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Bioethic information and analysis newsletter

Following Letter

N°37 - January 2003

Against cloning : The Franco-German game at the UN...

Towards an international agreement
In December 2002, the "Special committee responsible for the preliminary work for the elaboration of an international convention against the cloning of human beings for reproductive purposes" deferred the voting on a resolution, following the withdrawal by France and Germany of their common project covering the prohibition of reproductive cloning, which was the subject of the negotiations and which was supported by 16 nations (A/C.6/57/L.8). An alternative proposal submitted by Spain, Italy, the United States and 29 other nations (A/C.6/57/L.3/Rev1) was aimed at a total prohibition of all forms of cloning.

Bundestag : No to cloning
The position of the German government is interesting for its divergence between their internal law and the positions expressed during the UN negotiations on the one hand, and the consequences of the failure of the negotiation and the comments in the German press. At present, the Bundestag is discussing a proposed resolution and the government has moved towards a total prohibition of all forms of cloning by the UN. German law does not recognise the distinction between "therapeutic" and "reproductive" cloning. The federal government confirmed this in a written answer by the Bundestag communist group. At the initiative of the governmental majority (socialist and green parties) and with the support of the opposition (Christian democrats and liberals) the Bundestag voted on 3rd July 2002 for a resolution defining the "directives" for the negotiations. Thus it elected for a total prohibition of all forms of cloning.

The German negotiator's game
However, on the spot, the German diplomats did not negotiate in that way, and they rejected a common proposal with Spain and the United States, whose positions were in fact convergent with that of the Bundestag. The diplomat in charge of negotiations, C. MUCH, declared during a work meeting that, according to German law, a total prohibition of cloning is tantamount to "non assistance to a person in danger" and as such is a crime. Subsequently H. Hüppe, the MP (Christian democrat), addressed the government, and in Strasbourg European MPs from all parties complained to the representatives at the UN.
The feedback from the German press was particularly scathing about the government (Frankfurter Allgemeine Zeitung, Financel Times Deutschland, Die Welt, Berliner Zeitung, Tagesspiegel), reporters generally considered moderate wondered about "our mad MPs who screwed up", responsible not only for the failure of the negotiations, but also responsible for a further affront of the American government (German-American relations were already strained by the Schröder government electoral campaign).

Towards a world-wide prohibition
As a result of the civil actions, the government declared on 13th January that henceforth it was committed to a total prohibition for cloning. Currently the Bundestag are discussing a proposal for a common resolution by all the parliamentary groups. This resolution is intended to review the Franco-German collaboration at the United Nations and to do everything possible to ensure that therapeutic and reproductive cloning are prohibited world-wide.  

Senate : Authorisation for research using embryos ?

The main item at stake in the examination of the laws on bioethics by the French Senate on 28th, 29th and 30th January 2003 is the use of regenerative medicine using stem cells : research on supernumerary embryos, the creation of embryos for research... Excluding all ethical factors, we provide here a report on the state of research into adult and embryonic stem cells, an essential statement for making a sound judgement.

Adult cells
Most of the cells in the body must be stable in order to fulfil their functions (thus a liver cell cannot change into a skin cell). On the other hand, stem cells exhibit the singular property of remaining undifferentiated until a specific signal indicates that they must be modified into specialised cells. Gradually, as organs are formed, the differentiation potential of stem cells is restricted. But they never disappear completely. It has been known for some time that certain tissues which are permanently and rapidly renewed, such as blood and skin cells, harbour stem cells. They have recently been identified in muscle, liver and pancreatic cells, and even in the brain.
They were found to have an unexpected plasticity: when transplanted to another organ to that where they were originally, they convert into specialised cells of a type different from that for which they were initially programmed.
Mother nature has even been generous, since they are also found in bone marrow, in the blood and in the blood in the umbilical cord. They are known as organ stem cells or adult stem cells (because they are present in adults). Within the adult body, they constitute a pool of stem cells which have retained the characteristics of early embryonic cells, in particular the ability to generate all types of specialised cells. Their natural role is to produce repair tissue. This is a major discovery which completely overthrows our previous knowledge.

Controlled proliferation
Although there are some similarities between embryonic and adult stem cells, they nevertheless differ in one essential characteristic : embryonic stem cells can proliferate to infinity, whereas adult stem cells only exhibit their proliferation and differentiation abilities when it is absolutely essential to preserving the integrity of the body. One of the control mechanisms of adult stem cells present in blood has incidentally been identified : if any of these cells begin their differentiation when it is not needed for repair reasons, they are recognised and destroyed by a specific population of T lymphocytes thus avoiding the formation of tumours. Therefore for cellular therapy, only adult stem cells can be used, because the body knows how to control them.

Embryonic cells
Embryonic cells, on the other hand, are derived from early human embryos but are not found as such in the embryo. They are the result of laboratory manipulations which transform the cellular lineage of the cells which, if left in the embryo, would have developed harmoniously to create a human being. The cells from these lineages, which nobody knows exactly how to define, proliferate to infinity, a property which they share with cancerous cells.

Danger : uncontrolled proliferation
Embryonic stem cells, produced from supernumerary embryos or from therapeutic cloning, due to their very immaturity, have not been able to acquire the immunological characteristics required for their regulation. This particularity combined with their powerful proliferation capabilities makes them dangerous. This fact is recognised. It is even recognised by Dr. John Gearhart, one of the pioneers of research on embryonic stem cells in the USA, who has just conceded that human embryonic stem cells will in all likelihood never be suitable for therapeutic purposes due to their carcinogenic properties.

The highly controversial importing of embryos...

On the eve of resignation of the previous French government, the minister of research, on his own responsibility, authorised the importing « in contraband » of stem cells not from adult donors, but from human embryos previously destroyed,  for a laboratory, to be used for research.
Article L 1245-4 of the public health code, under certain strict conditions, authorises the importing of stem cells from donor adults, but not human embryos or parts thereof.
How could such a decision be justified ? It was explained that the National Assembly for the previous legislation had approved on first reading, a new text in the context of examining the draft law for revising the law on bioethics, which proposed to authorise the Minister of research to import "embryonic or foetal tissue or cells for research purposes". This may well be, but only draft laws debated and adopted under the conditions of article 45 of the Constitution, and promulgated in accordance with article 10, after possible examination by the Constitutional Council, actually become laws of the Republic, and an integral part of positive law. A law adopted by a single house has no legal standing.
The strongly presumed illegality of the minister's decision was noted by the highest administrative jurisdiction, the Council of State, in a judgement given on 13^th November 2002. In order to urgently cancel this ministerial decision the guardians of the Republican law did not fail to be impressed by the serious penal offence constituted by such contravention to biomedical ethics (articles 511-15 to 25 of the penal code).
Under the terms of the so-called law on bioethics dated 29^th July 1994, "The conception in-vitro of human embryos for research or experimentation purposes, is prohibited". The Constitutional Council had nothing to say about this choice. The civil code, penal code and public health code all support this consensual state of our laws.
Even if by a subsequent decision on 17^th January, which is subject to appeal, the administrative courts of Paris have given an opposite ruling to that of the Council of State, this twist does not in any way alter the legal basis of the problem.
Today, this bioethical crime against the State has not been denounced and it is in danger of poisoning the current debate. It is the cause of precipitation devoid of any scientific data of sufficient soundness to advocate the therapeutic use of embryonic stem cells.