It's not implanted, and I was telling him that the World Health Organization says that there are — they estimate that there are 363,000 babies born every day, 100,000 deaths, so that means that nature in one year, I know these figures may be soft, eliminate 130,495,000 human things. And so Gil said well, Bill thought that they were not complete. I hadn't seen this argument. They were not completely fertilized or something like that, but my point is here that one has to be agnostic about this and that's all I'm trying to say.

DR. GEORGE: But I don't think you have to be agnostic about what it is in virtue of which human beings have inviolability. That's what I'd really like to know. If it's not by virtue of the kind of entity they are, that is, an entity with a rational nature, then what is it? Is it sentience? Is it brain wave function? Is it the realized capacity for self-consciousness or self-awareness as my colleague Peter Singer says. I'd just like to know what argument it is I'm supposed to answer.

DR. FOSTER: Well, I say I can't answer it because I don't know and I don't — I'm further trying to say that I'm not sure that any human knows the answer to the question that you wanted to — I can decide — I mean I might decide at the time there's the first — because you can't — the highest organ system, as far as I understand it as a physician scientist is the central nervous system, the body will try to protect that against all odds and secondarily, it supports the circulatory system in order to protect the central nervous system. So if you've pushed me, I would say it's at the point where one had the capacity to sustain life with an organized or the beginning organization of a central nervous system because without that, there will be no progression under any circumstance of this organism to a full human and these are simple arguments.

DR. GEORGE: I know, but I think we're actually getting somewhere. So if the reason we don't look at just an individual innocent person on the street, and say gee, that's one person, it's a good thing that there's one person, but we've got 26 or 27 people in hospitals waiting for organs, so with that one person's organs, counting two kidneys, one heart, one pancreas, one liver, etcetera, we could save 26 or 27 people. The reason we don't do that is because that innocent individual like all other innocent individuals has inviolability and he has this inviolability by virtue of having a central nervous system?

DR. FOSTER: No, his inviolability is much more than that. You're asking, I think, at the embryonic level where I would make this decision.

DR. GEORGE: No. I'm just asking for any human being you think who's there, the human being has got there, by virtue of what does he have —

DR. FOSTER: Mr. Chairman, rescue me here. I do not wish to be a — I need to be rescued. All I was trying to say is I was voting for Proposition 3. That's all.

CHAIRMAN KASS: I'm going to rescue —

DR. KRAUTHAMMER: We need to discuss this.

DR. FOSTER: Not here and not now.

CHAIRMAN KASS: Look, if I could ever overcome my new phobia of all conversations about embryos which is the result of all of this discussion, I would at some point down the road after all of this is behind us, it's occurred to me, it's occurred to me that we could make a useful contribution, separate from any public policy question at all. In other words, get it out of the argument to actually have — get some embryologists in here, get some philosophical biologists, people whose field is the philosophy of biology and maybe have a conversation about this with some presented papers, rather than continue to — the conversation has to go on and it's obvious it's not the only thing here. I don't agree with that that it's the only issue. I think Charles has and Dan has conceded that.

This isn't, I think, the place to do that. I would recommend that the two of you have dinner together and report the —

DR. FOSTER: I already acknowledge defeat, Charles.

CHAIRMAN KASS: But it seems to me if I may on Dan's behalf say to you, Robby, since Jim Wilson has, in a way, spoken for many of the people on the — I shouldn't take his name in vain because he's absent. I think he's still out of the country. He tried to make a kind of moral intuition argument which doesn't settle anything as people who talk about the wisdom of repugnance know all too well, but that argument can embarrass intuition or say maybe your intuitions are senseless or wrong, that's a nice ploy, but when you finish arguing with him, you tell me why your moral intuition that cannibalism and incest are abominations? You give me an argument that's adequate to that. Not now.

(Laughter.)

DR. GEORGE: Can I just cite an article I've written?


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