Undertaking research in other countries – the ethical challenges

There are many reasons for scientists to undertake research with colleagues in other countries. This article argues that, in the great majority of cases, there are no ethical reasons to prevent scientists from doing research abroad or using the research results at home, even if the research does not comply with local laws.

To illustrate my argument, this article focuses particularly on human embryonic stem cell research and a project in which international and multi-disciplinary experts agreed on a consensus statement setting out principles for transnational stem cell research.

The group of experts, known as the Hinxton Group, consisted of 60 scientists, doctors, philosophers, lawyers, scientific journal editors, federal regulators, and others from 14 countries, who attended a meeting sponsored by the Wellcome Trust at Hinxton near Cambridge, UK. The group developed and endorsed a set of international principles, even though the law and the ethical procedures in their respective countries often differed.

My central argument is that when research done overseas falls above a certain level on a country’s ‘ethico-legal barometer’ (Fig.1), it should be assumed that there is not such a high level of ethical objection within the country as to make its ethical standards significantly different from those reflected in the international consensus statement. However, when the proposed research falls in the red zone of the barometer (very widely condemned; laws with extraterritorial application), compliance with the consensus statement would not reassure people in the home country. Such ‘red zone’ research done overseas may be regarded as unethical and should be prohibited.

Assume that an Australian scientist wants to obtain and study stem cells from a human embryo created by somatic cell nuclear transfer (SCNT), so that the cells are immunologically compatible with those of the person whose somatic cells are used to create the embryo.

In Australia, it is unlawful to create an embryo by SCNT and derive stem cells from it, but in the UK those practices are lawful. Is there any legal or ethical reason why the Australian scientist should not be permitted to conduct the research in the UK, or to use the stem cells or research data obtained in the UK when returning to Australia?

The law

The law is perhaps clearer than the ethical aspects of such cases. In the scenario above, the Australian scientist (and others associated with the project) will be acting lawfully if the research undertaken in the UK is lawful in that country, even if it is not lawful in Australia. However, there are some exceptions to this general principle and countries can extend their territorial jurisdictions, either by penalising acts of their nationals committed abroad, or by preventing their nationals from using the products or results of work undertaken overseas when they come back. In practice, however, such laws are rare.

Although the laws on embryonic stem cell research vary between countries, no country to date has tried to enact legislation to directly extend its territorial jurisdiction in this area. The Council of Europe’s Convention on Human Rights and Biomedicine prohibits the creation of embryos for research purposes. However, a convention operates as law only if it is ratified by a particular country and is made a national law. It will have extraterritorial effect only if specified in the legislation. No country has done that, presumably because there is not sufficient condemnation in the researcher’s home community of the stem cell research that is permitted in other countries.

Ethical principles

Whatever the law may be, however, the issues are more problematic if one takes an ethical, rather than a legal, view.

Even if it is lawful for an Australian scientist to do research in the UK that is not allowed in Australia, is it ethical for Australian scientists to do that in order to avoid the ethical constraints in their own country?

To what extent can one adopt a relativist approach: autres pays, autres mores (‘other countries, other customs’)? In considering this question, it is useful to imagine a continuum of conduct – a national ethico-legal barometer. The two relevant areas are the red and the orange; in the others, there is no legal prohibition.

For red zone activities, a relativist approach seems unacceptable. The conduct in the other country would not only be unlawful in Australia but would be widely condemned on ethical grounds, even if it were lawful in the country in which it occurs.

However, more interesting issues arise if one adds some activities from the bottom of the orange zone. Imagine that an Australian scientist wants to undertake reproductive cloning in a country where that is not forbidden by law and wants to develop the technique back in Australia. Such research would be unlawful in Australia and almost universally regarded as ethically unacceptable, particularly because of the unknown risks to any child born from such a procedure.

If activities were widely regarded as morally or ethically wrong, then no requirement of scientific rigour or ethical oversight in the other country would make them acceptable in Australia. Thus, although activities such as reproductive cloning are not currently the subject of extraterritorial laws, the law could be changed and the country's ethico-legal barometer might rise.

For conduct that falls within the orange zone, one might adopt a relativist approach. Although unlawful in Australia, such activities are not so much condemned as to require extraterritorial effect and may in fact be condoned by many Australians, even if a majority disapproves of them.

In this zone, where there are no laws preventing scientists undertaking research in other countries and ethical views are divided, objectors may be reassured by the requirements of scientific and ethical scrutiny of the research in the other country.

How reassuring are broad ethical principles in international consensus statements?

As noted, the issue of greatest contention, the creation of embryos for research. Also, objectors are asked to take on faith that research will be scientifically and ethically monitored under another country’s regime, but this monitoring cannot be checked or enforced in another country as it can in the home country.

The real issue is how helpful such principles will be when there are wider and more deeply held differences of opinion about particular types of research.

With human embryo research, views may vary about what is permissible or people may agree to differ on the source of embryonic stem cells for research. Issues may then be resolved by general, fairly non-contentious principles for scientific and ethical oversight, such as those in the Hinxton statement.

For research that is even more contentious, where orange zone activities may be made red ones, one cannot imagine that a consensus approach would be possible.

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