Mary Doe's Destiny: How the United States Has Banned Human Embryonic Stem Cell Research in the Absence of a Direct Prohibition

Mary Doe is a human embryo preserved in liquid nitrogen, in an unnamed in vitro fertilization clinic. Mary Doe’s name was given by an organization dedicated to advocating for equal humanity and personhood of pre-born children, including “children in vitro.” In response to President Clinton’s policy favoring embryonic stem cell [hereinafter EScell] research, the organization filed suit on behalf of Mary Doe, and all other frozen human embryos similarly situated, seeking a permanent injunction against any and all plans to undertake human ES-cell experimentation.In August 2001, while the lawsuit was pending, President Bush announced a new policy concerning human ES-cell research. The new policy limited federal funding for human ES-cell research only to projects involving already-existing stem cell lines.5 No federal funds would be used to further research involving the derivation of new stem cell lines from intact embryos like Mary Doe. As a result, the district court granted the government’s motion to dismiss the case as moot, because Mary Doe would no longer be threatened. The Fourth Circuit Court of Appeals affirmed the decisionEven in the absence of a direct ban, the government has numerous means that it can use to suffocate a disfavored subject matter. The U.S. policy on human ES-cell research is an example. Human ES-cell research has been primarily reliant upon private funding since its inception in the late 1990s. Though federal money is prohibited from funding research that uses newly developed human ES-cell lines,10 and few states have supported such research, the lack of public funding does not fatally impact human ES-cell research in this country.However, the straw that will break the camel’s back may have been placed by the U.S. Supreme Court’s decision in KSR International Co. v. Teleflex, Inc.12 The Court’s decision - which is expected to have grave adverse effects on the issuance of biotechnology patents - along with the Patent and Trademark Office’s decision to revoke landmark human EScell patents, has sent a strong message to private investors that their investment in human ES-cell research is unlikely to receive patent protection, and therefore, they are not likely to gain monetary reward from such investment. The withdrawal of private funding from human EScell research is foreseeable.Although human ES-cell research is not expressly banned, due to the lack of public funding and the lack of incentives for private investment, the joint efforts of the Executive Branch and the Supreme Court have inadvertently stifled such research. Without prompt action taken by Congress, human ES-cell research in this country may cease.As suggested by John A. Robertson, if direct bans are imposed on privately- funded human ES-cell therapies or the research necessary to produce them, a greater role for the judiciary is favored. Though in the absence of a direct ban, the stacking adverse effects of U.S. policy on human ES-cell research have amounted to an effect equivalent to a direct ban and has reached the point that a greater role for the judiciary is favored. Unfortunately, a legislative effort attempting to support human ES-cell research may have a hard time surviving the Supreme Court’s muster in light of Gonzales v. Carhart, a decision which has extensively expanded the state’s interest in promoting and preserving unborn life.