SECTION: CAPITOL HILL HEARING TESTIMONY

LENGTH: 3816 words

COMMITTEE: HOUSE ENERGY AND COMMERCE

SUBCOMMITTEE: HEALTH

HEADLINE: PROHIBITON ON HUMAN CLONING

TESTIMONY-BY: LOUIS GUENIN, LECTURER ON ETHICSIN SCIENCE

AFFILIATION: DEPARTMENT OF MICROBIOLOGY AND MOLECULAR GENETICS, HARCARD MEDICAL SCHOOL

BODY:
June 20, 2001

Prepared Witness Testimony The Committee on Energy and Commerce W.J. "Billy Tauzin" Chairman

H.R. 1644, Human Cloning Prohibition Act of 2001, and H.R.____, Cloning Prohibition Act of 2001 Subcommittee on Health

Mr. Louis Guenin Lecturer on Ethics in Science Department of Microbiology and Molecular Genetics Harvard Medical School

Mr. Chairman and Members of the Subcommittee, the task that I should like to set for myself, in order to assist the subcommittee, is to unmask the compelling grounds for moral approval of nonreproductive somatic cell nuclear transfer ("SCNT"). The method leading to the conclusions that I shall offer is simple to describe though somewhat difficult to execute. It consists first in probing the range of alternative moral views until we have passed beyond phrases and aspirations to the most fundamental commitments of each. It then requires us to construct a moral analysis faithful to each view. I shall emphasize that if we insist on this regimen, we shall find that even moral views thus far invoked against nonreproductive SCNT commend it as not only permissible but virtuous. Embryos as Subjects

I shall be speaking about the instrumental treatment of embryos, the use of embryos as means rather than as ends in themselves. An embryo treated instrumentally is an "embryo subject." We may distinguish two sets of embryo subjects:

(1) a set each element of which is an embryo created by in vitro fertilization ("IVF") for the purpose of pregnancy, and

(2) a set each element of which is an embryo created by IVF or SCNT solely for the purpose of medical treatment or research.

We may say that elements of (1) are created by "reproductive embryo creation," and those of (2) by "nonreproductive embryo creation," the latter standing for any process of embryo creation for a purpose other than producing a baby. I do not use the term "cloning " for nonreproductive embryo creation by SCNT because from that process, no copy of the nucleus donor ever develops. A copy of the nuclear genome is produced, but no infant is ever born. In such case we do not encounter such vexing problems of reproductive cloning as deformed or socially anomalous offspring. There are no offspring.

Kant's Morality as Proponent, Not Opponent, of Embryo Use

Instead we encounter this question. Is it moral to use an embryo as a means? Some readers of Kant have thought that this question answers itself. The second form of Kant's categorical imperative, embraced by many religious traditions, bids us to "use humanity . . . always at the same time as an end, never simply as a means." But as I have explained elsewhere, by "humanity" Kant understands only rational beings. 1 The early stage embryo subjects of current scientific interest are microscopic. They do not have brains, they are not rational. What we may do with embryos according to Kantian morality follows from the command that we as rational beings act only on those maxims that, without contradicting ourselves, we can will as universal laws. One such law, Kant holds, states a duty to aid those in need. We must imagine the aspirations of those who suffer from diseases that we might cure. We do not contradict ourselves in willing that those of us who have the scientific acumen to do so should relieve suffering, and that we should support them in their work, by use of donated unenabled embryos.

The Epidosembryo Subject, an Unenabled Unindividuated Embryo to Which No Possible Person Corresponds

The developmental potential of an embryo becomes enabled, as I understand this key concept, if and only if the embryo enters a woman's reproductive system (either fallopian tubes or uterus). The boundary of the human body separates enabled embryos from unenabled embryos. I want to describe a set of unenabled embryos that it is morally permissible to use as means. Suppose that Mary wants to help others by donating to research or therapy (a) an embryo produced in an earlier fertility procedure or (b) an egg for SCNT. She issues instructions that prohibit reproduction/she directs that the embryo not be transferred to a uterus/and she also prohibits nurture of the embryo for more than fourteen days. The fourteen day precaution assures that the embryo will not have met a necessary condition of personhood. Until day 14, any embryo can split, forming twins. And until day 14, twins can recombine/with neither mother nor physician ever knowing it happened. During this time, individual identity is not established. In the wors of the late philosopher W. V. Quine, "No entity without identity."

Consider also the case of Michael, who suffers from Parkinson's disease. Michael contributes a somatic cell for the purpose of an autologous transplant, and he imposes the same embryo restrictions as does Mary.

For an unenabled unindividuated embryo donated by someone like Mary or Michael/whether from fertility clinics or created solely for research or therapy /I use the term epidosembryo. I derive this word from the Greek epidosis for a beneficence to the common weal. In the relief of suffering, epidosembryos enable the bounteous possibilities of stem cell research and the reprogramming of gene expression. 2 Why is it permissible to use an epidosembryo? The reason is as follows. Enablement is an entirely discretionary act. No woman is obligated to undergo intrauterine transfer of an embryo. Instructions issued by epidosembryo donors conclusively foreclose any chance of enabling the embryos. The instructions specify research or therapy, and nothing else. Hence an epidosembryo has no chance of becoming an infant. Therefore no possible person corresponds to such an embryo. To this we add that any early stage embryo/each so small as to be invisible to the naked eye/lacks the sensory apparatus to feel pleasure or pain. Because use of an epidosembryo cannot thwart the actualization of any possible person/no possible persons corresponds to the embryo/and because the embryo cannot experience harm, it is permissible to use an epidosembryo in aid of others.

Because we owe profound respect to any human life form, especially embryos, we cannot use embryos for frivolous means. But the hopes of scientists for embryo research are far from frivolous. From work on stem cells science may be able to overcome juvenile-onset diabetes, Parkinson's, Alzheimer's, muscular dystrophy, and other diseases, and to accelerate drug development by supplying for testing normal human cells in lieu of abnormal and animal tissues. In SCNT we anticipate a stem cell possibility that embryos donated from fertility clinics cannot provide. In SCNT we have an ingenious means for obtaining transplantable cells of the patient's own nuclear genome. Such an autologous, histocompatible transplant is the holy grail of cell replacement therapy. SCNT also constitutes our hope for knowledge of how a cell's reprogramming can occur. If we can find out how reprogramming of gene expression occurs in an egg following SCNT/we know that it does occur, but do not know the details/clinicians might learn how to induce reprogramming of adult patients' cells. In such case the latter cells could differentiate into developmentally much earlier cells that patients desperately need. Even neurons might be regenerated.

Reply to Objections

Let me address two likely objections to what I have said about enablement.

(a) It might be argued that an embryo outside the body possesses a potential to become an infant and that we just happen to observe it at a preimplantation stage, the same status of many embryos in a woman's fallopian tubes. But embryos in the body have a nonzero chance of implanting in the uterus. Epidosembryos have zero chance. That is to say that they have less chance of becoming babies than do the gametes of a man and woman who have never met. Most of us would approve experiments on gametes/even though each contains half the genome of a possible person. For moral purpose, we draw a boundary for the set of possible persons.

(b) Still it will be objected that the reason that embryos created by SCNT have a zero chance of becoming babies is that someone created them with precisely that fate in mind, and that it is wrong to create an embryo with no thought of procreation. 3 Here I think that one can put one's finger on the view that may explain much of the reluctance understandably voiced concerned these biotechnological innovations. I refer to a view originating with Aristotle. According to a previously influential teleology, in any living being, every cell type, every structure, has a purpose. We even think that for many cells and structures in the human, we know what the purpose is. It is a short step to engraft on this the notion that the mapping of cells to purposes is not an accident, but a divine design. Whereupon some would object to hijacking cells for purposes other than those ordained.

Who can know the mind of God on this? We mortals formerly thought that the sole purpose of bone marrow is to nurture bone, and now we look upon the marrow as the factory where blood cells are manufactured. We used to think that kidneys exist solely for benefit of those enclosing them, and now we recognize the virtuousness of donating one's kidney to another. We know that oocytes when fertilized develop into children, but who is to say that sexual reproduction is the sole end that oocytes may permissibly serve? Now enjoying wide moral approval are experiments on all manner of cells.

Even assuming that the biological function of a cell were both singular and known, it does not follow that it would be immoral to deploy it for another purpose. Nor it is obvious that a moral wrong occurs if embryos die without implanting in a uterus. The majority of embryos do die in such manner. We do not treat their passing as the death of a person.

If we could have a conversation with God, is it plausible that He would tell us never to fertilize an egg except for purposes of creating a baby? If we told Him that we had discovered stem cells, and had invented SCNT, He might first tease us that we took us a few thousand years to get there. In view of what Christianity teaches as the second greatest of commandments, I suspect that He would commend epidosembryo donors. I suspect that He would not stand on metaphysics about microscopic embryos. I suspect that he wish us to use our humble abilities to relieve suffering through this technique in which we do prevent the existence of any possible person who would otherwise become actual. He would know that children would not be born by that means.

SCNT is not any less morally appropriate than the use of embryos created with pregnancy in view. It could be considered more appropriate inasmuch as nonreproductive embryo creation does not bring to an end any divine-human procreative collaboration.

Breadth of Moral Support for Nonreproductive Embryo Creation

The use of unenabled embryos as means for helping others, even as we are reminded of how carefully we must proceed, enjoys the support of a wide range of religious traditions. I shall speak, therefore, only of the principal opposition. This consists in the position of the Holy See of the Roman Catholic Church, as joined by fundamentalist Christians.

The Holy See's Congregation for the Doctrine of the Faith asserts two doctrines: (a) that human life is a sacred gift of God that we must respect, and (b) zygotic personhood, the thesis that fertilization suffices to create a new person.

Sacredness of Human Life Affirmed by Producing Good at No Cost in Possible Lives

The church has declared that IVF, cloning, and other technological innovations in reproduction are inconsistent with the sanctity of human life. The reason that it rejects them is twofold: it categorizes them as nonconjugal, and thus a departure from God's manner of giving life, and it expresses fear that they might lead to eugenics.

Nonreproductive embryo creation, by definition, does not produce babies. Hence the foregoing reasons against other procedures do not apply to this one. What respect for life requires of us therefore remains an open question. I suggest, with ample support in religious traditions, including Catholicism, that relief of widespread human suffering, this fulfillment of the wishes of generous cell donors, nobly affirms respect for human life.

Zygotic Personhood Untenable

I have explained in my cited paper filed herewith that zygotic personhood contradicts the church's earlier and more plausible teaching that a person does not arrive at conception/a teaching maintained during the church's first nineteen centuries/and that zygotic personhood is refuted by an embryo's failure of individuation until day 14. 4 The Church's only argument for zygotic personhood, which it most recently concedes to be a philosophical question, is to identify a person with the new genome formed at conception. But the church cannot maintain this embrace of genetic reductionism, for to do so contradicts the church's fundamental belief in mind and soul.

When we introduce the bedrock Catholic teaching that we are obliged to come to the aid of our neighbors, to answer the call to charity, we find that Catholicism, when fully explicated, provides a compelling case for epidosembryo research and therapy. This is an instance where plumbing the depths of a complete moral view is necessary before knowing its verdict on a question at hand.

Epidosembryo Use Not Equivalent to Abortion

We can also now see why it is misleading to conflate the use of unenabled embryos with abortion. An abortion kills a conceptus developing in the womb, an enabled conceptus. An enabled conceptus will follow a course of gestation requiring only that the mother stay healthy. Whereas absent a voluntary act to which no one is obliged, an unenabled embryo will never implant, will never mature even to the fetal stage. If we refrain from nonreproductive embryo creation, not one more baby is likely to be born.

Wishful Thinking on Supposed Functional Equivalence of Adult Stem Cells

It is wishful thinking to regard the question of instrumental treatment of embryos as moot. First, SCNT offers an opportunity for insight into reprogramming, an opportunity not provided by embryos from fertility clinics. Second, in reply to the oft- ventured proposition that adult stem cells will suffice for any purpose for which we might use embryonic, it is not obvious that this proposition is not established. The history of science amply illustrates the wisdom of following all promising paths simultaneously. (We may recall how numerous were the lines of investigation that mathematicians pursued before, combining insights from several fields, Andrew Wiles proved Fermat's Last Theorem.) We can also make a stronger claim. It is implausible to think that later developing embryonic germ cells (derived from conceptuses five or more weeks old) and much later adult stem cells are functionally equivalent to the embryonic stem cells derived from five-day-old blastocysts. If, painlessly for both donor and recipient, one could rejuvenate one's skin with a transplant from a family member, who would prefer their grandmother's skin to that of a newborn niece? The comparison of stem cells by versatility may be similar: the earlier the better.

Nonreproductive SCNT Not a Slippery Slope to Reproductive Cloning

In the short run, if reproductive cloning is prohibited in the U. S., there will be no experiments to perfect the technique, the probable success rate will remain low, and there will be no favorable results of human trials in the U. S. on which to predicate approval of cloning. Nonreproductive SCNT will have paved no slope to reproductive cloning. Not every decisionmaking surface is slippery. Since first allowing right turns from a red traffic light, we have not seen significantly more traffic accidents of right-turning vehicles. Meanwhile SCNT will doubtless have yielded great benefit in the relief of suffering/by means such as autologous transplants and adult cellular reprogramming that we already envision, and by other means not yet glimpsed.

We must be realistic that, in the long run, even if various sovereignties ban reproductive cloning, as soon as one person manages to accomplish reproductive cloning so as to gain some advantage, other people acting rationally are likely to follow suit in order to remain competitive. 5 They will either violate the ban or migrate to countries that lack one. If there were an international ban by treaty, sovereignties themselves might eventually behave the same way, rushing to follow the first violator for fear of being dominated by superiors. Treaty parties could either seek to rescind or abrogate the treaty. This scenario could occur not only for reproductive cloning, but for any form of germ line genetic intervention. (By the latter I refer to what is commonly called "gene therapy," which holds great promise but which has yet to become reliable.) We should be realistic in recognizing that we cannot forestall the prospect of reproductive cloning by banning nonreproductive SCNT in the U. S.

Difficulties in H. R. 1644 and H. R. 2172

Constitutional Questions About Legislating Against Reproductive Cloning

As the Members well know, there obtains a scientific and, if I may say, a public consensus that because reproductive cloning in animals so often issues in deformed offspring, and poses so many technical challenges and questions for homo sapiens that have not been answered, we ought not presently to attempt the procedure in humans.

That is not the whole of the moral discussion, since we can imagine the perfection of the procedure someday. In such case we shall doubtless debate such questions as whether parents should be allowed to "replace" a lost child with a clone or bring forth a child who could be available as a histocompatible donor to a sick child. We, none of us, can confidently say that if we could have a conversation with God, that He would tell us not to do these things. But insofar as reproductive cloning is not presently safe, and I therefore cannot defend it on moral grounds, I shall make only two remarks in passing. Both concern the issue of legislating against the practice.

Before moving to prohibit reproductive cloning, it should give us pause that within the penumbra of the Bill of Rights as interpreted in the Supreme Court's decision in Griswold v. Connecticut (1965), the right of privacy extends to reproduction, and the zone of privacy encompasses reproduction under the care of a physician. If H. R. 1644 declared it a crime to perform or attempt contraception or in vitro fertilization, it would appear that the bill would unconstitutionally infringe the right of privacy. Can the conclusion be different when the act is reproductive cloning? H. R. 1644 itself states in S2(8)(A) that "cloning would take place within the privacy of the doctor- patient relationship." We can also imagine what might be sought as evidence of the crime of cloning. We might enter an era of "genetic audits" comparing the DNA of parents and alleged clones. The fate of a criminal statute may therefore lie in the courts. Secondly, in the preamble of H. R. 1644 appears language about what "many" think concerning morality. There exist many who believe many things. Rather than legislate morality, Congress could declare that it is prohibiting physicians from performing a procedure that would effectively constitute a clinical experiment with a probable success rate/i.e., ratio of healthy infants to embryos created/that is unacceptably low.

Preserving Use of SCNT

for research

I discuss now nonreproductive SCNT rather than nonreproductive embryo creation in general, this because the proposed legislation purports to restrain only SCNT, not IVF.

Preamble clause (9) of H. R. 1644 and the proposed 18 U.S.C. S301(d) would protect research employing "nuclear transfer or other cloning techniques" to produce, inter alia, "cells other than human embryos" (emphasis added). But this leaves any research in which SCNT is used for nonreproductive embryo creation/its typical use/prohibited by 18 U.S.C. S301(a), which sweeps within its maw "human asexual reproduction" that produces an embryo "at any stage of development" (see the parenthetical phrase of S301 [a]).

for clinical use

Not even therapeutic use of SCNT would survive proposed S301(a). If scientists learn how to use SCNT to accomplish autologous transplants, the clinical implementation of this boon for sick patients would be a crime.

a legislative alternative

For the moral reasons that I have now recounted, if Congress were to thwart nonreproductive SCNT, that move would disserve morality. It would thwart our ability to fulfill our duty to aid those in need. H. R. 2172 seems intended to protect nonreproductive SCNT, for both research and therapy, and it operates under the less problematic shelter, as compared to the adoption of a moral view, of federal regulation of drugs and medical devices. But such bill also employs the problematic criterion of "intent to initiate a pregnancy." Reproductive cloning could instead be prohibited by defining the offending act as "transfer of an SCNT-created embryo to a uterus." That would paint without using too broad a brush.

Federal Preemption to Afford Reliable Expectations

For the immediate future, as we observe a consensus against reproductive cloning at least because it is unsafe, we can expect the potpourri of interdictions enacted by the several states to enlarge. Only preemptive federal legislation can assure a uniform norm at least within the U. S. It behooves us, for the sake of the public health, to foster reliable expectations for those making decisions about where to direct their research efforts. This especially includes young scientists choosing fields of work, who are quite wisely prone to shun fields whose regulatory environment is unstable. 6 For preemptive legislation, precedent obtains. We look to the Food and Drug Administration, not to the several states, for a national system of regulating drugs and medical devices.

Conclusion

The burden of my testimony today is that it would disserve the cause of morality, disserve fulfillment of our duty to come to the aid of those who suffer, if any government action, whether a proscription of conduct or a constraint on the public purse, were to thwart nonreproductive SCNT or nonreproductive embryo creation in general. When I speak of morality, I refer to the intersection of the leading moral views of our time including especially those sometimes imagined to hold otherwise/whose common kernel holds it virtuous to relieve suffering in actual lives when we can do so at no cost in potential lives.



LOAD-DATE: June 21, 2001