WASHINGTON — As President Bush and Congress struggle with the question of regulating embryonic stem-cell research, one fact is being overlooked: Nearly two dozen states already have laws that govern research on embryos and fetuses, and at least nine ban any experimenting with human embryos.
Some of the laws date back decades, having been enacted in response to Roe v. Wade, the 1973 Supreme Court decision legalizing abortion. Just one state, South Dakota, explicitly forbids stem-cell studies; last year, at the urging of abortion opponents, South Dakota made it a misdemeanor to experiment with cells or tissues obtained from human embryos.
Nonetheless, legal experts say the existing statutes could impede university scientists and biotechnology companies, not only because of the bans but also because some states prohibit payment for embryonic tissue. Broadly construed, these experts say, such a provision could prevent scientists from buying the cells — even if Bush approves federal financing for research with them — and prevent companies from selling stem cell-based therapies.
"There are some hidden land mines working in this area," said Lori B. Andrews, a professor at Chicago-Kent College of Law who has analyzed state restrictions on embryo research for the National Bioethics Advisory Commission. Andrews added, "I think the states will become a fertile battleground for the larger social question of should embryo research be permissible."
As past controversies surrounding abortion, fetal tissue experiments and cloning suggest, state lawmakers often step into the ethical debates posed by medicine and science. So no matter what Bush and Congress decide, the thorny questions about embryonic stem-cell research may ultimately be settled piecemeal, in the states. And state laws, in turn, may lead to challenges in courts.
"If you look at the history of abortion, it seesaws between federal and state legislation and federal and state courts," said R. Alto Charo, a professor of bioethics at the University of Wisconsin. "It would not surprise me to find that Utah decides to ban all research uses of embryos and that California does not. In the end, we may end up with different rules in different places."
Already, legislators in Charo's home state are debating a ban on future studies involving stem cells derived from human embryos. And Wisconsin is the birthplace of embryonic stem cell science. In 1998 a University of Wisconsin researcher, Dr. James A. Thomson, became the first to isolate the cells.
"I can't stop what happens elsewhere," said the measure's author, state Rep. Sheryl K. Albers, a Republican. "If nothing is changed on the national level, something does need to change in Wisconsin."
Since Thomson's discovery, embryonic stem cells have generated great excitement in science, and great angst in Washington. These primordial cells, which may grow into any cell or tissue in the body, are extracted from the inner mass of an embryo when that embryo is just a tiny cluster of 100 to 300 cells, small enough to fit on the tip of a sewing needle. Scientists regard embryonic stem cells as the building blocks of a new era of regenerative medicine, in which the body will someday be used to heal itself.
But the research draws intense criticism from religious conservatives and abortion opponents because the embryos, which they regard as nascent human life, are destroyed. Currently, embryonic stem cell experiments must be conducted entirely with private money, because Congress has imposed a ban on federal financing for the studies.
The issue before Bush is whether to make an exception to that ban so that taxpayer money could be used to study cells derived from embryos that have been kept frozen at fertility clinics; scientists would not, however, be permitted to work directly on embryos.
Congress may also weigh in. Sen. Arlen Specter, R-Pa., who is a strong supporter of the research, has introduced legislation to allow government-financed scientists to derive stem cells from embryos.
But the discussion in Washington centers on federal financing, so it will have no effect on the private sector, where much of the nation's stem cell research will undoubtedly occur. Just this month, scientists at a private Virginia fertility clinic announced that they had created embryos expressly to extract stem cells. And a Massachusetts biotechnology company, Advanced Cell Technology, is trying to use cloning technology to make embryos — 100- to 300-cell copies of existing people — that would yield stem cells with an exact tissue match for patients.
The Food and Drug Administration has little jurisdiction over such experiments; it typically oversees research only when a therapy is being tested in people. So the matter is left to the states. Virginia does not have laws governing embryo research. A Massachusetts law, enacted in 1974, prohibits use of "any live human fetus" in a scientific experiment.
"We have looked at it about 40 times," said Mike West, the chief executive of Advanced Cell Technology. "We believe the law applies to fetuses," not embryos.
But Andrews, of Chicago-Kent College of Law, says that over the years, the Massachusetts law has often been interpreted to define an embryo as a fetus, and it has had a "chilling effect" on scientists. When in vitro fertilization was first being performed in Massachusetts, she said, fertility specialists found themselves seeking opinions from district attorneys on the legality of their work.
"I think some of these laws will be challenged in the wake of desires to do embryo research," she said. "It is an issue, because we have not yet come to a societal consensus on the moral or legal status of the embryo."