Courts Should Follow the Law Not Determine Best Policy Re Funding of Stem Cell Research

by The Center for Bioethics and Culture on June 11, 2011

By Wesley J. Smith, J.D., Special Consultant to the CBC

ESCR scientists are mounting a furious political assault against the lawsuit, currently back in Royce Lamberth’s court urging that human embryonic stem cell research continue to be funded by the Feds, hoping to pressure the judge to see it their way. From the Science Daily Story:

Banning federal funding for human embryonic stem cell research would have “disastrous consequences” on the study of a promising and increasingly popular new stem cell type that is not derived from human embryos, according to a University of Michigan researcher and his colleagues. Human induced pluripotent stem cells, known as iPS cells, are reprogrammed adult cells that display many of the most scientifically valuable properties of embryonic stem cells while enabling researchers to bypass embryos altogether. Scientists hope to harness the power of both cell types to understand and treat disease, and possibly to grow new tissues to replace diseased organs…

“The incentives to use both types of cell in comparative studies are high because the science behind iPS cells is still in its infancy,” Owen-Smith said. “As a result, induced pluripotent stem cells do not offer an easy solution to the difficult ethical questions surrounding embryonic stem cell research.” Because use of the two cell types has become so intertwined, any federal policy that would deny funding for embryonic stem cell research “would derail work with a nascent and exciting technology,” said Owen-Smith, who worked with colleagues at Stanford University and the Mayo Clinic.

Objection your Honor, irrelevant! Sustained!

Even if true — and I know scientists who would argue with the assertion — the question before the court is not what the best policy is, but rather, what the law now requires. The two should not be conflated.

Lamberth has previously ruled that according to the law — as written — it is illegal for the federal government to fund ESCR because such research destroys embryos. That was reversed, but not on the substance of the question, so it remains before Lamberth’s court. A European magistrate came to a similar conclusion in determining that ES cells and the products derived therefrom cannot be patented under EU law, with the same “policy response” from “the scientists.”

If the law is wrong, change it. But the courts should not refuse to enforce it because they think not doing so is better policy. Otherwise, the courts become mini-legislatures and the rule of law devolves to the rule of bench.

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