The Problem of Ill-Gotten Gain in Health Care

October 22, 2020 • Posted in Blog

C. Ben Mitchell, Ph.D. Distinguished Fellow of the Tennessee Center for Bioethics & Culture

C. Ben Mitchell, Ph.D.
Distinguished Fellow

The politicized debate about President Trump’s treatment for Covid-19 may have shrouded an important set of questions about the science of developing treatments, viz., the problem of ill-gotten gain.

Among other treatment protocols, the President received Regeneron’s REGN-COV2, a “cocktail” of two neutralizing antibodies that has shown promise in some animal studies (see here and here). The media jumped on an association between REGN-COV2 antibodies and fetal cells, some even claiming that the antibodies were developed from fetal cells.


Screen Shot NYT headline on Oct. 8, 2020Screenshot of NYT headline on Oct. 8, 2020
Screenshot of amended NYT headline a short time later on Oct. 8, 2020

Screenshot of amended NYT headline a short time later on Oct. 8, 2020





The fact of the matter is REGN-COV2 was tested for its virus-neutralizing ability on cells that were developed from human fetal tissues. Specifically, the HEK293T daughter cell line used in those tests, is derived from the kidney tissues of an unborn child in the Netherlands who was aborted for unknown reasons in 1973. Human Embryonic Kidney (HEK) cells have been cultivated in labs since that time and they, and other cells like them, are sometimes called “immortalized cells” because they can go on dividing in culture for an indefinite period of time.

The important issue that got lost in the media frenzy about the President’s treatment is the problem of complicity. In this case it may be put this way: Given that abortion is a harm, to what extent, if any, is it appropriate to benefit from that harm? In other words, is the use of REGN-COV2 cooperating with the wrongdoing committed in an elective abortion? These questions have both historical and contemporary analogues.

Historically, scientists, policy makers, and ethicists have debated for decades whether or not it was appropriate to use data gathered by Nazi scientists through unethical research. At Dachau, for instance, the Nazi doctors were known for their brutal hypothermia experiments on prisoners of war. These atrocities, among others, resulted in the Nuremberg Trials in 1945-46, and the subsequent Nuremberg Code in 1947.

Should the information gleaned in those infamous studies be used either to help us better understand hypothermia or potentially to treat hypothermia? Or, is that research so ethically tainted that it should not be used at all, even if to help people long after the end of World War II? As a matter of fact, scientists were divided on the issue. Some argued that the research should be banned. One of the founders of contemporary clinical ethics, Henry Beecher, MD, a professor at Harvard Medical School in the 1960s, held that the loss of the data “would be less important than the far-reaching moral loss to medicine if the data were to be published.” California lawyer and Holocaust researcher, Baruch Cohen, explicitly claimed, “By conferring a scientific martyrdom on the victims, it would tend to make them our retrospective guinea pigs, and we, their retrospective torturers.”

Others have argued essentially that the use of the data for good purposes is a kind of redemption, making something good come from something evil. And still others have maintained that, quite apart from the method of collection, the data were flawed as to make them unreliable for any future research.

One of the contemporary examples of the problem of complicity includes the purchase of goods that come from countries with unjust labor practices. The worry, of course, is that buying those goods, no matter how well-made and economical they might be, would be a form of ill-gotten gain, or a form of complicity with the violation of human rights. To address this problem, “Fair Trade” goods are now marketed with assurances that these goods, like coffee and clothing, come from sources that treat workers fairly.

However one deals with the problem of complicity—and it is a dense and difficult problem—surely patients should be made aware of potential ethical concerns associated with their treatment. Part of the response to the problem of unjust trade practices is Fair Trade labelling. By identifying consumer goods as derived from fair labor practices, individuals can make informed choices consistent with their conscience in the matter. Similarly, in medicine the doctrine of informed consent should require that patients be educated prior to treatment about the provenance and processes used to develop drugs and therapies they are offered. Patients will then be able to make decisions consistent with their own values, ethics, and conscience. Doing so not only requires physicians to be well informed, but requires that doctors and their patients engage in the artful dance sometimes called shared decision making.

For more about problems of complicity and informed consent see:

  • Helen Watt, Cooperation, Complicity, and Conscience: Problems in healthcare, science, law and public policy (London: Linacre Center, 2005).
  • Presidential Commission for the Study of Bioethical Issues, Informed Consent Background, (last updated September 30, 2016).
  • Ruth R. Faden and Tom L. Beauchamp, A History and Theory of Informed Consent (Oxford University Press, 1986).


Flourishing — in Tennessee


Putting the charge back into face-mask filters
by Amber Dance
Nature 585, 316 (2020)

Peter Tsai, inventor of the electrostatically charged filter used in face masks, emerges from retirement to help boost filter production and reuse. “Even though I’m mostly working for free, I feel a responsibility to help out during the pandemic. Otherwise, I would regret it for the rest of my life.”