The Missouri Cloning Initiative’s Illusory Limits on Abuse of Fertilized Embryos

James S. Cole, Esq.*

            The so-called Missouri Stem Cell Research and Cures Initiative would protect several types of evil acts, not just cloning.  Some of them may surprise people, because they are not advertised by the Initiative’s proponents.

            One such evil would involve research on unborn humans who are created by “in vitro fertilization” (IVF).  Cloning is not involved in the abuse that is described here; this discussion is limited to abuse of humans created by fertilization.  The Initiative purports to mandate that all “requirements of federal law” must be followed in conducting stem cell research and stem cell therapies.  The Initiative also purports to establish limits to the abuse of human blastocysts, such as a provision that says, “No stem cells may be taken from a human blastocyst more than fourteen days after cell division begins; . . .”  Initiative, sec. 2(3).  Not only are these illusory limitations, they also allow for harvesting of fetal body parts later in a pregnancy. 

Section 2 of the Initiative states in relevant part that stem cell research and stem cell therapies and cures shall be “subject to the requirements of federal law.”  The trouble with citing “requirements of federal law” is that there are none that apply in most contexts.  For instance, none apply unless federal funds are sought.  As the President’s Council on Bioethics noted, “There is no federal regulation of research on in vitro embryos when such research is privately

funded and supported.”  President’s Council on Bioethics, Reproduction and Responsibility: The Regulation of New Biotechnologies, Ch. 5, Conclusions (March 2004).  Furthermore, even when federal funds are involved, a blastocyst or embryo that is stored or used outside the womb without any identification of the biological parents are not covered by the federal regulations.  Id., Part III. A. 2.  “Ex utero embryos, as such, have never been treated as ‘human subjects’ for purposes of this section” [that is, the section protecting ‘human subjects’ from unethical research].  Id.; see also 45 CFR § 46.102 (Oct. 1, 2005).  Because the human blastocysts at risk—those created by IVF as described above--are not covered by federal regulations, the references in the Initiatives to the “requirements of federal law” ring hollow indeed.

            When one turns to the restrictions in the Initiative, one finds section 2(3), which says in part, “No stem cells may be taken from a human blastocyst more than fourteen days after cell division begins  .   .   .   .”  As has been pointed out in another article in this series, the 14-day restriction is illusory because it is limited to “blastocysts.”  “Blastocysts” are unborn humans during the week or so before they implant in the inside lining of the womb.  A human at this age is composed of 150-200 cells organized into a hollow ball.  The cells that comprise the outer layer will become the placenta through which the baby is nourished, while on the inside, partially filling the ball, is the inner cell mass.  The inner cell mass consists of the embryonic stem cells that the cloners say that they  want.  After implantation, the inner cell mass rapidly differentiates into the various layers, then organs and tissues, that will not cease developing until the human being reaches adulthood.  Once a human is allowed to implant, he or she is no longer a “blastocyst.”  Initiative, section 6(1).  The Initiative does not restrict taking stem cells from humans at later stages of development when they are no longer blastocysts.

            Furthermore, the limitation of section 2(3) is limited to taking stem cells.  There is nothing in the Initiative to forbid the taking of any other organ, tissue, or body part from an unborn baby so long as it is somehow related to stem cell research or stem cell therapies.  Robert P. George, Ph.D. of the President’s Council on Bioethics pointed out not too long ago that the cloners may not be aiming only at using stem cells from cloned persons.  They may be aiming at developing transplantable organs that are developed using stem cells from older unborn babies.  Professor George wrote late in 2005, “[B]ased on the literature I have read and the evasive answers given by spokesmen for the biotechnology industry at meetings of the President's Council on Bioethics, I fear that the long-term goal is indeed to create an industry in harvesting late embryonic and fetal body parts for use in regenerative medicine and organ transplantation.”   (“Fetal Attraction,” The Weekly Standard, October 5, 2005.)

            The Initiative would insert into the Missouri Constitution a guarantee that this harvesting could take place.  The Initiative provides that any legal regulation that would “prevent, restrict, obstruct, or discourage any stem cell research or stem cell therapies and cures” shall not be allowed except as provided in the Initiative itself.  Section 7.  Any inconsistent state law would be rendered void.  If the Initiative is adopted, then, unborn humans created by IVF could be killed at any stage of development to obtain their stem cells or “late embryonic body parts,” and neither the Legislature nor Missouri citizens could do anything about it.

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*James S. Cole, J.D. Harvard Law School, is a practicing attorney in St. Louis and serves as General Counsel for Missouri Right to Life.