02/19/2009 05:12 am ET Updated May 25, 2011

Obama's Stem Cell Policy Should Be Enacted Through Legislation, Not by Executive Order

Obama has made it perfectly clear that he supports relaxing federal restrictions on human embryonic stem cell (hESC) research. He voted for the Stem Cell Research Enhancement Act of 2005, which was vetoed by President Bush. The bill would have allowed federal funding to be used for research on stem cell lines obtained from discarded human embryos originally created for fertility treatments. During the campaign, Obama criticized the Bush administration funding restrictions, "I believe that the restrictions that President Bush has placed on funding of human embryonic stem cell research have handcuffed our scientists and hindered our ability to compete with other nations."

As president, Obama guaranteed he would ensure that all research on stem cells is conducted "ethically and with rigorous oversight." Addressing the objection that hESC research requires harvesting cells from and destroying innocent human life, Obama explained that "hundreds of thousands of embryos stored in the U.S. in in-vitro fertilization clinics will not be used for reproductive purposes, and will eventually be destroyed. I believe that it is ethical to use these extra embryos for research that could save lives when they are freely donated for that express purpose." Obama also said he disagreed with the mounting evidence that indicates stem cells from alternate sources continue to show more promise than embryonic stem cells. He argued that embryonic stem cells still have more "versatility" and remain the "gold standard."

The main question facing Obama now is how to implement this change in stem cell policy. Should he issue an executive order or should he support legislation to implement the change in policy? According to some reports, the transition team for HHS and NIH has adopted the stance that the President should authorize the expansion of hESC research, including its funding, by issuing an executive order, even though an appropriations bill rider known as "The Dickey Amendment" prohibits that funding.

The problem with this approach is that the president does not have that authority. For our new president to attempt to defy a federal law would be a Cheney-like usurpation of presidential authority. It would be a colossal embarrassment for the new administration, and cause delay in getting funds distributed. During the Clinton Administration, members of Congress and various right-wing groups threatened to sue if that sort of challenge were issued against the Dickey Amendment through an executive order.

Bernard Siegel, Executive Director of The Genetics Policy Institute, a leading advocate and defender of stem cell research, has just issued a press release entitled "Lifting Stem Cell Funding Restrictions by Executive Order is Inadequate." The release says, in effect, that "Lifting the funding restrictions by presidential executive order is an inadequate remedy to fully realize the potential of embryonic stem cell research targeting cures. Barack Obama is correct in wanting Congress to act on this matter. Congress should do so without delay, by enacting comprehensive legislation safeguarding embryonic stem cell research and repealing the existing legislative funding roadblock (The Dickey Amendment)."

As Harvard philosopher Louis Guenin, author of the definitive work entitled The Morality of Embryo Use (Cambridge Press, 2008) recently wrote in an extensive memorandum which accompanied a model bill, "The president may propose to Congress legislation that will override the statutory prohibition (The Dickey Amendment) to the extent of authorizing a desired scope of research. The crucial provisions of authorizing legislation will be the conditions that render an embryo eligible for use as a subject. Prospects for a stable consensus hinge on whether those conditions ground a moral justification for embryo use within an overlapping consensus of conceptions of justice. Such a justification may be found by moral reasoning that eschews reliance on any premise peculiar to one or another moral or religious view."

Mr. Guenin's bill is predicated upon a consensus justification which is proposed and explained, "Of crucial moral importance is that the bill, unlike legislation twice recently enacted, makes progenitor decisions paramount. The linchpin of the justification is a progenitor decision against intrauterine transfer, this coupled with a choice to restrict use of a donated embryo to medical research and therapy, each as communicated in written instructions to a donee. The recent legislation has muddled the order of authority between physician and patient and thereby failed to require the conditions of embryo donation that confer moral permissibility. The recent legislation has also inadvertently provided for funding of hESC derivation." Other drafting differences are noted in his extensive memorandum. His proposed bill should enjoy support even broader than the decisive majorities that supported the recent legislation: the scope of authorized research is coextensive with that intended for the recent legislation, while the moral foundation of the proposed bill is stronger and more transparent. As he further wrote, "The more conspicuous our moral logic, the better the prospects for consensus."

There is no good reason not to do things the right way. That is to ask Congress to pass legislation to accelerate and to fund hESC research. The change in our federal human embryonic stem cell policy should be enacted by legislation, not by executive order.