Mailee R. Harris, Stem Cells and the States: Promulgating Constitutional Bans on Embryonic Experimentation

Issues in Law & Medicine, Spring 2004 | Go to article overview

Mailee R. Harris, Stem Cells and the States: Promulgating Constitutional Bans on Embryonic Experimentation


Mailee R. Harris, Stem Cells and the States: Promulgating Constitutional Bans on Embryonic Experimentation, 37 VAL. U.L. REV. 243 (2003).

The groundwork for stem cell research initially began with the introduction of in vitro fertilization (IVF) technology in the 1970s. In 2001, an estimated 188,000 living embryos were stored in the nation's IVF clinics. Frozen in liquid nitrogen tanks through cryopreservation, at least 19,000 embryos are added to their ranks each year. The question facing parents, researchers, and lawmakers is what do we do with them now?

The scientific community and many lawmakers are urging the use of the embryos for embryonic stem cell research, as stem cells are thought to hold the key for treating or curing many degenerative conditions. Several states, asserting their interest in the protection of human life, have reacted to the rise in experimentation by banning all embryonic research within their borders. Such bans, however, do not always stand the test of the United States court system, and the Supreme Court has provided no guidance in promulgating constitutional laws.

This Note addresses the issues surrounding the constitutionality of state bans on experimentation and proposes model statutes for those states desiring to continue protecting their interest in human life. First, it discusses the background of the stem cell research debate. Second, it analyzes current state bans on embryonic experimentation. And third, it sets forth what actions may be taken in attempting to promulgate a constitutional ban and proposes two model statutes.

A distinction must be drawn between adult stem cells and embryonic stem cells. Adult stem cells are derived postnatally from a number of sources in the human body, including muscle tissue, bone marrow, and fat cells. Stem cells can also be derived from placenta and umbilical cord blood cells. Transplants using these cord blood cells can act as substitutes for bone marrow transplants.

Embryonic stem cells, however, are harvested shortly after conception. Because of their ability to grow into all of the body's tissues, these stem cells are thought to hold more potential for future treatments than adult stem cells. However, recent contrary evidence may prove that assertion false because many possible treatments from embryonic stem cells remain speculative. For example, embryonic stem cells have never been successfully used in clinical trials with human patients and have yielded some disastrous results in animal testing. These cells are also difficult to control in the laboratory. The cells face considerable risk of immune rejection along with the possibility that a transplant may actually attack the host. Indeed, even top embryonic researchers acknowledge that, because of immune rejection, embryonic stem cells alone will not effectively create needed treatments; cloning is necessary to produce the desired medical effects. …

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