[Paleopsych] J. Med. Ethics: The moral status of the embryo post-Dolly

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The moral status of the embryo post-Dolly
J Med Ethics 2005;31:221-225
GENETICS

Catherine Stanton and John Harris

School of Law, University of Manchester, UK

Correspondence to:
John Harris
John.m.harris at man.ac.uk <mailto:John.m.harris at man.ac.uk>

Original version received 24 March 2004

Accepted for publication 3 April 2004


ABSTRACT
Cameron and Williamson have provided a provocative and timely review of
the ethical questions prompted by the birth of Dolly. The question
Cameron and Williamson seek to address is "In the world of Dolly, when
does a human embryo acquire respect?". Their initial discussion sets the
scene by providing a valuable overview of attitudes towards the embryo,
summarising various religious, scientific, and philosophical viewpoints.
They then ask, "What has Dolly changed?" and identify five changes, the
first being that fertilisation is no longer required to create an
embryo. Following this analysis they then ask when an embryo created
other than by fertilisation begins to acquire respect. This paper
explores the ethical and legal issues highlighted by Cameron and
Williamson's paper.

   _____

Abbreviations: CNR, cell nuclear replacement; HFEA, Human Fertilisation
and Embryology Act 1990; IVF, in vitro fertilisation

Keywords: embryo; moral status; cell nucleus replacement; in vitro
fertilisation; Human Fertilisation and Embryology Act

Cloning has hit the headlines once again, with news that scientists in
South Korea have used the techniques developed to clone Dolly the sheep
to create what are almost certainly cloned human embryos.
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R1> The post-Dolly
era has created new ethical dilemmas, such as whether it is morally
right for a parent to clone themselves to create a child. However, we
will argue that the issues Cameron and Williamson raise are not novel,
but are nevertheless important in the post-Dolly era.
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R2> Their concern
to establish the respect due to a cloned embryo raises familiar issues
surrounding the moral status of the embryo. Similarly, their discussion
of the fact that fertilisation can no longer be seen as the starting
point of the development of a human being highlights the ongoing need to
alter our terminology and understanding in the light of scientific
developments.

The question Cameron and Williamson seek to address is "In the world of
Dolly, when does a human embryo acquire respect?". Their initial
discussion sets the scene by providing a valuable overview of attitudes
towards the embryo, summarising various religious, scientific, and
philosophical viewpoints.
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R2> They then ask,
"What has Dolly changed?" and identify five changes, the first being
that fertilisation is no longer required to create an embryo.
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R2> Following this
analysis they then ask when does an embryo created other than by
fertilisation begins to acquire respect.

A recurrent difficulty with Cameron and Williamson's discussion is their
use of the term "respect". As they correctly state, respect is commonly
accorded to embryos on various grounds, whether due to their value to
others, their potential, or their developmental status.
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R2> However, a
moral analysis requires that we provide justifiable reasons for these
grounds. In so doing, we understand the reasons for respect and thus the
form that this respect will take. Those who, on religious grounds,
consider life has moral significance from the first development of an
embryo, will consider the embryo should be accorded the respect a person
should receive. Others, who attribute moral status only to human beings
able to value their own existence, may still accord an embryo respect,
although perhaps neither the level, nor the form of respect they would
accord a rational human being.

However, the account the authors give has virtually no moral content. It
is not clear why the authors believe that respect should be owed. What
they attempt to do is to try to find stages in development, which, in
cloning or other radical new technologies, are significantly analogous
to the stages in normal sexual reproduction where people are disposed to
accord respect. But there are huge problems with this approach. Since
they have no account to give, at least not in this paper, of whatever it
is in virtue of which respect is owed, the juggling with stages is in a
sense meaningless. What matters ethically is not whether or not people
do accord this sort of respect but whether or not they are justified in
so doing.

Initially, they suggest that intention is significant to determining
when a cloned embryo should be afforded respect. They suggest that a
cloned embryo, "only acquires ethical value when both the intention and
capability for development into a person are simultaneously realised".
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R2> However, it is
not clear why intention is relevant to the moral status of the entity in
question and hence to the respect that ought to be accorded to it.
Imagine two in vitro embryos, one was created with the intention and the
opportunity of implanting it into a uterus in the hope that it would
result in a baby and eventually a normal adult human being. The other
was destined to be a research embryo with no intention to implant and no
planned opportunity of achieving its potential. Unfortunately, a
negligent Australian lab assistant mixes the embryos up and, horror of
horrors, the scientists come back to the bench and cannot remember or
discover which was which. There is clearly a moral imperative to treat
one of them with respect and not the other. The embryos are, in all
other respects similar and since they are clones, we will assume that
their genetic composition and stage of development is also exactly
similar. The idea that one of them be owed respect and the other not, or
that a simple decision as to which was going to be implanted would
accord one of them respect that the other would by that decision lack,
is bizarre if not incoherent. Consider that both these embryos are then
implanted "to be on the safe side". What does the "intention" that
accompanies one of them and not the other add to its moral status?

In the next paragraph the authors change tack slightly and say
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R2>:

 	The most important stage in the development of an embryo created
outside the womb, such as a Dolly embryo, is implantation, as without
successful implantation the embryo cannot develop into a human being.
Its potential to develop is theoretical until it is implanted; on
implantation, it becomes real. Upon the successful act of implantation
the embryo will begin to acquire respect as following implantation
development takes place (at least in principle) which, if uninterrupted,
leads to the birth of a human being.

This is a different idea and one which has more mileage to it.
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R3> However this
too has problems. The first relates to technology. Imagine the
perfection of ectogenesis, the artificial womb. In this era research
embryos and embryos destined for personhood are all developed in
artificial wombs and will never be "implanted". Which has the greater
moral status and why?

The authors' argument also embraces the potentiality argument. It is
saying that once the entity is embarked upon a developmental path which
could lead to the creation of a morally important embryo, it has moral
importance because of that fact. There are many well known objections to
this form of the potentiality argument. The main problem is, of course,
that eggs are not omelettes, acorns are not oak trees and we all share
one important piece of inexorable potential, we are all potentially dead
meat, but that does not accord any of us a reason to treat us now as if
we were already dead meat.
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R4> So we need a
different sort of argument, an argument that tries to say something
about what the embryo is-rather than what it might become. There are of
course sophisticated potentiality arguments that require different
considerations for their rebuttal but since the authors do not mention
them, they will not be addressed here.
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R5>

The authors then move on to consider the status of in vitro
fertilisation (IVF) embryos. They conclude that they "are entitled to
some respect if only modest 'because they are alive and because they are
regarded by others as morally valuable'".
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R2> They consider,
however, that "cells in culture from an individual are not due this
respect even if they are being prepared for use with the intention of
implantation so as to create an individual".
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R2> Their argument
thus appears to grant IVF embryos respect but not embryos created by a
process such as cell nuclear replacement (CNR). Yet the authors do not,
as argued, provide any clear justification for this moral distinction.
They accord IVF embryos respect on the grounds that they are regarded as
morally valuable by others. Yet, could not the same principle apply to
embryos created by CNR? The Catholic Church has condemned cloning.
However, it has been suggested by a Catholic writer that a cloned human
embryo would have the same moral status as an embryo created by IVF. As
Ford has commented
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R6>:

 	It makes no moral difference whether the embryo is naturally
conceived, produced through in vitro fertilization, or is a cloned human
embryo. Once formed, a human embryo is ethically inviolable.

After discussing implantation, the authors then assert that 14
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R14>:

 	After implantation, when the process of acquiring respect
begins, the embryo acquires more respect as the pregnancy progresses,
with quickening being an important stage. Respect continues to increase
until viability.

In expanding their view that respect for the embryo increases during
pregnancy, the authors refer to the growing value a mother may place on
the fetus and, conversely, the reluctance of doctors to perform an
abortion after the first trimester. However, while such matters may
demonstrate the value accorded to the embryo, they do not articulate the
underlying reasons for that value and hence provide justification for
such judgements. Is it simply increased probability of survival as an
adult? If so, that will vary between rich and poor, and will depend upon
the genetic composition of parents, whether there is a war going on, and
a whole range of other issues. If it is not an increase in probability,
then what is it?

In concluding their argument, the authors, as quoted above, consider
that from the time of viability the embryo should be entitled to full
respect as a human being. They state
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R2>:

 	As gestation progresses past the earliest stage of viability,
the unborn fetus is increasingly respected. As it moves from dependent
to independent and acquires the ability to survive outside the uterus,
it must be regarded, legally and ethically, as a legal person entitled
to the full set of rights of any other individual.

This paragraph alone contains complex and problematic issues. The
authors place importance on the idea of independence. However, there is
a sense in which none of us are capable of that and certainly in complex
modern societies, most people require assistance and are in some sense
dependent. Is the person attached to a heart/lung machine or a dialysis
machine independent or not? Why is independence of the mother so
important?

The authors also argue that from viability, the fetus should be regarded
legally and ethically as a legal person entitled to the full set of
rights of any other individual. They then point out that in Australia,
as in England, the law only recognises the child in the womb as a legal
person following birth.
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R7> They then
comment that it is "difficult for an embryo or fetus to have any rights
while it is in the womb".
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R2> However, this
phrase needs to be qualified. It is of course impossible for the fetus
itself to be able to exercise any rights while in the womb. However, it
is perfectly possible to ascribe rights to an embryo, which must then be
protected by others. It is the extent of these rights which the law
seeks to set out. To date, as set out above, English law does not deem
an embryo a legal person. One reason for this is that if embryos were
afforded legal personhood, this would lead to the existence of competing
legal interests. For example, English law respects the right of a
competent adult to refuse treatment.
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R8> Thus, a
competent pregnant woman advised to undergo a caesarean section is
lawfully entitled to refuse her consent to the operation.
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R9> If the fetus
were to be deemed a legal entity, this would lead to the mother's rights
conflicting with the fetus' right to life. To date English law has not
wanted to create such a conflict.

As the authors comment, the law frequently does ascribe rights to the
fetus in the womb, albeit that, where the fetus survives, these are not
exercisable until birth. However, again, such rights are currently
weighed against competing concerns. Hence, the child disabled in utero
due to the actions of his parents may be able to sue his father, but not
his mother under English law. 10
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R10> In 1976, when
the applicable Act was passed, this position was justified on various
grounds, one being that in practice a claim would only be brought
against a mother where the father wanted to use this as a weapon in a
dispute. However, it may be an issue which needs to be revisited. 11
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R11> The authors
say that the unborn fetus "must be regarded, legally and ethically, as a
legal person entitled to the full set of rights of any other
individual", <http://jme.bmjjournals.com/cgi/content/full/31/4/221#R2>
yet at the same time acknowledge the difficulties involved from a legal
perspective. Even if the authors' ethical arguments are accepted, this
is an area where ethical concerns may not necessarily translate into
laws we would wish to adopt. 12
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R12>

TERMINOLOGY
The second issue Cameron and Williamson identify is that scientific
developments may cause us to re-evaluate the terminology we use. As they
point out, the traditional definition of an embryo as "a developing
unborn human during the first 8 weeks after conception"
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R2> would not
include a "Dolly embryo", where "conception" is deemed to include the
process of fertilisation. Yet, if we consider the group of cells formed
following CNR to be an embryo, we need to adopt a broader definition,
such as that suggested by Ford, which they cite. He defines an embryo as
13 <http://jme.bmjjournals.com/cgi/content/full/31/4/221#R13>:

 	A totipotent single-cell, group of contiguous cells, or a
multicellular organism which has the inherent actual potential to
continue species specific ie typical, human development, given a
suitable environment.

The need for clarification of terms such as "embryo" is important, not
solely in the ethical debate, but also to ensure clarity in areas of
regulation.

This was highlighted in a recent English case. 14
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R14> The Human
Fertilisation and Embryology Act 1990 (HFEA) 15
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R15> established
the Human Fertilisation and Embryology Authority, which regulates the
creation and use of embryos created outside the body. Parties wishing to
create, keep, or use such embryos must be licensed under the terms of
the Act and are subject to its restrictions. The Act states 16
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R16>:

 	In this Act, except where otherwise stated-(a) embryo means a
live human embryo where fertilisation is complete, and (b) references to
an embryo include an egg in the process of fertilisation, and, for this
purpose, fertilisation is not complete until the appearance of a two
cell zygote.

The question which came before the court was whether an embryo created
using CNR fell within the terms of the Act, given that such embryos were
not created by fertilisation. If they did not, by definition, their
creation and use would be held to be unregulated. The government
considered an embryo created by CNR did fall within the remit of the
Act. However, Bruno Quintavalle, acting on behalf of the Pro-Life
Alliance sought a declaration that this was not the case. If successful
in their case, the Pro-Life Alliance hoped to force Parliament to
consider the issue in full.

In the High Court, the claimant (that is, the Pro-Life Alliance) was
successful. 17
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R17> The judge
declared that human embryos created by CNR were not "embryos" within the
meaning of the Act and were thus not subject to the regulation set out
in the Act. Parliament thus moved quickly to pass legislation to ensure
that reproductive cloning, whereby an embryo could be created by CNR and
placed in a woman, would be unlawful. 18
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R18> Subsequently,
the Court of Appeal allowed the appeal, a decision subsequently affirmed
by the House of Lords. 19
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R19> An embryo
created using CNR was to be subject to the requirements of the HFEA.
This was held to be within the purpose set out by Parliament in the Act.

Although this is not the place for a detailed legal analysis, some
general principles can be drawn. Where developments take place, as in
this case, which were not contemplated by Parliament, the courts may
interpret legislation to give effect to the purpose intended by the
legislature. Statutes are held to be "always speaking". Thus, for
example, a tape recording was held to fall within the meaning of the
word "document", since both function to transmit information. 20
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R20> However, the
courts are not in theory the legislature and thus must be concerned to
interpret existing legislation, rather than create new law.

The decisions in the Court of Appeal and the House of Lords have
received both support 21
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R21> and criticism
22 <http://jme.bmjjournals.com/cgi/content/full/31/4/221#R22> and it is
not proposed here to analyse whether the judiciary adhered to their role
as interpreters of the law or moved into a legislative role. Whatever
view is taken of the decisions, what emerges clearly is the difficulty
of legislating in areas such as these, which are subject to
technological advances.

This is an issue discussed by Gogarty in this journal, after the Court
of Appeal decision, but prior to that in the House of Lords. 23
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R23> As he sets
out, the traditional approach to drafting legislation has been to set
out "specific and succinct" legislation. The effect of such an approach
is, he argues, as follows 23
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R23>:

 	This promotes clarity in the law, allowing a clear demarcation
between what is legal and illegal, and clearly delineating the extent of
civil rights and obligations. Scientists and researchers should not be
encumbered by uncertainty regarding what research they can validly
undertake. Community concerns are assuaged by clear laws.

These are concerns we must take seriously if the law is to be just. As
Rawls set out 24
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R24>:

 	This precept [that there is no offense without a law] demands
that laws be known and expressly promulgated, that their meaning be
clearly defined ... for if, say, statutes are not clear in what they
enjoin and forbid, the citizen does not know how he is to behave.

However, as Gogarty points out, on the other hand, "comprehensiveness
and precision can lead to convoluted and confusing language, narrow the
ambit of the law, and render it rigid and inflexible". 23
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R23> He sees this
problem particularly in the area of advancing technology, such as
cloning.

Gogarty therefore suggests that, as a result, legislation in such areas
should not follow the usual, prescriptive approach. Instead, it should
seek to identify the type of practice to be outlawed. Instead of asking
"What is the exact technique we wish to control?", legislators should
ask, "Where do the differences lie between what we will allow to occur
and what we will not?". 23
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R23> He refers
with approval to the approach taken in the drafting of the Human
Reproductive Cloning Act 2001. This states: "A person who places in a
woman a human embryo which has been created otherwise than by
fertilisation is guilty of an offence". 18
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R18>

The Act does not provide definitions of terms such as embryo or
fertilisation, no doubt in an attempt to avoid the difficulties which
emerged with the HFEA. Instead it sets out a "class of practice" 23
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R23> to be deemed
unlawful. Whilst such an approach to drafting has attractions, it would
be a mistake to think that it resolved the difficulties associated with
changing technologies. First, while we may be able to anticipate where
there may be changes in the future, the very fact that scientific
developments are not always predictable makes it hard to determine when
exactly a less prescriptive approach should be adopted.

Secondly, the Human Reproductive Cloning Act itself demonstrates a
further difficulty. In this particular instance, avoiding the use of
definitions leaves uncertainty as to the attributes of a "human embryo".
The HFEA prohibits the mixing of animal and human gametes without a
licence. 16 <http://jme.bmjjournals.com/cgi/content/full/31/4/221#R16>
However, the combination of human and animal cells through CNR would not
be regulated by the HFEA unless the embryo were deemed a "human embryo".
If such an embryo were created, would it be an offence to place this
inside a woman? Does "human" in the context of the statute mean fully
human or partially human? 25
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R25>

It may be suggested that this is a poor example to use, since it is the
fact that the word "human" is used in conjunction with the term embryo
that creates the difficulty. This, it might be argued should not be
allowed to restrict using terms such as "embryo" without further
definition, in order to avoid the Quintavalle problem. However, although
we may be able to reach agreement on the organism to which the term
"embryo" should apply, other terms may not be so clear.

At first sight, when referring to human tissue, the term "tissue" might
appear clear. To each of us, it will convey a meaning. However,
investigations into the retention of organs and body parts following
postmortem, revealed different understandings of this apparently
straightforward term. As the Interim Report of the Bristol Royal
Infirmary Inquiry commented, clinicians and pathologists understood it
to cover a spectrum from samples on slides to whole organs. 26
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R26> This was in
contrast to the understanding of the word "tissue" in "everyday
language". Forms seeking consent for postmortems frequently referred to
the word "tissue" without further explanation, as a result of which the
report considered that the forms had failed to provide enough clarity.
26 <http://jme.bmjjournals.com/cgi/content/full/31/4/221#R26>

Applying these concerns back to the context of legislation, we can see a
paradox that both prescriptive and less prescriptive approaches may
provide difficulties of interpretation. Following Quintavalle, it is
right that we should seek ways to avoid the difficulties which emerged.
However, it is suggested that drafting less prescriptive legislation in
areas of technological development may not be the panacea it initially
appears. Particularly in cases where the criminal law is at issue,
legislation should err on the side of clarity, putting present-day
certainty ahead of possible future uncertainty. 27
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R27>

In summary as Cameron and Williamson suggest, the post-Dolly era raises
important issues, such as the status of a human embryo created by CNR
and the difficulties caused as a result of our changing understandings
and the subsequent need to alter our terminology. As we have argued, we
do not consider that these particular issues are new, though they are
nevertheless important. The status of the CNR embryo invokes the
familiar debate about the moral status of the human embryo. Similarly,
the need to adapt our terminology raises familiar concerns, not solely
in relation to the ethical debate, but also in terms of regulation. The
fundamental question in relation to cloning remains 28
<http://jme.bmjjournals.com/cgi/content/full/31/4/221#R28>: namely
whether, and if so for what purposes, it is morally right to create a
human clone?

ACKNOWLEDGEMENTS

The authors gratefully acknowledge the support of a project grant from
the European Commission for EUROSTEM under its "Quality of Life and
Management of Living Resources" programme 2002. We also thank our
colleague Margaret Brazier for helpful comments.

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<http://jme.bmjjournals.com/cgi/ijlink?linkType=ABST&journalCode=medethi
cs&resid=29/2/84>
24.	Rawls J . A Theory of Justice [revised edition]. Oxford: Oxford
University Press, 1999:209.
25.	See discussion of this issue: Grubb A. Reproductive Cloning in
the UK: The Human Reproductive Cloning Act 2001 Med Law Rev
2002;10:327-9, who considers this would fall outside the legislation.
26.	The Inquiry into the management of care of children receiving
complex heart surgery at Bristol Royal Infirmary Interim Report: Removal
and retention of human material (2002) available at
<http://www.bristol-inquiry.org.uk/interim_report/pdf/report.pdf>
(hereafter referred to as the Bristol Interim Report) para 45.
27.	Herring J . Cloning in the House of Lords. Family Law
2003;33:663.
28.	See Harris J . Goodbye Dolly: The ethics of human cloning. J Med
Ethics 1997;23:353-60 Harris J. On Cloning London: Routledge 2004; Kass
LR. Human Cloning and Human Dignity: The Report of the President's
Council on Bioethics. Public Affairs, 2002; Pence GE. Who's Afraid of
Human Cloning Lanham MD. Oxford: Rowman and Littlefield Publishers,
1998.