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Embryonic Stem Cell Research—A Democratic Hot Potato August 28, 2010

Posted by legalethicsemporium in Law, Ethics & Society, Stem Cell Research.
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A game of hot potato among the three branches of government describes the ongoing struggle to use embryonic stem cell research to attempt to find a cure for paralysis and  diseases such as Parkinson’s, ALS, and juvenile diabetes.

Judge Royce Lamberth’s order enjoining the use of embryonic stem cells in federally financed research stunned the scientific community this week. “Dr. Francis Collins, director of the National Health Institutes, told reporters Tuesday in a telephone briefing that he was “shocked” by the ruling and that “this decision has the potential to do serious damage to one of the most promising areas of biomedical research. It comes just at the time when we were really gaining momentum.”

The ongoing research is being conducted in accordance with both the Bush administration’s executive order and the Obama administration’s expansion of that order which is reflected in the current National Institute of Health (NIH) regulations.  Essentially, the regulations permit embryonic stem cell research as long as the embryos were created with private funding and the donors consent to the use of the embryos for research.

Embryos are generally available from the surplus at fertility clinics.   Individuals who are attempting in vitro fertilization often have lab-cultivated embryos remaining if the in vitro fertilization is successful in an early attempt.  If not used for research, the embryos will be discarded.

Anti-abortion groups oppose the use of these embryos as the destruction of life.  However, these embryos will be destroyed regardless, so proponents of the research point to the myriad of diseases and suffering that may be alleviated if the research is permitted.  Interestingly, the opponents in this debate are somewhat fluid as evidenced by various conservatives recognizing the distinction between embryonic stem cell research and abortion when one of the targeted diseases strikes a loved one.

So what are the rules of hot potato in this emotionally charged democratic game?

Let’s break it down.  Voters elect their representatives to Congress.  Congress then passes legislation, in this case the Dickey-Wicker Amendment mandating that federal funding not be used for research involving the destruction of embryos.  The President is charged with executing the law.  In executing the law, the President often delegates the details to an administrative agency, in this case NIH, to draft regulations consistent with Congressional legislation.   During the creation of these regulations, the public is offered the opportunity to comment.  (NIH received over 12,000 comments on these regulations.)  The agency is required to consider the comments and publish final regulations.

An agency’s final regulations may be challenged in court if there is a viable argument that the agency exceeded its authority.   In this case, Christian groups and researchers using adult stem cells, and vying for the same federal funding dollars as the embryonic cell research groups, filed suit.  The complaint alleges that the NIH regulations exceed the agency’s authority because Congress has clearly spoken on the issue of embryonic stem cell research–no federal funding for any research that destroys or discards an embryo.  When Congress unambiguously declares its intent, then the agency may not interpret, but only execute that intent. Judge Lamberth concluded that Congress has spoken without ambiguity and therefore the regulations go beyond the intent of the law. The case will continue to wind its way through the judicial system or Congress has the prerogative to change the law.

“Scientists said the ruling, which came as a surprise to many in the field, highlights the danger of having medical research policy that is subject to the whims of the judicial system.

Michael West, CEO of Embryonic Sciences, Inc. and adjunct professor of bioengineering at the University of California, Berkeley likens this kind of ruling to playing “political football” with medical research and says he is “ashamed of our government.”

“These roadblocks and delays could well mean the unnecessary suffering or death of a fellow human being some day in the future. We should not allow political differences to encroach on our moral duty to alleviate human suffering when it is in our power to do so,” he adds.” (See ABC report here)

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