Confronted with the choice between preserving the life of an in vitro embryo (an embryo created in a laboratory) and finding a cure for illnesses such as Parkinson’s Disease through embryonic stem cell research, many people will support the research. I suspect that at least part of the explanation for such a choice lies in the fact that we readily identify with sufferers of serious illnesses while it is impossible to feel any empathy for in vitro embryos. However it is very dangerous to base the right to life on one’s ability to empathise with the holder of this right, given that history is replete with examples of where people fail to empathise with their fellow humans, and once we go beyond empathy to consider the arguments defending the deliberate killing of embryos in embryonic stem cell research, it is clear that permitting such research requires us to pay a very heavy price indeed in terms of how we value individual life.
There are two ways in which one might defend embryonic stem cell research. First, one could argue that it is morally acceptable to destroy individual life wherever that results in a benefit to a greater number of people. However this means that we would no longer have to treat an individual as an end in herself but rather could treat her as a means to an end (e.g. finding a cure for serious illness). Such a utilitarian approach to the protection of life would mark a major change in our current policy and values in this area where the taking of life is permitted only where that life threatens the life of another. Moreover this utilitarian approach denies the radical equality of each individual, instead, in the present context, dividing individuals into those whose lives may be expended in the interest of others and those who benefit from the deliberate killing of others.
For those reasons, many defenders of embryonic stem cell research do not rely on this utilitarian argument and instead argue that the moral status of the embryo differs from that of life at later stages of development, thereby seeking to preserve the application of the principle that we should treat each individual as an end in herself but excluding the embryo from the class of individual protected by this principle. A number of arguments are advanced in support of this distinction between the embryo and life at later stages but, in my opinion, they are all problematic as I shall demonstrate presently. However an interesting preliminary point to note about these arguments is the fact that there are so many of them. In my opinion, this reflects the inherent weakness in each argument for if there was one convincing argument here, it would surely sweep all before it, rendering all of the others superfluous.
In 2005, a majority of the Commission on Assisted Human Reproduction recommended that an in vitro embryo should not attract legal protection until placed in the human body, at which stage it should attract the same level of protection as the embryo formed through sexual intercourse. However this argument is problematic because, if in the future we develop technology to keep in vitro embryos alive outside the body for longer than is currently possible, the logic of the majority position is that one could grow embryos and foetuses to a point where, for example, they could become a source of human organs for transplant even where such harvesting results in their death, a prospect that many people would regard as appalling.
Next, it is argued that the moral status of the embryo differs from that of life at later stages because many embryos do not implant in the womb and consequently perish. The argument that this fact justifies destroying the embryo is a naturalistic fallacy and, as such, unpersuasive. No one would suggest that a society with a high infant mortality rate for children under the age of twelve months should be permitted to kill any child under that age. By the same token, I do not see how the fact that many embryos fail to develop successfully in nature can justify the deliberate destruction of an embryo.
Third, it is argued that, prior to implantation, it is possible for an embryo to divide into identical twin embryos and that legal protection should only apply to an embryo once we are certain that it is an individual, in other words, after implantation. However monozygotic twinning accounts for only 0.4% of all births and so we know that the vast majority of embryos are individuated, yet we are invited to frame a principle governing all embryos by reference to the very exceptional case of twinning. When it comes to responsibility for one’s acts, the law deals with probabilities, not possibilities and certainly not remote possibilities, and it is fanciful in the extreme to argue that, in destroying an embryo, one was not destroying an individuated embryo because of the possibility that the embryo in question might have developed into twins. Moreover, the process of twinning supports the view that crucial dimensions of individuation are already at work prior to implantation as twinning is not a random process but rather a compensatory repair triggered by a mechanical or biochemical disturbance of fragile cell relationships that threatens the embryo. Furthermore, if I oppose the destruction of an embryo because this prevents the development of a unique, irreplaceable individual, I can hardly condone destruction of the embryo where this may prevent the development of two or more such individuals. Indeed, the possibility that destruction of the embryo may deprive us of the unique contribution that two or more individuals may make to human experience strengthens, rather than undermines, my view that legal protection should apply to the embryo once fertilisation is complete.
Fourth, it is argued that legal protection should apply to the embryo only after brain activity has commenced (normally about 14 days after fertilization). This argument would appear to be based on the analogy with death, where cessation of brain function is taken as conclusive evidence that an individual has died. The analogy, however, is a false one. In the case of death, the absence of brain function is irreversible and will never resume. This is patently not so in the case of the embryo where we know that, if we wait long enough, brain activity will commence and so the start of brain function does not appear to be a significant moral marker for the purposes of this debate.
Penultimately, it is suggested that legal protection should apply to ‘personhood’ rather than simple biological life. My difficulty with this is that ‘personhood’ is too imprecise a concept to afford adequate protection for human life. Consider, for example, the following “indicators of humanhood” compiled by Joseph Fletcher – self-awareness
, self-control, a sense of the future, a sense of the past, the capacity to relate to others, concern for others, communication and curiosity. On the face of it, people with, for example, advanced Alzheimer’s Disease would not appear to satisfy all of these indicia of “humanhood” and so, on this approach, would not enjoy legal protection for their right to life. And yet if one understates or dilutes the indicia of personhood, the concept could logically include all sentient beings, including animals.
Finally, it is sometimes argued that the in vitro embryo only constitutes potential life as, unless it is implanted, it will not develop and, if it is going to die anyway, we may as well put it to good use through embryonic stem cell research. This argument is also problematic. In the first place, I doubt that it is possible to distinguish between life and potential life. Even the early embryo has realized some of its potential by dividing into two cells, four cells, eight cells, etc. (Its gender, incidentally, is already determined at this time even if that cannot be discerned by an observer.) In terms of this argument, it is more accurate to say, with reference to the in vitro embryo, that the ongoing process of realizing potential is interrupted. However it is not at all clear to me why the fact that we are now capable of putting individual life into suspended animation (at present only possible in relation to the embryo) should affect the moral status of that life so as to permit us to destroy it for the benefit of others.
In conclusion, I consider that legal protection for the embryo should commence once the process of fertilization is complete because at that point we now have in place, for the first time, human life, already male or female, with a genetic programme that, in an appropriate environment, will develop as a unique life with a unique, ever developing relationship with the rest of humanity. As I have sought to demonstrate, the various attempts to differentiate the moral status of the embryo from that of life at later stages are all problematic with the result that, if we permit embryonic stem cell research, we fatally undermine the principle that each individual should be treated as an end in herself rather than as a means to an end. Thus, while I am as anxious as anyone else that cures are found for serious illness, I am opposed to embryonic stem cell research because, in the absence of a convincing argument that differentiates the moral status of the embryo from that of life at later stages of development, such research ultimately denies the radical equality of each individual.
Prof. Whyte is an Associate Proffessor of Law and the college’s Dean of Students.
