Chickens and Eggs

When I was in law school, there was a contracts case that everyone loved:  Frigaliment Importing Co. v. B.N.S. International Sales Corp.  They loved it because the judge who wrote the opinion spelled out in the first sentence of the opinion what the issue was:  “The issue is, what is chicken?” 

It seems that not all chicken is the same.  Young chickens are suitable for broiling and frying while older, heavier chickens are only suitable for stewing.  When the supplier delivered the older, less desirable chickens pursuant to a contract, a dispute was launched in which the parties argued whether “chicken” referred to any animal of that species or whether it referred more narrowly to the more desirable young chickens.  This 50-year-old decision can be read here.   

As pollsters have known forever, and as law students quickly learn on the path to becoming attorneys, the ability to frame an issue is very often decisive.  It puts the person who needs to make a decision in the “right” frame of mind so that he is much more naturally led to the decision that is desired.  Mr. Clinton famously attempted this tactic when he was facing impeachment as President.  When asked about the truthfulness of his statement with respect to his relationship with Ms Lewinsky that “there’s nothing going on between us,” he very calmly explained to the grand jury that “[i]t depends on what the meaning of the word ‘is’ is.” 

Well, of course.  That cleared things up very nicely. 

Whether one supported Mr. Clinton or not, the audacity of his statement was striking.  But it also happens to have been correct.  The interpretation of his statement did, in a literally strict way, depend on what the full semantic meaning of “is” is.  Still, it was a lawyer’s answer. 

Last week, the fate of federal funding of an important avenue of scientific investigation hinged on a similarly couched issue:  What is “research”? 

The Dickey-Wicker Amendment is a rider that has been attached to each of the Labor, Health and Human Services, and Education appropriations acts every year since 1995.  It has been enacted by both Democratic-controlled and Republican-controlled legislatures, together with the signature of Clinton, Bush, or Obama, depending on the specific year of enactment.  Its wording has been approximately the same each year: 

“None of the funds made available in this Act may be used for … (2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero ….” 

Embryonic stem-cell research has received a great deal of attention in recent years because of the pluripotency of the cells — they have the ability to be guided into growth of any type of cell that exists in the human body.  The list of diseases that could potentially be treated with such versatility is long, although research is still in its very early stages:  the first human clinical trials using stem cells were approved only in 2009 by the Food and Drug Administration for treatment of individuals suffering from spinal-cord injuries. 

Although suggestions were published in 2006 of a method of extracting stem cells from embryos without destruction of the embryo, almost all embryonic stem-cell research has required the use of stem cells derived from destroyed embryos. 

And this is where the interpretation of the word “research” in the Dickey-Wicker Amendment becomes relevant.  In 1999, the National Institutes of Health determined that embryonic stem-cell research was exempt from the Amendment because the stem cells are not themselves embryos and “research” on the stem cells, isolated from the process of deriving them, does not result in the destruction of embryos.  Mr. Bush, in an attempted Solomonic decision issued in 2001 when he was President, appeared to accept this basic interpretation:  He permitted stem-cell research to continue on lines that already existed at the time of his statement because the embryos had already been destroyed but prohibited the development of new lines that would require the destruction of embryos. 

Last week’s decision by the federal District Court for the District of Columbia rejected even the Bush compromise.  The court refused to parse the individual acts of “research” separately.  Instead, the Court determined that “the language of the statute reflects the unambiguous intent of Congress to enact a broad prohibition of funding research in which a human embryo is destroyed.  This prohibition encompasses all ‘research in which’ an embryo is destroyed, not just the ‘piece of research’ in which the embryo is destroyed.”  Accordingly, a Preliminary Injuction was issued prohibiting the use of federal funds to support embryonic stem-cell investigations.  The full opinion can be read here.  

Is the court correct?  As much as I personally support investigations into the use of embryonic stem cells because of their tremendous potential in the treatment of disease, I have difficulty faulting the Court’s decision.  Mr. Clinton’s attempt to parse the semantics of “is” with extreme fineness fails what attorneys frequently refer to as the “blush test” — it may be technically correct, but if the argument cannot be made without getting red in the face, its technical nature goes beyond reasonable limits.  In Frigaliment half a century ago, the court concluded that “chicken” was properly construed by the broader term and not in the narrower way that the buyer had conveniently attempted.  And to construe “research in which a human embryo or embryos are destroyed” as not including investigations on cells that are obtained through destruction of embryos seems more to be a similarly convenient contrivance than it is giving true effect to words of the statute. 

But I feel it is worth providing some final comments about stem-cell research.  It may well be that current law prohibits federal funding of such research, but such laws may be changed by Congress.  And they need to be changed.  As things stand, there is no prohibition on the creation of embryos that are never to mature into full human beings.  Indeed, excess production of embryos during in vitro fertilization is part of a technique that has allowed countless women to have children that they would never have been able to produce without such techniques, bringing joy and a sense of personal fulfilment to their lives.  The number of frozen embryos in cryogenic facilities around the United States is estimated to be approaching 1,000,000.  It is unrealistic to prohibit the destruction of those excess embryos and, indeed, there is no blanket legal prohibition on their destruction.  Instead, the only prohibition that now exists is in allowing the destruction that is going to take place anyways to aid research that holds near-miraculous promise for treating untold numbers of suffering individuals. 

To me, it is the purposelessness of that kind of destruction that is the real affront to human dignity.

About Patrick Boucher

The author, Patrick M. Boucher, is a patent attorney living near Denver, Colorado and working at Marsh Fischmann & Breyfogle. He holds a Ph.D. in physics as well as a J.D. He is an active member of the American Physical Society, and is admitted to practice law in the states of Colorado and New York, as well as to practice before the U.S. Patent and Trademark Office. He is also a member of the Authors Guild and of the Colorado Authors League.