1

THE EMBRYONIC STEM CELL LOTTERY AND THE CANNIBALIZATION OF HUMAN BEINGS

Julian Savulescu

"This is the peer reviewed version of the following article: Savulescu, J. ‘The Embryonic

Stem Cell Lottery and the Cannibalization of Human Beings’ Bioethics. 16(6); 508-29 (November)

which has been published in final form at http://onlinelibrary.wiley.com/doi/10.1111/1467-

8519.00308/abstract . This article may be used for non-commercial purposes in accordance with

Wiley Terms and Conditions for Self-Archiving."

Abstract

One objection to embryonic stem (ES) cell research is that it “cannibalizes” human beings,

that is, kills some human beings to benefit others. I grant for argument’s sake that the embryo is a

person. Nonetheless, killing it may be justified. I show this through the Embryonic Stem Cell

Lottery. Whether killing a person is justified depends on: (1) whether innocent people at risk of being

killed for ES cell research also stand to benefit from the research and (2) whether their overall chances

of living are higher in a world in which killing and ES cell research is conducted. I call this kind of

killing “risk reductive.”

Word Count 8834

2

A better possible world

My daughters kissed their dead grandfather on the forehead. He was only 58. The two

Lifesavers were waiting respectfully at the front door. They would take him to remove his organs.

No one objected to the obligatory organ donation scheme. Everyone stood to gain. The death

of one person could provide organs to save 10 people’s lives. Life expectancy has been increased by

20 years. My two girls owe their lives to kidneys from a donor.

My father had large eyes with crescent shaped lids. His long dark eyelashes rested quietly. I

couldn’t tell whether he died from a natural arrhythmia of the heart or whether he was “chosen”.

When the natural organ supply was inadequate to meet demands, the Lifesavers chose a person

randomly by computer program. While that person slept, a precisely positioned electromagnetic beam

came down from a Satellite system in outer space and stopped that person’s heart.

Few people were ever killed. And we never knew who was killed and who died naturally.

Everyone accepted the new system because everyone had a greater chance of living much longer.

Organ transplants were used for all diseases, for all ages.

My daughters waved good-bye as he was wheeled out on a trolley. The death certificate

would say, “Died in his sleep.”

I hoped someone young with children would get one of his organs. He had been in good

shape until he died. He had done a lot of exercise. Everyone knows exercise can kill you.1

3

Embryonic Stem Cells

When disease or injury damages our body, the damaged body part dies and a scar forms.

Stem cell science holds out the hope that damaged body parts might be replaced by new tissue that

works properly. Stroke victims and paraplegics may be able to walk, diabetics might be able to

discard their syringes and heart attack victims may avoid heart failure.2

One of the promising sources of stem cells3 is the early human embryo.

4 Embryonic stem

(ES) cells are cells obtained from the inner cell mass of the blastocyst or preimplantation embryo, a

microscopic ball of around 100-200 cells. These cells are “pluripotent” which means they can mature

into any cell type in the body. Embryonic stem cells from mice have been directed to mature into

arterial, heart and skeletal tissue, blood precursors and nerve cells.5 Human ES cells have been

matured into nerve cells6 and trials of their use in stroke are underway.

7 Animal research has

suggested that such grafts can reverse cognitive and motor deficits.8 Stem cell science may create a

new role for transplantation medicine. It potentially represents a quantum leap in medical treatment

as significant as the introduction of antibiotics.

However, creating ES cells from an embryo requires its destruction. Embryos used to

produce ES cells can come from three sources: (1) embryos created for the treatment of infertility but

are no longer required (“spare” embryos); (2) embryos created specifically for research by in vitro

fertilisation (IVF); (3) embryos created by cloning (nuclear transfer), or “therapeutic cloning”.

Cloning embryos to produce ES cells has the advantage that the recipient of the cells is also the donor

and there would be no problems with incompatibility or rejection.

Laws regulating ES cell research vary. At the most permissive end, the UK Human

Fertilisation and Embryology Act 1990 allows the destruction of embryos until 14 days from any of

these three sources. At the other end, in August, 2001, President Bush approved the use of Federal

funds only to experiment on ES cell lines which were in existence at that time. These allegedly

number about 60, though they may be as few as 30. New ES cells cannot be created from any these

4

three sources using Federal funds in the US, though there are no laws on embryo research which does

not use Federal funds. In 2002, the Council of Australian Governments agreed that the

Commonwealth, States and Territories would introduce legislation that would ban cloning and the

production of human embryos by either cloning or IVF for research. However, it would allow the use

of embryos which were excess to IVF requirements as of April 5 for research.

Many people see that the use of spare embryos from IVF for this research which would

otherwise be destroyed as the least contentious source of embryos. I have argued that, even if one

believes the embryo is a person, it is acceptable: it is like taking organs from a brain dead child.9

However, even the use of spare embryos is problematic to some.

Opposition to ES Cell Research

The Catholic Church and Right to Life organisations have described ES cell research as

“cannibalizing” embryos “for their spare parts while still alive” and treating human beings as

“laboratory rats.”10

The research has been described as “dismembering” embryos11

, “embryo

farming”12

, “quarrying embryos”13

and involving “both murder and cannibalism”14

. The Pope issued

“an extraordinary warning” to President Bush in July 2001 over the “evils” of experimenting with

embryos15

.

Parliamentarians have been caught in the frenzy. Under the front page title of “Baby

Farms”16

, Victorian MP Danna Vale said she opposed ES cell research because of fear that human

beings would be “cannibalized and merchandised.” European Parliamentarians have employed the

charge of “cannibalism”17

.

What should happen to spare embryos from IVF which would otherwise be destroyed?

Melbourne’s Catholic Archbishop Hart said, “We can only pray that … our leaders will renounce the

logic of darkness and death and support instead reverence for every human life from conception until

natural death.”18

Nick Tonti-Filippini gives an account of a “natural death” for frozen IVF embryos:

5

“…it is legitimate to restore them to a natural environment, that is a warm, moist environment, where

they will develop as much as they can without that woman and then they die.”19

The use of cloning to produce embryos has inflamed conservatives further. Referring to the

cloning of a human cell by Advanced Cell Technology, one commentator wrote, “It’s similar to the

day that fait accompli when the atomic bomb was dropped. With the prospect of embryos being

farmed and treated like laboratory rats, the world has entered a new ethical circle, as it did with the so-

called debate over abortion in the 1970s which employed exactly the same tactics and use of

language.”20

A group of Australian religious figures banded together to pronounce that any form of

cloning, including therapeutic cloning, is “a profound offence to human dignity.”21

The Anglican

Archbishop of Sydney said, “We want federal politicians to take this issue as seriously as gun

control.”

Even philosophers succumbed to hyperbole. O’Hear said, “Cloning will undermine

everything we have come to expect in human affairs… To tamper with the natural order of things here

is a course fraught with peril.”22

One critic likened therapeutic cloning to the building of the Titanic: “But we have to

remember we’re the human race that created the unsinkable ship Titanic and when we start engaging

in those sorts of activities we’re looking for a lot of trouble.”23

A Reason for Opposition

Below a picture of a man up his two healthy smiling babies, the story runs,

“John Borden clutched his nine-month-old sons, Mark and Luke, in front of a House of

Representatives sub-committee as his wife, Lucinda, showed a picture of the embryos from donor

parents that had developed into the boys. ‘Which one of my children would you kill?’ Mr Borden, of

Fontana, California, said.”24

6

Why has ES cell research, even from embryos that are going to be destroyed, engendered

such hostility?

“The key issue … is whether it is ethical to dismember and destroy one

human being in the hope of making another one healthy.”25

“There is no need to kill some people to cure others.”

Marcia Riordan, executive officer of Catholic Archdioceses of Melbourne26

“[E]very ethical and medical code warns against the immorality of taking one

life to benefit another”.

Anthony O’Hear27

ES Cell Research and the Cannibalization of Human Beings

The central objection to all ES cell research is that it represents the destruction of human life.

As one opponent put it, “They may be frozen but they’re still human beings.”28

I and others have

argued that embryo is a collection of human cells, but is not yet a human being or person in the sense

that it would be wrong to kill it.29

But let us grant that the embryo is a person. Would that make ES

cell research wrong?

If the embryo were a person, the law would support opponents of ES cell research. It is

wrong to kill one person to save another. The most famous example of this is the case of cannibals

Dudley and Stephens.

The Case of Dudley and Stephens30

On July 5, 1884, four sailors abandoned their sinking yacht and put to sea in a small open

boat. By July 25, they had had no food for 9 days and no water for seven. Two of the sailors, Dudley

and Stephens, conspired to kill the weakest, a young cabin boy, Parker. Parker was weakened by

7

famine and drinking sea water and unable to give any resistance. Dudley said a prayer, asked that

their souls might be saved, told the boy his time had come and slit his throat.

The three men fed on his flesh for four days. They were then picked up by a passing ship.

The Court agreed that it was highly likely that they would have died of starvation if they had

not eaten Parker’s flesh. Nonetheless, the Court found that Dudley and Stephens were guilty of

murder. It found that they had no legal excuse of “necessity”. Necessity is the legal defence against

murder that killing was necessary to save their own lives. They were sentenced to death but this was

commuted to six months imprisonment.31

Lord Coleridge said, “It is not correct … to say that there is any absolute or unqualified

necessity to preserve one’s life…To preserve one’s life is generally speaking a duty, but it may be the

plainest and the highest duty to sacrifice it.”32

From where does this duty arise? Lord Coleridge: “…it is enough in a Christian country to

remind ourselves of the Great Example whom we profess to follow.”33

The Survival Lottery

An infamous example of cannibalization in the bioethics literature is John Harris’ “The

Survival Lottery.” “A better future” is one version. Harris describes his lottery this way.

“…[E]veryone is given a sort of lottery number. Whenever doctors have two

or more dying patients who could be saved by transplants, and no suitable organs …,

they ask a central computer to supply a suitable donor. The computer will then pick

the number of a suitable donor at random and he will be killed so that the lives of the

two more others may be saved… [E]ven taking into account the loss of the lives of

donors, the numbers of untimely deaths each year might be dramatically reduced, so

much so that everyone’s chance of living to a ripe old age might be increased.”34

8

Such a lottery creates a sense of revulsion. The worst fear about ES cell research is that

embryos are people incapable of consenting, who are sacrificed so that their bodies can be plundered

for cells to keep others alive.

To cannibalize is “to take parts from one unit for incorporation in, and completion of, another

(of a similar kind).”35

On the strict definition, the charge of “cannibalization” is no charge at all – it

applies to all transplantation. Critics of ES cell research hope to achieve more by calling it

“cannibalization.” A cannibal is “a man [sic] that eats human flesh”36

. It typically applies to a “blood

thirsty savage.” I will call the cannibalization claim the following:

K. It is impermissible to kill one innocent person, A, for the purpose of saving the life of

another innocent person B.

I will argue that it is acceptable to kill one person for the purposes of saving others. That is,

that there is nothing necessarily wrong with cannibalization.

It is important to separate K from two different claims:

C. It is impermissible to create one person, A, for the purposes of saving another, B.

CK. It is impermissible to create and then kill one person, A, for the purpose of saving

another, B.

I have argued that C is false.37

If a person is not harmed by being brought into existence, and

leads a reasonable life, it is permissible to create that person for the purposes of saving another. If C

is false and K is false, CK is false.

In this paper, I will show that K is false.

Killing Some to Save Others When All Would Otherwise Die

Killing of fetuses has long been accepted to benefit others.

9

a. Multifetal Reduction

The risk of dying or disability is slightly higher in twins than in singleton pregnancy. But this

risk rises sharply for triplets, and further still for higher order multiple births. As one gets above

quadruplets, the chance of any baby surviving is low. It is accepted practice to “reduce” higher order

multiples to triplets or twins. That is, to kill some fetuses to improve the survival chances of the

others.

b. Fetal Craniotomy

Another example is the now rare case when the fetus is obstructed in labour and cannot be

extracted from the birth canal. The pregnant woman risks rupturing her uterus and will die if the fetus

is not removed. The fetus’ head must be crushed (craniotomy) in order to save the mother’s life.38

c. Elevated Blood Pressure in Pregnancy

A more common situation is when the pregnant woman develops very high blood pressure in

pregnancy. If she will die or suffer brain damage if the fetus is not delivered, the fetus would be

delivered even if it is extremely premature and has little chance of survival.

In obstetrics, the pregnant woman’s welfare comes first. In all these cases, it is permissible to

kill one to save the other if both would otherwise die.

d. Conjoined Twins

While killing of fetuses has long been accepted, English courts recently sanctioned the killing

of one infant to save another.

On August 8, 2000, twins Mary and Jodie were born joined at the abdomen. Without

separation, both were expected to die. With separation, Jodie was expected to survive (though she

would require operations to construct an anus and vagina, and she might never walk). Mary would

certainly die. Their parents refused to consent to separation.

10

Two Courts granted a declaration that it was lawful to proceed with the operation in the

absence of parental consent.

Lord Justice Ward stated that the operation was justified in Jodie’s best interests because

Mary was “killing” Jodie. That grounded a defence in necessity. Lord Justice Ward said, “The sad

fact is that [Mary] lives on borrowed time, all of it borrowed from her sister. She is incapable of

independent living. She is designated for death.”39

Separating the twins would be ceasing to “suck

the life blood” out of Jodie, as Lord Justice Ward put it. He described Mary as a “parasite.”40

This

description makes significant metaphysical assumptions about personal identity. It is highly

questionable whether Mary was “doing anything” to Jodie.41

On November 7, 2000, the separation was performed. Mary died. Jodie survived.

e. The Restricted Survival Lottery

Gillon disagreed with the judicial decision, describing it as “hubris.” He argued that the

grounds for the parents’ decision (sanctity of life) was reasonable enough. Authority to make such a

decision should be left with parents and not transferred to the courts.

Gillon used this thought experiment. Identical twins are born. One has a condition which

will kill it in a few months, but has a healthy heart and lungs. The other has a disorder of the heart

and lungs. She will die soon without a heart lung transplant. With a transplant, she will survive.

Unless the first twin is killed, both will die. If the first is killed and her heart and lungs taken, the

second will survive. Gillon says it would cause “outrage” to kill the one twin to save the other.42

Outrage it may well cause. And Courts may not sanction it. But is it wrong?

John Rawls described a procedure for deciding on a just state of affairs. He asks us to

imagine ourselves in the “Original Position.”43

That is, prior to our entry in any form into society. He

11

asks us to imagine society with no knowledge of who will be in society, that is, from behind a “veil of

ignorance”. The just society is the one in which privilege and burdens are arranged in such a way

that we would endorse that society from the Original Position behind the veil of ignorance. The

Original Position also endorses some instances of killing one to save another when both would

otherwise die, as the following thought experiment illustrates.

Imagine you are in the Original Position and have the choice of coming into existence in one

of two societies. In Status Quo, one person develops heart failure and another develops lung failure.

No organs can be found. Both people die in one week. In Survivor, one person develops heart

failure, another develops lung failure. No organs can be found and it is virtually certain they will die

in one week. Both are allowed to agree to enter a lottery in which they draw straws. The one who

draws a short straw is killed to provide organs to save the other. With transplantation, the survivor

will be cured and live another 20 years.44

There is only one reason to prefer Status Quo to Survivor: that a certain week of life is more

valuable than a 50% chance of immediate death and a 50% chance of 20 years of life. I believe there

is vastly more reason to prefer a 50% chance of 20 years of life to the certainty of a week of life. But

if it is plausible that a week could be more valuable, change the example to be a day of survival, or an

hour. There is some point at which it is rational to prefer to Survivor, that is, rational to prefer a 50%

chance of survival to a certain chance of death. That is, it is permissible to kill one person to save

another, when both cannot survive.

Opponents of ES cell research could point to three relevant differences to ES cell research:

1. ES cell research has not been shown to benefit anyone (it is experimental).

2. the embryo cannot consent to enter a lottery.

3. the embryo would not otherwise die.45

12

I will return to the first two concerns. Consider the third. ES cell research is, according to its

opponents, more like the case of taking a young healthy child and killing it to harvest its organs. This

involves killing an innocent who would not otherwise die.

Killing an Innocent Who Would Not Otherwise Die to Save Others

Is it ever permissible to kill one person who would not otherwise die to save many?

It has been a standard criticism of utilitarianism to argue that it requires that moral agents kill

one innocent person to save others.46

Bernard Williams describes the imaginary case of Jim and the

Indians. The evil dictator Pedro captures Jim in South America. Pedro lines up 10 innocent villagers

and says he will shoot them all unless Jim shoots one. He has done this before and Jim knows that his

threat is real.47

There are many reasons why people feel Jim should not be under an obligation to kill one of

the Indian villagers. But this kind of example is complex. The killing is violent. To call on a person,

or to create a moral obligation for her, to pull the trigger of a gun to kill an innocent seems too much

to ask. We subconsciously imagine ourselves in such a situation and wonder whether we could do

that. And doubts about what we would do may colour our intuitions about what should be done. The

proximity, presentness and violence of the killing dominates. But when the killing is more remote

from us as an individual, as in the case of “A better possible world,” our intuitions may change.

Glover reminds us that distance can allow us to escape appropriate revulsion of wrongful killing.48

But likewise, our conditioned revulsion of human killing may dominate our evaluation of what may

be permissible killing.

Consider the following science fiction scenario variant of the veil of ignorance. Imagine that

in 2200 the world is about to be struck by an asteroid. There is time to escape to one of two planets.

On Planet Nature, disease has been eradicated. However, the atmosphere has a very high

electrical charge. There are frequent discharges in the form of lightning which kills people randomly.

13

Overall people have the same life expectancy as on earth in 2200. Inhabitants have learnt to

accommodate to the lightning strikes. They view them as we do car accidents.

On Planet Interference, humans have discovered how to reduce the build up of charge in the

atmosphere. They have erected lightning conductors, just as we have electricity poles. These collect

the charge and prevent the lightning strikes. However, the system is imperfect. Eventually charge

builds up on these conductors and discharges, killing any passer by. The system is an improvement

on nature, with only about 1/5 the deaths from lightning strikes. As a consequence, the average life

span of humans is vastly prolonged. But when people do die, it is the result of human interference in

nature.

It is rational to prefer to go to Planet Interference, other things being equal. The fact that one

will die partly from human interference is not a relevant consideration. What makes Planet

Interference preferable is that everyone has a lower chance of dying.

Detractors of ES cell research might point to two differences. In this example, humans are

altering a bad state of affairs to make the most of it. But in the ES cell case, the embryo is not going

to die – it is sacrificed purely for the benefit of others. Death in that case is solely the result of human

interference. That is impermissible. Secondly, the deaths are unintentional in the case of Planet

Interference but intentional in the case of ES research.

However, I will now give an example of intentional killing which seems permissible. At this

point, we should distinguish two versions of K:

K1. It is impermissible to kill one innocent person solely for the purpose of saving

another person’s life.

K2. It is impermissible to kill one innocent person for the purpose of reducing the risk of

death in a population or class, of which that person is a member.

14

K1 may be true. But it does not apply to ES cell research. Rather, K2 applies to ES cell

research. And K2 is false as the following example shows. The essential mistake in opposing ES cell

research is to assume that the embryo would not die. The embryo has, like all of us, a significant

chance of dying.

The Embryonic Stem Cell Lottery

Imagine you and your partner are infertile. After great difficulty, you produce 3 embryos. It

is unlikely that you will produce any more. Embryos formed during IVF have a 20% chance of

surviving to produce a baby (roughly the situation now).

However, ES cell research has progressed. ES cells can be utilised as a part of infertility

treatment to enhance embryo survival. ES cells injected into a developing embryo increase its chances

of producing a baby to 60%.

In Victoria, the destruction of embryos is not allowed by law.

In New South Wales (NSW), the destruction of embryos is permitted.

You look for ES cells to help your embryos survive but none are available. However, you

could have your IVF treatment in NSW and sacrifice one of your three embryos as a source of stem

cells for the other two. There are good reasons to go to NSW and employ ES cell technology:

1. Your chance of having at least one baby alive is 84/100 versus 61/125, that is, 84% in

NSW vs. 49% in Victoria.49

2. Each embryo has a better chance of surviving in NSW. In Victoria, any embryo has a

20% chance of survival. In NSW, each embryo has a 2/3 chance of escaping the cull

and having a higher chance of then surviving, that is, 2/3 x 60% chance of survival

(including the risk of sacrifice). That is, each embryo has a 40% chance of survival in

NSW. That is double the chance of surviving in Victoria.

15

If I were you, I would have my IVF in NSW – my chances of having a baby are higher. And

if I were an embryo, I would prefer to exist in NSW. But that is the world in which embryos are

killed intentionally for their stem cells.

There is no reason from anyone’s perspective to have the infertility treatment in Victoria.50

Diagnosis

The fundamental flaw in the cannibalization objection to ES cell research is that it ignores the

fact that the research stands to benefit everyone, at all ages. It is not concerned with sacrificing one

healthy person who would not otherwise die to treat sick people. It is about reducing the risk of death

to us all – we are all, even embryos, potential recipients of this intervention. Killing in the ES cell

lottery paradoxically reduces the risk of death overall for everyone. It is “risk reductive.”

To employ the Rawlsian veil of ignorance again, I would prefer a world in which I have some

chance of being snuffed out as an embryo but a much higher chance of having my fatal diseases

successfully treated as an embryo, fetus, child or adult.51

But let us imagine that embryonic ES cell therapy is never a reality. Nonetheless, ES cell

therapy will still be of use to children suffering from leukemias that would otherwise have killed

them. All brain injuries and insults would in principle be candidates for stem cell therapy. A

panopoly of diseases and injuries affecting the child, the newborn infant and the fetus are potential

candidates for ES cell therapy. And embryos will one day be children, if they are lucky.

Imagine again that the world is about to be destroyed by an asteroid. You have 3 frozen

embryos. You are allowed to send them to one of two worlds.

The Moon. This world has constraints on embryo destruction and no ES cell technology.

Because of the radiation fall out, there are very high incidences of leukemia. Inhabitants have a 20 %

chance of dying of childhood leukemia because there are insufficient stem cell donors. These deaths

16

will occur across generations. The population is 1000. 600 embryos are to be sent to the Moon.

They have a 20% chance of producing a baby. The chance of an embryo surviving beyond childhood

is 2/10 x 8/10 = 16%.

Mars. The same situation as the Moon but ES cell technology is employed. With the

sacrifice of 10 embryos to produce ES cells, it is expected that nearly all the leukemia can be cured.

The chance of an embryo surviving beyond childhood is 590/600 x 2/10 = 20%

I would send my embryos to Mars. Although this is the world in which killing of an innocent

occurs, the risk to my embryos (and the children they might become) of dying is lower. Killing is risk

reductive. And it makes no difference to my children whether death comes by human hand or

Nature’s, or God’s.

There are some ES cell lotteries I would not want for my children. Consider Pluto.

Pluto. The inhabitants are wizened tyrants who have employed ES cell technology to prolong

their lives past the normal of 120. Embryos sent there have a very high chance of being sacrificed -

90% suffer this fate. I would prefer the Moon to Pluto for my children.

These examples show that we would prefer in some circumstances a world in which innocents

are killed for the benefit of others, even if we or our children might be one of those killed. What

matters most is not whether we or our children have been killed by human hand, but our chances of

living. And in some cases our chances of living are, paradoxically, higher in worlds in which killing

of innocent people occurs. Provided we are not used solely or unfairly to benefit of others, that is,

provided we stand an equal or fair chance of benefiting from cannibalization practises, we have an

interest in some worlds in which cannibalization occurs.

Life is about management of risk. We all choose to increase risks in one area to reduce them

in others. For example, we may choose not to buy a car with airbags to buy a comprehensive health

insurance plan.

17

We may resist a world in which ES cells are taken to keep elderly patients alive in a

diminished state for a short time, such as in Pluto. Perhaps part of the revulsion to Harris’ Survival

Lottery comes from the thought that a normal person is sacrificed purely for the benefit of old people

with chronic illnesses. But the ES cell lottery is not like that: it involves imposing the risk of being

killed to overall reduce the risk of death.

Harris asks why we might not accept his Survival Lottery. He rejects several objections:

security, individuality, playing God, distinctions between acts and omissions, self-defence,

undesirable side effects, “common decency” arguments and rights. He finally rejects the society-wide

lottery only on grounds that it would discriminate against the healthy.52

But the lotteries we have

been discussing would not discriminate against any group, because we are all at one time an embryo.

Moreover, the very argument in favour of them is a reduced risk of death for all.

We are now in a better position to see what was wrong with Dudley and Stephens killing

Parker. Parker was used solely as means to keep the others alive. He stood no chance of benefiting

from the arrangement. Had lots actually been drawn, our intuitions about the killing may have been

different. Indeed, in one American case, it was judged that “sailors had no right to throw passengers

overboard to save themselves, but … the proper mode of determining who was to be sacrificed was to

vote upon the subject by ballot.”53

Consent

Another moral objection to killing Parker is that he was (possibly) in a position to consent,

but was not approached for his consent. Indeed, one of the fears associated with Harris’ Survival

Lottery is that the donor will be taken against his or her will.54

It is true the embryo cannot consent. But consent is not always necessary. Children do not

consent to their organs being taken after their death for transplantation. Fetuses do not consent to

their destruction to save a pregnant woman’s life. Mary did not consent to her killing.

18

This is a situation in which consent is not possible. Consent to an intervention now which

benefits future people is never possible. The plausible principle applying to future generations is to

choose that course of action which maximises the interests of all people in the future. And the ES cell

lottery may do that. Those people who will exist on Planet Interference will have been committed to

being killed by the choices now to erect lightning conductors. They have no choice but a policy of

erecting such lightning conductors is justified because everyone in the future has a greater chance of

living longer. (Of course, some won’t – that is just a feature of probability.)

The Free Riding Objection

If ES cell therapies are introduced, present people will have escaped the ES cell lottery. They

stand only to benefit and will never risk being sacrificed as an embryo. They are free riding – taking

the benefits but not the risks. Present individuals are exploiting future people. (The same argument

would imply that people conceived naturally are exploiting IVF).

This is true. But it is not a reason to abandon the ES lottery. It may be a reason to restrict the

benefits to those who have taken the risks. That is, we could respond by only allowing future

individuals to be treated, since they would have risked being sacrificed as an embryo. Only those

conceived from the point ES cell therapies are attempted should be candidates for therapy.

This would prevent free riding. And if many embryos must be sacrificed to save present

people (relative to the numbers required to save future people), then it is justified. But imagine only

five embryos must be sacrificed in the future to develop 5 important stem cell lines that could be

immortal and used to treat most childhood leukemia. Including present people in the group treated by

those lines would not increase the risk of future people dying to provide stem cell lines. There is no

reason to exclude present people in such a situation.

So, whether present people should be excluded from the ES therapy turns on the burden of

risk which their inclusion in treatment imposes on future people. If it is small or near zero, there is no

19

reason to exclude them. Given that ES cell therapy would be available for hundreds of generations,

and it is likely that ES cell lines would be immortal and used for many different individuals, it is

likely that the burden on future individuals of treating the present generation would be very small.

Cloning and Creating Embryos for Research

Therapeutic cloning introduces another issue. We often hear the cry that therapeutic cloning

may be permissible but reproductive cloning must never be allowed. As O’Hear puts it,“[T]oday we

do a little therapeutic cloning. Tomorrow, to help infertile couples, a bit of reproductive cloning will

be allowed. The day after, the human world is full of clones, for all kinds of reasons, good and

bad.”55

If therapeutic cloning were allowed, a skin cell would be taken and cloned to produce an

embryo that would be sacrificed to treat the disease of the donor person. Recall we have granted that

the embryo is a person. So the cloned embryo is a clone person. This does look very much like a

violation of Kant’s principle never to use a person solely as a means. It is also a violation of K1.

The reason is that the cloned embryo has no chance of benefiting from ES cell technology if it

is destined to be sacrificed. What is wrong is not that cloned embryos are destroyed, but that they

have no chance of continuing their life. This is in contradistinction to IVF embryos, some of whom

would be destroyed and others surviving to benefit from the destruction of the others.

This is discrimination against clones. That is, what is wrong with a world in which embryos

are people and therapeutic cloning is allowed, is an unfair distribution of risk onto cloned embryos

because they have no chance of continuing to live.

Paradoxically, such a world would be fair if reproductive cloning were allowed. That is, if

some cloned embryos were sacrificed and some allowed to continue to exist. We should only allow

therapeutic cloning if we allow reproductive cloning. We have arrived using the principles of

20

rationality and fairness at the conclusion that conservatives who claim that the embryo is a person

should require reproductive cloning.

The general point is that it is not wrong to deliberately create embryos for research if that

embryo is a part of a larger class of embryos, and the benefits to that class of killing some outweigh

the harms. That is, provided that killing is risk reductive for that class.56

Research vs. Treatment

Detractors of ES cell research may claim there are no “therapies.” We are still at the research

stage. So we are killing embryos for no reduction in risk to anyone.

The fact that ES cell therapy is at the research stage means that we have to factor in how

likely it is that successful treatments will result and how great their benefits will be. Reconsider the

ES cell lottery. Imagine that in this variant, there is no proven ES cell therapy. But there is a research

project. Scientists are 70% confident it will work, in which case it will be as described before but

there is a 30 % chance it will not work at all and the embryos treated will not accrue any survival

benefit (though some will have been sacrificed). We must now discount the benefits in NSW by the

probability of them occurring.

1. Your chance of having at least one baby alive in NSW is 70% of 84%. That is, 59% in NSW vs.

49% in Vic.

2. In Victoria, each embryo has a 20% chance of survival, as before. In NSW, each embryo has a

70% chance of a 40% chance of survival, which is 28%. This is still higher than in Victoria.

Even if the technology is still at the experimental stage, it may be in all future people’s

interests for the experiments to be run. Indeed, if ES cell therapy is useful in very common diseases

like heart disease, stroke, diabetes and so on, then tens if not hundreds of millions of people are

potential candidates in the next generation alone. When we then add that all future generations are

21

potential candidates, then potentially billions of people are candidates. It would be rational to

undertake such experimentation even if there were only a remote chance of it being successful.

This argument is liable to a reductio. If so many people are potential recipients, then the

killing of large numbers of people is also justified. Because of the enormous numbers of people in

distant future generations who might benefit, exposing current or near future generations to very great

risks would be justified.

Questions of intergenerational justice are complex.57

One way to resist this conclusion is to

take a single generational time slice. It would indeed be exploiting an embryo in the next generation

if the benefits of imposing risk on it were enjoyed by people several generations later. What matters

is the possible benefit to the embryo which is also exposed to the risk. A reasonable approach is to

stipulate that the benefits must outweigh the risks for each person in the generation that is exposed to

the risk of being killed.

The Devastating Reductio?

This argument is liable to a reductio that many may find decisive. Surely this argument

commits us not only to ES cell research but killing innocent newborn babies and young children, if

the benefits are great enough?

In truth, it does commit us to a Survival Lottery. But, as “A better possible world” shows, I

do not find this necessarily wrong.

Imagine a nuclear reactor explodes. My one year old child is exposed to nuclear fall out and

develops leukemia. She will die without a bone marrow transplant. Massive numbers of children

have been similarly affected. Since everyone’s bone marrow has been affected by radiation, there are

no suitable stem cell donors. But somatic (“adult”) stem cell research has progressed. We can extract

stem cells from the brain and cause these to mature into bone marrow. These are more resistant to

radiation damage. However, in order to get sufficient numbers, a whole brain must be destroyed.

22

This would provide stem cells which, after being grown in culture, could treat 10 children. I would

want my child to be entered into a lottery with other children who were going to die, to decide which

children would be sacrificed to provide healthy stem cells for the others. Why should I choose certain

death for my child (from an unnatural disaster) when she could have some chance of living?

Conclusions

Critics of ES cell research claim that the embryo is a human being or person with interests

and/or rights. They claim that killing an embryo for its stem cells is like killing a person and

cannibalizing her for her organs. I have argued that even if the embryo is a person, it is sometimes

legitimate to kill a person to save another or to reduce the risk of death to all.

Society accepts some instances of killing an innocent to save others. Well known examples

are multifetal reduction, fetal craniotomy and other examples when the fetus must be killed to save the

pregnant woman’s life. Recently, this principle as has been extended to killing infants after birth in

the UK conjoined twins case.

The clearest example of justified killing of this kind is when all people would die but if one

person is killed the others will survive and all have an equal (or fair) chance to survive. But killing is

not only of benefit to whose who are certain to die, but also to those at risk of dying. The following

are the criteria of reasonable risk-reductive killing:

All have a significant chance of suffering premature death or serious disability.

Killing a reasonably small fraction of the population at risk significantly improves the

chances of the survivors of avoid premature death or serious disability.58

Everyone in the population has an equal or otherwise fair chance being killed.

23

The result should be that the risk of death of serious disability of everyone at risk of being

killed is reduced compared to a world in which such killing does not occur.

ES cell research may satisfy these criteria depending on:

Probability of benefit to the people at risk of being killed

Magnitude of benefit to people at risk of being killed

Risk to people of death from cannibalization

We are all at risk of death and serious disability. ES cell technology stands to benefit

everyone: embryos, children and adults. It is this property that may make it reasonable to kill some

embryos to conduct ES cell research even if the embryo is a person. This argument is supported by

both utilitarian and Rawlsian approaches.

Opponents of ES cell research will likely remain unconvinced. They will argue that whatever

the benefits intentionally killing embryos is failing to “respect human dignity”.

Producing excess embryos is an accepted part of IVF treatment to reduce risk to women of

egg harvesting. Nearly 300,000 embryos were destroyed in the UK in the last 10 years. Laws in many

countries require the destruction of frozen embryos after a certain period of time (usually 5-10 years).

Is it respecting of human dignity to allow people to wither in nursing homes, unable to swallow speak

or move while all the time embryos are destroyed? What more twisted version of respect for human

dignity could there be? It is ES cell research, like organ transplantation, that is respectful of human

dignity in its reverence for the lives of the living. Our humanity is located in our ability to reason and

our ability to evaluate the rightness of our actions. It is an expression of our humanity to use reason to

choose longer and better lives for more people rather than shorter and worse lives for fewer people.

24

I have assumed (for argument’s sake) that the embryo is a person. If that assumption is

rejected, embryo destruction would be acceptable in a wider range of circumstances.

The issue of the permissibility of killing embryos is not merely of consequence to ES cell

research. Soon, gene chips will allow embryos to be screened for large numbers of genetic

conditions. Genetic manipulation of the early human being may be possible, to treat or prevent the

genetic component of common human diseases. The ethics of these will turn on whether the

destruction of human embryos is permissible.

1 A variant of John Harris’ Survival Lottery. Harris J (Ed.) Bioethics. Oxford: Oxford University Press,

2001, 300-15.

2 Gaerhart J. New potential for human embryonic stem cells. Science 1998; 282: 1061-2.

3 http://www.nih.gov/news/stemcell/scireport.htm

4 Thomson JA, Itskovitz-Eldor J, Shapiro SS et al. Embryonic stem cell lines derived from human

blastocysts. Science 1998; 282: 1145-7.

5 Weiss MJ, Orkin SH. In vitro differentiation of murine embryonic stem cells: new approaches to old

problems. J Clin Investig 1996; 97: 591-5.

6 Reubinaoff BE, Pera M, Fong C-Y, Trounson A, Bongso A. Embryonic stem cell lines from human

blastocysts: somatic differentiation in vitro. Nature Biotech 2000;18:399-404.

7 Doctors perform the first human brain cell transplant. CNN Interactive, July 1, 1998,

http://cnn.com/HEALTH/9807/01/braincell.transplant/index.html.

Okie S. Brain Repair: Doctors Implant Transformed Cancer Cells To Boost Recovery from Stroke.

Washington Post 9/3/99, Z12.

25

8 Bonn D. First cell transplant aimed to reverse stroke damage. Lancet 1998; 352: 119.

9 Savulescu J. “Dare to say yes.” Herald Sun 3/5/02, 19

Savulescu J. ‘An ethical outcome hijacked’ Sydney Morning Herald, 28/2/02.

10 Wroe D, Costa G. Catholic fury at stem cell rethink. The Age 27/03/02, 1-2

Pell G. Scientists’ argument is suspect. Sunday Telegraph 2/12/01, 101.

11 Cook M. Cell ethics down the river for a song. The Australian 24/9/01, 15.

12 Shanahan A. These babies should never be used for farming. The Australian 3/7/01, 15

Shanahan A. More hype than hope in clone breakthrough, Australian 2/12/01, 11.

13 Editorial. Tying the hands of researchers. The Age 27/2/02, 14.

14 Jago A. Clone Cannibalism. Wimmera Mail Times, 16/10/00, 4.

15 Johnston D. Stemming the evil. Herald Sun 25/7/1, 33.

16 Probyn A, Herald Sun, 14/8/01.

17 O’Donnell P. European Parliament rejects genetics report. Reuters Health Information 29/11/01.

18 Wroe and Costa, Op. Cit.

19 Tonti-Filippini, N. 60 Minutes, 17/3/02. Transcript available at

http://news.ninemsn.com.au/sixtyminutes/stories/2002_03_17/stpru_527.asp.

20 Shanahan A. More hype than hope in clone breakthrough, Op. Cit.

21 Benson S. Human embryo clone. Daily Telegraph 27/11/01, 3.

22 Stop before we go too far. Daily Mail reprinted in Herald Sun 27/11/01, 20.

26

23 Smith W. Cloning ‘could harm evolution.’ Canberra Times 11/8/01, 6.

24 Embryo debate heats up. Los Angeles Times reprinted in the West Australian 19/7/01, International

News Section page.

25 Cook M. Cell ethics down the river for a song, Op. Cit.

26 Letter, Herald Sun 4/12/01, 17

27 O’Hear, Op. Cit.

28 Tonti-Filippini, N. 60 Minutes, Op. Cit.

29 Savulescu J. The ethics of cloning and creating embryonic stem cells as a source of tissue for

transplantation: time to change the law in Australia. Australian and New Zealand Journal of Medicine,

2000;30:492-8.

Savulescu J. ‘Why human research cannot be locked in a cell.’ Sydney Morning Herald, August 28,

2001.

Savulescu J. ‘Vital arguments for stem cell research.’ The Daily Telegraph, August 16, 2001.

McMahan J. Cloning, killing and identity. J Med Ethics 1999; 25: 77-86.

Singer, P. Practical Ethics. New York: Cambridge University Press, 1993

Tooley, M. Abortion and Infanticide. Oxford: Oxford University Press, 1983.

Harris J. The Value of Life. London: Routledge and Kegan Paul, 1985.

30 The Queen v. Dudley and Stephens. Queen’s Bench Division 1884, XIV:273-8.

31 There is little judicial discretion to sanction murder. But the leniency in sentence (similar to

euthanasia cases) shows a degree of tacit approval of the act.

27

32 Ibid., p. 287.

33 Ibid., p. 287. The Great Example is Jesus Christ.

34 Harris J. The Survival Lottery, Op. Cit., 302.

35 The Complete Oxford English Dictionary, second edition, Oxford: Clarendon Press, 1991, 835.

36 Ibid.

37 Boyle RJ,Savulescu J. Ethics of using preimplantation genetic diagnosis to select a stem cell donor

for an existing person, British Medical Journal, 2001;323: 1240-3.

38 The Catholic Church has opposed killing the fetus under any condition, even to save the mother’s

life. Some have employed the principle of double effect to justify killing by claiming the intention was only to

reduce the dimensions of the fetus’s skull, not to kill it. (Geddes L. On the Intrinsic Wrongness of Killing

Innocent People. Analysis 1973; 34:16-19 as quoted in Kuhse H. The agony of trying to match sanctity of life

and patient-centred medical care. Journal of Medical Ethics, forthcoming).

39 Ibid.

40 Gillon R. Imposed separation of conjoined twins – moral hubris by the English courts. Journal of

Medical Ethics 2001;27:3-4.

41 Ibid.

42 Ibid.

43 Rawls J. A Theory of Justice. Oxford: Oxford University Press, 1972.

44 Harris also raises this kind of scenario in “The Survival Lottery”, Op. Cit., 309. He argues that a

Survival Lottery of this kind for the dying is the only viable kind (313).

28

45 This is not case in relation to spare embryos but we are also considering the creation and destruction

of embryos for research.

46 Anscombe (Anscombe GEM. Who is Wronged. The Oxford Review 1967;5:16-17) and Taurek (John

Taurek J. Should the Numbers Count? Philosophy and Public Affairs 1977; 6: 293-316) have taken the extreme

position that, in cases in which we can either save one or many but not both, there is no more reason to save

many than the one. There is a vigorous debate on this issue (Glover J. Causing Death and Saving Lives.

Harmondsworth: Penguin, 1977; Parfit, D. Innumerate Ethics, Philosophy and Public Affairs, 1978;7:285-301).

I cannot address this complex issue here. But it goes against the way in which health care resources are

distributed. Jaymee Bowen had leukemia and received one bone marrow transplant. Her leukemia relapsed. She

was refused a second transplant. This was expected to cost £75000. Her father took her case to court. Sir

Thomas Bingham, Master of the Rolls, said, “Difficult and agonizing judgments have to be made as to how a

limited budget is best allocated to the maximum advantage of the maximum number of patients.” (R v.

Cambridge Health Authority, ex p. B [1995] 2 All ER 129, 133 (CA))

47 Williams B. A Critique of Utilitarianism in Smart JJC and William B. Utilitarianism: For and

Against, Cambridge:Cambridge University Press, 1973.

48 Glover J. Humanity: A Moral History of the Twentieth Century. London: Jonathan Cape, 1999.

49 That is, 1-(Probability all embryos die). In Victoria, 1-(4/5x4/5x4/5). In NSW, 1-(4/10x4/10).

50 Another strategy would be to split embryos and remove stem cells from one clone. That would

increase the chances of having a baby. Interestingly, it would result in the destruction of each of the three

embryos and their replacement with a set of identical clones, one of which will be killed to provide cells to

increase the other’s chance of survival.

51 Harris also claims that Rawlsian principles of justice support Survival Lotteries. Norman Daniels

claims a Rawlsian approach would justify increasing the risk of dying late in life to benefit people early in life

(Just Health Care’ Studies in philosophy and health policy.Cambridge: Cambridge University Press, 1985). But

it may also endorse increasing risks at the embryonic stage to reap the benefits later.

29

52 Survival Lottery, Op. Cit., 314.

53 Ibid., 285. However, if the principle had been “Pick the person least likely to survive” it may have

been fair.

54 Harris says that “this could be a voluntary scheme” (Ibid., 313).

55 Op. Cit.

56 This raises difficult questions about how we define the relevant class. Imagine that 8 embryos are

needed for infertility treatment. Deliberately creating 10 in one couple so that 2 could be used for research

would be permissible if the process of selecting the 2 to be used for research were fair (eg, equal chances) and

the benefits of ES cell technology to this group of 10 were sufficiently great. If this is permissible, then it seems

equally permissible to create 8 now for infertility treatment and 2 later for research. And this seems no different

to creating 8 in one infertile couple and 2 in another couple for research. The point is that it is a random event

which embryo is created (for infertility treatment or research) from all the possible embryos. This randomness

prevents creating embryos for research from being “creating embryos solely for research” (and thus a violation

of K1), since that embryo could have existed as an embryo for infertility treatment. Creating an embryo for

research seems permissible provided it occurs in a context of a society in which embryos of that type survive,

provided that the numbers surviving sufficiently outweigh the numbers killed and the benefits to the survivors

are significant enough to justify the killing of some of that class.

57 Sikora I & Barry B (eds), Obligations to future generations, The White Horse Press: Cambridge,

UK, 1996.

58 Many cultures practised infanticide to match family size with food supply. These cultures included

“primitive” Eskimo and hunter gather cultures as well as sophisticated cultures such as pre-twentieth century

Japan, classical Greek and Roman cultures. Kuhse H, Singer P. Should the Baby Live? Oxford: Oxford

University Press, 1985, pp. 99-112.