The NEW ENGLA ND JOURNAL of MEDICINE

Perspective
Resurrection of a Stem-Cell Funding Barrier — Dickey–Wicker
in Court
George J. Annas, J.D., M.P.H.

E mbryo research was born political. Expressions

of shock and surprise at the August 23 ruling
of federal district court judge Royce Lamberth en-
medicine without a research phase.
The Reagan administration dis-
solved the ethics board and ig-
nored its recommendations. The
joining federal funding of stem-cell research — issue was next taken up during
the Clinton administration by an
which was based largely on his ciding whether to reinstate it NIH Human Embryo Research
reading of an amendment to an while the courts determine the Panel, which voted on 27 goals
appropriations bill — are thus amendment’s legal meaning. of embryo research and recom-
not terribly persuasive.1 The The creation and destruction mended 7 as “acceptable for fed-
amendment, known as the Dick- of human embryos for research eral funding” — but failed to
ey–Wicker amendment, provides are deeply tied not only to po- produce a credible ethical justi-
that no federal funds can be ex- litical and religious debates con- fication for its recommendations,
pended by the National Insti- cerning abortion, but also to in which were widely ignored.2
tutes of Health (NIH) for “(1) vitro fertilization (IVF). In 1979, Congress, however, responded
the creation of a human embryo during the Carter administration, to the report, and in 1996 Presi-
or embryos for research purpos- the Ethics Advisory Board of the dent Bill Clinton signed the first
es; or (2) research in which a Department of Health, Education, appropriations bill containing
human embryo or embryos are and Welfare (forerunner of the the Dickey–Wicker amendment,
destroyed, discarded, or knowing- Department of Health and Hu- named for its sponsors, Repre-
ly subjected to risks of injury or man Services) recommended that sentatives Jay Dickey (R-AR) and
death.” The case is now, for the the government support research Roger Wicker (R-MS). It has been
second time, before the Court of on embryos in order to study and added to NIH appropriations bills
Appeals for the D.C. Circuit, improve IVF. Federal research every subsequent year, just as
which has temporarily lifted funding was never authorized, and the Hyde Amendment restricting
Lamberth’s injunction and is de- IVF was introduced to clinical abortion funding is added.

10.1056/nejmp1010466  nejm.org 1
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PERSPE C T I V E
The derivation of stem cells
from embryos involves destroy-
ing the embryo. In 2001, Presi-
dent George W. Bush authorized
federal funding for human em-
bryonic stem-cell (ESC) research
but limited it to cell lines that
had been derived before his Au-
gust 9 speech — and specifical-
ly to cell lines from surplus IVF
embryos used with the consent
of the couple whose egg and
sperm were used to create them.
No one challenged this policy as
a violation of Dickey–Wicker,
perhaps because, as Bush said,
the “life and death decision” for
these embryos had already been
made.
President Barack Obama was
well aware that federal funding
of ESC research represents a po-
litical flashpoint, but he had
promised to rescind the Bush
policy, and there is wide support
for expanded federal funding of
ESC research. When Obama an-
nounced his new policy author-
izing funding for cell lines de-
rived after August 2001 (if derived
from surplus IVF embryos, with-
out the use of federal funds), he
knew he could be reawakening
the funding debate. He expressed
his hope that “Congress will act
on a bipartisan basis to provide
further support for this re-
search.”
Congress has not acted. In-
stead, the debate has shifted to
the courts, where the core ques-
tion is whether the new Obama
guidelines are consistent with
Dickey–Wicker. Although he has
not decided this question, Lam-
berth has said he believes Dickey–
Wicker is “unambiguous” and
does not permit the NIH “to
separate the derivation of ESCs
from research on the ESCs,” be-
cause “derivation of ESCs from
an embryo is an integral step
2 10.1056/nejmp1010466  nejm.org
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Stem-Cell funding and the Dickey–Wicker Amendment
in conducting ESC research.”1
Whether he will change his mind
after briefing, argument, and per-
haps testimony — or whether the
Court of Appeals will rule other-
wise — remains to be seen. The
Obama administration’s new
guidelines are based on the po-
litical compromise of deriving
ESCs only from surplus IVF em-
bryos, and as part of this com-
promise, the NIH seems to have
conceded that derivation is an in-
tegral part of stem-cell research,
which is why it sets strict limits
on the source of the embryos used
and the quality of consent ob-
tained. The political argument for
permitting the use of surplus IVF
embryos is that these embryos
were created for a legitimate re-
productive purpose, and when
they’re no longer wanted for that
purpose, their donation for re-
search is ethically preferable to
their destruction without any po-
tential societal benefit.2 Of course,
anyone who objects to the cre-
ation of embryos for IVF would
also object to this compromise.
Does Dickey–Wicker permit this
political compromise as a mat-
ter of law?
President Clinton’s National
Bioethics Advisory Commission
argued in 1999 that it was not
ethically reasonable to separate
the derivation of stem cells for
research from their use in re-
search. The commission believed
that the federal government
should fund both, for at least as
long as the embryos used were
those “remaining after infertility
treatments.”3 Their reasons were
“the close connection in practi-
cal and ethical terms between
derivation and use of the cells”
and the hope that permitting
funding for cell derivation could
advance science in this area.3
Lawyers asked by the commis-
sion to examine the meaning of
Dickey–Wicker concluded that the
NIH’s distinction between deri-
vation and use of human ESCs
was a “reasonable” interpretation
of the amendment — but that
“there is no indication that ei-
ther proponents or opponents [of
ESC research] contemplated the
situation . . . in which research
that destroyed the embryo was
separately conducted from re-
search using the cells derived
from the embryo.”4
The Clinton panel’s report got
less attention than it deserved
because at that time the nation-
al debate was focused on creating
research embryos through cloning
(somatic-cell nuclear transfer).
Bush’s Council on Bioethics con-
centrated on cloning, but it was
also the only national ethics panel
ever to discuss federal funding
as an ethical (rather than politi-
cal) issue. It concluded that “the
decision to fund an activity is . . .
a declaration of official national
support and endorsement, a pos-
itive assertion that the activity in
question is deemed by the na-
tion as a whole . . . to be good
and worthy.” Such rhetoric seems
disconnected from special-interest
legislation5; a more honest state-
ment regarding federal funding
is that since Roe v. Wade, funding
for anything remotely related to
abortion (and since no one is preg-
nant, embryo research is only re-
motely related) has become a
potent political liability in Con-
gress. Obama’s own ethics pan-
el has sensibly stayed out of this
political funding debate.
Three paths are open to pro-
ponents of federal funding for
human ESC research. The first is
to mount a vigorous defense in
the ongoing lawsuit, aiming to
persuade the courts that the
Obama administration’s interpre-
PERSPECTIVE
tation of Dickey–Wicker is cor-
rect. But since victory is uncer-
tain, the Obama administration
should simultaneously aggressive-
ly seek congressional authoriza-
tion for its current regulations.
The vehicle could be a bill pro-
posed by Representative Diana
DeGette (D-CO), which authorizes
research on stem cells derived
from surplus IVF embryos; it has
been passed twice (and vetoed
by Bush) and would certainly be
signed by Obama. Because this
approach would retain Dickey–
Wicker, however, and could thus
lead to more legal challenges, it
would be preferable (and proba-
bly more politically feasible) to
amend Dickey–Wicker by adding
language such as the following:
“Nothing in part (2) prohibits
the NIH from funding research
using embryos created for pro-
creation, including the deriva-
tion of stem cells, when the cou-
ple no longer wants to use them
for procreation and has provid-
The New England Journal of Medicine
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From the NEJM Archive Copyright © 2010 Massachusetts Medical Society.
Stem-Cell funding and the Dickey–Wicker Amendment
ed their informed authorization
for them to be used in NIH-
funded research.” Doing so would
legislatively adopt the ethics po-
sition of the Clinton bioethics
commission. The third path is
continued reliance on private and
state funding until sufficient sci-
entific progress is made that the
public demands federal funding
for this research.
NIH Director Francis Collins
has said that this issue “goes
beyond politics  .  .  .  to patients
and their families who are
counting on us to do everything
in our power, ethically and re-
sponsibly, to learn how to trans-
form these cells into entirely
new therapies.” This argument,
of course, is itself political, and
if Collins is right, the only place
to resolve the funding issue is in
Congress.
Editor’s note: On September 28, the Court
of Appeals decided not to reinstate Judge
Lamberth’s injunction. The next step in the
litigation is a hearing before Judge Lam-
berth on the meaning of the Dickey–Wicker
10.1056/nejmp1010466  nejm.org
amendment, and NIH funding will continue
unless he or the Court of Appeals decides
that such funding is prohibited by Dickey–
Wicker.
Disclosure forms provided by the author
are available with the full text of this arti-
cle at NEJM.org.
From the Department of Health Law, Bio-
ethics, and Human Rights, Boston Univer-
sity School of Public Health, Boston.
This article (10.1056/NEJMp1010466) was
published on September 15, 2010, and up-
dated on September 30, 2010, at NEJM.org.
1. Sherley v. Sebelius, 2010 U.S. Dist. LEXIS
86441 (Aug. 23, 2010).
2. Annas GJ, Caplan A, Elias S. The politics
of human-embryo research — avoiding ethi-
cal gridlock. N Engl J Med 1996;334:1329-32.
3. Ethical issues in human stem cell re-
search. Vol. 1. Report and recommendations
of the National Bioethics Advisory Commis-
sion. Rockville, MD: National Bioethics Advi-
sory Commission, 1999.
4. Flannery EJ, Javitt GH. Analysis of federal
laws pertaining to funding of human pluripo-
tent stem cell research. In: National Bioethics
Advisory Commission. Ethical issues in hu-
man stem cell research Vol. 2. Commissioned
papers. Rockville, MD: National Bioethics Ad-
visory Commission, 2000:D-1–D-13.
5. Annas GJ, Elias S. Politics, moral and em-
bryos: can bioethics in the United State rise
above politics? Nature 2004;431:19-20.
Copyright © 2010 Massachusetts Medical Society.
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