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Submission to Australian Senate Community Affairs Legislation Committee Re Research Involving Embryos Bill 2002 and Prohibition of Human Cloning Bill 2002 RAY CAMPBELL, L.Ph. DIRECTOR QUEENSLAND BIOETHICS CENTRE 18 Clarence Street PO Box 3343 SOUTH BRISBANE QLD 4101 Telephone: 07 3844 8708 Fax: 07 3844 8252 Email: [email protected] 1. Introduction 1.1 I appreciate the effort by the Federal Government to lead the way in having uniform legislation throughout Australia in regard to the matters covered in the two Bills. It is to be commended for attempting this. 1.2 Likewise there is much in the Bills themselves to be commended. I am pleased that we now have two Bills. The Bill dealing with “Prohibited practices” has widespread support amongst the community. The practices prohibited there are clearly against the dignity of the human person and should not be allowed. 1.3 The second Bill involving excess ART embryos is much more contentious. My submission will deal with some foundational issues related to this Bill and then some specific comments on the Bills as they now stand. 2. Research Involving Embryos Bill. 2.1 Introduction In commenting on this Bill I wish to highlight two fundamental issues about which there appears to have been some confusion in the debate so far. The two issues are that of the status of the embryo and the distinction between allowing the embryo to succumb and destroying the embryo. I will approach both of these issues from a philosophical perspective as my own particular expertise is in moral philosophy. 2.2 The Status of the Embryo It is obvious that crucial to this issue is the question of the status of the embryo. There are three ways of approaching the question of the status of the embryo: Is the embryo a human being, that is a member of the species homo sapiens? This is a scientific question Is the embryo a human person? This is a philosophical (and for some, theological) question. Is the human embryo to be valued? This is a moral, political and legal question. For most the answer to the last question will depend upon answers to at least one of the first two questions. However for some (perhaps more than we think) the third question is to be answered independent of the first two. In the debate so far these three questions or categories are continually confused1. Some people who say that the embryo is not to be valued seem to think they 1 A recent example is an article by the Most Reverend Dr Peter Carnley which appeared in The Bulletin, August 28, 2002. While appealing for greater analytical rigour, Dr Carnley unfortunately does not apply it to his own article where the three categories are continually confused. must therefore deny that it is human. This leads to scientific gibberish being uttered in an attempt to deny that the human embryo is a human being. 2.2.1 The Scientific Question: Is the human embryo a human being? The question could be put another way: When does the life of a human being begin? This question is a scientific question. It is the same kind of question as “when does the life of a new mouse begin?” or “when does the life of a new monkey begin?” The same kind of criteria that a scientist would use to answer the latter two questions should be used to answer the first question. It is a question which is typically answered by people who make a study of biology, especially developmental biology or the more specialised human embryology. The weight of scientific opinion is overwhelming. “Individual life begins with conception by the union of gametes or sex cells. A spermatozoon (paternal) fuses with an oocyte (maternal) to form a zygote. Growth and development continue thereafter until a sexually mature adult is formed.” (M. Brookes and A. Zietman, Clinical Embryology, Florida, CRC Press, 1998 p.2) “Zygote: This cell results from fertilization of an oocyte by a sperm and is the beginning of a human being. Development begins at fertilization, when a sperm unites with an oocyte to form a zygote. Each of us started life as a cell called a zygote.” (K.L. Moore, The Developing Human: Clinically Oriented Embryology, 2nd ed., WB Saunders Publishers, 1977) “For each of us life begins at an unfelt, unhonored instant when a minute, wriggling sperm plunges headlong into a mature egg. The quiet egg, destined to die and rot unless it fuses with the sperm, reacts with vigorous activity and a spurt of energy. At this moment, known as fertilization, not only does a separate entity come into being, but also its unique individuality. This entity has been endowed with a mysterious but important quality that is called viability, or the ability to live, able to survive the trials and adversities of life before birth, as well as life after birth in nine months hence.” (Dr Tony Lipson, From Conception to Birth, Our most important journey, Millennium Books, 1994. Dr Lipson is, or was at the time of writing, a Paediatrician, Foetal Developmentalist and Geneticist at the Children’s Hospital, Sydney). “The term conception refers to the union of the make and female pronuclear elements of procreation from which a new living being develops. It is synonymous with the terms fecundation, impregnation, and fertilization … The zygote thus formed represents the beginning of new life.” (J.P. Greenhill and E.A. Freidman, Biological Principles and Modern Practice of Obstetrics, Philadelphia, WB Saunders Publishers) “it is the penetration of the ovum by a spermatozoa and the resulting mingling of the chromosomal material each brings to the union that culminates the process of fertilization and initiates the life of a new individual. Every one of the high animals starts life as a single cell – the fertilized ovum. The union of two such sex cells to form a zygote constitutes the process of fertilization and initiates the life a new individual.” (Bradely M Patten, Foundations of Embryology, M.D., 3rd ed. NY, McGraw Hill, 1968) “From the time of fertilization onwards the embryo has the capacity for further development as an individual human being provided this is not interrupted… Therefore it would seem logical to infer that another human life begins at the time of fertilisation. If this proposition is accepted then the next point of consideration relates to the rights and status of the human embryo from the point of fertilisation.” ( Dr John Kerin, then Head of Reproductive Medicine Unit of Queen Elizabeth Hospital, Adelaide, giving evidence to the Senate Inquiry into Human Embryo Experimentation Bill, 1985) One could go on adding to these quotes. The significant point is that these are scientific statements. The authors, as far as I know, do not have a particular “axe to grind”. They are simply stating the commonly accepted science. Some years back some scientists sought to introduce the term “pre-embryo” into the scientific lexicon. However under the weight of scientific criticism they withdrew the use of the term.2 The only serious counter-position put forward scientifically is that which asserts that the early embryo is a cluster of individual cells which do not form an organic unity. This position, which has been made popular through the work of the Australian philosopher (not embryologist) Fr Norman Ford3, has been soundly criticised by scientists and philosophers alike4. It has not found a place in textbooks of embryology. The embryo displays all the characteristics of organisation from the moment of conception. Indeed the latest research indicates that differentiation probably For references see: Dr Dianne N. Irving, “The Immediate Product of Human Cloning is a Human Being: claims to the contrary are scientifically wrong”, presented to the subcommittee on Health and Environment of the Committee on Commerce, U.S. House of Representatives, Feb 12, 1998, www.lifeissues.net/life/irv_09cloninghuman1.html 3 Norman Ford, When Did I Begin? Conception of the Individual in History, Philosophy and Science, Cambridge University Press, 1988. Ford himself believes that the embryo should be respected in the first weeks after fertilisation as a potential person. See Norman Ford, The Prenatal Person, Ethics from Conception to Birth, Blackwell Publishing, 2002. 4 See, for example, Dianne Irving op. cit., A. Fisher, “Indviduogenesis and a recent book by Fr. Norman Ford”, Anthropotes (1991), 2:199; G. Grisez, “When do people begin?”, Proceedings of the American Catholic Philosophical Association (1990), 63:27-47; Dr Paul Flaman, “When Did I Begin? Another Critical Response to Norman Ford”, Linacre Quarterly (1991) 58, No.4, 39-55. 2 begins at the two cell stage.5 To say that the embryo is just a cluster or lump of cells, as has been said by some during this debate, is to fly in the face of the scientific evidence. I suspect that those who have made this statement are confusing categories one and three above. They are making a value statement but cloaking it as a scientific statement. If they are making a scientific statement they should indicate the scientific evidence in support of their statement and show why all the leading embryologists in the world are mistaken. 2.2.2 The Philosophical Question: Is the human embryo a person? This question is much more difficult to address in a short space. However the position is summed up by Dr Dianne N. Irving in her Testimony to the Subcommittee on Health and Environment of the Committee on Commerce U.S. House of Representatives, February 12, 1998. I quote a couple of paragraphs and refer Senators to the extensive bibliography attached to her testimony: “As with public policy, any philosophical analysis of personhood must begin with and be based on the correct scientific facts. This is required for philosophical realism. Further a thing acts or functions according to the kind of nature it has – or what it is. If a “human being” is a “rational animal”; if the term “rational” must include virtually the vegetative and sensitive powers; if all of its powers must be present simultaneously with the body, with no splits – then personhood must begin when the human being begins – at fertilisation or cloning – when the “matter “ is already “appropriately organized”. This actually matches the correct science: immediately at fertilization or cloning, specifically human enzymes and proteins are produced and specifically human tissues and organs are continuously developed from fertilization or cloning on. Personhood, then, should be based on what something is, not on how one actually thinks of feels (merely functional definitions of a human person). Yet other philosophical answers have been offered – based essentially on functionalism and on bioethics’ rendition of philosophical rationalism or empiricism. The question must be, do those arguments for “delayed” personhood square with or match the correct scientific facts; are they based on historically correct philosophical claims, or even philosophical claims which are theoretically or practically defensible, or logically valid and sound? Where does this bioethics logic take us? I and many others have demonstrated that these arguments have consistently and extensively used incorrect science, do not match the correct scientific facts and are often historically inaccurate and philosophically indefensible (e.g. contain a mind/body split).”6 Helen Pearson, “Your Destiny from Day One”, Nature, Vol 418, 4 July 2002, pp.14-15. Dianne N. Irving, M.A., Ph.D., “Cloning: Legal, Medical, Ethical and Social Issues”, Linacre Quarterly, May 1999, pp. 32-33. This article has an extensive bibliography. See also Professor Robert George and Dr Gomez-Lobo, (members of President Bush’s Bioethics Committee) “Personal Statements”, www.bioethics.gov/cloningreport/appendix.html 5 6 The various markers given as for when personhood is “present” are arbitrary when one considers the condition of the embryo itself.7 The embryo (or foetus, when the marker is later in the life journey) is not substantially different before or after any of the supposed marker events. 2.2.3 Is the human embryo to be valued? This question can be a moral question, a legal question and/or a political question. Federal Parliament is being asked to answer the legal and political question. However Parliament’s decision (given the educative effect of legislation) will have a great bearing upon how many people answer the moral question. It is to be hoped that Parliament’s decision will be founded upon the moral question, and not just upon expediency. Generally speaking it is usually assumed that one’s answer to this third question depends upon one’s answer to at least one of the first two questions if not both. The question “when does a human person begin” is usually understood as “value laden”, i.e. once a person begins, he or she is to be valued. However this does not always seem to be the case. There would appear to be some who seek to answer this third question independent of the first two. Whether the embryo is a human being or a human person is deemed irrelevant. According to this stance it is up to us (where “us” might be society, parents, a particular group or a particular individual) to decide when another being is to be valued. Invariably these judgments are arbitrary and serve the person(s) making the judgment in some way. One scientist I heard recently based valuing the other upon how you feel about what you are looking at! Such subjective judgments cannot be the basis for public policy. Our great legal and moral tradition is built upon the recognition of the inherent value of every human life. To accept any other standard would be to introduce arbitrariness and hence injustice into our public policy. 3. The distinction between allowing an embryo to succumb and destructive embryo research. The other major factor influencing the minds of politicians and others in this debate is the particular situation of the frozen embryos. On this point I offer the following from the point of view of moral philosophy. “In the United Kingdom, embryo experimentation up to 14 days is allowed under license. At the recent Australian Academy of Science forum on cloning, Professor Martin Evans from the UK clearly stated that the choice of 14 days had more to do with expedience than anything else.” Submission from Southern Cross Bioethics Institute to the House Inquiry into Scientific, Ethical and Regulatory aspects of Human Cloning, Submission 233, p. 560 of collected submissions. 7 Person A ( who could be any number of people involved in the discussion of legislation presently before Federal Parliament) asserts that there is no moral difference between a) taking an embryo out of the freezer, allowing it to thaw, die and be washed down the sink, and b) killing the embryo by extracting its embryonic stem cells. In what follows I presume that it is accepted that the embryo is recognised as a human being. According to A’s position this is not in dispute. According to A the embryo is going to be killed anyway. As we have already allowed this by allowing the freezing of embryos as part of the IVF process, then in permitting the harvesting of stem cells we are not crossing a moral divide. We have already crossed it. This is the position as I recently heard it put by one exemplar of person A. I want to tease out the analysis of the human acts involved to see if A’s position is true or not. The position of A probably comes about because he or she begins by viewing the two acts as events, from the outside as it were. Viewing a human act in this way does not allow us to discern its moral significance. To know the moral significance of an act we need to know something of what the actor was doing. We need to know what was their intention in the act (not their further intentions of what they hoped to achieve as a result of the act). If I raise my arm what am I doing? I could be greeting someone or I could be signalling an assassin. To know the moral significance of my act you have to know something of what I am doing. You have to understand the act from my perspective. Usually we can establish this by evidence that surrounds the act (e.g. that a shot is fired when I raise my arm, and other evidence exposes a conspiracy between myself and the shooter). Sometimes all we have to go on is the word of the actor for what were they doing. In the case under consideration we have two events which result in the death of the embryo. But are they both an act of killing? The fact is that in some cases A may be right. It can be the case that a person thaws out an embryo with the intention of killing it. Someone who says, “Let’s get rid of these embryos” and does it by setting them up on the bench and turning up the heat so that they thaw quickly and washes them down the sink is intent on killing the embryos. They are morally responsible for killing embryos. Similarly the person who says they want to use an embryo’s stem cells and can only do that by killing the embryo morally wills to kill the embryo. However, is it necessarily the case that anyone who allows an embryo to thaw out is directly killing the embryo? We must pause for a moment and consider the condition the embryo is in. It is in a most unnatural situation. It is alive, but its life has as it were been suspended by virtue of the freezing process. At the same time being frozen is what is keeping it alive. If the embryo is thawed out the only way it can survive is to be implanted into the womb of a woman. The only woman who might have a moral obligation to have the embryo transferred to her womb is the mother of the embryo. If the mother will not fulfil this obligation or if there is no such obligation, what is to happen to the embryo? There are three options. A woman who does not have a moral obligation to receive the child into her womb might do so. This would be embryo adoption. We already have examples of this through so called “embryo donation”. Whether this is morally appropriate is debated. But it is clearly an option which does not entail the destruction of the embryo. The second option is to allow the embryo to continue in its frozen state. However this state is itself beneath human dignity and its continuation places the embryo at risk as the long term effects of freezing are probably deleterious to the embryo. Even if this is not the case it would appear that to be maintained alive in a continually frozen state is what we would normally consider an extraordinary means of life preservation. A mature adult could morally refuse such a treatment. Similarly a guardian may refuse extraordinary means of sustaining life for the one entrusted to their care. Furthermore the IVF clinic does not have a duty to maintain the embryo in its frozen state indefinitely. Hence in the case of the frozen embryo the decision is made to cease the extraordinary life-support and allow nature to take its course. This is option three: to discontinue the life-support and allow the embryo to return to as natural a state as possible – a warm, moist environment. Development will be restored for a short time, but then nature takes its course. The embryo, because of its immaturity and inability to sustain itself, dies. The person who thaws the embryo in this case is not involved in an act of intentionally killing the embryo anymore than a doctor who does not initiate futile or overly burdensome life sustaining treatment on a dying neonate or who discontinues overly burdensome treatment on a dying patient. On the other hand when someone takes the embryo and extracts its stem cells, we do not have a case of “nature taking its course”. The embryo is carefully and slowly thawed to maintain its viability short-term in order that its stem cells can be harvested. It does not die because it cannot sustain itself in this environment. The embryo dies because someone has ripped it apart. The person who so deliberately destroys the embryo might be doing so for all kind of noble motives, but he/she can’t escape the fact that he/she is intentionally killing the embryo. In the former case it is not necessary that the person is willing the death of the embryo. In the latter case it is necessarily so. The law recognises that the act of allowing the embryo to succumb can be an act that does not entail the intention to kill the embryo. This is the basis for the Victorian law. People who do not have a duty to sustain this life support are allowed to discontinue it. The act of removing the stem cells of the embryo involves no such ambiguity. Unless the scientist is totally incompetent he/she knows that this deed is the deed that kills the embryo. This cannot be described as an act of allowing the embryo to die. This is the difference between the two deeds. To enshrine the permissibility of destructive embryo research in legislation is to allow a direct killing of the embryo which is not permitted in the IVF legislation. To pass this legislation is to cross a line that has not yet been crossed. I believe the Bill should not be passed. 4. Further Comments on the Research Involving Embryos Bill If the Bill proceeds there are several amendments which should be considered to keep faith with the Australian public. 4.1 In the public debate the justification given for research destructive of human embryos has been the possible (but yet unproven) beneficial therapies from embryonic stem cells. However clause 36 of the Bill and the accompanying Explanatory Memorandum make it clear that the Bill allows such research for other than the harvesting of embryonic stem cells. Indeed, apart from the prohibited practices contained in the Cloning Bill, it is not clear what are the limits to research which may be undertaken. The Bill leaves it in the hands of the licensing process. It would be in keeping with the recommendations of the Andrews Committee and with the general impression that has been given to the public, if the Senate would amend the legislation to restrict the use of embryos to the harvesting of embryonic stem cells. 4.2 Many members of the House of Representatives have said that they oppose the creation of embryos for research purposes. This is one of the reasons for insisting that the embryos to be used are those already created for IVF purposes before 5th April 2002. For many this has been crucial in their decision to support the Bill. However, according to Clause 60 this restriction lapses on 5 April 2005 or earlier if COAG declares so by notice in the Gazette. For such an important issue this appears to be an extraordinary provision. The Senate should amend this clause to ensure that such a change must come back to Parliament for its consideration. 5. Prohibition of Human Cloning Bill 2002. Clause 7, “Definitions”. The Bill breaks what I consider a fundamental rule of definitions in that in defining human embryo it uses the word “embryo” in the definition. This would seem to assume that there is total agreement as to what is an “embryo”. However this debate has shown that some scientists have a great propensity for redefining words in the English language. Hence it would appear careless to presume a uniform understanding of the meaning of the word “embryo”. The word itself needs to be defined for the purposes of this legislation or there is a danger the Bill will not succeed in doing what it proposes to do. I would recommend that the present definition of human embryo be preceded by a definition of embryo. I would support the following definition from Dr Nicholas Tonti-Filippini, Consultant Ethicist: Embryo means i) the cell formed by the fusion of an ovum and a sperm and the organism that develops from that cell; or ii) any cell or organism, however formed, that may be distinguished from ordinary cells by having a potential, if placed in a suitable environment, to develop in an integrated way, similar to the potential of the cell formed by the fusion of an ovum and sperm. Clause 9 makes it an offence to place a human embryo clone in a human body or the body of an animal. However there is no prohibition on other “uses” of the illegal clone e.g. it does not prohibit the harvesting of stem cells from illegal clones. To be consistent and to further reinforce the ban on cloning the Bill should prohibit all uses of an illegal clone. Clause 21 makes it an offence to import or export a prohibited embryo. However nothing is said regarding the products of prohibited embryos. Once again, to be consistent and to reinforce the ban on cloning there should be a prohibition on the importing and exporting of products from human embryo clones. Otherwise people could simply clone embryos offshore and then bring the stem cells or other products back into Australia. I wish the Senate well in its deliberations and thank you for the opportunity to make this submission. Ray Campbell Queensland Bioethics Centre PO Box 3343 South Brisbane 4101 Ph: 07 3844 8708 Email: [email protected]