Reviews in Medical Ethics

Korobkin R. (with Munzer S. ), Stem Cell Century: Law and Policy for a Breakthrough Technology (New Haven and London: Yale University Press, 2007).

Id., at 2.

See, e.g., Blazer S. Zimmer E. , The Embryo: Scientific Discovery and Medical Ethics (Basel, Switzerland: Karger, 2005); Ruse M. Pynes C. , The Stem Cell Controversy (Amherst, New York: Prometheus Books, 2003); Bonnicksen A. , Crafting a Cloning Policy (Washington, D.C.: Georgetown University Press, 2002); Holland S. Lebacqz K. Zoloth L. , The Human Embryonic Stem Cell Debate (Cambridge and London: MIT Press, 2001).

See Korobkin , supra note 1, at ix.

Id., at x.

Id., at 20.

Id., at 7. What Korobkin likely meant is that the human body houses two types of cells, somatic cells and sex cells (eggs and sperm); the former contain 46 chromosomes while the latter have only 23. See Nussbaum R. McInnes R. Willard H. , Thompson & Thompson, Genetics in Medicine , 6th ed. (Toronto: Saunders, 2004), at 5. This point is critical, and is later well-described in the book in the context of somatic cell nuclear transfer in which the 23-chromosomed nucleus of an egg cell is removed and replaced by the 46-chromosomed nucleus of a somatic cell in order to create a genetically matched organism to the tissue donor.

Kolata G. , “New Stem Cell Method Could Ease Ethical Concerns,” New York Times, November 21, 2007, available at <http://www.nytimes.com/2007/11/21/science/21stem.html> (last visited January 7, 2008).

See <http://www.law.harvard.edu/programs/petrie-flom> (last visited January 7, 2008).

See, e.g., Kolata , supra note 8. The original papers detailing the reprogramming of human skin cells into induced pluripotent stem cells are Yu J. , “Induced Pluripotent Stem Cell Lines Derived From Human Somatic Cells,” Science Online, November 20, 2007, available at <http://www.sciencemag.org/cgi/content/abstract/1151526> (last visited January 7, 2008), and Takahashi , “Induction of Pluripotent Stem Cells from Adult Human Fibroblasts by Defined Factors,” Cell 131, no. 4 (2007): 861–872.

See The Volokh Conspiracy, available at <http://volokh.com/> (last visited January 7, 2008).

See Korobkin , supra note 1, at 24.

Id., at 57–60.

See The Volokh Conspiracy, supra note 11.

In November 1998, President Clinton asked his National Bioethics Advisory Commission to review the issues associated with human stem cell research. NBAC issued its report in September 1999. In August 2001, the Bush Administration charged its President's Council on Bioethics to report on the science and ethics of stem cell research. See National Bioethics Advisory Commission, Ethical Issues in Human Stem Cell Research (Washington, D.C.: Government Printing Office, 1999) and President's Council on Bioethics, Monitoring Stem Cell Research (Washington, D.C.: Government Printing Office, 2004).

The Stem Cell Research Enhancement Act, which would have loosened restriction on federal funding for stem cell research, was twice passed by Congress and twice effectively vetoed by President Bush. See Korobkin , supra note 1, at 41–43.

Id., at 52–55.

A November 27, 2007, search of the terms “stem cell research” in the Westlaw database for all state and federal case law produced 24 cases, 11 of which were challenges to federal policies and state voter initiatives governing funding of stem cell research, three of which involved patent or trademark infringement, and the rest mostly invoking the terms in dicta.

545 U.S. 1 (2005).

See Korobkin , supra note 1, at 75–77.

See, e.g., Cohen D. M. , “Cloning and the Constitution, Cloning and the Constitution, Cloning and the Constitution, Cloning and…,” Nova Law Review 26, no. 2 (2002): 511–544; Duffy D. F. , “To Be or Not to Be: The Legal Ramifications of the Cloning of Human Embryos,” Rutgers Computer & Technology Law Journal 21, no. 1 (1995): 189–223; Foley E. P. , “The Constitutional Implications of Human Cloning,” Arizona Law Review 42, no. 3 (2000): 647–730; Forsythe C. D. , “Human Cloning and the Constitution,” Valparaiso University Law Review 32, no. 2 (1998): 469–542; Jaenisch R. , “Human Cloning – The Science and Ethics of Nuclear Transplantation,” New England Journal of Medicine 351, no. 27 (2004): 2787–2791; Kahn M. I. , “Clowning Around With Clones: The Moral and Legal Implications of Human Cloning,” University of San Francisco Journal of Law and Social Challenges 3, no. 1 (1999): 161–177; Lawton A. , “The Frankenstein Controversy: The Constitutionality of a Federal Ban on Cloning,” Kentucky Law Journal 87, no. 2 (1998): 277–356; Robertson J. A. , “Liberty, Identity, and Human Cloning,” Texas Law Review 76, no. 6 (1998): 1371–1456.

See infra text surrounding notes 8–14.

127 S. Ct. 1610 (2007).

Id., at 1635.

Id., at 1636.

495 F.3d 695 (D.C. Cir. 2007).

Id., at 697.

See Korobkin , supra note 1, at 83.

See, e.g., Fein B. , “Hard Case, Bad Law,” Washington Times, May 6, 2006, at A17; Ahuja A. , “Giving Terminal Patients Unproven Drugs Won't Save Lives in the End,” The Times (London), August 21, 2006, at 17; Jacobson P. Parmet W. , “The New Era of Unproven Drugs” JAMA 297, no. 2 (2007): 205–208.

2007 WL 4040975 (9th Cir. 2007).

See Doe v. Shalala, 862 F. Supp. 1421 (D. Md. 1994) (plaintiff frozen embryo sought to enjoin activity of NIH Human Embryo Research Panel because any research using human embryos deprives it of constitutional right to life; case dismissed for lack of standing).

See Korobkin , supra note 1, at 238.

See, e.g., Suter S. M. , “A Brave New World of Designer Babies?” Berkeley Tech Law Journal 22, no. 2 (2007): 897–969; Gitter D. M. , “Am I My Brother's Keeper? The Use of Preimplantation Genetic Diagnosis to Create a Donor of Transplantable Stem Cells for an Older Sibling Suffering from a Genetic Disorder,” George Mason Law Review 13, no. 5 (2006): 975–1035; Smolin D. M. , “Does Bioethics Provide Answers? Secular and Religious Bioethics and Our Procreative Future,” Cumberland Law Review 35, no. 3 (2004–05): 473–517; Dolgin J. L. , “Methods, Mediation, and the Moral Dimensions of Preimplantation Genetic Diagnosis,” Cumberland Law Review 35, no. 3 (2004–05): 519–542; Tobey D. L. , “What's Really Wrong with Genetic Enhancement: A Second Look at Your Posthuman Future,” Yale Journal of Law & Technology 6, no. 1 (2004): 54–160.

See Korobkin , supra note 1, at 202.

Id., at 175.

This is the view of several queried individuals who have expertise in the field of assisted reproductive technologies and egg donation. Susan Crockin, a Massachusetts attorney specializing in assisted reproduction and the law, when asked about her clients' views toward research, stated that “I think what's fair to say is that in working with donors for over a decade to create legal agreement with recipient couples, in the past few years I've seen an increased reluctance by donors to agree to allowing embryos they helped create for an infertile couple be re-donated for both procreative use and research.” Email correspondence with Susan Crockin, December 3, 2007. Steven Lazarus, a Los Angeles attorney specializing in assisted reproduction and the law responded to the author's statement as follows: “Although I see an increasing number of donors who ask that excess egg and/or embryos not be donated to research, I still think the author is correct in the statement that ‘most individuals’ do not object to said disposition.” Email correspondence with Steven Lazarus, December 3, 2007. Steve Masler, CEO of The Donor Source, an Orange County, California agency that offers egg donation and surrogacy services, polled his case managers on the question of donation to research. Again, a small minority reported that some egg donors do ask about research, though the number hovers at less than 10 percent. Email correspondence with Steve Masler, December 3, 2007. All emails on file with author.

Korobkin R. (with Munzer S. ), Stem Cell Century: Law and Policy for a Breakthrough Technology (New Haven and London: Yale University Press, 2007).

Id., at 2.

See, e.g., Blazer S. Zimmer E. , The Embryo: Scientific Discovery and Medical Ethics (Basel, Switzerland: Karger, 2005); Ruse M. Pynes C. , The Stem Cell Controversy (Amherst, New York: Prometheus Books, 2003); Bonnicksen A. , Crafting a Cloning Policy (Washington, D.C.: Georgetown University Press, 2002); Holland S. Lebacqz K. Zoloth L. , The Human Embryonic Stem Cell Debate (Cambridge and London: MIT Press, 2001).

See Korobkin , supra note 1, at ix.

Id., at x.

Id., at 20.

Id., at 7. What Korobkin likely meant is that the human body houses two types of cells, somatic cells and sex cells (eggs and sperm); the former contain 46 chromosomes while the latter have only 23. See Nussbaum R. McInnes R. Willard H. , Thompson & Thompson, Genetics in Medicine , 6th ed. (Toronto: Saunders, 2004), at 5. This point is critical, and is later well-described in the book in the context of somatic cell nuclear transfer in which the 23-chromosomed nucleus of an egg cell is removed and replaced by the 46-chromosomed nucleus of a somatic cell in order to create a genetically matched organism to the tissue donor.

Kolata G. , “New Stem Cell Method Could Ease Ethical Concerns,” New York Times, November 21, 2007, available at <http://www.nytimes.com/2007/11/21/science/21stem.html> (last visited January 7, 2008).

See <http://www.law.harvard.edu/programs/petrie-flom> (last visited January 7, 2008).

See, e.g., Kolata , supra note 8. The original papers detailing the reprogramming of human skin cells into induced pluripotent stem cells are Yu J. , “Induced Pluripotent Stem Cell Lines Derived From Human Somatic Cells,” Science Online, November 20, 2007, available at <http://www.sciencemag.org/cgi/content/abstract/1151526> (last visited January 7, 2008), and Takahashi , “Induction of Pluripotent Stem Cells from Adult Human Fibroblasts by Defined Factors,” Cell 131, no. 4 (2007): 861–872.

See The Volokh Conspiracy, available at <http://volokh.com/> (last visited January 7, 2008).

See Korobkin , supra note 1, at 24.

Id., at 57–60.

See The Volokh Conspiracy, supra note 11.

In November 1998, President Clinton asked his National Bioethics Advisory Commission to review the issues associated with human stem cell research. NBAC issued its report in September 1999. In August 2001, the Bush Administration charged its President's Council on Bioethics to report on the science and ethics of stem cell research. See National Bioethics Advisory Commission, Ethical Issues in Human Stem Cell Research (Washington, D.C.: Government Printing Office, 1999) and President's Council on Bioethics, Monitoring Stem Cell Research (Washington, D.C.: Government Printing Office, 2004).

The Stem Cell Research Enhancement Act, which would have loosened restriction on federal funding for stem cell research, was twice passed by Congress and twice effectively vetoed by President Bush. See Korobkin , supra note 1, at 41–43.

Id., at 52–55.

A November 27, 2007, search of the terms “stem cell research” in the Westlaw database for all state and federal case law produced 24 cases, 11 of which were challenges to federal policies and state voter initiatives governing funding of stem cell research, three of which involved patent or trademark infringement, and the rest mostly invoking the terms in dicta.

545 U.S. 1 (2005).

See Korobkin , supra note 1, at 75–77.

See, e.g., Cohen D. M. , “Cloning and the Constitution, Cloning and the Constitution, Cloning and the Constitution, Cloning and…,” Nova Law Review 26, no. 2 (2002): 511–544; Duffy D. F. , “To Be or Not to Be: The Legal Ramifications of the Cloning of Human Embryos,” Rutgers Computer & Technology Law Journal 21, no. 1 (1995): 189–223; Foley E. P. , “The Constitutional Implications of Human Cloning,” Arizona Law Review 42, no. 3 (2000): 647–730; Forsythe C. D. , “Human Cloning and the Constitution,” Valparaiso University Law Review 32, no. 2 (1998): 469–542; Jaenisch R. , “Human Cloning – The Science and Ethics of Nuclear Transplantation,” New England Journal of Medicine 351, no. 27 (2004): 2787–2791; Kahn M. I. , “Clowning Around With Clones: The Moral and Legal Implications of Human Cloning,” University of San Francisco Journal of Law and Social Challenges 3, no. 1 (1999): 161–177; Lawton A. , “The Frankenstein Controversy: The Constitutionality of a Federal Ban on Cloning,” Kentucky Law Journal 87, no. 2 (1998): 277–356; Robertson J. A. , “Liberty, Identity, and Human Cloning,” Texas Law Review 76, no. 6 (1998): 1371–1456.

See infra text surrounding notes 8–14.

127 S. Ct. 1610 (2007).

Id., at 1635.

Id., at 1636.

495 F.3d 695 (D.C. Cir. 2007).

Id., at 697.

See Korobkin , supra note 1, at 83.

See, e.g., Fein B. , “Hard Case, Bad Law,” Washington Times, May 6, 2006, at A17; Ahuja A. , “Giving Terminal Patients Unproven Drugs Won't Save Lives in the End,” The Times (London), August 21, 2006, at 17; Jacobson P. Parmet W. , “The New Era of Unproven Drugs” JAMA 297, no. 2 (2007): 205–208.

2007 WL 4040975 (9th Cir. 2007).

See Doe v. Shalala, 862 F. Supp. 1421 (D. Md. 1994) (plaintiff frozen embryo sought to enjoin activity of NIH Human Embryo Research Panel because any research using human embryos deprives it of constitutional right to life; case dismissed for lack of standing).

See Korobkin , supra note 1, at 238.

See, e.g., Suter S. M. , “A Brave New World of Designer Babies?” Berkeley Tech Law Journal 22, no. 2 (2007): 897–969; Gitter D. M. , “Am I My Brother's Keeper? The Use of Preimplantation Genetic Diagnosis to Create a Donor of Transplantable Stem Cells for an Older Sibling Suffering from a Genetic Disorder,” George Mason Law Review 13, no. 5 (2006): 975–1035; Smolin D. M. , “Does Bioethics Provide Answers? Secular and Religious Bioethics and Our Procreative Future,” Cumberland Law Review 35, no. 3 (2004–05): 473–517; Dolgin J. L. , “Methods, Mediation, and the Moral Dimensions of Preimplantation Genetic Diagnosis,” Cumberland Law Review 35, no. 3 (2004–05): 519–542; Tobey D. L. , “What's Really Wrong with Genetic Enhancement: A Second Look at Your Posthuman Future,” Yale Journal of Law & Technology 6, no. 1 (2004): 54–160.

See Korobkin , supra note 1, at 202.

Id., at 175.

This is the view of several queried individuals who have expertise in the field of assisted reproductive technologies and egg donation. Susan Crockin, a Massachusetts attorney specializing in assisted reproduction and the law, when asked about her clients' views toward research, stated that “I think what's fair to say is that in working with donors for over a decade to create legal agreement with recipient couples, in the past few years I've seen an increased reluctance by donors to agree to allowing embryos they helped create for an infertile couple be re-donated for both procreative use and research.” Email correspondence with Susan Crockin, December 3, 2007. Steven Lazarus, a Los Angeles attorney specializing in assisted reproduction and the law responded to the author's statement as follows: “Although I see an increasing number of donors who ask that excess egg and/or embryos not be donated to research, I still think the author is correct in the statement that ‘most individuals’ do not object to said disposition.” Email correspondence with Steven Lazarus, December 3, 2007. Steve Masler, CEO of The Donor Source, an Orange County, California agency that offers egg donation and surrogacy services, polled his case managers on the question of donation to research. Again, a small minority reported that some egg donors do ask about research, though the number hovers at less than 10 percent. Email correspondence with Steve Masler, December 3, 2007. All emails on file with author.