Friday, March 7, 2003
CHAIRMAN KASS: Mr. Doerflinger, welcome back.
MR. DOERFLINGER: Thank you.
I found myself nodding in agreement with Dr. Annas until he said
something nice about the British system. So I wanted to comment
I've been involved in the debates about federal funding of IVF
and embryo research for some 20 years. From my perspective, the
reason why IVF remains one of the most under regulated industries
in the nation is that proponents of regulation always started out
by assuming that when you regulate it you have to use the British
system. That is, in order to regulate, you have to fund.
In the British system it's all or nothing. There is no private
sector in embryo research, and so either you ban it or you have
the government actively support and sponsor and license it, which
means that in order to regulate abuses, you have to first make a
decision that we have a sufficient consensus to provide active government
support for this.
Now, in the British system where socialized medicine is the norm,
that's not necessarily taken as a moral decision, but in the United
States because of our less socialized system, it is.
And there are a great many issues where the way in which our society
has dealt with matters of moral ambivalence, matters where there
is not sufficient consensus to ban but there is not sufficient consensus
to give positive approval, is precisely to allow something to happen
in the private sector, but not to fund it.
One might interpret our Supreme Court's decisions on abortion
along those lines, that the Court said you cannot ban abortion,
but that states and the federal government may use their funding
power to express a preference for childbirth over abortion and actually
to discourage abortion short of actually placing active barriers
in its way.
Now, I think that system, though I disagree with the Supreme Court's
decision about that in the context of abortion, that flexibility,
shows respect for the pluralism of our society, where a lot of different
things are in those gray areas— either because they really are
morally ambivalent, or because gray is what you get when you mix
together ASRM's view of the embryo as important tissue and my view
of the embryo.
That pluralism and that flexibility should not be lost. I think
the reason why we don't have regulation now of IVF is that the insistence
has been we have to give our positive approval relating to some
of it in order to prevent the worst of it.
I don't think that works necessarily as a matter of practice,
because it simply means that you give a baseline and then private
funding is used to do all the stuff the federal government is too
hesitant to provide funding for.
The private sector then moves back in and says, "why don't
the federally funded researchers get with the program now that we've
established the new baseline, and begin providing funding?"
I certainly don't think self-regulation is the answer. I think
the ASRM ethics committee is an example of a group that is ethically
actually willing to go beyond what many of its own members might
be comfortable with. The chairman of the ASRM ethics committee,
John Robertson, has written at length that people have a constitutional
right to do reproductive cloning. I think that's not a widely held
view among many. And when the Norfolk, Virginia IVF clinic announced
it was creating embryos solely for research purposes, to the great
consternation of many ethicists and members of Congress, the first
announcement that came out in that report was that the ASRM found
this to be consistent with its own ethics standards.
There has been a great deal of commentary in the bioethics literature
about industry ethicists telling industry what it wants to hear,
and that being the reason why they're hired in the first place.
So between the extremes of self-regulation left untrammeled, and
the British system where there's no flexibility, no middle line
between federal funding and implied federal approval versus complete
ban, I hope this council can find its way to respect the intricacy
of the American system and find a way to set restraints on some
of the worst abuses in a way that people like me, for example, would
not have to oppose because it involves actively approving some of
CHAIRMAN KASS: Michael Sandel, do you?
Mr. Doerflinger, would you come back? Mr. Sandel would like to
ask a question.
PROF. SANDEL: Did I understand you correctly
to suggest that you would favor or support a compromise that might
regulate, federally regulate embryo research, even though you might
oppose that research, provided it were not federally funded, or
did I misunderstand?
MR. DOERFLINGER: Well, I think a federal regulation
that said, for example — and I don't know how you would have to
find the federal jurisdiction to do this, perhaps through the interstate
commerce clause — a federal law that said — well, there's a federal
law proposed right now that has passed the House that says you may
not do research involving cloning of embryos. That leaves the field
of both privately and publicly funded research involving so-called
spare embryos completely alone.
I consider that, from the total field of embryo research, that's
a regulation. It's a law against one of the worst abuses that involves
positively creating embryos for research, possibly in great numbers,
and leaves the rest of the field alone.
Leaving the rest of the field alone is not by itself a mark of
moral approval. It may just be a decision that there's no sufficient
consensus to act against it.
And I'm something of a fan of Thomas Aquinas, who said there is
a large area of moral wrong, that it may not be feasible or even
appropriate to pass civil laws against.
So there are a lot of opportunities. The FDA is one model in which,
by achieving a consensus on one particular area that goes beyond
the societal consensus one is not necessarily approving, but only
leaving for another day, things that go short of that.
Does that make sense?
CHAIRMAN KASS: I think the comment raises for
us, I think, a difficulty that when we're at the point where we
would want to offer recommendations we would have to face the various
obstacles that George Annas alluded to, various parties on all sides
who, on the one hand, don't want the kind of opening that would
lead to certain curtailment and, on the other hand, don't want to
pronounce with public blessings those things that they regard to
be a moral problem we will have to grapple with.
Let me thank once again our guests. Let me thank members of the
council for your loyalty and stalwart participation, members of
the public for joining us. Safe travel and godspeed. We'll see you
PROF. GEORGE: Could I just take one moment before
we break to fulfill a promise to President Didier Sicard of the
French Bioethics Council?
CHAIRMAN KASS: Please.
PROF. GEORGE: Yes. I was received very graciously
representing the council and the United States at the 20th anniversary
of the Comite Consultatif National d'Ethique, the French Bioethics
Council. President Sicard asked me, in particular, to convey regards
and compliments to Chairman Kass and to the council.
He and a number of other representatives who were there representing
various nations from Japan to Luxembourg indicated that they had
read with considerable interest our report on human cloning, and
we were congratulated consistently by people for the thoroughness
of the report and for its analytic rigor.
And people in particular noted that this was true across the range
or spectrum of opinions represented on the report.
I did get the — I hope I'm not deceiving myself — but I did
get the very clear sense that this was not simply polite talk or
There was a certain amount of diplomatic nicety going on in other
regards, I think, pertaining to my being there at this time as a
representative of the United States, but with regard to the compliments
that were paid to the cloning report, as I say, my impression was
that they were very sincere.
So it really is a pleasure for me to fulfill this promise to President
Sicard and to convey compliments and regards to the council and
to Chairman Kass.
CHAIRMAN KASS: Thank you.
The meeting is adjourned.
(Whereupon, 12:06 p.m., the meeting in the
above-entitled matter was adjourned.)