Download 2.2 The Status of the Embryo

Survey
yes no Was this document useful for you?
   Thank you for your participation!

* Your assessment is very important for improving the workof artificial intelligence, which forms the content of this project

Document related concepts
Transcript
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]