Humanity Enhanced: Genetic Choice and the Challenge for Liberal Democracies

© 2014 Massachusetts Institute of Technology

All rights reserved. No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without permission in writing from the publisher.

Library of Congress Cataloging-in-Publication Data

Blackford, Russell, 1954–

Humanity enhanced : genetic choice and the challenge for liberal democracies / Russell Blackford.

   p.  cm. (Basic bioethics)

Includes bibliographical references and index.

ISBN 978-0-262-02661-1 (hardcover : alk. paper)

ISBN 978-0-262-31854-9 (retail e-book)

1. Genetic engineering Moral and ethical aspects. 2. Genomics Moral and ethical aspects. 3. Rational choice theory Political aspects. 4. Human beings Psychology. I. Title.

QH442.B53 2013

174.2 dc23

2013015058

10 9 8 7 6 5 4 3 2 1

d_r1

To Alison Kennedy, who set me on this path.

Contents

Series Foreword

Acknowledgments

1    Motivation and Overview

2    Human Enhancement and the Harm Principle

3    Genetic Engineering: What’s the Harm?

4    A Threat to Autonomy?

5    Violating the Natural Order

6    Indirect and Intangible Harms

7    Fairness, Equality, and Distributive Justice

8    Policy Implications

Appendix: The Therapy/Enhancement Boundary

Notes

References

Index

Series Foreword

I am pleased to present the fortieth book in the Basic Bioethics series. The series makes innovative works in bioethics available to a broad audience and introduces seminal scholarly manuscripts, state-of-the-art reference works, and textbooks. Topics engaged include the philosophy of medicine, advancing genetics and biotechnology, end-of-life care, health and social policy, and the empirical study of biomedical life. Interdisciplinary work is encouraged.

Arthur Caplan

Basic Bioethics Series Editorial Board

Joseph J. Fins

Rosamond Rhodes

Nadia N. Sawicki

Jan Helge Solbakk

Acknowledgments

Humanity Enhanced is based on my doctoral dissertation, completed at Monash University between 2004 and 2008. I gratefully acknowledge the help of my supervisor, Justin Oakley, throughout that process. His wide knowledge of moral philosophy opened many paths that might otherwise have been closed to me. I also gratefully acknowledge the assistance of Robert Sparrow, my associate supervisor, and Dirk Baltzly, my acting supervisor for much of 2005.

My dissertation examiners, Nicholas Agar and Gregory Pence, responded with a mix of enthusiasm, encouragement, suggestions, and some searching objections. Their comments were invaluable to me as I set about rethinking, revising, and extending the thesis for possible publication.

I am immeasurably indebted to Jenny Blackford for her support, forbearance, questions, criticisms, superior computer expertise, and invaluable proofreading at all stages of this project.

Many other friends, loved ones, and colleagues were kind and supportive throughout all the highs and lows, and I can never thank them enough—in some cases, just for being there. Among those who most encouraged this particular project, or work closely associated with it, were Gregory Benford, John Bigelow, Damien Broderick, George Dvorsky, Ron Gallagher, Alison Goodman, James Hughes, Alison Kennedy, the late Paddy McGuinness, Andy Miah, Chris Moriarty, Simon Smith, and Mark Walker. My shamefaced apologies to anyone else I should have included on this list, but inadvertently overlooked!

The book also has been improved from the efforts of editors associated with the MIT Press—namely, Clay Morgan and Art Caplan—and the comments of anonymous peer reviewers consulted by the Press.

1

Motivation and Overview

Acrimony and anger are all too common in the field of human bioethics. This is evident whether the issues are familiar ones, such as the rights and wrongs of abortion and euthanasia, or those of more recent notoriety. Modern biotechnology in its various guises has transformed much of clinical practice, blurring what once seemed like clear ideas of life and death, and challenging us to reexamine our basic ethical and political principles. Do these principles make sense under new circumstances, and in any event, how should they be applied to sensitive cases at the beginning or end of human life? Change generates uncertainty and even fear—emotions that can foster hostility.

Emerging technologies continue to raise new questions. Some of these technologies involve the manipulation of human genetic material, offering the prospect (or bringing the threat) of genetic choice. If employed effectively, they can determine which people come into existence, and with what genetic potentials. How, then, should the technologies of genetic choice be developed by research scientists, and how should they be used by parents and medical practitioners? Importantly, how should their use be constrained by law? Such issues demand careful, open-minded thought, but this is often in scarce supply.

I propose to focus on what Nicholas Agar calls enhancement technologies: human reproductive cloning, preimplantation genetic diagnosis (PGD), and genetic manipulation or engineering of human embryos. All these allow choices of genetic traits, though the choice with reproductive cloning is simply to pass on a particular individual’s genome (Agar 2004, 7–11, 37, 176). I should also note at the outset that much of my argument could be adapted for other technologies of genetic choice or selective reproduction (Wilkinson 2010), such as sperm sorting accompanied by artificial insemination or prenatal genetic testing with the option of selective abortion. Like Agar’s (2004, 7–11, 37, 176) Liberal Eugenics, however, this book will not examine the bewildering variety of other ways that people might attempt to better themselves, such as with Prozac or cosmetic surgery. Some of the policy issues with these, too, may be analogous to those concerning the technologies of genetic choice. From time to time, that fact will be relevant in the following pages, but any closer comparison will have to await another occasion.

Dolly and Her Discontents

There has been much acrimony over (human) enhancement technologies, and a large part of it can be traced to February 1997, when a team of researchers at the Roslin Institute in Easter Bush, Midlothian, Scotland, announced it had created a female lamb that was an almost-exact genetic clone of an older sheep (Wilmut et al. 1997). The researchers gave their newborn lamb the whimsical name Dolly—in honor of country music singer Dolly Parton—and she was soon famous as the first mammal to be cloned from another that had already reached adulthood.

Dolly was conceived by the somatic cell nuclear transfer technique (SCNT) in which the nucleus of an ordinary (somatic) cell (in Dolly’s case, a mammary cell) is transferred to an egg cell from which the nucleus has been removed. Dolly’s nuclear DNA, which contained almost the entirety of her genetic code, was identical to that of the sheep that had provided the somatic cell. In short, scientists were able to grow Dolly from the genetic material in an ordinary cell, with no sperm cells used in the process. This was a dramatic breakthrough in reproductive science, but it had even more startling implications.

The theoretical potential to clone human beings in the same way triggered an immediate storm of debate. Politicians and pundits thundered against the prospect of human cloning. There were loud expressions of repugnance, fears of assaults on human dignity, and outraged denunciations of an impending brave new world. Often the tone was dogmatic; sometimes it was apocalyptic. Across the world, innumerable government reports, essays, articles, and books appeared, considering the moral problems if human cloning ever became practical, and whether it should be prohibited by law.¹

Within the ongoing debate about SCNT and related technologies, a distinction is frequently made between reproductive cloning, to bring about the birth of a human child, and therapeutic cloning. The former would be directly analogous to the conception and birth of Dolly. By contrast, therapeutic cloning involves the creation of a cloned human embryo for certain other purposes, such as biomedical research, or harvesting cells or tissues to be used in therapy. To complicate matters, some procedures other than SCNT can be referred to as cloning, notably embryo splitting, where an early embryo’s cells are split off to produce a number of genetically identical copies. The main focus of debate, though, has been on SCNT.

Even reproductive cloning can be viewed as a relatively conservative use of advancing biomedical technology. Potentially more radical scenarios suggest themselves if we begin manipulating the DNA of our children while they are still embryos, thus altering their genetic potentials, perhaps to increase their cognitive or physical capacities. To say the least, such scenarios provoke discontent, alarm, and ongoing controversy.

Leading sociobiologist Edward O. Wilson (1998, 311) has expressed fears that Homo sapiens might, in the extreme, be superseded by a self-designing, self-directed, bafflingly varied form of life: Homo proteus. Margaret Somerville (2007, 144–145) asserts that the genetic manipulation of human embryos would destroy the essence of their humanness and indeed the essence of the humanness of us all. In their coauthored book, Access to the Genome, Maxwell Mehlman and Jeffrey Botkin (1998, 129) lament that unequal access to new genetic technologies could threaten the fundamental principles upon which Western democratic societies are based. Elsewhere, Mehlman (2005, 77–82, 79) describes his nightmare that wealth-based access to radical biotechnology is likely to destroy liberal democratic society. He maintains that it threatens the destruction of democracy and the enslavement of the species (Mehlman 2003, 189).

Against all this, it is not my intention to hype the possibilities or suggest, in a rhetorical mode, that dramatic policy responses are needed to assert public control over biomedical technology. On the contrary, a reality check may be useful. As I write, many years have passed since Dolly was born in 1996, but there is still no short-term prospect of producing a human baby by reproductive cloning—not least because there have been significant practical difficulties in cloning primates more generally. We nonetheless are already confronted with controversial uses of genetic technology that demand a political response.

The Idea of a Liberal Democracy

Throughout this book, I’ll examine a range of contentions that appear in the current debates about enhancement technologies and genetic choices, but I’ll argue for a conclusion dramatically different from those that have dominated the debates. The world’s liberal democracies are certainly faced with an urgent problem—perhaps a crisis, though that is an overused word. But the problem is not the emergence of frightening technologies that cry out for a strict regulatory response. On the contrary, fear of these technologies has created an atmosphere in which liberal tolerance is under challenge.

But what is a liberal democracy anyway?² Ingmar Persson and Julian Savulescu have dealt with this question primarily by an ostensive definition, pointing to the affluent nations of the European Union, the United States, and members of the British Commonwealth like Canada, Australia, and New Zealand. Thus, they say relatively little about abstract, defining features, such as whatever political principles are shared by these countries, but they do emphasize an ideal that each citizen should have equal rights and liberties that are as extensive as possible, consistently with all others having the same rights and liberties (Persson and Savulescu 2011, 494; Persson and Savulescu 2012, 4–5, 42–43).

If we search for more precise identifying features, we might frame broader or narrower definitions of what constitutes a liberal democracy. At one extreme, it might be thought that no society is truly a liberal democracy unless it complies strictly with John Stuart Mill’s harm principle whenever it enacts coercive laws. The harm principle is essentially the idea that an individual’s liberty should be abridged by exercises of social or political power only in response to actions that cause certain kinds of harm to others (Mill 1974, 68).

For better or worse, however, no country in the world adheres to this notion rigorously. All jurisdictions enact at least some coercive laws that are justified to the public on other grounds. In chapter 2, I will argue that liberal democracies should, in fact, pay considerable regard to the harm principle. For now, we need an understanding of liberal democracies that is less specific and more realistic than strict compliance with any particular principle. Perhaps I can begin by identifying some essential, if rather vague, features.

The democracy part of the concept at least involves a system of popular elections, though there are many theories and justifications of democracy that include far more than this. Some theorists see the character of democracy, properly understood, as itself constraining what sorts of arguments should be urged and acted on in political deliberations. For example, Amy Gutmann and Dennis Thompson claim that legitimate political rationales must rely on considerations that are accessible to all citizens. Accordingly, they suggest that the state should not act on (and participants in political deliberation should not urge) a contention that miscegenation is wrong because God says so in the Bible (Gutmann and Thompson 1996, 56).

Yet such a claim is controversial. In justifying their position, Gutmann and Thompson note that an argument put forward in political deliberation fails to respect a principle of democratic reciprocity between citizens if it imposes a requirement on other citizens to adopt one’s sectarian way of life as a condition of gaining access to the moral understanding that is essential to judging the validity of one’s moral claims. By contrast, many [other] moral claims that are made in liberal democratic societies can be assessed and accepted by individuals from a wide range of ways of life (ibid., 57). The point seems to be that laws should not be made on the basis of an esoteric moral system—one that makes sense only from the perspective of something like or analogous to a religious sect—even if this moral system is actually endorsed by the majority of voters.

Many citizens of modern democratic countries might be persuaded to accept such a principle of reciprocity. To me, it appears an elegant and attractive position. Still, it is not obvious that it follows from the nature of democracy itself. Gutmann and Thompson’s strategy for ruling out sectarian, inaccessible, or esoteric moral claims depends on a controversial understanding of reciprocity among citizens, and it is not obvious why this should be accepted by someone who follows and advocates an esoteric code. If their idea of deliberative democracy came into conflict with my esoteric moral code—assuming I had one—I might react by asking what is so great about democracy anyway, or about this deliberative understanding of it.

Perhaps more fruitfully, I submit, we can find independent and strong arguments for the state not to act on certain kinds of moral views. An early version of these arguments can be found in John Locke’s A Letter Concerning Toleration (1983; first published in 1689). They relate less to the requirements of democratic participation, and more to the fundamental role of the state and its evident record of incompetence and failure when it comes to settling controversies over otherworldly doctrines, including moral claims that are closely associated or entangled with them (Blackford 2012, esp. chapters 3 and 5). Once this point is acknowledged, it creates an intellectual pressure for the state to withdraw from arbitrating or enforcing the true, comprehensive, all-things-considered morality (ibid., 68–73).

Like that of Gutmann and Thompson, this approach is controversial; it will certainly not convince everyone. Yet even somebody who favors an esoteric, perhaps otherworldly, moral code might be impressed by the havoc that has often resulted in the past when rival sects have fought for political power. One response is to step back, seeking a degree of detachment from the sectarian strife. This can lead us to question whether the state should have a role in favoring particular sects over others, or whether it might not do better to sustain a political framework in which people with many differing views of the world can cooperate and live in harmony—or at least with an attitude of mutual toleration. Such an attitude of pluralism and toleration can be bolstered by a general sentiment that no one worldview or conception of the good should be imposed by political power, and that the state should be as deferential as possible to citizens’ choices about matters of great importance to them in their own lives.

In a recent defense of liberalism, Paul Starr offers a rich description of the liberal ideal. Liberalism as Starr understands it has allowed people with different religious and moral commitments not just to live side by side but also to flourish together. The state will not require everyone to worship in the same way, follow the same way of life, or profess an official ideology, but it expects citizens to show reasonableness and openness to ideas. It is not neutral about such values as disease and health, sloth and effort, deceit and integrity, cowardice and courage. There are, Starr (2007, 176–177) suggests, excellences that it must promote in order to survive.

As Starr views the situation, the state’s agencies and officials regard each person as worthy of being treated equally; value public health and the environment; cultivate character and intelligence; and attempt to educate citizens in integrity, perseverance, empathy, and responsibility. Within that broad framework, the state adopts an attitude of tolerance: it allows for individuals’ free development, and accepts a wide diversity of cultural and moral practices. This liberal tolerance may be explained on the basis of individual rights, or equal respect for persons of different faiths and values, but it also has the potential to promote stable cooperation and foster state power (ibid., 85–116).

However we justify it, the liberal part of liberal democracy involves widely understood limits to what governments may legitimately do—even with majority support. These may or may not have the status of constitutional law, but in any event they are expressed in such ideas as freedom of religion, freedom of speech, sexual privacy, and a proscription of arbitrary punishments. In societies that have embraced liberal ideas, approval is frequently expressed for Mill’s (1974, 120) stance that experiments in living should be welcomed. It is assumed that many ways of life are, at the very least, tolerable. While political power will be used for a variety of ends, most ways of life are accommodated to the extent that social peace allows.

Hence Max Charlesworth writes, In a liberal society personal autonomy, the right to choose one’s own way of life for oneself, is the supreme value. He adds that this includes what he calls ethical pluralism: members of the society are free to hold a wide range of moral, religious, and nonreligious positions, with no core values or public morality that it is the law’s business to enforce (Charlesworth 1993, 1).

Bioethics and the Challenge to Liberal Tolerance

Illiberal Responses to Genetic Choice

If we take this picture of modern liberal democracies at all seriously, it might suggest that they would adopt a forbearing, even welcoming, attitude to new or foreseeable forms of biomedical technology. We might expect Millian ideas to play a large part in the formulation of policy—and these would apply to deliberations about the full range of technological innovations, even though Mill himself could hardly have predicted them. For example, reproductive cloning might be welcomed within a liberal democracy as an acceptable personal choice—particularly as a legitimate response to some kinds of severe male infertility and to meet the preferences of some lesbian couples (Blackford 2005, 11–12).

Admittedly, (human) reproductive cloning has never been carried out, and it would involve a high risk of congenital deformities. Reproductive cloning is not a mature and safe technology, and it is not likely to be in the near future. That is a good reason not to attempt it under the current circumstances. Similar arguments, raising safety concerns, could also apply to other technological interventions, such as the genetic engineering of human embryos. Arguments about safety or even the welfare of growing children, do not, however, explain the character of the international debate that we’ve seen since 1997, or the real-world policy responses of supposedly liberal societies. The debate appears to be motivated in large part by a wish to impose certain moral or quasi-religious ideals as social norms, and by a fear of the potentially strange directions that societies might take as biomedical technology develops.

After Dolly’s birth was announced, numerous jurisdictions in the liberal democracies of the West moved to ban reproductive cloning and many other manipulations of human embryos. Even therapeutic cloning is banned in many Western jurisdictions. Italy, for instance, banned all forms of human and animal cloning in 1997. In this case, the ban on animal cloning was eventually dropped, but more comprehensive and stringent regulation of biomedical interventions involving human embryos was introduced in 2004. The new legal regime survived a referendum in the following year, although in 2009, the Italian Constitutional Court struck down some provisions involving assisted reproduction (Metzler 2011). Italy continues to maintain a highly illiberal regulatory regime in respect to all forms of assisted reproduction and embryo experimentation.

In the United Kingdom, the Human Reproductive Cloning Act 2001 prohibits reproductive cloning. The United Kingdom has created a statutory body, the Human Fertilisation and Embryology Authority (HFEA), with a sufficient range of powers to oversee all actions by relevant clinics and laboratories. While UK law provides for stem cell research and therapeutic cloning, under license, the HFEA has consistently opposed the use of PGD for sex selection (Harris 2007, 149–150; Gavaghan 2007, 128; Wilkinson 2010, 213–217).

At the level of European law, Article 3 of the Charter of Fundamental Rights of the European Union forbids what it calls eugenic practices and especially those aiming at the selection of persons. It also contains a specific prohibition of human reproductive cloning. How exactly these can be rights is somewhat mysterious—who holds these rights, and against whom are they held? If anything, such provisions seem aimed at removing the right of parents to use particular technologies. In any event, legal policy at the level of the European Union leans heavily against any manipulation or instrumental use of human embryos.

In my own country, Australia, one outcome at the federal level has been the enactment of the Prohibition of Human Cloning for Reproduction Act 2002.³ In its current form, as amended, this act specifies a raft of criminal offenses with maximum imprisonment terms of fifteen years—surely appropriate only for major crimes. These offenses include any deliberate alteration of a human cell that would be inheritable, and intended as such (section 15), and any action that involves placing what the act calls a human embryo clone in the body of a human being or another animal (section 9). The legislation proscribes germ line manipulation of embryos for any reason, along with actions needed for reproductive cloning.

This federal statute operates in conjunction with numerous other restrictions under state legislation along with guidelines issued by the National Health and Medical Research Council (NHMRC). In particular, the use of PGD for embryonic sex selection, a technology that is already available, is proscribed by NHMRC guidelines and prohibited by some state provisions such as Victoria’s Infertility Treatment Act 1995. The latter provides a maximum two-year penalty for any attempt to predetermine the sex of a child by technological means, except where necessary for medical reasons (section 50).

In the United States, there has been an extraordinary flurry of legislative activity at both the federal and state level. As a result, a broad range of US states have enacted prohibitions of human cloning and regulation of embryo research of various kinds. The relevant statutes invariably prohibit reproductive cloning, and often prohibit or restrict therapeutic cloning or embryo research in general.

Initiatives have also been taken in many other Western liberal democracies as well as industrially advanced Asian countries such as Singapore and South Korea to prohibit reproductive cloning, and impose other limitations on genetic and reproductive technologies. In short, the broad direction of public policy in the world’s economically developed countries has been against liberal tolerance of existing technologies such as PGD or sperm sorting for sex selection, the possibility of reproductive cloning, and certainly the more outré and speculative possibilities of genetic engineering to enhance human potential.

Illiberal and Liberal Arguments

Nor has this tendency been without high-profile support from academic thinkers and public intellectuals. On the contrary, restrictions on innovations in biomedical technology have been pressed energetically by a wide range of critics. Some of these are plainly out of sympathy with the whole idea of liberal tolerance; others attempt to head off specific innovations in what they evidently regard as special circumstances that might arise from disruptive technological change. The line between these categories of critics may not be sharp, but there is no doubting that some rely on arguments that are clearly illiberal.

What makes them so is the combination of two things. First, there is an appeal to personal moral views that may (or may not) be popular or psychologically attractive, but have no claim to privileged authority in a society that accepts reasonable ethical pluralism. Second, the advocates of these arguments do not seek merely to persuade others to act voluntarily. If that were the aim, they could supplement their abstract claims about morals and moral virtue in other ways: they could lead by personal practice and example; associate with like-minded people; conduct awareness campaigns; or even refuse to be employed by some organizations, such as universities involved in certain kinds of biomedical research. Modern liberal democracies, which value freedom of speech and association, provide ample opportunity for all these actions. But these critics wish to go beyond persuasion; they advocate the employment of political coercion to control the behavior of those who might disagree.

Somerville is one of many who approach bioethical questions with such an illiberal spirit. The direction of her work is to argue against a wide range of innovations on the basis that they fail to respect life in the correct way or that they are contrary to nature.⁴ Such reasoning leads her to insist on legal prohibitions, even when our human sympathies might incline us the other way and no obvious harm is involved. Consider her approach to the idea of sex selection for so-called family balancing. Somerville insists that the law should say no to a couple who have three boys and want to have a girl, even though she thinks that saying no requires more courage than saying yes. The illiberality is more apparent when she adds that we must act because the value embodied in the law will become the societal value (Somerville 2007, 137–138).

To say the least, this is confused. For starters, the only reason why it might be thought to require more courage to say no is that it requires denying something to a couple whose deepest wishes will be set back by the refusal. It is not courageous, to put it bluntly, in the sense of placing the naysayers at risk for a good cause; it is only so in that there may be a kind of courage in insisting on one’s convictions and imposing them on others, even when doing so causes suffering. That, I submit, is not the sort of courage that should be reflected in our laws.

Somerville’s statement is also confused because it falsely assumes that merely allowing a practice—that is, declining to prohibit it—entails its endorsement by society as a whole. Liberal democracies should never accept that proposition. They tolerate many practices that various individuals—sometimes enough of them to form an electoral majority—disapprove of for religious or moral reasons. Hence, a liberal democracy’s mere failure to prohibit a practice does not entail that the practice, along with whatever suspect value or values might underlie it, is officially endorsed. For example, Charlesworth is on strong ground when he observes that the decriminalization of suicide does not entail that the state morally endorses it. All that follows is that the state categorizes suicide as a matter of personal morality that should not be controlled by law (Charlesworth 1993, 39).

Indeed, even this concedes too much to Somerville, since the state sometimes has good reasons, all things considered, to allow practices that fall outside the strict zone of liberal tolerance. There might, for instance, be problems of enforcement that would lead to evils outweighing the protective benefits of prohibition. Alternatively, it might be unwise and inhumane to stigmatize essentially well-meaning people as criminals. In other cases, legislation might simply be unnecessary or premature. Liberal tolerance can often provide a good reason to permit actions that society doesn’t endorse, but this does not make it the only such reason. The