A panel of nineteen experts appointed by the National Institutes of Health has recommended government funding for conceiving human embryos in the laboratory for the sole purpose of using them as materials for research. After carefully studying the Report of the Human Embryo Research Panel, we conclude that this recommendation is morally repugnant, entails grave injustice to innocent human beings, and constitutes an assault upon the foundational ideas of human dignity and rights essential to a free and decent society. The arguments offered by the Panel are more ideological and self-interested than scientific; the actions recommended by the Panel cross the threshold into a world of apparently limitless technological manipulation and manufacture of human life. The Panel claims to draw a "clear line" against experiments that almost everyone would deem abhorrent. In fact it does not draw such a line and, by virtue of its own logic, it cannot draw such a line. The recommendation, if adopted, will be a fateful step for humanity from which it may be impossible to turn back.
All of us have a stake in the questions raised. In a society such as ours, these questions cannot be, they must not be, decided by a committee of experts. We urge a comprehensive public debate and intense congressional scrutiny regarding the proposals emanating from the NIH. The research recommended by the Panel should not be funded by the government. It should not be done at all. It should be prohibited by law. In what follows we attempt to explain how we have reached this conclusion.
We are confident that most people, to the extent that they are aware of the Panel's recommendation, experience an immediate and strong revulsion. This is not to be dismissed as an irrational reaction. It signals a deep, intuitive awareness of lines that must not be crossed if we are to maintain our sometimes fragile hold upon our own humanity.
For instance, the Washington Post's editorial response to the Panel's proposal declared flatly that "The creation of human embryos specifically for research that will destroy them is unconscionable." The acids of moral relativism have not advanced so far in our culture as to destroy completely the capacity to know and say that some things are simply not to be countenanced, much less approved and funded by the government. The editorial goes on to distinguish the present question from that of abortion. "To suggest that support for abortion rights equals support for such [embryo] experimentation is to buy abortion opponents' view that permitting abortion means erasing society's ability to make distinctions." The question of creating, using, and destroying human embryos cannot be separated entirely from the question of abortion, but the two questions can and should be distinguished. We hope that most people, whatever their views on the legalization of abortion, will be moved to take a stand at this new line that must not be crossed.
The ominously new thing in the Panel's Report is that embryonic human life should be treated simply as research material to be used and discarded-and should even be brought into being solely for that purpose. The Report readily acknowledges that the embryos to be used are instances of human life. It does not hesitate to answer the question of when a new human life begins. Indeed, indisputable scientific evidence leaves no choice: a new human life begins at conception (or, as the Report usually prefers, "fertilization"). The Report speaks of the embryo from the earliest moment as "developing human life." We are at various points told that the very early embryo deserves "serious moral consideration," "moral respect," "profound respect," and "some added measure of respect beyond that accorded animal subjects."
Honesty requires that we speak not simply of human life but of a human being. Skin and intestinal tissue, even eggs and sperm, are human life. But, unlike such instances of human life, the embryo from the earliest moment has the active capacity to articulate itself into what everyone acknowledges is a human being. The embryo is a being; that is to say, it is an integral whole with actual existence. The being is human; it will not articulate itself into some other kind of animal. Any being that is human is a human being. If it is objected that, at five days or fifteen days, the embryo does not look like a human being, it must be pointed out that this is precisely what a human being looks like-and what each of us looked like-at five or fifteen days of development. Clarity of language is essential to clarity of thought.
The question is whether the government should permit and fund the production of human beings-completely innocent and powerless human beings-to be used as material for scientific research. After answering that question in the affirmative, the Report then considers which human beings can be so used and which cannot. It is one of the most treasured maxims of our civilization that human beings are always to be treated as ends and never merely as means. In a partial dissent from the Report, Professor Patricia A. King, a member of the Panel, writes, "The fertilization of human oocytes [female eggs] for research purposes is unnerving because human life is being created solely for human use. I do not believe that this society has developed the conceptual frameworks necessary to guide us down this slope. . . . At the very least, we should proceed with extreme caution." The conclusion that properly follows from her fully justified anxiety is that we should proceed not at all. Regrettably, the other members of the Panel appear not to have shared even the anxiety.
In weighing the question of which human beings can be used as a means to the ends of scientific progress and which cannot, the Report says the decision must rest on a "multi-factorial" judgment. By this is meant that no one principle or line of reasoning will support the conclusion that the Panel reaches. The Report's use of "multi-factorial" judgment is tantamount to suggesting that an accumulation of doubtful arguments will produce a convincing conclusion. In the course of reaching its "multi-factorial" judgment, the Panel entangles itself in philosophical, moral, and even scientific confusions. We are sorry to report that, in some of its arguments, the Panel invites the charge of being more than a little disingenuous.
In order to decide which human embryos are usable and which are "protectable" from such use, the Report leans very heavily on the concept of "personhood." The question is switched from "When does the life of a human being begin?" to "When does a human being become a person?" Persons are protectable; nonpersons or those who are deemed to be something less than persons are not protectable. But the only reason they are not protectable is that they will not be protected. Although they are obviously protectable in the sense that we are capable of protecting them, they are designated "not protectable" because we have decided not to protect them. And we decide not to protect them because they are not persons. Whether they are persons, and therefore protectable, depends upon their possessing certain qualities that we associate with persons and think worth protecting. Here and elsewhere in the Report, the reader is struck by a large measure of circularity in the Panel's reasoning.
The question is not whether the embryo is protectable but whether it is in need of protection. The Report says that "the commencement of protectability is not an all or nothing matter, but results from a being's increasing possession of qualities that make respecting it (and hence limiting others' liberty in relation to it) more compelling." In other words, moral standing develops as the human being develops, and "personhood" is an award we bestow for performance. The principle espoused by the Report leads to the suggestion that our obligation to afford protection to a human being is in inverse proportion to his or her need for protection. Put differently, those who are fully and undoubtedly persons are protectable because they are, by and large, able to protect themselves.
It is not traditional in ethical discourse to discuss what "life" or "forms of life" or "developing forms of life" are entitled to respect and protection. Living human beings are so entitled. The classical conviction of our culture has been that, contrary to the Report, it is "an all or nothing matter." We are implicated in the fate of all; every human being is inviolable. It has taken society much blood and struggle to overcome what Professor King calls the "conceptual frameworks" whereby the powerful justified excluding various categories of the powerless from moral parity. The Panel's use of "personhood" is such a conceptual framework, and it applies to both the born and unborn.
The concept of personhood has a complicated history in theology, philosophy, and law. Personhood is certainly not a scientific concept. As used by the Panel, it is an ideological concept, an idea in the service of a program aimed at changing dramatically our civilization's understanding of human life and community. In this Report, personhood is a status that we bestow. We who have received that status decide who will be admitted to, and who will be excluded from, the circle of those who are recognized as persons and are therefore entitled to respect and protection. We are told that protectability increases with an "increasing possession of qualities" that we find compelling. It follows that protectability decreases with the decreasing possession of such qualities.
From their writings and public statements, we know that some members of the Panel do not flinch from the ominous implications of that principle for those who have lost their "compelling" qualities, especially at the end of the life spectrum. As a more complete explanation of its ethical reasoning, the Report cites an article by Professor Ronald Green, himself a member of the Panel, "Toward a Copernican Revolution in Our Thinking About Life's Beginning and Life's End." It is indeed a revolution that is proposed by Professor Green and by the Human Embryo Research Panel. The cited article asserts that there are no "qualities existing out there" in any human being requiring us to respect him or her as a person. Whether to grant or deny "personhood" (and hence the right not to be harmed or killed) is, we are told, "the outcome of a very active and complex process of decision on our part." In the current language of the academy, personhood is entirely a "social construct." Whether someone is too young or too old, too retarded or too sick, too troublesome or too useless to be entitled to personhood is determined by a "decision on our part." The American people have not been consulted about, and certainly have not consented to, this "Copernican Revolution" in our understanding of human dignity and human rights.
The revolution is necessary, however, in order to license, morally and legally, the research that the Panel recommends. The "conceptual frameworks" of the Report's extended ethical and philosophical reflection obscure rather than illumine the questions at hand. As already indicated, the question is not the difference between human beings who are persons and those who allegedly are not but the difference between human beings and other animals. Similarly, the Report makes much of the "preimplantation embryo" (implantation in the womb usually begins with the sixth day and is completed by the fourteenth day after conception). A "greater measure of respect" is due the embryo after the fourteenth day, says the Panel. This is gravely misleading. In question are not preimplantation embryos but unimplanted embryos-embryos produced with the intention that they will not be implanted and can therefore be kept alive and experimented upon as long as they are scientifically useful.
There are additional obfuscations. The Report makes much of the "twinning" factor. An early embryo is said not to be "individuated" because in a very small minority of cases the embryo may "twin" into two or more human beings. The ethical significance of this possibility is elusive. The fact that in rare instances an embryo may divide is no justification whatever for deliberately producing human embryos for the purpose of experimentation that will destroy them. Moreover, the Report repeatedly points to the "potential" of the embryo for further development as an indicator of whether or not it is "protectable." Here the circularity of reasoning is particularly blatant: A human being is not protectable in the early stages of development because, the Report claims, it has no potential for further development. But in the case of the embryo produced in the laboratory it has no potential for further development for the sole reason that researchers will not protect it. Because they wish to use it, they do not protect it; because they do not protect it, its natural potential for development is destroyed; because it thus "has no potential," it is declared "not protectable."
The monumental questions raised by this Report-Who shall live and who shall die? Who belongs to the community of the commonly protected? How do we distinguish between human beings and laboratory animals?-demand much more serious thinking than is offered by the Human Embryo Research Panel.
The Panel claims to have established clear lines and clear time limits regarding what it is permissible to do with human embryos. That claim is false, and it seems that the panelists know that it is false. The Report says that research with these living human beings "should not be permitted beyond the time of the usual appearance of the primitive streak in vivo (14 days)." (The primitive streak is a groove that develops along the midline of the embryonic disc and its appearance is viewed as one of several milestones in the embryo's continuous development.) But this time limit is clearly arbitrary and chosen as a pragmatic compromise, as the transcript of the Panel's deliberations makes clear.
The panelists all know that development is continuous and it offers no such bright natural line to those who would "ascribe personhood." Moreover, this "time limit" is by no means firm, as is evident in the Report's assertion that it should serve "at the present time," and "for the foreseeable future." Some technically possible and scientifically interesting experiments "warrant additional review," while others are deemed "unacceptable for federal funding" because the desired experiments can at present be done with laboratory animals and because of "concern for public sensitivities on highly controversial research proposals." At the present time. For the foreseeable future.
For example, producing genetically identical individuals to be born at different times, freezing an embryonic human being who is genetically identical to a born child in order to serve as a later source for organ and tissue transplantation, cloning an existing human being, and making "carbon copies" of an existing embryo-these and other projects are declared to be "inappropriate." It is not clear that the Report opposes the doing of these things; it simply does not recommend, at present, federal funding for doing them. But in the logic of the Report, there is no reason in principle why these things should not be done or why they should not be funded by the government.
"Throughout its deliberations," we are told, "the Panel relied on the principle that research involving preimplantation embryos is acceptable public policy only if the research promises significant scientific and therapeutic benefits." But a principle that says something should not be done unless there are strong motives for doing it is no principle at all. The claim to have set limits is vitiated by the repeated assertion that exceptions can be made for "serious and compelling reasons." The "Copernican Revolution" is nothing less than the abandonment of any and all principled limits. If it is for "serious and compelling reasons," scientists can do whatever they decide to do with human beings who are declared to be "unprotectable." And they can get government funding for doing it, within the limits of "public sensitivities." There is no reason, in principle, why such license would be confined to very small and very young human beings.
Of course the Panel believes that its recommendations are supported by "serious and compelling reasons" having to do with gains in scientific knowledge and therapeutic benefits. We do not doubt that lethal experiments on powerless and unconsenting human beings might result in findings of scientific interest. As for therapeutic benefits, the Report holds out the promise of improved success with in vitro fertilization, new contraceptive techniques, new prospects for genetic screening, the production of cell lines for use in tissue transplantation, and, more vaguely, treatment of cancer and other diseases.
In fact, the Report seems too reticent in its discussion of possible "benefits" from the research it proposes. In a time when the entire human genome is being mapped, when the age is rising at which many women first become mothers, when, consequently, there is increased anxiety about the risk of genetic diseases, when harvesting parts from the embryo and fetus may have therapeutic uses for older human beings, when care for the handicapped and defective is viewed by many as excessively burdensome, and when it seems technically possible to produce custom- made babies-in such a time it is not surprising that people might be tempted to agree that the Panel's recommendations are supported by "serious and compelling reasons." The Report explicitly encourages funding for "preimplantation genetic screening," and the laboratory testing of artificially fertilized embryos before they are placed in the womb. The normalizing of in vitro fertilization and the universalizing of genetic screening in order to eliminate the unfit and advance eugenic goals are part of a "brave new world" clearly advanced by the proposals of the Human Embryo Research Panel.
Is this the future that we want? Who should decide? That brings us to the makeup and role of the Panel itself.
"Americans hold widely different views on the question of the moral value of prenatal life at its various stages," the Report notes. "It is not the role of those who help form public policy to decide which of these views is correct. Instead, public policy represents an effort to arrive at a reasonable accommodation to diverse interests." The Panel says it eschews the task of adopting a particular philosophy or settling arguments that it describes as "metaphysically complex and controverted." In fact, however, in order to legitimate morally what it recommends, the Panel does adopt a particular philosophy that it believes cuts through the complexities and controversies. That philosophy is ordinarily called utilitarianism. It is a primitive and unreflective version of utilitarianism, to be sure, but the message is unequivocal: the end justifies the means. If there are "serious and compelling reasons," it would seem that the end would justify any means. Certainly it justifies producing, using, and destroying human beings who are valued only for their utility as tools serving the purposes of scientific research. The Panel's is not a "multi-factorial" judgment. There is ultimately only one factor: scientific utility.
While claiming not to impose a moral judgment or philosophy, the Panel imposes a moral judgment and philosophy. At the same time, while apparently only offering advice to the NIH, the Panel has in effect arrogated to itself the work of our elected representatives. It is the task of politicians and legislatures "to arrive at a reasonable accommodation to diverse interests." A panel of experts might inform political deliberation by displaying the full range of facts, arguments, and considerations that legislators should take into account in making decisions. This Panel could not do that, however. While the Panel heard testimony from those who do not share its crassly utilitarian philosophy, such diversity was not included in the Panel itself. As explained by the chairman at the Panel's first meeting, it was thought inappropriate to include any members who oppose the research in question. Thus the Panel was able to arrive at a "reasonable accommodation" of the "widely different views" on the questions at hand by conveniently eliminating different views.
Additionally troubling is the fact that members of the Panel are themselves doing the very research for which they are recommending federal funding. An ethics advisory panel certainly must take testimony from scientists involved in the research under consideration. In this case, however, it would seem that members of an advisory panel are recommending federal grants for their own work. This is ordinarily not called advising but lobbying. Congress should examine closely the apparent conflict of interest involved.
Our concern is with the philosophy and moral reasoning embraced by the Panel. Our conviction-and, we are confident, the conviction of almost all Americans-is that the ominous questions engaged must not be decided by one-sided committees of the National Institutes of Health. What affects all should, through our representative process, be decided by all. The proposal that some human beings should be declared "not protectable" affects all of us. The proposal that human beings should be treated merely as means rather than ends is revolutionary, but it is not new. Such "conceptual frameworks" have a terrifying history, not least in this bloodiest of centuries.
The production of human beings for the purpose of experiments that will destroy them should be prohibited by law. The use of human beings for experiments that will do them harm and to which they have not given their consent should be prohibited by law. It matters not how young or how small, how old or how powerless, such human beings may be. Some nations ban or severely restrict the research proposed by the Panel (e.g., Norway, Germany, Austria, Australia). In the shadow of the unspeakable horror of Nazism, the Nuremberg Code declared, "No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur." And the 1975 Helsinki Declaration of the World Medical Association affirms, "Concern for the interests of the subject must always prevail over the interest of science and society."
It is objected that a ban would not be enforceable. If so, how can anyone believe that the proposed regulation by NIH would be enforceable? The research recommended by the Panel is now being done under various auspices, with or without government funding. Driven by scientific curiosity and hubris, reinforced by the prospect of great commercial gain and a belief that it will produce benefits for society, such research probably cannot be stopped altogether. But the necessity of a law does not depend on its being universally effective. What must be made illegal and declared morally odious is any research that subjects human beings to scientific experimentation that will certainly result in their grave injury or death.
The shamelessly partisan and conceptually confused Report of the Human Embryo Research Panel should be unambiguously rejected. Limits that are "for the present time" and "for the foreseeable future" limit nothing. They are but unconvincing reassurances that scientists are going carefully where they should not be permitted to go at all. If the course recommended by the Panel is approved, the foreseeable future is ominously clear: it is a return to the past when people contrived "conceptual frameworks" for excluding categories of human beings, born and unborn, from our common humanity.
Gerard V. Bradley
Notre Dame Law School
Fr. James T. Burtchaell
Congregation of Holy Cross
Fr. Francis Canavan
Department of Political Science
Rabbi David G. Dalin
West Hartford, CT
Institute on Religion and
Thomas S. Derr
Department of Religion
Fr. Ernest Fortin
Department of Theology
Department of Philosophy
Rabbi Marc Gellman
Dix Hills, NY
Robert P. George
Department of Politics
Mary Ann Glendon
The Law School
The Divinity School
Professor of Philosophy
Colorado Springs, CO
School of Philosophy
Catholic University of America
The Rev. Robert W. Jenson
Department of Religion
St. Olaf College
Leon R. Kass, M.D.
Committee on Social Thought
The University of Chicago
University of Notre Dame
Fr. Richard John Neuhaus
Institute on Religion and
Rabbi David Novak
Department of Religious Studies
University of Virginia
American Enterprise Institute
American Jewish Committee
Ethics and Public Policy Center
Robert L. Wilken
Department of Religious Studies
University of Virginia
Institutional affiliations given for identification purposes only.