Last week, a series of startling scientific developments were unveiled at the European Society for Human Reproduction and Embryology conference in Madrid. “Startling” may be an understatement — one BBC reporter described the announcements as nothing short of “horrific.” Newspapers heralded the brave new world with headlines that could easily have been copied from supermarket tabloids: “Era of ‘Unborn Mother’ Looms;” “Aborted Fetuses to Grow Human Eggs;” “Scientists Produce Human Embryos of Mixed Gender;” and for those of you working on your Freudian dissertations, “Give Birth to a Child from the Womb in Which You Were Conceived.” Just as disturbing is that a good deal of this Frankensteinian research advances unabated in the United States, where legislators continue to address the issue with deafening silence.
Consider for a moment what is at issue. Among the Madrid panels, scientists from Israel and the Netherlands announced that they had harvested ovarian tissue from seven aborted fetuses between 22 and 33 weeks old — well beyond the all-important age of “viability” recognized here in the States. The goal of the research seems to be, of all things, infertility treatment. The heightened demand for healthy human eggs — not easily “harvested” from women — has apparently reached such dire levels that gathering eggs from the dead unborn may soon be, as one doctor said, an “ethically acceptable” fertility option. Should these scientists successfully develop the extracted eggs, we face the very real possibility that a child could be born from the egg of an aborted fetus. While we don’t claim to share Senator Barbara Boxer’s anointed insight that tinkering with human embryos is “doing God’s work,” we’re nonetheless pretty sure that making a mommy out of an aborted fetus is not what the good Lord intended.
Lest we think such genetic cocktails are only mixed in Holland, Chicago scientists at the conference revealed that they have created “part male and part female” embryos which developed into what the Washington Post described as “mixed gender balls.” We generally prefer the term “blastocyst,” but what’s a little colloquialism among friends and hermaphrodites. In response to this discovery, Professor George Annas of Boston University offered the kind of moral certitude that only a professional ethicist can muster: “I don’t know if this work is ‘right’ or ‘wrong,’ but it should be reviewed and discussed . . . .” Once again, with due respect to Boxer and Annas, we’re reasonably sure that’s not what the Creator intended either.
The Europeans have taken a typical, bureaucratic response to the questions of human embryology and cloning, creating such agencies as Britain’s aptly named Human Fertilisation and Embryology Authority (thank you, Mr. Huxley). Nonetheless, Jeffrey Kahn, director of the University of Minnesota’s Center for Bioethics, explains that such experiments proceed apace within the friendly confines of the Windy City and other American towns because of a long-standing federal policy against funding or substantially regulating experimentation on human embryos — a policy which has effectively shifted such activity to the Wild West that is the biotech private sector.
In response to this flurry of activity, it is clearly time for Congress to act, and America to lead. While the president has expressly requested a federal ban on human cloning, for example, Congress has answered this call in a, well, impotent fashion, proposing bills that have failed to achieve bicameral approval. Yet even the best of these proposals suffers from fundamental flaws — it exceeds congressional authority and fails to adequately address the vast and disturbing array of emerging embryological technology.
Congress has cited only one enumerated power as a basis for its federal cloning ban: congressional authority to regulate interstate commerce. In order to survive a constitutional challenge, such a ban would need at the very least to substantially relate to commerce among the several states — a standard that a cloning or embryonic research ban would almost certainly fail.
While an outright “Commerce Clause” ban on human cloning, hermaphroditic embryos, or fertile fetuses might be sexier to voters, legislators should eschew this course in favor of regulations conforming to Congress’s limited powers. By doing so, Congress would not only act constitutionally, but could actually reach more disfavored conduct by targeting the substantial economic incentives which motivate human embryological research.
Accordingly, Congress could restrict the U.S. Patent & Trademark Office (PTO) from issuing patents on human cloning and the more macabre embryo and fetal research. The stakes here are quite real: The PTO has already issued patents on at least one cloning process, as well as on a variety of human cell lines and derivatives. While it is PTO policy not to grant patents on individual human organisms, the Patent Office has publicly expressed fear that even this modest step may be vulnerable to legal attack because it is not based on statutory authority. Thus, by prohibiting patents for a relatively narrow class of defined inventions and processes, Congress could grant the patent office authority to make fine distinctions between inventions — thereby alleviating concerns about overbreadth — while providing the statutory backing necessary to allow such determinations to withstand a legal assault.
If, as prophesied, “big biotech” is waiting to cash in on a Huxleyan vision, then a carefully drafted prohibition on such patents would do much to curb that brave new urge. But maybe big biotech isn’t the only Dr. Frankenstein to fear. Suppose Congress worries about nonprofits privately funding narcissists who would freeze their genes for fun and parts. Under current Supreme Court precedent, Congress has several different regulatory weapons in its arsenal. First, Congress could revoke the tax-exempt status of these “creative” nonprofits. But perhaps Congress worries about what Ph.D. candidates at major universities, or doctors at MassGeneral might do with a somatic-cell nuclear-transfer machine. Well then, try the conditional-spending shoe on for size. Virtually every American hospital and university receives federal money one way or another, whether through research grants or Medicare payments. Even the threat of withholding these federal funds would preemptively padlock these promethean labs, thereby providing an effective if unpopular first step.
Now, take a step back and imagine the possible aggregate effect. Who is likely to still be, as Messenger Boxer would have it, “doing God’s work?” Not big biotech. Without patent protection, their process would be protected only as a trade-secret; which works fine for protecting the Coca-Cola formula, but not so well in scientific research where, like your fifth-grade math teacher, the dons require you to show your work. Not universities or hospitals. They’d be cutting off their noses and eyelids to spite their faces; and could never withstand the backlash for choosing such research over education and health-care dollars. Private foundations? Perhaps. But probably not many, particularly if their tax status is on the line. Leaving us with marginalized, privately under-funded, non-tenured scientists who can’t prove to anyone how they did it without jeopardizing any profit they might otherwise stand to gain. Have at it.
The hour for debate has passed. Madrid has demonstrated that genetic science and embryology, left to their own devices, will fulfill our worst expectations. Congress should act expeditiously, and constitutionally, to spare us the grotesque reality of children born of aborted mothers.
— Nathaniel Stewart is a contributor to several articles in the forthcoming Encyclopedia of Bioethics, 3d edition. Robert Alt is a fellow in constitutional studies and jurisprudence at the John M Ashbrook Center for Public Affairs at Ashland University.