Genetics, Ethics and the State

by

Russell Blackford

(first published 1999 in Quadrant magazine)

In his most recent book, Brave New Worlds: Staying Human in the Genetic Future, Appleyard displays the moral panic about science and technology that typifies his work, yet he makes some points that are surely correct. In particular, he is right to challenge those who scoff at the prospects of human cloning and genetic engineering. Appleyard notes that scientists often "say either that we are a long way from being able to do anything like that, or that there is no reason to do it, so it will not be done." Of course, the announcement of Dolly the cloned sheep "undermined the credibility of the first position"; the day before, "it would have been easy to find a large number of geneticists who would have insisted that cloning from adult cells was either impossible or a long way in the future."

As for whether human cloning would be carried out if the technology became available, Appleyard comments that "the widespread insistence that there could be no reason to clone human beings simply betrays an innocence about the infinite demands of human vanity."

Among the cloning techniques that are most frequently postulated, one is embryo splitting, which could produce individuals genetically identical to each other but not to any pre-existing person. This could be used for the implantation of several embryos as part of a near-future approach to fertility treatment. In order to create a genetic copy of a post-natal human being, however, it would be necessary to use a different technique, most likely the laborious procedure that created Dolly—somatic cell nuclear transfer. This involves the transfer of the nuclear DNA from a somatic cell to a recipient oocyte.

Someone who wanted to create a child genetically identical to himself or herself could easily be accused of posturing or narcissism, perhaps indeed of "vanity", but there are more generous ways of looking at it. Children have often been seen as providing their parents with a kind of immortality. From antiquity, poets in the Western tradition have been obsessed with the heartbreak of mutability, with time, change and decay. One response is that found in Shakespeare's Sonnet 11, among others in the same sequence, where the speaker refers to the gifts nature has bestowed on his friend, then urges the friend to have children:

She carv'd thee for her seale, and ment thereby,

Thou shouldst print more, not let that coppy die.

Some people would consider that the creation of children genetically identical to themselves, or to loved ones, would be a much more powerful way defying time the destroyer.

In late 1998, a report was provided to the federal government by the Australian Health Ethics Committee of the National Health and Medical Research Council (NHMRC). This document, Scientific, Ethical and Regulatory Considerations Relevant to the Cloning of Human Beings, was written by a distinguished working group and, despite some important flaws, it provides a useful contribution to the discussion of advanced biotechnology. The report offers a number of scenarios in which human cloning might be attractive, avoiding the clichés of slave armies and plutocratic scions. One example is that of a lesbian couple who could use somatic cell nuclear transfer to create a child genetically identical to one parent, while also biologically "related" to the other "by mitochondrial genes, gestation and lactation".

Whether any real-life lesbian couples are attracted to such a prospect, it is plausible that some will be in the future. When consideration is given to all the scenarios that have been put forward by various commentators, it seems inevitable that human cloning would be taken up by a perceptible proportion of the community, so long as it were easily available and could be made safe. In that sense, Appleyard is right.

He is probably also right to scoff at the scoffers about genetically engineered "designer babies", though the limits of what is feasible are a matter of speculation. Whatever those limits turn out to be, it is easy to imagine a twenty-first century sonnet in which the speaker urges a friend to preserve his best features by having offspring—and to use the latest technology to make a few improvements. Indeed, that sentiment would not be out of place in Shakespeare's great sequence, with its ironies and expressions of ambivalent feelings.

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When such technologies as human cloning and genetic engineering are postulated, they are often tagged as "bizarre" or "unthinkable", as "playing God" or amounting to a Huxleyan "brave new world". Appleyard recounts his feelings of fear, disgust and horror, while more analytical thinkers express an ethical rejection that obviously derives from deeply held values.

It is commonplace for the various expressions of astonishment, repugnance or disapproval to be accompanied by calls for legislative prohibition. True, it is also possible to find articulate techno-libertarians who are prepared to embrace cloning, genetic engineering and other strange proposals, but their ideas have received little mainstream attention to date, and their receptive attitude to technological change is an unpopular one.

Unpopularity and strangeness are not crimes and careful thought needs to be given to how, if at all, the law should react to scientific developments. Unfortunately, the legislative horses have started bolting. In Australia, human cloning has been banned in Victoria, Western Australia and South Australia, though the NHMRC report observes that the effect of the South Australian legislation may go no further than a ban on embryo splitting. Prohibition is foreshadowed in New South Wales and the concept of prohibiting cloning has been supported by the federal government.

For the moment, there is a strong case for legal discouragement of the somatic cell nuclear transfer technique in humans because it carries a high risk of genetic malformation. There may be a case to discourage some other postulated biomedical technologies, but the claims of safety, social coordination, individual liberty and other values are difficult to reconcile. Though Appleyard feels no doubt that human cloning, in particular, should be banned, his problem is how to justify what he almost admits to be an irrational prejudice:

I object to this. If your personal choices and behaviours or mine became fair targets for legal prohibition merely because contemplating them caused fear and disgust to rise in others' throats, that would be the end of liberal society. Many people feel similar emotions when they contemplate homosexuality, for example, or interracial marriage, or many other practices. Appleyard is no homophobe or racist, but it is all too easy for people with irrational, bigoted reactions to imagine that there is some underlying truth, something sound and noble but difficult to articulate, which can "legitimize" their raw emotional responses.

Extraordinary though it seems, Appleyard never does present a reason to prohibit human cloning except for this remark about fear and disgust and his earlier comments about "human vanity". He goes on, however, to cite a geneticist, William Cookson, as saying that the possibility of parents being able to select the sex of their child "horrifies me . . . although I cannot say why." Thus, to fear and disgust at postulated technologies is added "horror" in a trifecta of unreason. "Cookson and others," we are told, "find themselves with doubts about where their work is leading, doubts that seem irrational and defy analysis." Indeed, such "doubts" do seem irrational, at least when expressed as lamely as this.

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Even if the risks became dramatically lower, somatic cell nuclear transfer would not seem destined for huge popularity with consumers in an imagined marketplace of biomedical techniques. For the present, use of this technique for human reproduction is highly unattractive, not just for its inherent strangeness, but because of the difficulties and risks involved, and it is the latter that make it ethically indefensible. It is not clear, however, that there is any other objection to human cloning that will stand up to analysis, at least any of sufficient seriousness to justify a role for the criminal law.

The NHMRC report tries to satisfy proponents of every available theory in normative ethical philosophy, blending the available viewpoints so finely that none is recognisably endorsed. The report's chapter on ethics ends with a generalised weighing up of the pros and cons, and the issue is never argued through from a particular ethical standpoint, whether it be utilitarian, Kantian, libertarian, contractarian, that of some kind of virtue theory, or that of a modern-day natural law theory such as advocated by John Finnis. All of these theories are controversial. Perhaps no committee could ever have committed itself to one of them, but to do so would have been more respectable intellectually.

The report is markedly superior to Appleyard's flailing about for justification of his prejudices, since it firmly states and proceeds from an "assumption" that "ethics is something about which we can reason." It attempts to deal with the gap between emotional reactions and the claims of reason by citing Leon Kass's claim that there is a "rational idea" behind the "widespread reaction of revulsion" at human cloning. According to Kass, this idea is that cloning would involve asexual reproduction, which "confounds all normal understanding of father, mother, sibling, grandparents, etc. and all moral relations tied thereto." In dealing with their scenario of a lesbian couple who might wish to have a child biologically related to both of them (though genetically identical to one), the authors of the NHMRC report respond by suggesting that such a wish may be morally illegitimate anyway:

What is useful about the articulation of such arguments is that they can be analysed and disputed in a way that reports of fear, disgust and horror cannot be. In respect of the argument attributed to Kass, it is obvious that cloning would lead to novel relationships among the adults and children involved. But what, in turn, is wrong with that? Some further basis is needed to explain why a world that contains new kinds of relationships is not merely strange to contemplate but too dangerous or sinister to countenance.

The underlying argument against advanced forms of biotechnology often seems to be that certain moral beliefs are based on facts about the human condition in the technological circumstances pertaining up to the present time. Therefore, although humanity's future may be far longer than its past, the human condition must never be allowed to change. This does not follow. What can be deduced is simply that, if technological circumstances change sufficiently in the future, then some of our practical moral beliefs may do likewise.

On the other hand, some deeper ethical principles or maxims would survive almost any developments in technology or social circumstances. For example, a society with many cloned individuals would appear just as capable as our own of justifying the imposition of moral rules against violence, lying, promise-breaking and the like, and the exhortations to show a degree of benevolence and concern for self-development. These imperatives may not be binding on individuals in the objective sense that Kant imagined, but there are good reasons why almost any society of rational beings would adopt something like them.

The specific argument that something "unjust" has been done to a child if she has two lesbian mothers, rather than a mother and a father, is highly dubious. True, the report attributes this view to "many", rather than directly endorsing it. However, views of this kind are ultimately found by the NHMRC committee to be "more convincing, weighty and cogent" than those favouring individual liberty. Yet this particular argument is so problematic that I scarcely know where to begin raising difficulties with it.

The authors have invoked the concept of justice, which refers to "rights" or "entitlements", in a discussion that seems to need quite different moral concepts. The hypothetical child, of course, would not even exist unless the two mothers made the decision that they did; she cannot be assigned rights that are incompatible with her very existence. It is difficult running arguments about the justice, or lack of it, of certain actions to individuals whose very existence is contingent on precisely those actions.

Perhaps the argument should be put as one about social policy rather than one about justice among individuals. Utilitarian reasons might be given for a claim that our society would be better if children tended to be born into conventional families. Usually, however, we are unwilling to let arguments such as this prevail over the liberty of people to carry out their own projects and honour their own commitments. Thus, the modified argument may be more cogent, or at least more coherent, but at the cost of being far less weighty. It provides no compelling reason why the imagined lesbian couple should be hindered by legislation from doing what they want. No special problems of public safety or social coordination arise merely because a minority of people might decide to have babies in a strange way and bring them up in unconventional households. On the contrary, this is surely an example of John Stuart Mill's "experiments in living". It would add to the diversity of society and should be seen as valuable.

In any event, there is currently no legislative prohibition on a mother raising a child within the environment of a lesbian relationship. Nor is there any prohibition against a single woman choosing to bear and nurture a child if she so wishes. Nor should there be. Provided that the child is loved and cared for, the coercive power of the state—which ultimately cashes out in police, pistols and prison cells—is quite properly kept afar from such intimately personal choices.

A flaw in much of the discussion in the NHMRC report and the more general controversy about postulated biomedical technologies is an assumption that the key issue is whether those technologies should be permitted. To frame the question that way, however, is to neglect the values of political liberty and the rule of law. In our system of governance, everything is allowed unless it is expressly forbidden by statute or in the pages of the judge-made common law. Moreover, there is an extensive literature arguing about the circumstances in which the state is morally justified in exercising its power to forbid. The NHMRC report fails totally to address these bedrock issues about state power and its moral limits.

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At one extreme, philosophical anarchists argue that the existence of the state is not justified at all. Close to this end of the spectrum are libertarian arguments that the state's coercive power can justifiably be exercised only to prevent violent crime and theft, enforce freely-negotiated contracts and repel foreign invasions. All of these are important, but most of us would see the state as having wider functions. There are many situations where the state can legitimately use its powers in aid of arrangements and projects intended to advance social coordination or economic prosperity. Modern trade and commerce require laws that regulate trade practices and the economic power of business corporations. Modern transport would be unworkable without road and navigation rules. Public systems of health and education cannot be provided without taxes, which are meaningless without the backing of penalties.

However, the provision of roads, hospitals and schools is meant to enrich, not diminish, the range of choices available to people. Such public infrastructure is never created for the purpose of suppressing anyone's life decisions. Laws providing for trade practices regulation, the incorporation of businesses and other enterprises, and consumer protection are a more abstract sort of infrastructure but, again, they are not designed to suppress individual freedom. By contrast, opponents of human cloning do not claim to be pursuing a positive programme to enhance social coordination or collective prosperity. They seek to ban particular conduct for the sake of banning it.

Although the NHMRC report makes a judgment to the contrary, when all the arguments are worked through, the ethical situation with cloning appears surprisingly simple: human cloning by somatic cell nuclear transfer is currently a procedure with a high risk of creating children with congenital disorders, and it should not be attempted. At the least, it should be declared contrary to medical ethics, and a doctor who performed the procedure should be considered guilty of serious professional misconduct. If, however, the procedure could be made dramatically safer, no strong argument would be left, certainly no argument that goes beyond offering reasons for private disapproval and justifies suppression by a liberal state.

When we move from the issue of cloning to that of parental sex selection, a more plausible argument can be put for prohibition or some lesser form of discouragement. This argument has nothing to do with the horror expressed by William Cookson and Bryan Appleyard, for it is not immoral or horrifying to attempt to influence the sex of planned child. But it is rational to fear that an inconvenient social outcome would eventuate if too many people did it successfully.

Many would-be parents have preferences about the baby's sex, and they will sometimes try to influence this by methods such as special diets or using acid or alkaline douches. Though none of that is wicked behaviour, its effectiveness for the purpose must be doubtful. Imagine, however, that we had a truly effective technology for parents to choose the sex of their children without going through the trauma of abortion. This might create a serious imbalance of the sexes in our society. It is quite possible that a sufficiently high proportion of parents would choose to have boys that the cumulative effect would create large-scale social problems.

The alleged undesirability of an aggregate result from many personal choices that seem individually legitimate is not usually a good justification to constrain individual choices, commitments and projects. Moreover, this is not like the imposition of broadly-based taxes, which do little, at least directly, to interfere with anyone's life plans. Instead, we are speaking about precisely about such interference and whether it can be justified. Against that, in the particular case of parental sex selection, the aggregate outcome could be so difficult and unanimously undesired that there might be justification on social coordination grounds for the state to interfere.

Can we go further in clarifying the role of the state in regard to genetic technologies? I am not sure, but I will offer some speculations. If safe genetic engineering became freely available, it would be difficult to put a rational argument against its use for therapeutic purposes or for the extension of human longevity, but what if parents were able to shape their children's values and behaviours in utero? If differing psychological propensities turned out to have a genetic basis and the (no doubt complex) interactions of genes for such subtleties could be mastered, genetic sculpting of children's personalities to accord with the wishes of parents would be theoretically possible. At this point, I begin to have concerns.

For one thing, anyone attempting to use such a powerful technology would be volunteering for a new and enormous kind of responsibility for the future happiness of the child, whose character would be deliberately shaped to an unprecedented degree. Here, an argument based on concepts related to justice among individuals may have more bite than in the scenario of the lesbian couple and their cloned child. We can imagine that an embryo has already been conceived and its genes are then modified by a genetic sculptor's futuristic artistry. As Bruce A Ackerman has argued, a genetically engineered child whose life ended up being miserable might have grounds for moral complaint. Moreover, what parent could possibly be competent to make these delicate, yet far-reaching, decisions? Thus, there are real difficulties about the prospect of a detailed attempt to sculpt a child's genes to suit a parent's fantasies, difficulties that do not seem to arise merely with the prospect of cloning or someone's intention to raise a child in an unconventional setting.

For another thing, there may be a collective interest here, one that goes beyond a broad utilitarian judgement, for the cumulative effect of many individually legitimate parental decisions might be a sickeningly bland society desired by no one. Homosexual or bisexual impulses, for example, might be almost entirely eliminated from the population by the cumulative effect of parental decisions. The same applies to many other kinds of non-conformist behaviour. Parents who valued non-conformity in the abstract might shrewdly assess it as a disadvantage for their own children. If we wished to avoid this kind of outcome, we might have to develop constraints on the degree to which parental genetic engineering choices could be accommodated. This is a difficult area to theorise and one that is genuinely troubling. The trouble springs from a potential clash between two values that are usually convergent rather than opposed: social diversity and individual liberty.

Fortunately, designer baby technology at this very high level of sophistication may not be feasible. As to the specific issue of homosexuality, it would be ironic, given the persecution suffered by homosexuals in past times from the power of the state, if their continued presence in our society depended on laws discouraging genetic engineering. This brings me to Bryan Appleyard's obsession with Nazi Germany and its repugnant programme of hate-based eugenics.

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In the opening chapters of Brave New Worlds, Appleyard considers arguments that postulated technologies based on genetics would be theologically illegitimate or environmentally imprudent. However, by the beginning of Chapter 3, he is forced to sum up that "we do not know whether our genetic science angers God or risks new plagues". So far, so good. Then he adds: "but we can be absolutely sure that genetics has been used in the past to justify the most horrific crimes—mass murder, mass sterilization, and racial and cultural hatred."

Appleyard's argument is that Hitler was influenced by Eugene Fischer's The Principles of Human Heredity and Race Hygiene, said to be "the standard genetics text of the day", and by the work of Ernst Haeckel. Not only is Appleyard prepared to invoke the spectre of Nazism in attacking genetic science but he seems to be convinced that Nazism was not a "misuse" of science, but somehow exemplary of it. This is a huge claim which I cannot dispute here in any detail, but suffice to say that various kinds of race hatred and xenophobia have existed through most or all of known history and have scarcely been a product of the scientific revolution in Europe in the sixteenth and seventeenth centuries. Nor has man's more general inhumanity to man been a confined to post-scientific societies, as the study of almost any historical period will show.

Nonetheless, Appleyard's thinking is coloured by his perception of science in general as somehow tainted by Nazism. In writing of the possibility that parents might be able to modify the genes of their children, he insists that this should be described as a form of eugenics, knowing that the very use of the word creates an association, however illogical or unfair, with the hateful actions of the Nazis. "For me," he says, "it is all too obvious that those who wish to deny the title eugenics to anything other than coercive, socially targeted control of reproduction are doing so because they wish to avoid the Nazi taint."

Yet, he equivocates about this, knowing that not all practices with a eugenic component are evil, and sensing that he is very close to running an argument with an undistributed middle term. After relating the way that the Lubavitcher community in Brooklyn discreetly discourages marriages between people who are both carriers of Tay-Sachs disease, he concedes that this "may not be objectionable". However, once such a concession is made, Appleyard cannot continue to use the word "eugenics" and its cognates with the Nazi taint still present. He renounces the palpably invalid argument that Nazism involved eugenics, genetic engineering would involve eugenics, so genetic engineering would be ethically akin to Nazism. But he wants to have it both ways, to write as if some such argument were still available.

Appleyard also links eugenics with specific issue of homosexuality:

If it is not state sponsored, there is no point in describing it as a "programme" let alone a programme of "manipulation" of the gene pool. It is merely the cumulative effect of numerous individual choices, choices that need not be universally homophobic, but might be based in many instances on an all too accurate perception that a homosexual child will suffer social discrimination.

In the scenario of aborted gays that Appleyard describes, or in the more sophisticated case of widespread genetic engineering in favour of heterosexual children, the issue is not how we can justify state action in controlling what sort of people there should be, as the Nazis attempted to do with an obscene degree of success. Rather, we must consider whether we can justify state action in interfering with individual choice. Perhaps the answer to that question is a heavily qualified yes, but the questions are quite distinct, the reasoning involved in answering them is very different, and it is the reasoning that must govern decisions about political justification.

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There are issues about genetic science that are more practical and immediate than a supposed need to ban cloning or genetic engineering, and which involve less spectacular technologies. One relates to the use of genetic testing by insurance companies or, alternatively, by those taking out insurance. Much has been written about this problem, which comes down to the stark fact that the balance of interests between insurer and insured could be altered beyond recognition. On the one hand, life insurance companies could base their calculations of risks for individuals upon the results of genetic tests, perhaps rendering many people uninsurable. On the other hand, in a paradoxical situation that Kant would have appreciated, if individuals were able to have their own genetic tests done, then insure heavily against the identified risks, the effect of these actions would be self-defeating. The social institution of life insurance would be destroyed.

Scenarios such as this are discussed in detail by David Keays in an article published recently in the Journal of Law and Medicine (May 1999). In this sort of example, the state appears to have an inevitable role in ensuring that some kind of balance is found. This underlines how difficult it will be adapting to the possibilities brought by technological change, and the law has to keep up. All the same, careful justification needs to be given for any legislative responses designed to prevent individuals from making their own decisions. The current rush to legislate over issues such as cloning has more to do with populism than with rigorous justification.

Even if it is acceptable for the state to discourage such practices as cloning and genetic engineering, or particular forms of them, it is not necessarily legitimate to wield the terrible weapon of the criminal law. Governments have other resources to deal with unwelcome social effects from postulated technologies. These include decisions about the funding of bodies that conform, or fail to conform, to promulgated guidelines, as well as the creation of the new codes of practice, perhaps involving regulatory or disciplinary offences.

It should also be apparent that fear, disgust and horror, even if widespread, are not good reasons to enact laws that encroach on the freedom of minorities who might wish to embrace technologies that others find bizarre or upsetting. The presence in our society of strong negative emotions directed at minority practices may actually be a reason to give that minority greater protection. In that context, it is mildly disquieting that the NHMRC ethics committee did not seek public submissions before it wrote a report advocating new restrictions on individual liberties.

In one sense, public input would have been a waste of resources, since the central issue was the use of somatic cell nuclear transfer for human cloning, a procedure that no one could currently support, given the safety considerations relating to the genetic integrity of the child. However, the NHMRC report may be a precedent for other exercises responding to postulated technologies. Legislatures are more impressed by moral panics in the electorate than by libertarian values, and technological development will open up many new areas for people who are motivated by irrational feelings to campaign against the liberties of non-conforming and unpopular minorities. Every chance should be given for minority positions to be put.

Moreover, before legislatures embark on the illiberal path of extending the criminal law, thought should be given to the socially destructive consequences of doing so. The US experiment with prohibition of alcohol is the paradigm example from history, but numerous others could be given, including the counter-productive drug laws that we labour under in Australia. Perhaps our society has developed to a point where it does not merely tolerate, but actually celebrates, unconventional attitudes and life plans. Perhaps, too, a positive attitude to social diversity might help justify some constraints—think again about the extreme scenario of a powerful technology for making designer babies. That, however, is a paradox, one to be handled with care. In no circumstance should the state's coercive power be used with the intention of suppressing attitudes, values and experiments in living merely because they are unpopular or strange.

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