Court Drops Frozen Embryo Case

A federal appeals court has refused to reinstate a 1999 lawsuit that was filed on behalf of frozen embryos in an effort to block stem-cell research (search), saying Bush administration policies make the case moot.

The National Association for the Advancement of Preborn Chil (search)dren -- or NAAPC -- sued the federal government on behalf of "Mary Doe," a name it chose for the nation's estimated 400,000 frozen embryos. The suit said those embryos were threatened by the research, which requires that an embryo be destroyed to get its stem cells.

"You see Mary Doe is coming into court and she says, 'I'm alive, and I'm a human being. Stem cell research is killing my brothers and sisters, and I may be next in line,'" said Rudolph M. Palmer, who founded the organization about 15 years ago.

The suit claimed that it was unconstitutional for the government to fund the destruction of embryos, which it said are people who deserve the same rights as other Americans. It asked the government to "cease and desist any and all plans to undertake human embryo (stem cell) experimentation."

But a three-judge panel of the 4th U.S. Circuit Court of Appeals (search) declined to address the ethics of stem-cell research, agreeing Tuesday with a lower court that the issue was moot since it hinged on outdated Clinton administration policies.

President Bush in 2001 restricted federally funded stem-cell research to cell "lines" from embryos that had already been destroyed. "Mary Doe" is not threatened by current federal policy, the appeals panel said.

"The court of appeals properly recognized that a challenge to the Clinton administration policies became moot once those policies no longer existed," said Thomas M. Bondy, a Justice Department lawyer representing the Department of Health and Human Services and the National Institutes of Health (search).

Stem-cell research is controversial because it involves destroying human embryos to capture stem cells -- primitive cells that develop into other types of cells -- for medical use and treatments. Proponents say the research can lead to medical breakthroughs, including cancer treatments.

Embryos are typically left over from fertility clinics, said Eve Herold, public education manager at the Stem Cell Research Foundation (search). To ensure a successful pregnancy, multiple embryos are often created and couples decide if they want their extra embryos destroyed, put up for adoption or donated to research.

When Palmer's case began in 1999, the National Bioethics Advisory Commission (search) recommended federal funding of research using embryos left behind after infertility treatments. The National Institutes of Health adopted the guidelines in 2000.

But in 2001, Bush said that federal funding would only be available for stem-cell research using embryos that had already been destroyed. In light of the policy change, the government asked that Palmer's case be dismissed as moot. U.S. District Judge Peter Messitte agreed, and the appeals court this week refused to overturn his ruling.

Palmer said both courts focused on a technicality because they did not want to get involved in the ethical debate over stem-cell research.

But Sean Tipton, spokesman for the Coalition of the Advancement of Medical Research (search), said the courts did the right thing, whatever their reasoning.

"We welcome the decision because a tiny ball of cells is not the equivalent of a person and does not need to be treated as such," Tipton said. "I think this would have potentially shut down one of the most promising avenues of medical research."

But Palmer said the extra embryos should all be brought to term by willing mothers. He said he will continue to fight, and plans to appeal Mary Doe's case to the Supreme Court.

"She is asking that the court recognize her right to protest her own destruction at the hands of the federal government with federal funds," he said.