Update on Embryo-Destructive Research: Legislation Developments in the US and Abroad

by E. Christian Brugger, D.Phil., Senior Fellow and Director of the Fellows Program

In Culture of Life Foundation

WASHINGTON, D.C., MAY 25, 2011 (Zenit.org).- You might recall that last summer a federal judge put a temporary hold on all government funding for human embryonic stem cell research (hESC) in the United States.

In August 2010, Judge Royce Lamberth of the U.S. District Court for the District of Columbia made headlines for halting the research on the grounds that President Barack Obama's March 2009 executive order revoking the President George Bush restrictions on hESC research was illegal. The president's order, put into policy by the NIH, freed up money for research upon stem cells derived from spare IVF embryos; but the policy required that the actual destruction of the embryos be funded privately.

The judge said the Obama policy violated the Dickey-Wicker Amendment , which prohibits federal money for research in which human embryos are created or destroyed. You see the point of the dispute? Dickey-Wicker prohibits funding for embryo destructive experimentation; the Obama policy says "no embryo destruction here, it's all been done elsewhere." The wily policy attempts to make an end run around the clear meaning of the congressional amendment. Judge Lamberth unsuccessfully went for the tackle. He issued a preliminary injunction, which dried up NIH funding for a whopping 17 days before his injunction was temporarily halted by a court of appeals on a request by the Obama Justice Department.

On April 29, 2011, Judge Lamberth's preliminary injunction was formally revoked by a 2-1 decision of the U.S. Court of Appeals for the District of Columbia Circuit. The Court ruled that the injunction if implemented would impose unreasonable burdens upon hESC researchers. Since the injunction had already been temporarily halted, the practical effect of the appeal court's decision is nill. It simply makes permanent what was only temporary.

Both Lamberth's injunction and the appeals court's ruling have occurred in the backdrop of the case, Sherley v. Sebelius, brought by two researchers, James Sherley, formerly of MIT, and Theresa Deisher, founder of AVM Biotechnology, challenging the legality of the Obama policy on the grounds that it violates Dickey-Wicker.

Sherley v. Sebelius is still pending. An unbiased court would plainly rule in favor of the plaintiffs. As Wesley Smith notes in his recent First Things blog : "The Dickey-Wicker Amendment … reflects the unambiguous intent of Congress to enact a broad prohibition of funding research in which a human embryo is destroyed. This prohibition encompasses all "research in which" an embryo is destroyed, not just the "piece of research" in which the embryo is destroyed."

But when it comes to issues related to human embryos unbiased courts in the U.S. are hard to find.

Whichever way the court goes, we can be sure the decision will be appealed. In the meantime, the Obama order to fund embryo-destructive research is alive and well.

Meanwhile, the California biotech company Geron Corporation announced on May 11 it had begun clinical treatments on its second spinal cord injury patient using human embryonic stem cells (hESCs). The patient, recently paralyzed from the chest down in a car accident, received an injection of stem cells at Northwestern Memorial Hospital in Chicago.

The Geron cocktail was derived from "surplus" IVFembryos donated for research by the parental donors. The cells were manipulated to produce early nerve cells (called "oligodendrocyte progenitor cells") that Geron hopes will not be subject to the same tumor-forming tendencies as undifferentiated hESCs.

The trial is not aimed at curing the patient, but rather at determining whether the stem cell treatment is safe.

The first patient treated with hESCs in the United States, 21-year-old Tim Atchison, was injected only six months ago. Doctors say it's still too early to judge the effects of the treatment. David Prentice of the Family Research Council explains that because the patient was injected within the first two weeks after his accident, as required by the Geron protocol, we may never know with certitude whether the treatment was effective, even if improvements occur: "a significant number of such patients show some spontaneous improvement within the first year after injury."

Discouraged about the old USA? Perhaps a better day is dawning for embryos in Europe. On March 10 , the European Court of Justice issued a preliminary opinion that procedures established using human embryonic stem cell lines are not patentable. The decision by Judge Yves Bot of the European Court followed upon a request for clarification by the German Supreme Court of the legal definition of human embryos in relation to patentability.

The request was precipitated by a German court case challenging the patent of a technique to generate nerve cells from established hESC lines. The case was filed by -- get ready for this -- the Amsterdam based activist organization, Greenpeace, which argued that patenting procedures derived from embryonic stem cell lines was unethical because the lines are derived from human embryos.

Judge Bot's preliminary opinion will now go before the 13 judges of the court's Grand Chamber. If the Grand Chamber agrees with the opinion, it could put a wrench in the works of European hESC research. Dare we hope?

3 Arguments Against IVF - Artificial Reproduction Is Not Procreation

by E. Christian Brugge, Ph D

WASHINGTON, D.C., APRIL 6, 2011 (Zenit.org).- Here is a question on bioethics asked by a ZENIT reader and answered by the fellows of the Culture of Life Foundation.

Q: The Catholic Church teaches that in vitro fertilization (IVF) is always wrong. I understand this to be the case when embryos are made and destroyed. But my doctor said that IVF could be used in a way that wouldn't create and destroy "extra" embryos, even though it would lower our chances for a successful pregnancy. If this is true, why is IVF wrong when used by husbands and wives? K.M. -- Denver, Colorado

E. Christian Brugger offers the following response:

A: The question rightly identifies the wrongness of creating and destroying (and we should add freezing) human embryos in and through the process of IVF. But even if IVF was chosen only by married couples, and those couples intended to create only as many embryos as they implant, and they rejected the eugenic screening and destruction of disabled embryos, IVF still would be gravely wrong.

This confuses many people. How can it be wrong to bring a child into the world, a child whom a couple intends to love and cherish and perhaps even raise as a good Christian? The answer gets at the heart of the Catholic Church's teachings on both the dignity of human life and of marriage.

Two Vatican "Instructions" on bioethical issues address this, both published by the Congregation for the Doctrine of the Faith (CDF): "Donum Vitae" (1987), Section II, B, 4, and "Dignitas Personae" (2008), No. 12. The documents set forth three basic arguments, or sets of reasons, to explain why children are licitly conceived only through a marital act (defined in Canon law as a "conjugal act which is per se suitable for the generation of children to which marriage is ordered by its nature and by which the spouses become one flesh," Canon 1061, § 1). I will refer to them as the "unity-procreation" argument, the "language of the body" argument, and the "begotten-not-made" argument.

1. The "unity-procreation" argument

The first is simple. It holds that the meaning of the marital act derives from the meaning of marriage itself. Marriage by definition is a procreative and unitive type of relationship. The marital act therefore has an intrinsic meaning which includes these two goods: unity and procreation. It follows that procreation should not be intentionally excluded from sexual intercourse (as taught in "Humanae Vitae"), nor should procreation take place outside of sexual intercourse, as takes place with IVF. (Some Catholic theologians even deny that creating a baby through IVF should not be called procreation, but rather reproduction.)

2. The "language of the body" argument

The second argument maintains that because persons are a unity of body and soul; and because marriage is the realization of a unique body-soul--two-in-one-flesh -- committed relationship; conjugal self-giving is meant by God uniquely to express this body-soul reality. It has a spiritual dimension, the unitive meaning, and a bodily dimension, the procreative meaning. "Donum Vitae" (following John Paul II's "Theology of the Body") refers to this two-fold meaning as the "language of the body." Marital intercourse is meant to speak, as it were, the "language" of bodily self-giving and spiritual self-giving. To intentionally exclude either is to falsify the language of the body. Its wrongness lies in a kind of deception.

So just as excluding the procreative dimension of intercourse through contraceptive choices is wrong, so also excluding the unitive dimension from the choice to procreate is wrong. Procreation (bringing new life into the world) should only follow as a result of the spiritual/bodily self-giving of the spouses in marital intercourse.

3. The "begotten-not-made" argument

Finally, Catholic moral teaching holds that because of the intrinsic value of persons, children not only should be treated in a way befitting of persons after they come into existence, but that their origin -- their conception -- should be fully personal. Bringing children into the world through the self-giving act of marital love is treating them -- in their origins -- in a manner befitting of persons.

"Donum Vitae" teaches that we should "affirm the right of the child to have a fully human origin through conception in conformity with the personal nature of the human being" (DV, I, 6, note 32). In other words, children should be -- and have a right to be -- the fruit of the one-flesh union of marital intercourse.

This is morally different from bringing a child into the world by a technique in a laboratory. In IVF a child does not come into existence as a fruit supervening upon the one-flesh union of a husband and wife. They come into existence as the end product of a laboratory procedure: gametes (sperm and egg) are the raw materials; intra-cytoplasmic sperm injection is the (most common) technique; and a child is the product. Children are made, not begotten.

It is true that not all children conceived through IVF are treated merely as products. Many IVF parents affirm the child they create as a person; but they only do so partly; and partly they do not. Insofar as they intend to love the child and sacrifice for the child (and if Christians raise the child in the faith), to that extent they affirm the child as a person. We might say this is the end of their act.

But their means -- also determining the moral species of the act -- is to bring the child into the world through a laboratory technique. So by virtue of the act's end, a child is welcomed as a person. But by virtue of its means, the child is not welcomed as a person, but treated as a product. In their coming-to-be, IVF children are treated as things, not affirmed as persons.

I would like to end by pointing to a connection between the logic of baby-making through IVF and the wide-spread problem of destroying unwanted preborn children.

All products exist for purposes beyond themselves. In this sense, products are not unto themselves, but unto ends beyond them; nor are they equal to their makers, but stand (morally speaking) in a relationship of "maker" to "thing made."

But the logic of making, and the relation of maker to object, justifies the act of unmaking. If a thing can be made for certain reasons, it can be unmade (destroyed) for contrary reasons. When those reasons arise, the "why" of the making is negated. Moreover, products are subject to quality controls so that defective products are discarded if they do not measure up to standards: think of automobiles.

What's the purpose for making a baby through IVF? To satisfy the parents' desire for a child -- they "want a child." If however the parents do not want a child -- if the embryo or fetus is unwanted -- whether because he or she is defective, or inconveniently timed, or poses a health risk to the mother, the child can be discarded. The general logic of IVF extends to justifying "selective reduction" abortions, eugenic screening of IVF embryos, and eugenic abortions.

No ‘moral certainty’ that brain death is really death: prominent Catholic ethics professor Brugger

by Hilary White

OME February 4, 2011 (LifeSiteNews.com) – A prominent American professor of Catholic medical ethics has said that in “brain death” criteria there is no “moral certitude” that a patient is really dead, a condition laid out by Popes John Paul II and Benedict XVI as necessary for removing organs.

The available evidence, he said, “raises a reasonable doubt that excludes ‘moral certitude’ that ventilator-sustained brain dead bodies are corpses.”

Professor E. Christian Brugger, a Senior Fellow of Ethics at the Culture of Life Foundation gave this judgment in a question and answer article published today by the Rome-based news agency Zenit.

Brugger quoted Pope John Paul II, who told a congress on organ transplants that death is “a single event consisting in the total disintegration of that unity and integrated whole that is the personal self.”

“Although we cannot identify the event directly, we can identify biological signs consequent upon the loss of that unity,” said Brugger. But according to many experts, those biological signs are not present in “brain death” cases.

In his address to the 2000 organ transplant conference, Pope John Paul II had said that when “rigorously applied” brain death criteria “does not seem to conflict with the essential elements of a sound anthropology” but that this judgment must reach “moral certainty.”

Brugger suggests, however, that this statement does not “properly speaking” qualify as an authoritative statement of the magisterium, since the Church’s authority extends to matters of faith and morals. The validity of “brain death,” however, is based upon a “scientific premise that such and such empirical indicators correspond to an absence of human life.”

“This is a technical matter bearing on the adequacy of those indicators for accurately signifying that death has occurred,” he pointed out.

Brugger references the research of D. Alan Shewmon, which, he says, “demonstrates conclusively that the bodies of some who are rightly diagnosed as suffering whole brain death express integrative bodily unity to a fairly high degree.”

In fact, he says, “brain dead” patients on ventilator support “have been shown to undergo respiration at the cellular level … assimilate nutrients … fight infection and foreign bodies … maintain homeostasis … eliminate, detoxify and recycle cell waste throughout the body; maintain body temperature; grow proportionately; heal wounds … exhibit cardiovascular and hormonal stress responses to noxious stimuli such as incisions; gestate a fetus … and even undergo puberty.”

All of this, says Brugger, would seem to indicate that “brain death” fails to meet Pope John Paul’s definition of death as “the total disintegration of that unity and integrated whole that is the personal self.”

The controversy over organ transplants stems from the widespread application of various “brain death” criteria, as well as so-called “non-heart beating” death criteria to determine whether organs can be removed from a patient on life support. Physicians, eager to obtain organs, are routinely removing organs from patients whose vital signs are still strong, while family members frequently report being placed under heavy pressure to consent to organ “harvesting.”

This problem, however, has yet to be thoroughly addressed by the various relevant Vatican offices, with a strong trend among officials in favor of brain death criteria.

In November 2009, Pope Benedict XVI gave an address to a prestigious international conference on organ transplants in which he warned that the principle of moral certainty in determining death must be the highest priority of doctors. In its roster of speakers, that conference, partially sponsored by the Vatican’s own Pontifical Academy for Life, did not address the moral issue that is at the heart of the controversy over organ transplants.

The pope said, however, that donation of organs can only be licit if it does not “create a serious danger” to the health of the donor.

“There must not be the slightest suspicion of arbitrariness. Where certainty cannot be achieved, the principle of precaution must prevail,” he warned. Benedict added, “Informed consent is the precondition of freedom, so that the transplant has the characteristic of a gift and cannot be interpreted as an act of coercion or exploitation.”

Despite the uniformly positive approach of conference attendees towards brain death criteria, the pope’s statement was taken by many as a ringing warning.

The following February, at a separate conference on “brain death,” an international gathering of medical, neurological and philosophical experts roundly condemned the criteria, saying that they result in the deaths of patients by premature removal of organs.

Anti-Depressants and the Dying: Depression Can Be a Factor for the Terminally Ill

by E. Christian Brugger, Senior Fellow in Ethics

In Culture of Life Foundation

WASHINGTON, D.C., OCT. 20, 2010 (Zenit.org).- Here is a question on bioethics asked by a ZENIT reader and answered by the fellows of the Culture of Life Foundation.

Q: What are some ethical issues surrounding the taking of anti-depressants? Does their mood-altering affect raise moral problems for people preparing their consciences for death? -- K.N., Augusta, USA.

E. Christian Brugger offers the following response.

A: There are many brands of antidepressants on the market today divided over several drug categories (or classes). An older class known as tricyclics came into widespread use in the 1950s and 60s. Common brand names include Elavil and Pamelor. A newer class known as selective serotonin reuptake inhibitors (SSRIs) came into common use in the late 1980s and 1990s and are still widely prescribed (including the famous drugs Prosac and Zoloft). One of the newest classes of the last 10 years, called selective serotonin norepinephrine reuptake inhibitors (SSNRIs), includes the popular brands Cymbalta and Effexor. In addition to depression, antidepressant drugs are also prescribed for anxiety, bipolar disease, eating disorders and chronic pain.

All three classes work at the cellular level of the brain blocking the absorption of brain chemicals known as neurotransmitters, believed to be involved in mood. The two most common neurotransmitters targeted by these meds are serotonin and norepinephrine.

Some fear that because they are involved in the altering of a person's mood, taking antidepressants is morally analogous to the taking of illicit mood-altering drugs.

I believe this is incorrect. Neurotransmitter medications, at least for depression and anxiety, when effective -- and they often are ineffective even when medically indicated -- ordinarily do not induce a "high," but work rather by restoring mood to a measure of statistical normality in one whose mood has grown flat and darkened, or has been shadowed by anxiety.

Whether or not antidepressants are advisable or promise symptomatic relief for certain individuals is a clinical question; and nobody reading this article should take what I say as clinical advice. My purpose here is to address moral questions surrounding the legitimacy of taking antidepressants for clinically indicated conditions.

The principal purpose of legitimately prescribed medications is therapeutic, that is, ordered toward the restoration of health. People suffering from major depression, dysthymia (low level chronic depression), chronic anxiety, panic attacks or bipolar disease are suffering from real health disorders. Medicine has demonstrated beyond reasonable doubt that these conditions have a distinct biological dimension. Data indicates that that dimension can be positively benefited by antidepressant medications.

These conditions might also have what clinical psychology calls a behavioral dimension. And I firmly believe that one's voluntary choosing and thinking can contribute to the exacerbation or minimization of the effects of many psychic disorders. It is unquestionably the case that for persons diagnosed with these types of disorders, some behavioral changes will be necessary to restoring long-term therapeutic health. But antidepressants can and should sometimes be part of a comprehensive therapeutic plan.

That said, antidepressants can cause significant side effects that burden one's life, affect one's relationships and limit one's range of activity. Moreover, similar to wearing glasses, one's neurochemistry after taking antidepressants for extended periods can establish new levels of normality on the medication. And so people who cease taking the meds will sometimes feel worse than before going on them. Finally, the newer classes of antidepressants are very expensive and can burden one's budget especially during economic downturns such as our own.

In making a good morally informed decision about beginning or continuing treatment with one of these drugs, consideration of these possible burdens should be factored in.

The question above asks specifically about the use of anti-depressants for persons preparing for death. The only uses of the meds for which I am familiar in end-of-life care are for treating the psychic states of those with terminal conditions. Those conditions, involving as they do bodily deterioration, can precipitate or exacerbate the types of neurochemical imbalances that correspond to states such as depression. In other words, as one's biology deteriorates, the biological basis for depression will often increase. Fear of dying might also play a role in one's mental state.

If such persons exhibit signs of depression, not only is it legitimate to treat them with antidepressant medications, it can be, in my opinion, a requisite part of palliative care (i.e., relieving distress involved in the dying process). Studies consistently illustrate that those patients most vulnerable to euthanasia are suffering from (among other things) treatable depression. For persons consigned to a bed because of incapacitating illness, behavioral options may be limited, so medications may be one of the few options available.

If health care workers appear unconcerned about the mood of the dying, then family members and other caregivers should insist that the patient's mood be taken seriously.

If the administration of antidepressants causes severe side effects that inhibit a person from conscientiously preparing himself or herself for death, then patients might rightly forgo their use as "excessively burdensome."

But if a patient is suffering from psychological distress of some sort as a (biological and/or environmental) result of a terminal condition, or if they have a history of mood disorders, and antidepressant medications can promise some relief, then treating them with these medications is no more morally suspect than treating them for chronic pain.