Current Federal Law and Policy 
27 
On its face, the Dickey Amendment would seem to close the 
question of federal funding of human embryonic stem cell 
research, since obtaining stem cells for such research relies 
upon the destruction of human embryos. But in 1999, the Gen- 
eral Coimsel of the Department of Health and Human Services 
argued that the wording of the law might permit an interpreta- 
tion under which human embryonic stem cell research could 
be funded. If embryos were first destroyed by researchers 
supported by private funding, then subsequent research em- 
ploying the derived embryonic stem cells, now propagated in 
tissue culture, might be considered eligible for federal funding. 
Although such research would presuppose and follow the prior 
destruction of human embryos, it would not itself involve that 
destruction. Thus, the Department’s la-wyers suggested, the 
legal requirement not to fund research “in which’’ embryos 
were destroyed would still technically be obeyed.® 
This has generally been taken to be a legally valid interpre- 
tation of the specific language of the statute, and indeed the 
subsequent policies of both the Clinton and Bush administra- 
tions have relied upon it in different ways. But some critics of 
the 1999 legal opinion argued that, though it might stay within 
the letter of the law, the proposed approach would contradict 
both the spirit of the law and the principle that underlies it.^° It 
would use public funds to encourage and reward the destruc- 
tion of human embryos by promising funding for research that 
immediately follows and results from that destruction — 
thereby offering a financial incentive to engage in such de- 
struction in the future. By so doing, these critics argued, it 
would at least implicitly state, in the name of the American 
people, that research that destroys human embryos ought to 
be encouraged in the cause of medical advance. Supporters of 
the Clinton administration’s proposed approach, however, 
argued that promoting such research — especially given its 
therapeutic potential — ^was indeed an appropriate government 
function, and that the policy proposed by DHHS was neither 
illegal nor improper, given the text of the statute and provided 
that the routine standards of research ethics (including in- 
formed consent and a prohibition on financial inducements) 
were met.” 
PRE -PUBLICATION VERSION 
