In its report "Ethical Issues in Human Stem Cell Research," the National Bioethics Advisory Commission does not really present an ethical position and resultant recommendations. Indeed, one could argue, adjudication of ethical norms is no more the province of the federal government than is resolution of theological disputes. Rather, the report addresses public policy that cannot be formulated in a moral vacuum.

In conjunction with its deliberations, the Committee appropriately solicited the testimony of ethicists and theologians. Not quite as appropriately, some of these consultants raised the shibboleth of separation of church and state, thereby betraying their own lack of understanding of the anti-Establishment Clause and/or of the nature of government involvement in stem cell research. The issue never was a proposed governmental ban on stem cell research akin to a governmental ban on abortion. Imposition of such a ban would indeed give rise to the question of whether or not such a policy, in effect, establishes a particular religious or moral belief. The issue confronting the Advisory Commission was not proscription of a certain avenue of research; the issue addressed was governmental encouragement of and participation in such research in the form of federal funding. And that is a horse of a quite different constitutional color!

In public policy, no less than in medicine, the guiding principle must be primum non nocere—first, do no harm. The nation's founders built a wall of separation between church and state to preserve the independence and integrity of religious institutions. The purpose was to shield religion from government's pernicious and corroding influence. The notion of government funding designed to undermine the religious or moral convictions of even a portion of the populace would have been unthinkable.

The issue posed by stem cell research, in very blunt terms, is whether it is appropriate to use tax dollars in a manner that offends the religious sensibilities of some citizens. Deference to religious sensibilities in the form of noninvolvement is not at all a constitutionally prohibited form of establishmentarianism; quite to the contrary, it is mandated by the spirit, if not the letter, of the First Amendment.

No ethicist would gainsay the moral value reflected in research designed to save human life. But, at the same time, no ethicist has called for federal funding of every project designed to preserve human life. Policymakers begin with the axiological principle that only a finite amount of societal resources can be dedicated to such projects, with the result that selection of projects to be funded must be determined on the basis of competing scientific, pragmatic, and—yes—moral considerations. Triage decisions are often made in light of moral considerations.

No ethicist, to my knowledge, is opposed to stem cell research per se. The opposition is to research that destroys human life and is predicated on the position that human life begins at the moment of conception. Some ethicists regard any benefit derived from an evil or immoral action as itself immoral. Some are concerned that advancement of science may be regarded as exculpatory in nature and thereby, in the popular mind, diminish the odium associated with destroying the conceptus. Some are concerned that awareness of the potential benefit to humanity may influence the abortion decision of a vacillating woman confronted by conflicting emotional and moral forces. Nascent human life, they argue, dare not be sacrificed even for the noble purpose of preserving other human life.

Regardless of one's personal faith commitment or moral viewpoint, one must recognize that the social contract that is the cornerstone of American democracy demands that proper deference be paid to opposing views in formulation of public policy and, in particular, in expenditure of public revenue collected from all citizens.

The recommendations of the Commission certainly reflect sensitivity to the challenge that confronted it. Thus, the Commission strongly recommends against funding research involving embryos specifically created for research purposes. For the same reason, the Commission recommends against federal funding of research involving transfer of a human somatic cell nucleus into an oocyte since the procedure, in effect, results in the creation of a human organism.

At the same time, the Commission does not object to federal funding of projects involving cadaveric fetal tissue, including fetal tissue obtained as a result of nontherapeutic abortions. It does, however, insist upon establishment of procedures to prevent fetal tissue donation from influencing the abortion decision. The Commission also endorses funding of research that will utilize embryos remaining after infertility treatment is completed provided that the donors have already decided to have those embryos discarded instead of donating them to another couple or storing them. The Commission justifies this recommendation: "If the decision to discard the embryos precedes the decision to donate them for research purposes then the research determines only how their destruction occurs, not whether it occurs."

The Commission has endeavored to separate the scientific benefits of stem cell research from the morally contested actions that make the research possible. If effective safeguards are actually in place, it is certainly arguable that the issue is entirely analogous to the question of whether it is morally acceptable to derive benefit from research conducted upon the body of a homicide victim assuming, of course, that society assures itself that no homicide will ever be carried out in contemplation of such research.

Commendably, the recommendations attempt to preclude the possibility that the research itself provides a motive or impetus for destruction of a fetus or an embryo. Although it is salutary that the Commission attempts to prevent research benefits from becoming a motivational consideration, the proposed procedures are only partially effective. The primary safeguard consists of divorcing consent to use of the abortus from the decision to abort by refraining from soliciting such consent until the decision to abort has already been made. However, the decision to abort is not final until the deed is done. Not only is the decision morally and legally revocable, but there is significant evidence pointing to the phenomenon of vacillation and actual abandonment of plans to abort on the part of pregnant mothers. Intervening consent to use the abortus for research designed to save human lives is as much a concern with regard to a decision not to rescind consent as it is with regard to the original abortion decision. This concern can be assuaged only by delaying mention of possible research upon the abortus and solicitation of consent for such purposes until after the abortion is a fait accompli.

Use of surplus embryos obtained in attempts to overcome infertility presents an apparently insurmountable moral problem. Research is not performed upon already inanimate embryos. It is the research itself that causes destruction of the embryo. The argument that the embryos are in any event destined for destruction carries little moral weight. That the putative victim faces imminent death does not vitiate an act of homicide. Research upon the body of a homicide victim is morally light years removed from lethal research upon a living subject already marked for death. The excess embryos may indeed be destined for destruction whether or not research is allowed to go forward, but they will not be destroyed with government funding. When the public coffer is used for such purposes society becomes implicated in the act of destroying nascent human life. Citizens who object on religious grounds are, despite their objections, implicated as well.

A possible solution may lie in limiting government funding to research utilizing already existing cell lines. Some cell lines are already in existence; others will no doubt become available without governmental funding or encouragement. Limiting government involvement to research using existing cell lines not only removes government from implication in destruction of nascent life but also eliminates a federal imprimatur implying that society has bestowed its blessing upon the procedure. The fear that such a perception may become a self-fulfilling prophecy is probably the most serious ethical issue in the current debate.