Etikk i praksis. Nordic Journal of Applied Ethics (2018), 13(1), 5–20 |
http://dx.doi.org/10.5324/eip.v13i1.2726 |
Lessons of Reproductive Ethics for PrinciplismMorten Dige Department of Philosophy and History of Ideas, Aarhus University, filmd@cas.au.dk
This article brings together two debates in
bioethics more substantively than has been the
case until now. One is the methodological
debate over "principlism," i.e., the
theoretical framework for analyzing and
solving (bio)ethical problems proposed by
Beauchamp and Childress in Principles of
Biomedical Ethics (PBE). The other is the
normative debate about reproductive ethics,
i.e., procreative rights and obligations in a
time of pervasive opportunities for making
detailed choices about the properties and
capacities of future people. The obvious point
of bringing the debates together is to show
how they can illuminate each other in fruitful
ways consistent with the method of reflective
equilibrium endorsed in PBE. Furthermore,
discussions of reproductive ethics is almost
absent in PBE, making it an interesting "test
case" on how principlist theory can have an
impact on and be affected by confrontations
with new practices and considerations in
biomedicine. Reproductive ethics is especially
interesting due to the so-called non-identity
considerations, which pose a challenge to
common morality views on harm to and respect
for persons. My focus is mainly on some
methodological points about the import of
concrete normative discussions for formulating
basic normative principles. However, I unfold
a number of substantial points in order to
demonstrate this. It is my impression that
most writers on principlism underestimate the
effect of engaging with concrete problems.
Specifically, I conclude that reflecting on
procreative obligations provides strong
reasons for specifying the basic principles in
ways that uncover new dimensions of them and
not just new applications. Keywords: principlism, reproductive ethics,
non-identity problem, nonmaleficence, respect
for persons
Principles of Biomedical Ethics by Tom Beauchamp & James Childress (PBE in the following) is undoubtedly the most influential work in bioethics, and arguably in practical ethics more broadly. It has undergone quite substantial revisions from the first edition in 1979 to the seventh in 2013. The set of basic principles, however, has remained stable through all editions: (1) respect for autonomy (a norm of respecting and supporting autonomous decisions), (2) nonmaleficence (a norm of avoiding the causation of harm), (3) beneficence (a group of norms pertaining to relieving, lessening, or preventing harm and providing benefits and balancing benefits against risks and costs), and (4) justice (a group of norms for fairly distributing benefits, risks, and costs) (Beauchamp & Childress 2013: 13).The PBE approach has been dominant to the extent that it is often equated with “principlism” or the principle-based approach. There are competing accounts, however, notably the set of principles developed by Bernard Gert and his co-authors (Clouser, Culver & Gert 2006) and the (so-called) “European” principles developed by Rendtorff and Kemp (Rendtorff & Kemp 2000). Thus, on the face of it, the four principles just listed are not necessarily definitive, and it is in many ways both illuminating and indeed required by the method of reflective equilibrium to challenge the PBE set by comparing it with alternative accounts. For purposes of the discussion to come, I will restrict myself to a brief comparison with and discussion of a very similar but nonetheless importantly different set of principles, namely the principles stated in The Belmont Report (BR in the following) on the protection of human research subjects from 1978. The report was a reaction to a strongly felt need for protection of human research subjects made most vivid by the scandal surrounding the Tuskegee Study of Untreated Syphilis in the Negro Male. The study involved hundreds of impoverished black Alabama citizens suffering from syphilis who were deliberately not treated and not informed about their condition in order to study the "natural" progression of the disease. When the scandal finally broke in 1972 after forty years, numerous men had died of syphilis, 40 wives had contracted the disease, and 19 children had been born with congenital syphilis (Wikipedia). The report established three ethical principles for the protection of human research subjects: (1) respect for persons, (2) beneficence, and (3) justice. Unlike the PBE set, there is no independent principle of nonmaleficence, and respect for autonomy is replaced by a (seemingly broader) principle of respect for persons. The division between beneficence and nonmaleficence Reasons of nonmaleficence are not absent in BR but they are subsumed under the principle of beneficence. The report states the following: Two general rules have been formulated as complementary expressions of beneficent actions in this sense: (1) do not harm and (2) maximize possible benefits and minimize possible harms. (National Commission 1978, p. 6, emphasis mine)Even so, the absence of the principle of nonmaleficence as a freestanding principle is striking. In the Tuskegee study, it seems natural to say that the primary wrong, morally speaking, was that people were harmed by the deliberate deception about their condition. It was not just that it involved, first, a lack of informed consent (disrespect for persons), second, a pernicious racial or racist bias (injustice), and third, a failure to minimize possible harms and provide beneficent treatment – bad enough as that is. Several participants were actively prevented from accessing syphilis treatment programs and thus quite directly harmed (Jones 1981: 177). All this is of course to some extent a question of how to divide the issues between beneficence and nonmaleficence. PBE list prevention and removal of harm under the principle of beneficence. Only the direct infliction of evil or harm falls under the principle of nonmaleficence. This obviously has a certain support in the common morality. Most people believe that a fundamental asymmetry exists between these two types of moral demands. As some of the famous “sacrificing one to save others” examples show, it is not easy to reduce one type to the other.1 There are several possible reasons for this. I would like (briefly) to point out two. Second, in cases of sacrificing one to save others, even if we produce some good by inflicting evil or harm, we still need to be "guided by evil" (see Nagel 1986: 181f) - we need to direct our actions in ways that we know will harm another person. Regardless of whether we think that such an action can sometimes (in exceptional circumstances) be morally justified, it seems clear that it is categorically different from cases in which we neglectfully fail to prevent or remove evil or harm. Bad as such omissions often are, they normally do not involve this kind of schizophrenic intention. PBE’s division between nonmaleficence and beneficence is thus not without foundation. Even so, it is not entirely obvious that it gives a perfect reflection of the common morality. At least in some contexts it seems to me clear that the most important distinction is between harm (in general) and benefits and consequently, between rules of non-infliction, prevention, and removal of harm on the one hand, and rules of promoting the good/producing benefits on the other. Many philosophers treat harms and benefits as comparative and symmetrical, as if they were on a scale with positive and negative numbers. Moving up the scale is to be benefitted and moving down the scale is to be harmed. However, this is at odds with the phenomenology of harms and benefits. As pointed out by Seana Shiffrin, a characteristic of enduring harm is that it creates a significant conflict between a person’s will and her experience: Although harms differ from one another in various ways, all have in common that they render agents or a significant or close aspect of their lived experience like that of an endurer as opposed to that of an active agent, genuinely engaged with her circumstances, who selects, or endorses and identifies with, the main components of her life (Shiffrin 1999: 123).A characteristic of “pure” benefits, i.e., benefits that do not also involve removal or prevention of harm, is that their absence does not produce the same kind of significant conflict between the person’s will and her experience. It just sounds weird to say that absence of a certain good (even a major good) is something a person has to endure or suffer. Shiffrin argues (I think convincingly) that due to this difference there is a moral asymmetry “between harm bestowed to prevent harm and harm bestowed to confer a pure benefit” (Shiffrin 1999: 128). For example, breaking a person’s arm as a necessary means to rescue him from mortal danger is clearly morally justified. In contrast, breaking his arm would not be justified (at least not clearly) in an attempt to bestow a pure benefit, even a very significant one. We can largely explain this asymmetry by another characteristic of benefits: if unsought, i.e., merely bestowed on us, benefits “are not as good as benefits that the recipient has chosen to pursue and has succeeded in obtaining” (Velleman 2008: 248). It is much more obvious that we should always accept and welcome other people’s attempts to protect us from harm than their (well-meaning) attempts to bestow benefits on us. The implication for PBE’s division of nonmaleficence and beneficence seems to me to be this: By lumping together the prevention and removal of harm with promotion of the good under the principle of beneficence, Beauchamp and Childress concur with the problematic comparative and symmetrical view. I think this lends undue support to their denial that obligations of nonmaleficence are usually more stringent than obligations of beneficence (Beauchamp & Childress 2013: 151f). It is significant that the counterexamples they produce are about inflicting harm as a means to prevent greater harms rather than as a means to produce a benefit.2 My motivation for presenting these substantial controversies is twofold. On the one hand, they lend support to PBE’s clear distinction between beneficence and nonmaleficence, instead of understanding them as aspects of a unitary principle as in BR. On the other hand, they open up the possibility that an alternative distinction is sometimes more significant: the distinction between harms and benefits. I am thus not entirely convinced that PBE’s distinction should be the definitive one. I will return to the important asymmetry considerations when discussing “procreative beneficence” below. From persons to autonomy
The other difference between the
principles of BR
and PBE
is related to the first. On the face of it,
“respect for persons” looks like a much
broader concern than “respect for autonomy”.
However, this is actually not the case in BR: The second conviction is arguably covered by the principle of nonmaleficence in PBE, in which case all (both) aspects of respect for persons are well covered. Nevertheless, this is a point where approaches to bioethics based on relational ethics or ethics of care have criticized both BR and PBE. One point of critique is that we owe persons more than just respect for their autonomy, e.g., respect for and protection of their personal integrity and personal dignity (Rendtorff & Kemp 2000). As a practical example of the relevance of such considerations, consider palliative and hospice care where these principles arguably play a central role (Nelson 2003, Ryndes & Emanuel 2003). Good hospice care aims at establishing an open and stable environment in order for the patient to retain her social integrity, e.g., in terms of meaningful time together with family and friends. The threat of physical, mental, and social disintegration experienced by many terminal patients is not only about loss of autonomy understood as self-determination and self-control, even if respect for autonomy may very well be instrumental for protecting the person’s integrity. It seems reasonable to claim that concern for integrity should sometimes be a more basic consideration than respect for autonomy.
Principles in reproductive ethics
So much for the discussion of PBE’s
version of principlism. I now turn to the debate
about procreative obligations in reproductive
ethics. I mentioned at the outset that this
debate is nearly absent in PBE. At
first glance, it seems that PBE’s
principles are nonetheless well proven in
reproductive ethics. The overall reproductive
ethics debate apparently maps quite neatly onto
the principlist framework. There are
straightforward questions to ask and distinct
debates related to all four principles. More
than that: There seem to be no substantial
debates that center on principles presenting an
alternative to PBE. In
this section, I will give a brief overview of
some influential contributions.
The expanding range of procreative
choices due to biotechnology would seem to
involve an enhancement of parental autonomy.
What used to be results of chance and luck will
increasingly become matters of choice. Whether
the availability of such choices actually
increases autonomy turns out to be a matter of
controversy, however. To be presented with vast
amounts of information about risks, chances and
opportunities for interventions and
manipulations may lead to an overload in which
genuine autonomy may in fact be compromised. The
context of choice may be biased towards certain
options being the rational or responsible ones,
so that the choice may not be that free after
all. People grappling with such issues will find
invaluable resources for analysis and qualified
solutions in PBE.
The principle of justice has
perhaps been the one least utilized in
reproductive ethics. Most bioethicists seem to
prefer alternative principles to capture
considerations about the ethically right way for
prospective parents to relate to their
offspring. The chapter on the principle of
justice in PBE is
mainly concerned with questions of fairness and
entitlements concerning allocation of and access
to health care resources, questions that do not
relate directly to procreative choices per se.
On the other hand, procreative decisions do
raise obvious questions about the just
distribution of risks and benefits and about
equal status between generations (Habermas
2001). Some of the considerations about
vulnerability and exploitation also seem to have
an obvious bearing on prospective parents’
obligations to their offspring.
Jeffrey Reiman (2007: 81) has
argued that intentionally bringing disabled
people into being violates their right to a
normal level of functioning. He argues
(plausibly) that such a right would be an
outcome of Rawls’ “original position” (Rawls
1971). What would be considered important in the
original position are the personal and social
properties of persons (their luck in the genetic
and social lottery), not which particular
individuals they are (which is hidden by the
veil of ignorance) (Reiman 2007: 85f.). In the
next section, I will come back to a recent
argument about wronging future children that may
be understood in terms of justice or fairness.
It is obvious that procreative
choices involve considerations about
beneficence. Most parents are strongly
preoccupied with the prospective child's future
well-being. We want the best for our children.
According to Julian Savulescu, such
considerations imply a principle
of procreative beneficence. In its
original formulation, it read like this:
This is an extreme version of such a principle – it is in effect a principle of procreative perfectionism. We will see in the next section that there are a number of relevant objections to such a principle, at least as a sovereign or dominant one. Savulescu’s principle also reflects a well-known tension in the notion of beneficence: exactly whom are we supposed to benefit – individuals or collectives? Moral philosophers working within an ethics of care or relational ethics (e.g., Noddings 1995, Gilligan 1995) and utilitarians could agree that we should benefit other people. However, it makes quite a difference whether our focus is on the (concrete) other or the (generalized) others. Similarly, the Principle of Procreative Beneficence does not tell us whether we should interpret “best life” as “best for the person whose life it is” or “best for the overall state of the world.”
Savulescu’s own answer seems to
depend on the circumstances. In a subsequent
article, he and Kahane lean towards the
individualist interpretation since the principle
is now formulated in terms of the child “whose
life can be expected […] to go best”
(Savulescu & Kahane 2009: 274, emphasis
mine). The authors make it plain that the aim
should be the child who will enjoy the highest
possible level of well-being. In other works,
however, Savulescu’s focus is on overall
benefits to society. This is the case in his
defense of “moral enhancement,” where genetic
selection and genetic modification should aim at
creating morally better people in order to avoid
social problems like xenophobia, crime, poverty
and terrorism. All such problems, it is argued,
could be remedied by modifications in the human
genome (Persson & Savulescu 2008, 2010; for
a forceful critique see Sparrow 2014). This
reading turns procreative beneficence into a
principle of "procreative altruism" (Douglas
& Devolder 2013). According to this
principle, selection need not necessarily be
beneficial for the selected child (Elster 2011).
Given the seriousness of the problems allegedly
solved by moral and cognitive enhancement, this
view also seems to weigh strongly against
procreative autonomy. Common to both interpretations is that they leave little if any room for procreative autonomy. As pointed out by Rob Sparrow, the principle of procreative beneficence seems to lead to rather totalitarian conclusions: "Best" is not an idea which allows room for pluralism. Thus if we could identify an embryo which had the best possible genetics, it appears that all prospective parents would be obligated to implant clones of this embryo. This vision of a world of identical "perfect babies" looks disturbingly similar to that which motivated the "old eugenics" of the 1930s (Sparrow 2007, 54).
Savulescu has tried to meet this
objection by formulating his principle in a
watered down version. Reproducers now have
merely “a significant moral reason,” and not an
obligation, to select the best possible child
(Savulescu & Kahane 2009: 274). This
“significant moral reason” can (in principle) be
superseded by other reasons including “the
interests of parents or reproducers” (Savulescu
2007: 286). The cost of this modification is
obviously that the all-things-considered implications
of the Principle of Procreative Beneficence
become rather vague.5
A number of authors have argued that the principle of nonmaleficence would serve us better if we want procreative obligations to be more stringent and well-founded. There are entirely reasonable (even classical Millian) restrictions on reproductive autonomy based on the principle of procreative non-maleficence. What makes them reasonable is that we are more confident about the implications of the principle of non-maleficence than about the implications of the principle of beneficence. The ways we can harm people are relatively distinct and well known from an impartial perspective. The implications of the principle of beneficence, however, are far fuzzier and more open-ended. The questions concerning whether disabilities in general or certain disabilities in particular constitute a "negative difference maker" for well-being are already pretty complex. I think it is fair to say that matters get a lot more complicated when we start contemplating which positive traits would maximize an individual's well-being (Parker 2007, Barnes 2009, Lillehammer 2009). An obvious explanation why matters get more complicated is that candidate traits for maximal well-being are strongly dependent on the background conception of well-being, e.g., hedonist, preference-based or objective (see Griffin 1986). Furthermore, we would normally have to possess substantial insight into the particular nature of the individual's situation to get a firm grasp of the implications of procreative beneficence, i.e., we would have to know quite a lot about the particular person's preferences, social circumstances, attachments, values and so on. In preconception scenarios, this is by definition beyond our grasp and therefore – to borrow a formulation by Jonathan Glover – we enter a space “where only a monster of self-confidence would come up with an easy judgment” (Glover 2006: 58). In cases of severe disability, we seem to be on much firmer ground. We are normally not in doubt as to whether cerebral palsy or deafness are harmful conditions that we ought to remedy if we can and that it would be morally wrong to cause such harms to others. However, in procreation scenarios, these straightforward claims become dramatically harder to make due to the so-called non-identity problem (NIP). In the next section, I will explore as briefly as I can how the NIP affects the principle of procreative nonmaleficence. The purpose is not to come up with a novel solution to the NIP but to extract some possible lessons for principlism. Non-identity and "Wrongful Disability"
That parents should not make
choices that damage or disable their future
child seems to be a straightforward application
of the principle of nonmaleficence. If heavy
smoking or drinking during pregnancy involves
significant risks of future suffering for the
child then such behavior is clearly morally
wrong. In such cases, however, there is a personal
identity of the people affected by the
alternative behaviors (e.g., smoking vs. not
smoking). What is involved here are identity
considerations. However, procreative choices
typically involve the kind of non-identity
considerations introduced by Gregory Kavka
(1982) and most famously developed by Derek
Parfit (1984: Ch 16).
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