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_ WHAT IS "BIOETHICS"? _



_ Dianne N. Irving, M.A., Ph.D. _ Tenth Annual Conference: Life and Learning X
(in press) University Faculty For Life Georgetown University, Washington, D.C.
copywrite:June 3, 2000 reprint with permission

_[IMAGE] Print article_ "A small error in the beginning leads to a multitude of
errors in the end." Thomas Aquinas, De Ente Et Essentia Aristotle, De Coelo


I. INTRODUCTION



There is a strange phenomenon I have encountered over the last several years
which I hope to at least identify with this essay. It is the apparent belief
that bioethics is somehow the same as, or to be equated with, ethics per se, or
at least with medical ethics per se. I have even heard it referred to as Roman
Catholic medical ethics per se. Repeatedly, when I ask a group to define
bioethics, I usually get the same sort of response. I hope with this essay to
disenfranchise people of this belief.

Contrary to "popular opinion", bioethics, as predominantly practiced today --
especially as embedded in formal governmental regulations, state laws and a
myriad of other documents, committees, guidelines, guidebooks, etc., around the
world _1_-- is not the same thing as "ethics per se". Academically it is
actually a sub-field of ethics, and stands alongside many other theories of
ethics, e.g., Kantian deontology, Millsean utilitarianism, casuistry, natural
law, egoism, situation ethics, relativism, and various forms of theological
ethics, etc. And like all ethical theories, bioethics is by no means "neutral"
-- there is no such thing as a "neutral ethics"._2_ In fact, bioethics defines
itself as a normative ethical theory -- i.e., it takes a stand on what is right
or wrong._3_

Nor is bioethics to be equated with "medical ethics", as that term is still
generally understood._4_ Nor is it the same as Roman Catholic medical ethics,
or any other such subsystem of ethics that could be used to determine the
rightness and wrongness of human actions within the medical context.

As we will see, bioethics understood as "principlism" is an academic theory of
ethics which was formally articulated in 1979 by the Congressionally-mandated
11-member National Commission in their Belmont Report._5_ That Report, as
mandated, identified three bioethical principles: respect for persons, justice
and beneficence. (As will be demonstrated below, the Commission defined these
three bioethics principles in less than traditional terms). Nor is bioethics
restricted to the medical context. Nor has bioethics ever even considered
abortion a serious issue of debate_6_ (although the definitions of a "human
being" and of a "human person" concretized in the Roe v. Wade decision has
reverberated throughout the bioethics literature since then -- especially in
the issues concerning human embryo and fetal research). At least this much must
be clear before anyone enters these public "bioethics" dialogues.

As the formal body of bioethics literature is enormous -- extending over 30
years or more -- it will be impossible in this essay to properly evaluate in
detail all of the ramifications of this "bioethics ediface".

My method will be primarily historical -- in terms of relating, only in the
briefest of outline form, the short but extensively referenced and hectic
history leading up to the actual articulation of the three bioethics principles
of autonomy, justice and beneficence in the National Commission's Belmont
Report. Because many of you are probably not familiar with those who have and
still play major roles in bioethics, I will list as many of them as is
reasonably feasible in the main text.

II. DIFFERENT ETHICS, DIFFERENT CONCLUSIONS



To put my endeavor into sharp focus, consider for a moment the strikingly
different conclusions reached by secular bioethics and Roman Catholic medical
ethics on an array of issues. Secular bioethics generally considers the
following as ethical: contraception; the use of abortifacients; prenatal
diagnosis with the intent to abort defective babies; human embryo and human
fetal research; abortion; human cloning; the formation of human chimeras
(cross-breeding with other species); human embryonic stem cell research; "brain
birth"; "brain death"; purely experimental high risk research with the mentally
ill; euthanasia; physician-assisted suicide; living wills documenting consent
to just about anything; and, withholding and withdrawing food and hydration as
extraordinary means._7_ In contrast, Roman Catholic medical ethics, as
expressed in the National Conference of Catholic Bishops' Ethical and Religious
Directives for Catholic Health Care Services,_8_ as well as the Charter for
Health Care Workers published by the Vatican, considers all of these unethical
- with the exception of the use of "brain death" criteria (and some Catholic
theologians are now becoming concerned about that as well). Probably the only
issues on which they both agree is that the use of extraordinary means, e.g., a
ventilator, is not morally required if a treatment is medically futile, and
that even high doses of pain medication may be given if medically appropriate.


How is it that these two different ethical systems lead to such opposite and
contradictory ethical conclusions? The answer is rather predictable. Every
academic ethical theory has its own idiosyncratic ethical principles. Deducing
from different ethical principles necessarily leads to different ethical
conclusions. For example, Roman Catholic medical ethics is grounded on the
ethical principles embedded in the Moral Law (a combination of natural law
philosophical ethics, the Divine Law, and the teachings of the Magisterium)._9_
Secular bioethics, as predominantly understood and applied, is grounded in the
three bioethics principles of respect for persons (now referred to as
autonomy), justice and beneficence as articulated in 1979 by the National
Commission in their Belmont Report._10s_ Deducing from these two very different
sets of ethical principles leads inexorably to the different ethical -- and
therefore medical ethical -- conclusions noted above.

In short, there is really no such thing as just "ethics per se", or as just
"medical ethics per se". There are different kinds of ethics, and therefore
there are different kinds of medical ethics -- each with its own unique ethical
principles, subject matter, method (epistemology), and squadrons of "experts".
It is these inherently different characteristics of different ethical theories
that are compared and contrasted in the ethics or medical ethics classrooms (or
at least should be).

Likewise, different ethical or medical ethical theories have their unique
historical records. The "history" of bioethics is no exception, although its
"history" is rather recent. To understand how bioethics is not ethics per se,
or even medical ethics per se, it is helpful to start by tracing some of its
roots in the ancient medical tradition of Hippocrates.

III. EARLY HISTORY OF "MEDICAL ETHICS"



Several of the Founders of the field of bioethics are now busily writing books
containing their own various accounts and versions of the history of the new
"field" of bioethics. One example is the recent book by philosopher-Founder
Albert Jonsen, The Birth of Bioethics_11_ (well worth reading). Although Jonsen
presents the history of bioethics from within his own idiosyncratic perspective
and his own important role in that history, his book is a wealth of historical
information and extensive, often unique and difficult to access, documentation.
The book does help to explain a great deal of some of the historical roots of
bioethics, precisely what bioethics is, and the "experts" who founded it and
are currently plying this trade.

Jonsen (a trained philosopher and former Jesuit priest) starts his "history" of
bioethics by outlining its roots in the ancient Hippocratic tradition, and then
moves chronologically through the mediaeval and modern periods of medical
ethics. He marks the contemporary "birth" of bioethics as beginning about 1947
and extends it to 1987. It is of note that he stops the "history" there -- and
the burning question is "why"? "I chose 1987 as the terminus of this history,
... [T]he leading ideas that form the discipline have come under scrutiny; the
theory, principles, and practices that evolved during the first decades do not
seem to measure up to the new questions."_12_ Just what are these "new
questions" which caused this abrupt end to such a glorious "history"?

A. Ancient history:



Jonsen's presentation of the "pre-history" is already familiar enough to many
of you, so I will only reiterate it quite briefly and in simplistic outline
here. He traces the literature of "medical ethics" back to the Hippocratic
School between 400-300 B.C. -- the tradition of "medical ethics" which has
basically continued until modern times. It was concerned with the qualities of
"the good physician", the decorum and deportment a doctor should exhibit
towards patients. The "good physician" was gentle, pleasant, comforting,
discreet, firm -- in other words, physicians should reflect true virtues. The
duties of a good physician were incorporated in oaths, rules dictated by
church, state or profession. They included benefiting the sick and doing them
no harm, keeping confidences, refraining from monetary and sexual exploitation
of patients and showing concern for those in need of medical help even at risk
to one's own health and wealth. The paradigm of these duties is found in the
Hippocratic Oath_13_ -- an oath, by the way, which is no longer usually
required of our contemporary medical students upon graduation; or students
often just create their own "modified version" of it. To personify this
earliest stage of medical history, let us refer to the typical physician
paradigm here as "Dr. A".

B. Mediaeval history:



By the middle ages, "Dr. B" moved on stage, at a time when a more social view
of medical ethics was incorporated in which the physician also defined himself
in society. Physicians must show themselves as worthy of social trust and
deserving of social authority and reward. The marks of the profession of
medicine included now the privilege to educate, examine, license and discipline
their members, and the tacit pledge of public service._14_

C. Modern history:



The next physician paradigm, "Dr. C" was articulated in the first book with the
title of "Medical Ethics", written in 1803 by the English physician Thomas
Percival. Percival combined the traditional virtues of medical decorum with new
injunctions about the behavior of physicians among themselves. Still, social
concerns in medical ethics were to be found the ethical codes of the American
Medical Association since its establishment in 1847._15_

In the United States, our "Dr. D" comes on the scene -- e.g., in the work of
Dr. Richard Cabot. Cabot initiated what has been termed "an ethics of
competence", especially in the practice of medicine in the hospital setting.
For example, he stressed the need for extensive cooperation between physicians
and all other professionals involved in the care of patients; he required
accurate record keeping of the number of patients and the evaluation of their
care; and he required a limit to the number of patients per physician so as not
to compromise good patient care. Patients should be informed of their
diagnoses, and their treatments should be explained to them by their
physicians. Patients should not be exploited for teaching purposes, nor should
senior physicians exploit junior physicians, etc. For Cabot, moral practice was
competent; incompetent practice was unethical. And in the rapid advance of
scientific medicine, the practitioner's highest moral duty was mastery of that
science for the benefit of the patient._16_

Dr. Chaunsey Leake (1896-1978) insisted that medical ethics should be concerned
with the ultimate consequences of physicians' work on their individual patients
and toward society as a whole. Professional ethics would be relocated in a
foundation of moral philosophy!_17_ Of course, the question should arise as to
which moral philosophy the profession of medicine should use as its
foundations, given that by then there were multiple theories of ethics from
which to choose? Dr. "E" is now on stage.


IV. FROM WORLD WAR II TO THE NATIONAL COMMISSION



The contemporary history of medical ethics began after World War II, especially
over controversies involving medical research. Medical ethics found itself
increasingly confounded as medical science advanced and medical interventions
became increasingly technical. As Jonsen notes, the important bonds of the
physician/patient relationship began to suffer, and it was no longer clear what
was "benefit" and what was "harm". Is it "harm" to experiment on a dying person
to generate better ways of curing disease for the "benefit" of other patients,
even if wouldn't "benefit" that individual patient? How should the growing
intimacy of medical practice and medical research with government, commerce,
and the new technologies be handled? If some patients cannot pay for medical
care, who should? Who should live, and who should die? How should the limited
resources of health care be justly distributed? How should the benefits and
burdens of research be justly distributed? How far could individual physicians,
medical investigators and the government go in advancing scientific knowledge
and providing for our national security? And, of course, who should decide the
answers to these difficult questions?_18_


These were, after all, issues that philosophy, theology and the law had
previously pondered, rather than medicine. These disciplines were about to find
their new home in the new field of secular bioethics,_19_ but with a
difference. There would be a major shift from considerations of standard
medical care and practice to those of cutting-edge medical scientific research,
thus eventually blurring the distinction between the respective subject
matters, methods and goals of these two very different fields of endeavor, and
between the roles of physician and researcher. Further, the traditional roots
of "medical ethics" in the Hippocratic Oath, religion and theology would be
drastically cut as attempts to secularize "ethics" were rapidly articulated --
especially for use in our "pluralistic, multicultural, democratic" societies.

A. The conferences, issues, and thinkers:



Starting in the '60's, important conferences took place which provided much of
the materials, subject matter and debates later conceptualized in contemporary
bioethics. The shift in theorists and in interests was dramatic. Of particular
concern at these conferences were issues such as population control, eugenics,
artificial reproduction, thought control, sterilization, cloning, artificial
insemination, and sperm banks._20_

For example, the conference, "Great Issues of Conscience in Modern Medicine",
held at Dartmouth College in 1960, hosted distinguished medical scientists "to
examine the issues of conscience in medical and scientific progress ... not
simply the question of the survival or the extinction of man, but what kind of
survival? a future of what nature?"_21_ [Emphasis in original]. The conference
was chaired by Rene Dubos, a scientist at Rockefeller Institute who had just
published a popular book entitled, Mirage of Health: Utopias, Progress and
Biological Change._22_ [Dubos was to become an original member of the
yet-to-be-organized Hastings Center bioethics think-tank.]

The "savants" who participated included several Nobel Prize winners, and such
distinguished scientists as: Sir George Pickering, (Oxford University), Brock
Chisholm, (WHO), Wilder Penfield, father of neurosurgery, Walsh McDermott,
M.D., Hermann J. Muller, (Nobelist in physiology and medicine for his work in
genetic effects of radiation), and George Kistiakowsky, (Assistant to President
Eisenhower for Science and Technology). C.P. Snow and Aldous Huxley represented
the humanities._23_


Issues at this conference included: the effects of ionizing radiation; the
pollution of water and air; chemical adulteration of food; and, the "conquest
of infectious disease" and its converse problem of over-population. As Jonsen
notes, "The claim that medical advances had contributed to the population
explosion and to the pollution of the gene pool became a common theme of the
conferences during the 1960s."_24_ Genetics and eugenics loomed very large.
Soon-to-be common themes of later secular bioethics debates emerged. It is
worth quoting Jonsen directly: Rene Dubos called "prolongation of the life of
aged and ailing persons" and the saving of lives of children with genetic
defects "the most difficult problem of medical ethics we are likely to
encounter within the next decade ... To what extent can we afford to prolong
biological life in individuals who cannot derive either profit or pleasure from
existence, and whose survival creates painful burdens for the community? ... It
will be for society to redefine these ethics, if the problem becomes one that
society is no longer willing or able to carry." Geneticists worried that the
gene pool was becoming polluted because the early death of persons with certain
genetic conditions was now preventable; in addition to antibiotics, insulin for
diabetes and diet for phenelkytonuria were frequently mentioned. A unique
solution was offered by Nobelist Hermann J. Muller, who promoted his concept of
a bank of healthy sperm, together with the "new techniques of reproduction" to
prevent the otherwise inevitable degeneration of the race."_25_ [Emphasis
mine.]


Of note too was the attitude of elitism exuded on all sides in the face of such
complex dilemmas. Dubos explained: "We are not assembled here to solve
problems. Our purpose is to air problems ... to state our problems as clearly
and thoughtfully as we can, so that they can be better analyzed by the
scientific community and so that the community at large -- lay people -- can
struggle under our guidance to form its own opinions ... ." As Sir Charles Snow
concluded, the way to deal with such problems is by foresight and intelligence
and, above all, by scientists telling the truth. But "it is not enough for
scientists to make statements of the greatest possible truth; [scientists] must
have the courage to carry those statements through because they alone know
enough to be able to impress their authority upon a world which is anxious to
hear." And as Jonsen notes, "The public was only rarely invited to partake in
resolving these great problems. ...for the most part, the public is seen as an
audience, waiting for scientists to bring solutions to the problems they have
created."_26_

Similar themes and speakers were repeated at the conference, "Man and His
Future", sponsored by the Ciba Foundation in London in 1962. Among the speakers
and illuminaries were: Dr. Brock Chisholm, Dr. Hermann Muller, Aldous Huxley
and his scientific brother Julian Huxley, Joshua Lederberg, J.B.S. Haldane,
Albert Szent-Gyorgyi, Francis Crick, Jacob Bronowski, and Peter Medawar. Themes
also included agricultural productivity, world resources, environmental
degradation, genetics and brain science. Of special note were the similar
concerns with evolution, eugenics and population control: Sir Julian Huxley
opened the conference with a wide-ranging lecture entitled, "The Future of Man
-- Evolutionary Aspects." He painted a picture of evolution that for the first
time had become conscious of itself in human kind and thus was responsible for
its population, economics, education, and above all, for the exploration of
"inner space -- the realm of our own minds and the psychometabolic processes at
work in it." The problems of overpopulation and the dysgenic effects of
progress had to be overcome to assure the realization of human fulfillment:
"Eventually, the prospect of radical eugenic improvement could become one of
the mainsprings of man's evolutionary advance." Man was, he triumphantly
proclaimed, "the trustee ... of advance in the cosmic process of evolution._27_
[Emphasis mine.]


Scientists took sides for and against programs of eugenics and thought control.
J.B.S. Haldane described a vision of his own "utopia", imagining the biological
possibilities in the next ten thousand years. His "utopia" included broad
control of physiological and psychological processes, achieved largely by
pharmacological and genetic techniques, including cloning and deliberate
provocation of mutations, to suit the human product for special purposes in the
world of the future._28_

Several other conferences delved into the implications of science in the modern
world, e.g., the series of Gustavus Adolphus Nobel Conferences in Minnesota, in
which many Nobel winners again participated. The first Nobel Conference in 1965
was devoted to "Genetics and the Future of Man." Dr. William Shockley, who had
won the Nobel prize for physics, presented his views on eugenics, suggesting
that, since intelligence was largely genetically determined, serious efforts to
improve human intelligence should be pursued by various means, including
sterilization, cloning, and artificial insemination. He praised Hermann
Muller's advocacy of sperm banks._29_

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B. Evolving "ethics":



Evolving too during this period were the different concepts of "ethics", and
the possible roles which ethicists and theologians should play in such critical
discourse. In the Ciba conference, most speakers espoused ethical relativity.
As Francis Crick expressed it, although there might be some agreement of
values, "they do not necessarily coincide ... for practical purposes ... there
is bound to be a conflict of values. ...I think that in time the facts of
science are going to make us become less Christian."_30_ However, Paul Ramsey,
in his Nobel conference presentations and later debates, was undaunted,
analyzing the issues from his position of distinctly expressed theological
principles and values._31_ Similarly, theologian James Gustafson pushed hard
for broader participation in deliberations about scientific advances (the
term"broader" meaning "with theologians and other academics"), and he called
for a clearer formulation of values to be served by those advances, preparing
the way for one of the major methods to be used in bioethics --
"consensus"._32_

In short, such weighty issues should not be left up to just the scientists and
physicians. Input from experts in philosophy and theology should be brought to
the tables to provide an evaluation of the "broader values" involved. In that
spirit, many conferences that were to follow incorporated distinguished
speakers who lectured on the possible roles of theologians and philosophers in
these debates.

However, the ultimate conclusions of such discussions seemed to lead instead to
the secularization of those very same traditional philosophical and theological
values -- under the misguided assumption by some that a "secular ethics" could
not in any way be "normative" (i.e., take a principled stand on what is right
or wrong). The search was on for a "neutral" ethics (even though there is no
such thing), identifiable through the use of "consensus"._33_ For example, in
1966 Reed College of Portland, Oregon, held a conference entitled, "The
Sanctity of Life", featuring sociologist Edward Shils' lecture, "The Secular
Meaning of Sanctity of Life, and St. John-Stevs's lecture, " Law and Moral
Consensus"._34_ On the other hand there were those like Daniel Callahan who
suggested a non-theological normative formulation along moral philosophy lines,
as in his early article, "The Sanctity of Life"._35_ The secularization of
religious and theological values, the use of "consensus" in moral discourse and
in law, and the emerging skills of the secular philosophers -- especially
analytical philosophers -- would become major characteristics of the new field
of normative "secular" bioethics yet to come.

V. THE CENTERS



In the 70's, the debates, and their participants, moved from conferences to
permanent centers with the founding of the Hastings Center, the Kennedy
Institute of Ethics at Georgetown University, and the Society for Health and
Human Values. The ideas, literature and people involved in these early "think
tanks" eventually identified the nature, the subject matter, and the methods
peculiar to the new field of secular bioethics as we know it today, and
especially how and when it is to be applied in public policy.

A. The Hastings Center:



In 1969, Willard Gaylin and Daniel Callahan (long time member and Director of
the American Eugenics Society)_36_ founded the Hastings Center, funded
primarily by the individuals John D. Rockefeller III and Elizabeth Dollard, as
well as by the National Endowment for the Humanities and the Rockefeller
Foundation. Pioneers of the field who came to work at and with the Hastings
Center included: Henry Beecher, Robert Coles, Theodore Dobzhansky, Andre
Cournand, Rene Dubos, Renee Fox, Robert Morrison, Art Caplan, Paul Ramsey,
James Gustafson, Robert Veatch, Marc Lappe, Robert Neville, Peter Steinfels,
Bruce Hilton, Martin Golding, and Senator Walter Mondale. The first 4 "research
groups" at the Hastings Center addressed issues such as death and dying,
behavior control, genetic engineering, genetic counseling and population
control, and the conjunction of ethics and public policy. In 1971 the first
volume of the Hastings Center Report appeared -- a publication which was to
become the early bible of secular bioethics. As Jonsen noted, "The index of the
Hastings Center Report over the next years defined the range of topics that
were becoming bioethics and constituted a roll call of the authors who would
become its proponents."_37_

B. The Kennedy Institute of Ethics:



The Kennedy Institute of Ethics at Georgetown University was also spawned
during this time period. Andre Hellegers was a Jesuit-trained Dutch physician
who was working at Johns Hopkins in research in fetal physiology and the
reproductive sciences -- eventually earning him a Fellowship from the Joseph P.
Kennedy, Jr. Foundation. In 1967 he came to Georgetown University School of
Medicine, and was also the Director of Georgetown's Center for Population
Research which was funded by a Ford Foundation Grant._38_

Hellegers excitedly discussed with Fr. Henle, then President of the college,
the need for founding a center at Georgetown to study the ethical issues
surrounding his own areas of research. Henley enthusiastically endorsed such a
mission. In 1970 a proposal to fund such an institute was submitted to the
Kennedy Foundation -- funds later came from the NIH National Library of
Medicine (where Jonsen later served as a Fellow). The institute was originally
called the Kennedy Center for the Study of Human Reproduction and Development.
In 1971 the name changed to The Joseph and Rose Kennedy Center for the Study of
Human Reproduction and Bioethics, and finally changed to the Kennedy Institute
of Ethics. It opened with 2 research scholars -- LeRoy Walters, a Mennonite
theologian, and Warren Reich, a Catholic theologian from Catholic University.
Soon to follow were: Charles Curran, Richard McCormick, Gene Outka, John
Connery, Tom Beauchamp, Terry Pinkard, Robert Veatch, William May (Protestant
theologian), Tris Engelhardt, James Childress, and later Edmund Pellegrino._39_

Since 1974 the KIE at Georgetown University has sponsored very popular
"intensive summer courses" in bioethics for health care workers, hospital
administrators, politicians, lawyers, public policy makers, philosophers,
theologians, sociologists, indeed scholars across the academy, government and
the private sector. (There are now "advanced" programs, and programs
specifically for German, Latin American, Asian and other nationalities). Of
significance also was their creation of the National Reference Center for
Bioethics Literature, the Encyclopedia of Bioethics, The Bibliography of
Bioethics, a joint J.D./Ph.D bioethics program between Georgetown University
Law School and the Department of Philosophy/KIE, and a Ph.D. program in the
Department of Philosophy with a concentration in bioethics._40_ (This is where
I entered the field in 1979, as a doctoral graduate student in philosophy and
future member of what is now referred to as the "First Generation" of
bioethicists.)

C. The Society of Health and Human Values:



In 1965, discussions by the Committee on Medical Ethics and Theology of the
United Ministries in Education, a collaboration of the Methodist and
Presbyterian Churches, eventually led to the Society of Health and Human Values
in 1970. It was funded by the National Endowment for the Humanities (the
"munificent benefactor of bioethics", as Jonsen notes)_41_ and the Russell Sage
Foundation. The Society soon established its Institute on Human Values in
Medicine, with Dr. Edmund Pellegrino as chairman of its first Board of
Directors. Others included Thomas McElhinney, Ron Carson, Larry Churchill,
Lorretta Kopelman, Mark Ziegler, David Thomasma, Peter Williams, Warren Reich
and Larry McCullough._42_

All three of these organizations contributed scholars and ideas to the federal
activities in bioethics that ushered in the formal birth of "bioethics"._43_
Many of them provided "expert" testimonies at many Congressional and Senate
hearings to come, and served on a plethora of governmental and private
commissions, committees, conferences, and other organizations and activities.

VI. THE FORMAL BIRTH OF BIOETHICS



The concrete formal birth of bioethics began with several years of hearings
before Congress, hearings which were called to address an increasing number of
knotty and bewildering problems especially being generated by medical research
and the abuse of human subjects.

A. The Congressional hearings:



The formal birth of bioethics really began by Congressional mandate! Hearings
by Sen. Mondale,_44_ (a founding Hastings Center scholar) in 1968 were designed
to commence a national debate on the directions that medical science would take
in America. These hearings were particularly concerned with such issues as
genetic engineering and organ transplantation, behavior control, experiments on
humans, and the financing of research -- and later, with research using live
fetuses and in vitro fertilization (IVF) research_45_ (a form of human embryo
research).

Experts in the various disciplines were called before the Committee to testify,
including many of those already mentioned before, as well as others who would
also take their place in the brave new world of bioethics, e.g., Tris
Engelhardt, Alexander Capron, Gernard Barker, Kenneth Vaux, Fr. Albert
Moraczewski, Jay Katz, Michael Debakey, James Watson, Arthur Kornberg, Joshua
Lederberg, Christian Barnard, Henry Beecher, etc._46_

Another series of senate hearings to take up these same rapidly emerging and
controversial issues were called by Senator Ted Kennedy during 1973. One of the
most contentious issues involved research using live whole fetuses. A
Washington Post story had reported that the NIH had released a recommendation
from one of its advisory panels, the Human Embryology and Development Study
Section, that "encouraged the use of newly delivered live fetuses for medical
research before they died."_47_ Although initially NIH tried to deny the
report, several research projects using live whole human fetuses funded by NIH
to American scientists in Finland, Denmark and Japan were being reported._48_
The news spurred Eunice Kennedy Shriver to contact Georgetown's Dr. Hellegers,
a member of that NIH advisory panel, to solicit his support to stop this
research._49_ To add to the urgency, several hearings began investigations into
the abuse of human subjects in medical research during the Tuskegee Syphilis
Study (a Public Health Service research project). Senator Ted Kennedy held a
series of hearings on these same issues. Eventually there were calls from
several House and Senate committees for the establishment of some sort of a
governmental commission to respond to these continuous reports of research
abuse of human subjects. Various and numerous bills from both House and Senate
subcommittees were drafted and redrafted._50_

B. The National Research Act and The National Commission:



Despite disputes between the House and Senate versions of the bill,_51_
eventually these hearings resulted in Congress passing the National Research
Act in 1974, which among other things Congressionally mandated the
establishment of an 11-member National Commission for the Protection of Human
Subjects of Biomedical and Behavioral Research. The National Research Act
mandated this Commission "to identify the basic ethical principles that should
underlie the conduct of biomedical and behavioral research involving human
subjects and develop guidelines that should be followed in such research."._52_
As Jonsen, a member of that National Commission, profoundly noted, "No
legislation had ever before charged a government body 'to identify basic
ethical principles', as did Public Law 93-348."_53_

And the inevitable questions arise. By what Constitutional or other power or
authority can the Congress of the United States mandate the appointment of any
federal commission or group to identify "what is ethical"? Why should the
normative ethical positions of Kant, Mill, Sidgwich, Longergan, Gustafson,
Beauchamp, Childress, Callahan, Clouser, Hellegers, McCormick, Jonsen, Ramsey,
Veatch, Engelhardt, Pellegrino, Thomasma, or any of the many other ethical
"theories" proposed_54_ be imposed undemocratically by the government on any
members of a democratic society?

Nevertheless, that is precisely what was done. By mandate of The National
Research Act (1974), the 11-member National Commission_55_ (1974-1978) was
appointed by the then-Secretary of Health and Human Services, Joseph Califano.
The membership of this new Commission which was to determine what was "ethical"
consisted of three physicians, two biomedical researcher, three lawyers, one
public member and two philosophers._56_ The appointed members, and some staff
and consultants, of the National Commission were: Chairman Kenneth Ryan (Chief
of Staff at Boston Hospital for Women); Robert Cooke (Vice Chancellor for
Health Sciences at University of Wisconsin); Donald Seldin (Professor and
Chairman of the Department of Internal Medicine at the University of Texas at
Dallas); Joseph Brady (Professor of Behavioral Biology at The Johns Hopkins
University); Eliot Stellar (Provost of the University and Professor of
Physiological Psychology at the University of Pennsylvania); Patricia King
(Associate Professor of Law at Georgetown University); David Louisell
(Professor of Law at the University of California at Berkeley); Robert
Turtle(Attorney at VomBaur, Coburn, Simmons & Turtle, Washington, D.C.);
Dorothy Height (President of National Council of Negro Women, Inc.); Karen
Lebacqz (Assistant Professor of Christian Ethics at Pacific School of
Religion); and Albert Jonsen (Adjunct Associate Professor of Bioethics at the
University of California at San Francisco). Many of the staff were also to
become influential in bioethics as well: Charles Lowe (NIH), Michael Yesley
(Department of Commerce), Duane Alexander (NIH), Edward Dixon, Bradford Gray,
Miriam Kelty, Robert Levine, Barbara Mishkin, Anne Ballard, Bernice Lee, Mary
Ball, Pamela Driscoll, Lisa Gray, Marie Madigan, Erma Pender, Susan Shreiber,
Charles McCarthy, William Dommel, Anthony Buividas, Tom Beauchamp, and Steven
Toulmin._57_


This legal mandate required the Commission to study the ethical questions
raised in the use of several particular populations in research: the fetus,
children, the institutionalized mentally infirm, prisoners, and psychosurgery.
To aid their deliberations on fetal research, reports were commissioned by:
Paul Ramsey, Joseph Fletcher, Richard McCormick, S.J., Arthur Dyck, Sissela
Bok, Seymour Siegel, Leon Kass, Richard Wasserstron, Stephen Toulmin, LeRoy
Walters, Marc Lappe, Maurice Mahoney, Richard Behrman, and Alexander
Capron._58_ To further aid the Commission in identifying the "ethical
principles" to be used by the federal government, in 1976 a meeting was held at
Belmont House, a conference center of the Smithsonian Institution at Elkridge,
Maryland. Among those requested to present essays were: Kurt Baier, Alasdair
MacIntyre, James Childress, Tris Engelhardt, LeRoy Walters, Stephen Toulmin,
and Tom Beauchamp. The final three "bioethics principles" were, according to
Jonsen, a combination of suggestions by Engelhardt and Beauchamp._59_

C. The Belmont Report:



In its final report, The Belmont Report (1978),_60_ the Commission satisfied
one part of its Congressional mandate by identifying three ethical principles
for the government to use in evaluating issues concerning research using human
subjects: respect for persons (which rapidly evolved to mean pure absolute
autonomy), justice and beneficence - otherwise known as "the Belmont
principles", "the Georgetown Mantra", or "principlism". In 1981 these three
bioethics principles were used as the basis for the new federal regulations for
use in government sponsored research using human subjects -- the OPRR federal
regulations_61_ -- satisfying yet another part of that same Congressional
mandate. Thus in 1979 bioethics was officially "born" -- by Congressional fiat
-- and immediately applied to the federal government's regulations to determine
the "ethics" of the use of human subjects in research.

This is "Bioethics" --, and the bioethicists and organizations who helped to
found it. Bioethics, by definition, is clearly not "ethics per se", and hardly
the same as the traditional medical ethics of Drs. "A", "B", "C", "D" or "E".
Nor is it the same as Catholic medical ethics. This is a brave new "medical
ethics", in which "Dr. F" (physician and/or researcher) -- along with members
of medical centers and other health care facility staffs, hospital ethics
committees, institutional review boards, hospices, government public policy
makers, Congressional members and staffs, members of the legal bar and
judiciary across the country, state legislators, politicians, university and
college faculty and students "across the curriculum", journalists,
administrators, bioethics committee members in organizations around the world,
etc. -- would be taught and trained in order to be prepared to determine what
was "ethical" or "unethical" on a host of issues (not all of them strictly
"medical").

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VII. THE NATIONAL COMMISSION AND BIOETHICS: A SHORT ANALYSIS



A. Odd scientific definitions:



Of note, the National Commission used several "odd" scientific definitions its
individual reports, e.g., in its Report on Fetal Research. Even the Commission
acknowledged this: For the purposes of this report, the Commission has used the
following definitions which, in some instances, differ from medical, legal or
common usage. These definitions have been adopted in the interest of clarity
and to conform to the language used in the legislative mandate" [referring to
the National Research Act 1974]._62_ (emphases mine)


Among such "unique" scientific definitions used by the Commission was its
definition of "fetus" as "the human from the time of implantation [5-7 days]
until a determination is made following delivery that it is viable or possibly
viable."_63_ Similarly, the new OPRR federal regulations (also part of the same
Congressional mandate, and based on the same "bioethics principles" identified
by the National Commission) contains two "unique" scientific definitions.
"Fetus" is again defined there as "the product of conception from the time of
implantation ..."; and "pregnancy" is defined as "the period of time from
confirmation of implantation ..."._64_

Of course, such "definitions" are rather bizarre, as the single dissenting
report by Commissioner Louisell pointed out._65_ Indeed, decades before the
"birth of bioethics", human embryology textbooks had defined the "fetus" as
beginning much later in development -- at about the ninth week after
fertilization,_66_ not as beginning at implantation (5-7 days after
fertilization). Similarly,"pregnancy" had always been defined as beginning at
fertilization._67_

So how did the definitions of such basic and critical scientific terms as both
"pregnancy" and "fetus" come to be so erroneously defined as "beginning at
implantation" (5-7 days after fertilization)? How could such blatantly
scientifically erroneous definitions have passed Congressional scrutiny? This
is, after all, Biology 101._68_ Clearly, such "odd" scientific definitions --
or redefinitions -- in the Commission's Report would serve the purpose of
removing "flushed" human embryos and artificially produced human embryos from
any sort of governmental protection or oversight. From the National Commission
onward, these human embryos have never been acknowledged by the federal
government as "human research subjects" to be protected from research abuse,
and none of the federal regulations to follow would apply to them -- right up
to the present day. Nor has the correct Biology 101 yet been used with
reference to the definition of "early human embryos" or "human fetuses".

The rationales of some of the papers presented to the Commission on this issue
are interesting, and might provide some insight. Many of those who were members
of or who testified before the National Commission did not consider the early
human embryo or even the early human fetus as a human being, or as a human
person, and therefore these embryos and fetuses did not warrant federal
protection as research subjects.

For example, Richard McCormick, S.J., had already argued earlier that defective
newborns could be allowed to die. Applying the Catholic moral theology
distinction of the Principle of Double Effect, McCormick concluded that the
term "extraordinary" was large enough to justify the omission of
life-sustaining treatments on the basis of expected diminished quality of life,
defined in terms of the potential for human relationship._69_ McCormick had
also agreed with the May 1979 EAB recommended approval of federal funding of
research on the safety and efficacy of IVF and embryo transfer in the treatment
of infertility -- departing from the Vatican's position against any
technologically assisted pregnancies, even in lawfully married couples._70_
Now, following similar work by Andre Hellegers_71_, McCormick seriously
questioned the "moral status" of early human embryos (or, "pre-embryos" as he
referred to them), as did several others within the Catholic Health
Association._72_ Furthermore, McCormick reluctantly agreed that since some
abortions are acceptable, then some fetal research would also be acceptable. He
had reasoned that children have a moral obligation to participate in
nontherapeutic experimentation where there is no discernible risk or undue
discomfort, and therefore their parents may give proxy consent for their
children's participation in such research that would not benefit them
personally. He grounds this moral obligation in social justice -- i.e., "to
contribute to the benefit of the human community." The same moral obligation,
argued McCormick, can be extended to the fetus._73_ Paul Ramsey also had qualms
about the "moral status" of the early embryo, and also reluctantly sanctioned
fetal research._74_ Thus these presenters, as many others, claimed that morally
relevant characteristics were not present in the early developing embryo until
"segmentation", or the attainment of "individuality" about 14-days, or even
later, during human development than that._75_

As we shall see, the arbitrary use of "ethical principles", erroneous human
embryology, and still highly contested and controverted philosophical
conclusions about the "moral status" (or, "personhood") of the early human
embryo and human fetus would play a major role in building up the growing

bioethics ediface, which was soon to become a "mantra" in its own right.

B. Problems with the principles:



The Belmont principles were supposedly ultimately derived from the normative
ethical systems of various moral philosophers - e.g., Kant, John Stuart Mill,
and John Rawls. In effect, they quite selectively took bits and pieces from
different and contradictory ethical theories and rolled them up into one ball.
Furthermore, each of these principles were referred to as prima facie_76_ -
i.e., no one principle could over-rule any of the others. And the way we come
to know these bioethical principles is by taking courses, attending
conferences, and listening to bioethicists lecture at conferences.

However eventually, and inevitably, theoretical cracks began to form in the
very foundation of this new "bioethical" theory. For example, because bioethics
was derived from bits and pieces of fundamentally different and even often
contradictory theoretical philosophical systems, the result was theoretical
chaos, rendering it academically indefensible. More problematic, when people
tried to apply the theory, it didn't work because practically speaking there
was no way to resolve the inherent conflicts among these three prima facie
principles. Paul Ramsey had complained about this specific problem early on,
when such a suggestion (by Jonsen and Hellegers) was submitted at an early
conference: "Within the amplitude ... of general ethics, our authors fail to
address clearly and rigorously the issue: which of these moral principles has
priority (e.g., in the case of conflict)?"_77_ The inherent contradictions and
conflicts between and among these prima facie bioethics principles would slowly
erode the confidence of even those stalwarts within the field itself.

Even each of the bioethics principles individually is riddled with similar
inherently contradictory conflicts and theoretical problems. For example, while
the Commissioners of the Belmont Report gave a nod to the traditional
Hippocratic understanding of "beneficence" in one definition as "doing good for
the patient" (or at least, doing no "harm"), their "second" definition of
beneficence is essentially utilitarian -- in terms of the good for society at
large (or roughly, "the greatest good for the greatest number of people").
Obviously these two different and opposite definitions of "beneficence" could
easily contradict each other. How can the "bene" refer to the good of an
individual patient in the standard medical or the research setting, and at the
same time in the same case refer to the good of society -- calculated in the
crude terms of utilitarian "risks and benefits"? What physician, who has sworn
the Hippocratic Oath, would even recognize the following definition of "doing
good" that is found in the Belmont Report: Persons are treated in an ethical
manner not only by respecting their decisions and protecting them from harm,
but also by making efforts to secure their well-being. Such treatment falls
under the principle of beneficence. The term "beneficence" is often understood
to cover acts of kindness or charity that go beyond strict obligation. In this
document beneficence is understood in a stronger sense, as an obligation. 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. The Hippocratic maxim "do not harm" has long been a
fundamental principle of medical ethics. Claude Bernard extended it to the
realm of research, saying that one should not injure one person regardless of
the benefits that might come to others. However, even avoiding harm requires
learning what is harmful; and, in the process of obtaining this information,
persons may be exposed to risk of harm. ...In the case of scientific research
in general, members of the larger society are obliged to recognize the longer
term benefits and risks that may result from the improvement of knowledge and
from the development of novel medical, psychotherapeutic, and social
procedures._78_ (emphases mine)


Doesn't sound terribly "Hippocratic", does it? Nor does the claim that all
individuals of society have a strong moral duty to participate in purely
experimental research "for the good of society" or "the advancement of
scientific knowledge" sound Hippocratic. Yet it was The Belmont Report's
utilitarian definition of "beneficence" which was to be quickly perpetuated
throughout the emerging bioethics literature, e.g., as defended in the first
bioethics textbooks by Beauchamp, Childress and Walters,_79_ and assumed as a
standard by virtually every bioethics conference, committee, panel and
commission to come -- including the current sitting National Bioethics Advisory
Commission appointed by President Clinton_80_ (see below).

This "strong obligation" of the utilitarian-defined Belmont principle of
"beneficence" blatantly contradicts the long-held international codes of
research ethics, e.g., the Nuremberg Code and the Declarations of Helsinki, in
which the protection of the individual patient always outweighs the needs or
"good" of science or society. As stated unambiguously in the Declaration of
Helsinki: Concern for the interests of the subject must always prevail over the
interests of science and society [Basic principles]... The physician can
combine medical research with professional care, the objective being the
acquisition of new medical knowledge, only to the extent that medical research
is justified by its potential diagnostic or therapeutic value for the patient
[Medical research combined with clinical care - clinical research]... In
research on man, the interests of science and society should never take
precedence over considerations related to the wellbeing of the subject
[non-therapeutic biomedical research involving human subjects - non-clinical
biomedical research]._81_ (emphases and inserts mine)


Even the Belmont Report itself admits this inherent contradiction in its own
definition of "beneficence": "Here, again, as with all hard cases, the
different claims covered by the principle of beneficence may come into conflict
and force difficult choices."_82_ Choices based on what? The normative ethical
theory of utilitarianism?

Utilitarianism has always had serious problems with defining in practice what
"good" is,_83_ but it is generally very roughly reduced to some sort of lack of
physical or mental pain or pleasure -- or inversely, as "sentience". One thing
is clear, however. All utilitarian formulas, by definition, leave minorities
and the vulnerable out in the cold. There are no moral absolutes here - only
"rules" or mathematical risk/benefit ratios, which are by definition relative
to "the greater good". As utilitarian, the general norm or standard against
which one determines if an individual action is right or wrong is "utility";
i.e., if that action is useful to achieving good consequences, those also being
defined in terms of "the greatest good for the greatest number". (Even more
problematical to come would be the deconstruction of these classical forms of
utilitarianism into what would be termed "preference" utilitarianism, where
what would be weighed and balanced would be "interests" -- as developed in the
works of British eugenicists such as Jonathan Glover and R.M. Hare, and
Australian bioethicists Peter Singer, Kelga Kuhse, etc.; see below).

The bioethics principle of "justice" in The Belmont Report is also ultimately
defined along utilitarian lines, in terms of "fairness" -- i.e., fairness in
the distribution of the benefits and burdens of research._84_ This is not your
classic definition of "justice", e.g., in the Aristotelean sense of communitive
or distributive justice, but rather in terms strongly influenced by Harvard
Graduate School philosophy professor_85_ John Rawls, as articulated in his
then-new book, A Theory of Justice._86_ Rawl's "theory" of justice also
profoundly influenced the theory-makers of bioethics from several other
different academic disciplines. For example, it would later be adapted by his
student Norman Daniels and applied to health care_87_; it began to "creep into
law", e.g., through lawyer/bioethicist John Robertson, who quoted from Rawls in
influencing the justices' decision in the Saikewicz case -- resulting in the
still controversial legal concept of "substituted judgement"_88_; it has also
been applied by Arthur Dyck in international population policy issues._89_

Even the bioethics principle of "respect for persons" eventually ends up
serving "the greatest good". Now, how on earth could that have happened, one
might perceptively ask? Well, as noted above, it is The Belmont Report that
explains that "respect for persons" includes the duty to participate in
non-therapeutic research for the greater good of society. And the question
arises: How could the principle that was supposed to ground an inviolable
respect for each individual human being be defined in terms of a utilitarian
respect for "society"?

Perhaps it has to do with some of the more influential participants in the
Commission's original proceedings. Even Jonsen, in his description of the
National Commission, admits the clear prejudicial nature of the leanings of the
members of the Commission and its staff: "Most of the commission and staff were
of a liberal bent!"_90_ Translated into scholarship, the classic moral
philosophy traditions were barely blinked at, and even the selection and
interpretations of modern and contemporary moral philosophies were essentially
open to considerable deconstruction. For example, as Jonsen noted, "When
Beauchamp and Childress formulated the principle of autonomy, they fused the
Kantian concept of respect for persons with John Stuart Mill's quite different
notion of liberty ... Folding together the distinct views of Kant and Mill
blurred the edges of both the Kantian and the Millsean notions."_91_ It also,
of course, blurred the edges of the metaphysical, epistemological, and
anthropological presuppositions inherent in those diverse and contrary theories
of ethics. Hence, Kant's "respect for persons" evolved rapidly into the
Millsean utilitarian version of "respect for autonomy" (pace Tom Beauchamp) --
where "autonomy" referred only to "persons", and "persons" were defined as
"moral agents". Most unfortunately, what it also did was turn non-autonomous
human beings into non-persons (since they are not "autonomous moral agents").

At any rate, after all is said and done, bioethics is ultimately reduced more
or less to some form of utilitarianism or relativism, where "the good of
society" is the morally relevant principle, and the "good of the individual
person" is clearly not top priority.

C. Problems in applications:



Eventually, practical cracks too began to form in the foundations of this brave
new bioethics, cracks which seemed to widen deeper the more the "theory" was
applied -- as admitted in publications by even many of the Founders themselves
- the best kept secret in bioethics! For example, The Hastings Center's Daniel
Callahan conceded in the 25th anniversary issue of The Hastings Center Report
celebrating the "birth of bioethics", that the principles of bioethics simply
had not worked. But not to worry, he said, we might try communitarianism now:
"The range of questions that a communitarian bioethics would pose could keep
the field of bioethics well and richly occupied for at least another 25
years"!_92_ Jonsen himself devotes considerable space to the critics of
bioethics in his book, The Birth of Bioethics, and even courageously admitted
years earlier, in his "Preface" to the first serious book confronting the
myriad inadequacies of "bioethics principlism", that there were only two real
ethicists on the National Commission, and that they had essentially made the
principles up. Jonsen also agrees with the premise of the book that bioethics
should now be regarded somewhat as "a sick patient in need of a thorough
diagnosis and prognosis": A fairly widespread perception exists, both within
and without the bioethics community, that the prevailing U.S. approach to the
ethical problems raised by modern medicine is ailing. Principlism is the
patient. The diagnosis is complex, but many believe that the patient is
seriously, if not terminally, ill. The prognosis is uncertain. Some observers
have proposed a variety of therapies to restore it to health. Others expect its
demise and propose ways to go on without it._93_


Gilbert Meilaender's early and incisive suspicions about the consequences of
the several philosophical "mind/body splits" inherent in bioethics theory
emerged in yet another important book, in which he explained "how easily the
'soul' - attention to the meaning of being human, a meaning often illuminated
by religious and metaphysical insight - can be lost in bioethics."_94_ Other
controversies and battles over the validity of the bioethics principles on many
levels are documented and collected in an already classic 1195-page tome edited
by Rannan Gillon,_95_ in which 99 scholars from around the world jump into the
fray -- by far the majority of them arguing against "principlism".

One of the strongest critiques of "bioethics" came from another one of the
early Founders, Renee Fox, a sociologist. Referring to "American bioethics" as
isolated from the relationships, communities, and values of real life in
sickness and health, she argued that the isolation produced an uneasy
relationship between the social sciences and bioethics. Bioethics, she wrote,
confined in its individualism and American chauvinism, rendered an
"impoverished and skewed expression of our society's cultural tradition
(which), in a highly intellectualized but essentially fundamentalistic way,
thins out the fullness of that tradition and bends it away from some of the
deepest sources of its meaning and vitality."_96_ As Jonsen puts it, Fox
perceived a genuine gap in the theory and method of bioethics. There is no easy
and consistent flow of empirical data into ethics. Methods for gathering that
sort of data, for interpreting it and fitting it into normative analysis are
seldom familiar to ethicists. And the methods of ethicists are seldom known to
behavioral scientists. Additionally, Fox argues that the data of the behavioral
sciences often reveal situations as more complex than ethicists perceive them
to be, rendering a straightforward ethical analysis more difficult._97_ In a
scathing article against bioethics, "Leaving the field", Fox and Swazey
responded in depth and detail to the horrendous ethical dilemmas they
considered posed by organ transplantation, especially on an international
scale._98_

Equally problematic is the fact that only a very tiny percentage of
"professional bioethics experts" have any academic degrees in bioethics at all,
and even for those few that do there is no uniform or standardized curriculum,
most teachers don't really know the subject matter themselves, the courses vary
from institution to institution, there are no local, state or national boards
of examinations, and no standardized professional responsibilities are
required. There is not even a code of ethics for bioethicists. Most
"bioethicists" by far have never taken even one formal academic course in
bioethics._99_

The questions arise: What are they "experts" in? To whom are they accountable
for their "expertise"?

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D. The problem of "personhood":



Although bioethics conveniently wants desperately to claim that it does not
embody any anthropology - or definition of a "person" - it obviously does. As
noted (and referenced above and below), many (if not most) of those who heavily
influenced the development of bioethics brought to their several analyses very
specific positions on "personhood" -- especially the "personhood" of the early
human embryo and the human fetus.

For example, most of them believed in some sort of "delayed personhood", i.e.,
"personhood" (or, "moral status") did not begin until some magical biological
marker event after fertilization. And "personhood" was invariably defined
philosophically in very rationalistic and/or empiricist terms -- e.g.,
"rational attributes" such as autonomy, knowing, willing, self-consciousness,
relating to the world around one, etc.; or, "sentience" such as the feeling of
pain or pleasure. Obviously early human embryos and fetuses did not possess
such "personhood" characteristics (nor do a lot of adult human beings, I might
add). Practically speaking, the effect of this within bioethics was to provide
"theoretical" support for those who could then take the position that the use
of early human embryos and fetuses "for the common good" or "for the
advancement of science" was therefore "ethical".

This presumptive position on "personhood" is likewise true for the majority of
bioethicists practicing today._100_ It is the position, for example, of leading
and influential contemporary bioethicists such as: Jonathan Glover, R.M. Hare,
Clifford Grobstein, Joseph Fletcher, Tris Engelhardt, Tom Beauchamp, Michael
Tooley, Peter Singer, Helga Kuhse, Stephen Buckle, Karen Dawson, Pascal
Kasimba, Michael Lockwood, Hans-Martin Sass, Robert Edwards, Donald MacKay,
Bernard Haring, Dorothy Wells, Goldenring, Thomasine Kushner, M. Shea, and
Richard Frey -- to name but a very few._101_ Their philosophical positions on
"personhood" have had a profound influence on public policy -- here and around
the world.

It is the issue of "personhood" that this writer considers pivotal to any
legitimate academic debate on "ethics" or "bioethics". Historians of philosophy
routinely dwell in great depth on the "anthropology" (or, "personhood") claims
of any particular philosopher in history as a means of grounding and explaining
the "pros" and "cons" of a philosopher's particular brand of ethics. That is,
the ethics flows from the anthropology -- either explicitly or implicitly,
whether intended or not intended. [These texts also routinely focus on how a
specific anthropology, in turn, flows necessarily from specific metaphysical
and epistemological presuppositions. In fact, each historical philosopher's
work is classified according to the several parts of the study of philosophy,
i.e., as natural philosophy, metaphysics, epistemology, anthropology, ethics
and politics -- and usually in that order]._102_ Some of the greatest failures
of philosophers in the history of philosophy are caused specifically because of
a failure to adequately develop a coherent and defensible anthropology.

And the questions arise: If the anthropology inherent to "bioethics" --
explicitly or implicitly -- cannot be justified or successfully defended, then
how can the "theory" of bioethics itself be justified or successfully defended?
And if the "theory" can't be justified or successfully defended, or doesn't
work, then why use it?

Perhaps one of the most salient failures in modern times was the quite
controversial and monumentally flawed anthropology of Descartes, with its
infamous "mind/body split" (although the theoretical faults of Descartes'
"mind/body" split are hardly new, reaching back to Plato at least). Most of the
"philosophical" dogmas bandied about since the beginning of bioethics have
drawn heavily from Descartes' immediate -- and likewise theoretically flawed --
rationalist and empiricist successors. Most likely the reason why most
contemporary bioethicists do not want to get into the pure philosophical
anthropology (or the philosophical metaphysics and epistemology grounding it)
is because they don't know their history of philosophy, their metaphysics or
epistemology (having never studied it), or because they already know that
academically they cannot successfully defend it, any more than Descartes and
his successors could. E.g., simply consider this: If there is a real split or a
gap between the "mind" (or "soul") entity, and the "body" or "matter" entity --
which is required if there is any "delay" in "personhood" -- then one cannot
successfully explain any causal interaction whatsoever between these two
separate entities. In historical terms, this is referred to as the "chorismos"
(or "separation") problem originated by Plato in his famous Theory of Forms.
Descartes tried, and was literally laughed out of the academy._103_

One of the most popular proponents of the school of "preference" utilitarianism
and of "delayed personhood" comes from one of bioethics' most infamous
practitioners -- Australian eugenicist and animal rights
philosopher/bioethicist Peter Singer. Singer was the first President of the
International Institute of Bioethics under the United Nations, and is the newly
appointed director of Princeton University's Center for Human Values (a post
initially offered to Singer's mentor, British eugenicist Jonathan Glover, who
turned it down). Singer defines a "person" only in terms of something actively
expressing "rational attributes and/or "sentience"._104_ Singer, in fact,
enthusiastically advocates infanticide of even normal healthy newborn human
beings - in fact, even older children. Why? Because they do not actively
express "rational attributes" or "sentience", and therefore they may be human
beings, but not "persons". On the other hand, he claims that the higher
primates, e.g., apes, monkeys, dogs, pigs, chickens - even prawns - are persons
because they do actively exercise "rational attributes" and "sentience"._105_

Philosopher/bioethicist R.G. Frey correctly pushes Singer's "logic" to its
inevitable conclusion. In an invited presentation to the Scholars at the
Kennedy Institute of Ethics, Frey boldly argued that to be "logically
consistent" (with Singer), one would have to agree that the mentally ill, the
frail elderly, etc., who are therefore not "persons" (according to Singer's
definition) should be substituted for the higher primates, who are "persons"
(according to Singer's definition) in purely destructive experimental research.
This is ethical -- even morally required for "the greater good"._106_
Similarly, Norman Fost defines cognitively impaired human beings as "brain
dead".

Singer, in enthusiastically promoting eugenics, uses all three bioethics
principles at will, depending on which one gets him where he wants to go. Thus
adroitly he appeals to our autonomy - e.g., if the parents of a defective
newborn, or even a normal newborn, autonomously "choose" to kill their child,
then that is "ethical" and we must respect their autonomous rights. However, if
the parents won't do this on their own accord and if it is for "the greater
good", then the government has the duty to force them to do it, particularly if
the child is defective! So much for rights; in fact, Singer does not even
believe in rights at all!_107_ His mentor R.M. Hare is just as articulate when
he discusses the role of the government in such issues. For Hare, the maximum
duty that is to be imposed by the government is to do the best impartially for
all the "possible people" there might be by having an optimal family planning
or population policy, which means necessarily excluding some possible people.
Indeed, he argues, the best policy will be the one which produces that set of
people, of all "possible sets" of people which will have in sum the best life,
i.e., the best possible set of future possible people!_108_

Many of these rationalistic or empiricist arguments for "delayed personhood"
sound eerily similar to those of the early eugenicists who heavily participated
in the early conferences in the 1960's noted above (to whom Jonsen refers in
his book). But such articulations were hardly restricted to those early
"savants". Take for example an article that appeared in a 1972 issue of Reason
Magazine. The themes of this particular magazine issue, as printed on the
cover, were: parahuman reproduction, android cloning, brain transfers, genetic
engineering and artificial synthesis. The lead article, "The new biology", was
by Winston Duke. Listen to Duke's rationalistic definition of a human "person",
and to what it will be applied: It is quite possible that the advances in human
biology in the remainder of the twentieth century will be remembered as the
most significant scientific achievement of the animal species known as Homo
sapiens. But in order to become a part of medical history, parahuman
reproduction and human genetic engineering must circumvent the recalcitrance of
an antiquated culture. ... Fit the parts of the puzzle together: nucleus
transplant, test tube growth to blastocyst and uterus implant -- the result is
clonal man. ... An Eugenic Age is just around the corner. ... Under scientific
management, the result can be human parts-farming: the methodical production of
precious organs such as eyes, hands, livers, hearts, and lungs. ... The
foremost philosophical problem presented by the new biology is semantical: What
is a human being? ...Humanity per se is based on cognitive abilities. A
philosophy of reason will define a human being as one which demonstrates
self-awareness, volition and rationality. Thus it should be recognized that not
all men are humans. The severely mentally retarded, victims of lobotomies, the
fetus, blastocysts, androids, etc., are not human and therefore obtain no human
rights. ... It would seem ... to be more "inhumane" to kill an adult chimpanzee
than a newborn baby since the chimpanzee has greater mental awareness. Murder
cannot logically apply to a life form with less mental power than a primate.
... It certainly follows that the practice of abortion is not immoral. And it
is furthermore conclusive that experiments with fetal material and the
engineering of nonthinking Homo sapiens tissues are not immoral. A clear
definition of humanity in terms of mental acuity, rather than physical
appearance, should be encouraged. And libertarians should continue to defend as
absolute the prerogative of humans to conduct their own lives independent of
societal norms, whether that conduct involves euthanasia, suicide, abortion,
organ transplant, or ownership of genetic material. ... Likewise, the incentive
for developing a rational philosophical framework including a psychology of
self-esteem will be magnified. ... [I]t would be increasingly obvious that a
philosophy of reason is needed to meet the test of present day living, and that
it is the only orientation able to readily absorb the ever developing spectrum
of scientific discovery._109_ (emphases mine)


It doesn't get much clearer than that -- and that was written in 1972. As with
Singer et al today, in order to accomplish the agenda of "the new biology" it
is first of all required to change the definition of a "human being", and that
is to be accomplished by means of the change from a philosophy of realism to a
philosophy of reason -- not to mention by means of deconstructing the science
of human embryology as well. If the correct science doesn't support such
rationalizations, then just change the science to fit the theory. And to be
sure, if only "rational attributes" successfully define the early human embryo,
fetus, young children and many older adult human beings out of "personhood", it
therefore also defines many adult human beings who are terminally ill and dying
out of "personhood" as well.

However, such logical -- and real -- consequences did not seem to daunt the
reasoning processes of many budding bioethicists. E.g., Dan Wikler_110_, in his
report to the President's Commission (below) on issues of death and dying, also
defined those who were "dead" in terms of a lack of "rational attributes",
fueling the sparks which would become the euthanasia and assisted suicide
debates to come._111_ More recently Wikler, as representative of the World
Health Organization, declared that "The state of a nation's gene pool should be
subject to government policies rather than left to the whim of individuals, ...
The completion of the human genome project would also make it possible to
promote some genetic qualities such as intelligence and lower the incidence of
others. ... It may be conceivably required by justice itself."_112_

Wikler's blatantly eugenic position is echoed by quite a multitude of
contemporary bioethics leaders, scientists and experts today:_113_ James
Watson, Nobel laureate and founding director of the Human Genome Project: "And
the other thing, because no one has the guts to say it, if we could make better
human beings by knowing how to add genes, why shouldn't we? What's wrong with
it? ... Evolution can be just damn cruel, and to say that we've got a perfect
genome and there's some sanctity to it? I'd just like to know where that idea
comes from. It's utter silliness."

Gregory Pence, professor of philosophy in the Schools of Medicine and
Arts/Humanities at the University of Alabama: "Many people love their
retrievers and their sunny dispositions around children and adults. Could
people be chosen in the same way? Would it be so terrible to allow parents to
at least aim for a certain type, in the same way that great breeders ... try to
match a breed of dog to the needs of a family?"

Lee Silver, professor of molecular biology and neuroscience at Princeton
University: "[In the future ...] the GenRich -- who account for 10 percent of
the American population -- all carry synthetic genes. ... All aspects of the
economy, the media, the entertainment industry, and the knowledge industry are
controlled by members of the GenRich class ... Naturals work as low-paid
service providers or as laborers ... 'Eventually] the GenRich class and the
Natural class will become ... entirely separate species with no ability to
cross-breed, and with as much romantic interest in each other as a current
human would have for a chimpanzee. ... But in all cases, I will argue, the use
of reprogenetic technologies is inevitable ... whether we like it or not, the
global marketplace will reign supreme."

Francis Fukuyama, professor of public policy at the Institute for Public Policy
at George Mason University: "Biotechnology will be able to accomplish what the
radical ideologies of the past, with their unbelievably crude techniques, were
unable to accomplish: to bring about a new type of human being ... [W]ithin the
next couple of generations ... we will have definitively finished human History
because we will have abolished human beings as such. And the, a new posthuman
history will begin."

Lester Thurow, professor of economics, Sloan School of Management, MIT: Some
will hate it, some will love it, but biotechnology is inevitably leading to a
world in which plants, animals and human beings are going to be partly
man-made. ... Suppose parents could add 30 points to their children's IQ.
Wouldn't you want to do it? And if you don't, your child will be the stupidest
child in the neighborhood."

Gregory Stock, Director of UCLA's Program on Medicine, Technology and Society:
[O]nce people begin to reshape themselves through biological manipulation, the
definition of human begins to drift. ... Altering even a small number of the
key genes regulating human growth might change human beings into something
quite different. ... But asking whether such changes are 'wise' or 'desirable'
misses the essential point that they are largely not a matter of choice; they
are the unavoidable product of ... technological advance ...'

Arthur Caplan: "Absolutely, somewhere in the next millennium, making babies
sexually will be rare. ... Many parents will leap at the chance to make their
children smarter, fitter and prettier. Ethical concerns will be overtaken by
the realization that technology simply makes for better children. In a
competitive market society, people are going to want to give their kids an
edge. They'll slowly get used to the idea that a genetic edge is not greatly
different from an environmental edge."


Or consider the arguments of one of the Founders of bioethics, Tris Engelhardt,
whose articles and books on bioethics are still quoted and taught world-wide:
Persons in the strict sense are moral agents who are self-conscious, rational,
and capable of free choice and of having interests. This includes not only
normal adult humans, but possibly extraterrestrials with similar powers_114_.

... It is for these reasons that the value of zygotes, embryos, and fetuses is
o be primarily understood in terms of the values they have for actual ersons.
Zygotes, fetuses, and embryos do not have the rich inward life of dult mammals.
... However, one must remember that the sentience of a zygote, mbryo, or fetus
is much less than that of an adult mammal. One might even evelop a suggestion
of the natural theologian Charles Hartshorne so as to rgue that from the
perspective of the Deity the intrinsic value of a human etus will be less than
that of an adult normal member of some other ammalian species. (pp.112-113).
... One also owns what one produces. One ight think here of both animals and
young children. Insofar as they are the roducts of the ingenuity or energies of
persons, they can be possessions. here are, however, special obligations to
animals by virtue of the morality f beneficence that do not exist with regard
to things. Such considerations, s well as the fact that young children will
become persons, limit the extent o which parents have ownership rights over
their young children. However hese limits will be very weak with regard to
ownership rights in human ygotes, embryos, and fetuses that will not be allowed
to develop into ersons, or with regard to lower vertebrates, where there is
very little entience. For example, it would appear very plausible that plants,
microbes, nd human zygotes can be fashioned as products, and be bought and sold
as if hey were simply things. In contrast, strong claims of ownership would
cease, s children become persons and sui juris, self-possessing. This latter
moral ssue also arises with regard to normal adult nonhuman higher primates. It
is uch more plausible to suspect that higher nonhuman primates are in ossession
of themselves than to suspect that such is the case with even ne-year-old human
infants. At the point that an entity becomes elf-conscious, the morality of
mutual respect would alienate the property ights of the parents over the
children or other animals (129-130). ... These eflections can be encapsulated
in what one may term the principle of wnership. This principle will be central
to understanding the roles of ublic and private funding in health care, as well
as the rights of hysicians to exempt themselves from the constraints of
national health ervices. Owning private property, insofar as such private
ownership exists, ill always permit patients merely to buy around the
established system. So, oo, having the right to own one's talents will permit
physicians to sell round the constraints of the system. This can be
tendentiously summarized as he basic right of persons to the black market (pp.
133-134)._115_ (emphases ine)


Lest we forget too quickly, such gendre of statements are hardly new. They go
back further than even the early bioethicsts, back further than even World War
II. Listen to the words of Plato as he describes the necessity of using his
"Royal Lie" in the creation of his Ideal State -- recorded centuries ago, and
still appealed to today: [The discussion is between Plato and his follower
Glaucon; all emphases mine] [Book V, p. 722] This, Glaucon, like all the rest,
must proceed after an orderly fashion; in a city of the blessed, licentiousness
is an unholy thing which the rulers will forbid ... Then clearly the next thing
will be to make matrimony sacred in the highest degree, and what is most
beneficial will be deemed sacred. And how can marriages be most beneficial? --
that is a question which I put to you, because I see in your house dogs for
hunting, and of the nobler sort of birds not a few. Now, I beseech you, do tell
me, have you ever attended to their pairing and breeding?


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[D. The problem of "personhood": (con't)]


[Book V, p. 721] Why, in the first place, although they are all of a good sort,
are not some better than others? True. And do you breed from them all
indifferently, or do you take care to breed from the best only? From the best.
And do you take the oldest or the youngest, or only those of ripe age? I choose
only those of ripe age. And if care was not taken in the breeding, your dogs
and birds would greatly deteriorate? Certainly. And the same of horses and
animals in general? Undoubtedly. ... What consummate skill will our rulers need
if the same principle holds of the human species! Certainly, the same principle
holds; but why does this involve any particular skill? Because, I said, our
rulers will often have to practice upon the body corporate with medicines. Now
you know that when patients do not require medicines, but have only to be put
under a regimen, the inferior sort of practitioner is deemed to be good enough;
but when medicine has to be given, the doctor should be more of a man ... Our
rulers will find a considerable dose of falsehood and deceit necessary for the
good of their subjects; we were saying that the use of all these things
regarded as medicines might be of advantage. ... And this lawful use of them
seems likely to be often needed in the regulations of marriages and births. ...
The principle has been already laid down that the best of ether sex should be
united with the best often, and the inferior with the inferior, as seldom as
possible; and that they should rear the offspring of the one sort of union, but
not of the other, if the flock is to be maintained in first-rate condition. Now
these goings on must be a secret which the rulers only know, or there will be a
further danger of our herd, as the guardians may be termed, breaking out into
rebellion.

[Book V, p. 722] Had we not better appoint certain festivals at which we will
bring together the brides and bridegrooms, and sacrifices will be offered, and
suitable hymeneal songs composed by our poets: the number of weddings is a
matter which must be left to the discretion of the rulers, whose aim will be to
preserve the average of population. There are many other things which they will
have to consider, such as the effects of wars and diseases and any similar
agencies, in order as far as this is possible to prevent the State from
becoming either too large or too small.... We shall have to invent some
ingenious kind of lots which the less worthy may draw on each occasion of our
bringing them together, and then they will accuse their own ill-luck and not
the rulers. ... And I think that our braver and better youth, besides their
other honours and rewards, might have greater facilities of intercourse with
women given them; their bravery will be a reason, and such fathers ought to
have as many sons as possible. ...And the proper officers, whether male or
female or both, for offices are to be held by women as well as by men. ... The
proper officers will take the offspring of the good parents to the pen or fold,
and there they will deposit them with certain nurses who dwell in a separate
quarter; but the offspring of the inferior, or of the better when they chance
to be deformed, will be put away in some mysterious, unknown place, as they
should be. Yes, he said, that must be done if the breed of the guardians is to
be kept pure. They will provide for their nurture, and will bring the mothers
to the fold when they are full of milk, taking the greatest possible care that
no mother recognizes her own child; and other wet-nurses may be engaged if more
are required. Care will also be taken that the process of suckling shall not be
protracted too long; and the mothers will have no getting up at night or other
trouble, but will hand over all this sort of thing to the nurses and
attendants._116_


Historically, eugenics is hardly new. Yet most do not see (or want to see) the
eugenic implications of major arguments throughout the history and literature
of bioethics. Indeed, the term "eugenics" was rarely if ever raised in the
hallowed halls of academe. However, such arguments, as we have seen, have been
found throughout the works of the early bioethicists, and especially embodied
in the advancing bioethics literature with its various definitions of early
human beings, or vulnerable adult human beings, as "non-persons". Such
definitions of "person" would rapidly be transferred to "bioethics issues"
across the life-spectrum in the looming bioethics and public policy debates,
inexorably linking the definitions of "life" and "death" -- and everything
in-between._117_

VIII. THE REIGN OF BIOETHICS



A. The Ethics Advisory Board:



During the considerations of the National Commission, it recommended that
certain kinds of research with the fetus and with children be submitted to a
"National Ethics Advisory Board" that would be established within the
Department of Health, Education and Welfare. In response, the Ethics Advisory
Board_118_ was appointed by Califano in 1977. It is interesting to note how
Jonsen describes the membership of this EAB, who were to be available as
"consultants" on all DHEW programs and policies, and who were to review all
research proposals that had been indicated by the National Commissions, or any
others submitted to them by the Secretary: "He appointed as chair James C.
Gaither, a San Francisco lawyer with no experience in the arena of health and
ethics, but surrounded him with a stellar cast: two bioethicists, Richard A.
McCormick [of "pre-embryo" fame] and Sissela Bok, and six physicians: Drs.
David A. Hamburg, Donald A Henderson, Daniel C. Tosteson, Henry W. Foster,
Robert F. Murray and Mitchell W. Spellman, the last three of whom were
African-American. There were also several lawyers and lay members."_119_

One does have to wonder how such a membership can give "ethical advise" on such
an array of complex health care and scientific research issues with little or
no formal background or credentials in ethics, health care or scientific
research. An M.D. degree does not in any way equate with a Ph.D. degree in a
bench science research field. Related to that fact is the fact that the use of
the correct science is the very first ethical requirement in these analyses (as
forcefully articulated for decades by international research ethics guidelines
such as the Nuremberg Code and the Declaration of Helsinki). Using blatantly
incorrect science in the design, protocol or analysis of an experiment is per
se unethical, as well as unscientific. Note also that there was no human
embryologist on this Board, which might explain why it could finally recommend
that most kinds of fetal research were "ethically" acceptable if reviewed by
them first. This tactic would be used by similar bioethics committees and
panels to follow.

Of interest, again, is the position that the EAB took on the "moral status" of
the early human embryo in their Report, in which they recommended the use of
federal funds for in vitro fertilization (IVF) research (a form of human embryo
research). Reiterating the conclusion of the National Commission: " ... the
human embryo is entitled to profound respect, but this respect does not
necessarily encompass the full legal and moral rights attributed to
persons."_120_ This conclusion had already been embraced by ACOG and the
American Fertility Society several years earlier._121_ (Several of the members
of their "ethics committees" included Dr. Howard Jones, Richard McCormick,
Clifford Grobstein, LeRoy Walters and John Robertson. Robertson_122_ later used
the scientifically erroneous "pre-embryo" argument in ultimately winning the
Tennessee IVF frozen embryo case.)

The enduring effect of such disingenuous politics has been to morph what is a
strictly scientific question into one that is strictly philosophical or "moral"
-- enabling the objective scientific facts of human embryology to be cast as
just one "moral position" among many other "moral positions" to be weighed and
balanced for "consensus" purposes.

In 1980 the Ethics Advisory Board was dissolved by Secretary Harris (DHEW)
after the establishment of the President's Commission._123_ The fate of IVF
research and fetal research was held in suspension until such time as another
EAB could be appointed to consider the issue more fully. (As we will see, this
would eventually be accomplished in 1993 with the passage of the NIH
Revitalization Act, and in 1995 with the appointment of the National Bioethics
Advisory Commission (NBAC) by President Clinton.)

B. The President's Commission:



The President's Commission for the Study of Ethical Problems in Medicine and
Biomedical and Behavioral Research was created, again, by Congress, at the
request of President Carter, on Nov. 9, 1978._124_ The President's Commission
completed its mandate by Dec. 20, 1982, issuing final reports on 10 pressing
issues: the definition of death; informed consent; genetic screening and
counseling; differences in the availability of health care; life-sustaining
treatment; privacy and confidentiality; genetic engineering; compensation for
injured subjects; whistleblowing in research; and the IRB guidebook._125_ It
was not required to address the more controversial issues of fetal research and
IVF research, although it did address infanticide in its Report on Deciding to
Forego Life-sustaining Treatment. And unlike the National Commission, it's
authority was not restricted to DHEW, but extended to all federal agencies
doing human research._126_

The appointed 11-member Commission rotated a number of commissioners and staff
during its operation. Again, though a listing of these participants may seem
tedious to some, including it would facilitate a better understanding of what
bioethics is and who its practitioners are: The Chairman of the President's
Commission was Morris B. Abram (New York attorney, former President of Brandeis
University and U.S. Representative to the United Nations Commission on Human
Rights). The various Commissioners with medical research and/or practice who
served during this period included: Mathilde Krim (associate member of the
Sloan-Kettering Institute for Cancer Research and coordinator of its
International Laboratories for the Molecular Biology of Interferon Systems):
Arno G. Motulsky (professor of medicine and genetics, and Director of the
Center for Inherited Diseases at the University of Washington); Frederick C.
Redlich (professor of psychiatry at UCLA Medical School, former Yale Medical
School Dean, Acting Director of the Veterans Administration Hospital in
Brentwood, California)); Mario Garcia-Palmieri (professor and Head of the
Department of Medicine at the University of Puerto Rico and former Secretary of
Health for the Commonwealth); Donald Medearis (Chief of the Children's Service
at Massachusetts General Hospital); Charles Wilder (professor of pediatrics at
Harvard University); Charles Walker (physician in private practice in
Nashville, Tennessee, and a member of the Board of Trustees at Fisk
University); Frances K. Graham (Hilldale Professor of Psychology and Pediatrics
at the University of Wisconsin, former President of the Society for Research in
Child Development); George Dunlop (professor of surgery at the University of
Massachusetts Medical School, former President of the American College of
Surgeons; Daher B. Rahi (physician in private practice in St. Clair Shores,
Michigan, former President of the Michigan Association of Osteopathic
Physicians and Surgeons; H. Thomas Ballantine, Jr. (clinical professor of
neurological surgery at Harvard Medical School, Senior Neurosurgeon at
Massachusetts General Hospital; Bruce Kelton Jacobson (Director of the Family
Practice Residency Program at John Peter Smith Hospital in Fort Worth, Texas,
associate professor of family practice and community medicine at Southwestern
Medical School; and Kay Toma (physician in private practice in Bell,
California, President of the Bell Medical Center. _127_

Other Commissioners outside the fields of medical practice and research
included: Renee Fox (medical sociologist and Annenberg Professor of the Social
Sciences at the University of Pennsylvania); Albert Jonsen (Chairman of the
Bioethics Group for the five University of California schools of medicine, and
member of the former National Commission); Patricia King (associate professor
of law at Georgetown University, member of the former National Commission --
later went to the Department of Justice); Carolyn Williams (faculty member in
epidemiology and nursing at the University of North Carolina at Chapel Hill);
Anne Scitovsky (Chief of the Health Economics Division of the Palo Alto Medical
Research Foundation); Seymour Siegel (professor of ethics and theology at the
Jewish Theological Seminary of America, professor of humanities in medicine at
the Medical College of Pennsylvania; Lynda Hare Smith (Colorado Springs
housewife, advisor to the Chancellor of the University of Colorado Health
Science Center); and John Moral (Director of the Moran Foundation in Houston,
Texas, former owner of a company that makes diagnostic reagents and instruments
for the professional medical community)._128_

The Staff of the Commission was directed by Alexander Capron (professor of law
and of human genetics, and professor of law, ethics , and public policy at
Georgetown University). Deputy Director was Barbara Mishkin (former Assistant
Director of the National Commission, Staff Director of the HEW Ethics Advisory
Board). Other staff included: Joanne Lynn (former director of clinical services
in the Division of Geriatric Medicine at George Washington University); Alan
Weisbard (practicing attorney in New Jersey); Alan Meisel (professor of law,
psychiatry, and sociology at the University of Pittsburgh). Staff ethicists
were: Daniel Wikler (University of Wisconsin); Dan Brock (chairman of the
department at Brown University), and Allen Buchanan (University of Minnesota
and the University of Arizona). Other staff included: Susan Morgan (former
Director of the Division of Health Resources and Services Analysis in the
DHHS); Mary Ann Baily (former assistant professor of economics at Yale
University); Kathryn Kelly (training in public health and social welfare);
Marian Osterweis (Departments of Community and Family Medicine and of Sociology
at Georgetown University); Bradford Gray (senior staff member at the Institute
of Medicine and former staff sociologist for the National Commission); Andrew
Burness (former assistant for health and education policy to Representative
Richardson Preyer of North Carolina); Dorothy Vawter (graduate of the Kennedy
Institute of Ethics at Georgetown University). In addition, there were a
plethora of "research assistants", "public information officers", "editors",
"researchers", "administrative officers", "support staff", and "President's
Commission Commonwealth Fellows and Student Interns"._129_


While it is undeniable that a broad range of talents were tapped, and that much
great, good and heroic work was accomplished by both the National Commission
and the President's Commission, an undercurrent of concern about their makeup,
the definition of "ethics" used, and the roles such commissions should play in
this society was ever present. This concern was articulated sometimes by
referring to such efforts as "commissioning ethics", and best summed up earlier
by one of the original scholars of the Hastings Center, Robert Morison. Quoting
from Jonsen: "Director Capron drew up a plan of action that was not merely a
schedule but a concept paper that reviewed the mandates in terms of leading
ideas and problems. Woven into this paper were quotations from many prominent
individuals in science, policy, and ethics whose views Capron had solicited
about the Commission's work. Most eloquent of these comments was a long letter
from Robert Morison, professor emeritus of biology at Cornell. Professor
Morison sketched his views on the relation between ethics, law, and religion
and reviewed the brief history of 'the infelicitously named bioethics,' the
results of which he 'was reasonably happy [with], but I fear for the future.'
The future he feared was one in which ethics and religion were turned into law
and regulation: 'What one fears is that the Commission may become the mechanism
whereby the speculations of the ethicists become the law of the land. It is
already far too easy for abstract notions of right and wrong to emerge as
deontological rules which begin their public life as 'guidelines' but culminate
in the force of law.' Morison's letter was a sobering reminder of the anomalous
role of an 'ethics commission' in a pluralistic, secular society."_130_
(emphases mine)


Indeed, Morison's concerns were well-placed. As we shall see below, the
recommendations of these two major bioethics commissions did indeed form the
explicit basis of many regulations and laws -- both private and public,
national and international.

A recent attempt at legislation in the State of Maryland actually intended to
subserve the law to bioethics. The proposed statute concerning the use of
"decisionally incapacitated" human subjects in medical research, introduced in
the State of Maryland legislature in early March 1999, was explicitly grounded
on these same three bioethics principles, as its first draft by the attorney
general's Working Group explicitly states._131_ Included in that draft were the
following comments: "The goal of this project is that '[f]or a change, law may
be the handmaiden of ethics and ethics served by the law rather than vice
versa."_132_ This proposed statute purported to "respect the autonomy" of
mentally ill human subjects to such an extreme that it would allow them to give
informed consent to choose "research agents" who would then "substitute their
judgments" as to whether or not these mentally ill persons would have wanted to
participate in even high risk, no direct benefit medical research for "the
greater good of society", were they competent -- an absurd and dangerous
interpretation of autonomy and altruism, indeed.

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C. The NIH Human Fetal Tissue Transplant Conference:



On March 22, 1988 the Assistant Secretary of DHHS Dr. Windom finally placed a
moratorium on the use of some types of fetal tissue in research at DHHS until
an advisory committee could review the issue more fully. Immediately the
National Institutes of Health convened such meetings with the NIH Human Fetal
Tissue Transplantation Research Panel, recommending that the use of fetal
tissue from aborted fetuses was "ethical"._133_ However, because of the deep
divisions within the panel, the Secretary of DHHS declined to accept it._134_
The appointed members of the NIH Human Fetal Tissue Transplant Conference
included: Chairman was Arlin Adams (U.S. Court of Appeals Judge, lawyer at
Schnader, Harrison, Segal and Lewis). Chairman for Scientific Issues was
Kenneth Ryan (research scientist and former Chairman of the National
Commission, Chairman of the Department of Obstetrics and Gynecology at Brigham
and Women's Hospital); and Chairman of the Ethical and Legal Issues was LeRoy
Walters (Director of the Center for Bioethics at Georgetown University).
Members of the Panel were: Rabbi David Bleich (Professor of Law at Cardozo Law
School in New York); James Bopp (lawyer at Brames, McCormick, Bopp and Abel in
Indiana); Fr. James Burtchaell (Professor of Theology at the University of
Notre Dame); Robert Cefalo (physician/researcher at the University of North
Carolina School of Medicine at Chapel Hill, North Carolina); James Childress
(Chairman of the Department of Religious Studies at the University of
Virginia); (Dan Clouser (Professor of bioethics at the Hershey Medical Center
at Pennsylvania State University); Dale Cowan (hematologist/oncologist at
Marymount Hospital in Ohio); Jane Delgado (President and Chief Executive
Officer of the National Coalition of Hispanic and Human Services Organizations,
Washington, D.C.); Bernadine Healy (physician, Chairman of the Research
Institute, Cleveland Clinic Foundation in Ohio); Dorothy Height (President of
the National Council of Negro Women, Alexandria, Virginia); Barry Hoffer
(Professor of Pharmacology in the Department of Pharmacology, University of
Colorado); Patricia King (Professor of Law at Georgetown University Law
Center); Paul Lacy (Professor of Pathology at Washington University School of
Medicine in St. Louis, Missouri); Joseph Martin (Chief of the Neurology Service
at Massachusetts General Hospital); Aron Moscona (Professor in the Department
of Molecular Genetics and Cell Biology at the University of Chicago); John A.
Robertson (Baker & Botts Professor of Law at the University of Texas School of
Law); Daniel Robinson (Chair of the Department of Psychology at Georgetown
University); and Rev. Charles Swezey (Annie Scales Professor of Christian
Ethics at Union Theological Seminary in Richmond, Virginia)._135_


D. The NIH Human Embryo Research Panel:



In 1993, the newly elected President Clinton revoked the moratorium on federal
funding of research using human fetal tissue by signing into law The NIH
Revitalization Act of 1993,_136_ which also "just happened" to delete the
requirement for an EAB approval of IVF research,_137_ (which is a form of human
embryo research, as are cloning research, stem cell research, chimera research,
etc.). Thus fetal tissue transplant research and IVF research were permitted to
receive federal funding. Immediately the NIH appointed its Human Embryo
Research Panel:_138_ Chairman of the Panel was Steven Muller (President
Emeritus at The Johns Hopkins University). Co-Chair for Policy was Patricia
King (Professor of Law, Georgetown University Law Center); Co-Chair for Science
was Brigid Hogan (Hortense B. Ingram Professor in the Department of Cell
Biology at Vanderbilt University School of Medicine); Co-chairs for Ethics were
Sister Carol Tauer (Professor in the Department of Philosophy at the College of
St. Catherine in St. Paul, Minnesota), and Ronald Green (John Phillips
Professor of Religion, and Director of the Ethics Institute at Dartmouth
College). Members included: Diane Aronson (Executive Director of RESOLVE); Alto
Charo (Assistant Professor of Law and Medical Ethics at the University of
Wisconsin); Patricia Donahoe (Chief of Pediatric Surgery at the Massachusetts
General Hospital); John Eppig (Senior Staff Scientist at The Jackson Laboratory
in Bar Harbor, Maine); Fernando Guerra (Director of the Department of Health at
San Antonio Metropolitan Health District); Andrew Hendrickx (Professor of Cell
Biology and Human Anatomy, and Director of the California Regional Primate
Research Center at the University of California, Davis); Mark R. Hughes
(Associate Professor of Molecular Genetics, Cell Biology, and Medicine, and
Director of the Prenatal Genetics Center at Baylor College of Medicine); Ola M.
Huntley (Member of the Board of Directors of the Sickle Cell Self-Help Group in
Inglewood, California); Nannerl Keohane (President of Duke University); Bernard
Lo (Director of the Program in Medical Ethics at the University of California,
San Francisco); Mary C. Martin (Associate Professor and Director of the IVF
Program in the Department of Obstetrics, Gynecology, and Reproductive Sciences
in the School of Medicine at the University of California, San Francisco);
Thomas Murray (Director of the Center for Biomedical Ethics at Case Western
Reserve University School of Medicine); Dorothy Nelkin (Professor in the
Department of Sociology at New York University)._139_


Ironically, the Chairman of the Panel stated publicly that only those who
agreed with human embryo research per se should be on the NIH Panel and only
those "voices of the public" who likewise agreed should be seriously
considered._140_ Again, not one member of the panel was a human embryologist.
Of note, again, is the persistent use and acceptance of the scientifically
erroneous term "pre-embryo" during the Panel's considerations in its
meetings,_141_ as well as in the Panel's commissioned papers, and in
testimonies by major organizations such as the American College of
Obstetricians and Gynecologists (ACOG), the American Fertility Society (AFS),
and their offspring -- the National Advisory Board on Ethics in Reproduction
(NABER)._142_ The official, and scientifically erroneous, definition of "fetus"
as still contained in the official federal guidelines (the OPRR guidelines) was
likewise still accepted._143_ The Panel and their testifiers seemed hopelessly
confused as to what the correct science of human embryology required here
should be, and oblivious to the fact that the term "pre-embryo" was formally
rejected by human embryologists and grounded on very erroneous science._144_
Nevertheless, the term (or it's surrogate term "pre-implantation embryo", which
was intended to mean the same thing morally as the term "pre-embryo") was one
of the major considerations for the Panel's conclusions that the early human
embryo had a "reduced moral status", and therefore its use in experimental
research was "ethical"._145_

The NIH Panel's Report was met with rounds of criticisms -- including those who
argued that the Panel's "restrictions" on some kinds of human embryo research
were too narrow and would stifle scientific progress, and that it failed to
provide a coherent moral justification for allowing such research._146_ In the
end, the recommendations of the NIH Panel were approved by the Advisory
Committee of NIH. However, President Clinton did reject the use of federal
funds for studies using made-for-research human embryos. In 1996 Congress would
respond by passing a ban on federal funding of human embryo research._147_
Private funding of all these types of research has never been federally
regulated.

E. The National Bioethics Advisory Commission



In 1995 President Clinton appointed The National Bioethics Advisory Commission
(NBAC),_148_ the "national ethics advisory board" which had been held in limbo
for so long. However, its mandate now reached far beyond consideration of the
issues of IVF research or fetal research, and far beyond the application to
just one section of one federal department. The creation of NBAC once again
federalized and concretized bioethics "theory", principles, definitions,
methods and erroneous human embryology -- as evident in its own charter, its
appointed members, its commissioned papers, and its conclusions. All arguments
challenging the very legitimacy of bioethics, its "theory", principles,
methods, appointed members, commissioned papers, and use of erroneous science
were ducked, as has always been the case.

The stated functions of NBAC are to "provide advice and make recommendations to
the National Science and Technology Council and to other appropriate government
entities" regarding (1) the appropriateness of departmental, agency, or other
governmental programs, policies, assignments, missions, guidelines, and
regulations as they relate to bioethical issues arising from research on human
biology and behavior; and (2) applications, including the clinical
applications, of that research. NBAC also identifies broad principles to govern
the "ethical" conduct of research -- "ethics" being used and defined, of
course, primarily in terms of the bioethics prinicples as they were defined in
The Belmont Report and by the earliest bioethcists. (This is just one of many
examples of how bioethics itself has defined "ethics per se" only in terms of
"bioethics".) NBAC is also responsible for the review and approval of specific
projects.

In addition to responding to requests for advice and recommendations from the
National Science and Technology Council, NBAC also may accept suggestions of
issues for consideration from both the Congress and the public. NBAC also may
identify other bioethical issues for the purpose of providing advice and
recommendations, subject to the approval of the National Science and Technology
Council. It's first priority is to direct its attention to consideration of
protection of the rights and welfare of human research subjects, and issues in
the management and use of genetic information, including but not limited to,
human gene patenting. In establishing the other priorities for its activities,
NBAC uses four criteria for its considerations: (1) the public health or public
policy urgency of the bioethical issue; (2) the relation of the bioethical
issue to the goals for Federal investment in science and technology; (3) the
absence of another entity able to deliberate appropriately on the bioethical
issue; and, (4) the extent of interest in the issue within the Federal
Government.

It is clear, however, that these four "criteria" are essentially utilitarian in
nature, conflicting by definition with NBAC's purported "first priority" to
protect human subjects in research. The means by which to resolve this inherent
conflict will be in terms of "weighing and measuring" the conflicting moral
positions and then arriving at a "consensus". The scientific facts
demonstrating that a human being begins at fertilization are cast merely in
terms of "belief systems" or "moral positions" -- thus allowing them to be
"weighed and measured" along with other "moral positions". Incredibly and
indefensibly, NBAC even assumes without argumentation that the philosophical
arguments for "delayed personhood" carry more weight than those for "immediate
personhood",_149_ as do most of their commissioned papers._150_

NBAC too accepts the federal OPRR guidelines for its deliberations, which
federal guidelines still include the scientifically erroneous definitions of
"pregnancy" and of "fetus" as both beginning at implantation._151_ In its
charter, reports and commissioned papers NBAC is essentially building on the
bioethics "precedents" and ediface already laid down from the National
Commission onward, including their acceptance of the "reduced moral status" of
the early human embryo. Thus once again, the early human embryo is not
acknowledged as a human research subject. To put it bluntly, the same ole same
ole.

The appointed members, and some other staff or consultants of NBAC are:
Chairman Harold Shapiro (President of Princeton University). Members: Patricia
Backlar (Research Associate Professor of Bioethics in the Department of
Philosophy at Portland State University, and Assistant Director of the Center
of Ethics in Health Care at Oregon Health Sciences University); Arturo Brito
(Assistant Professor of Clinical Pediatrics at the University of Miami School
of Medicine); Alexander Morgan Capron (Henry W. Bruce Profess of Law and
University Professor of Law and Medicine and Co-Director of the Pacific Center
for Health Policy and Ethics at the University of Southern California at Los
Angeles); Eric J. Cassell (Clinical Professor of Public Health at Cornell
University Medical College); Alto Charo (Professor of Law and Medical Ethics at
the Schools of Law and Medicine at the University of Wisconsin); James F.
Childress (Kyle Professor of Religious Studies and Professor of Medical
Education and Co-Director of the Virginia Health Policy Center in the
Department of Religious Studies at the University of Virginia); David Cox
(Professor of Genetics and Pediatrics at Stanford University School of
Medicine); Rhetaugh Duman (Vice Provost Emerita, Dean Emerita, and Lucille Cole
Professor of Nursing at the University of Michigan); Laurie Flynn (Executive
Director of the National Alliance for the Mentally Ill, Arlington Virginia);
Carol Greider (Professor of Molecular Biology and Genetics in the Department of
Molecular Biology and Genetics at The Johns Hopkins University School of
Medicine); Steven Holtzman (Chief Business Officer at Millennium
Pharmaceuticals Inc., Cambridge, Massachusetts); Bette Framer (Founding
President of Richmond Bioethics Consortium, Richmond Virginia); Bernard Lo
(Director of the Program in Medical Ethics at the University of California, San
Francisco); Lawrence Milke (lawyer, Kaneohe, Hawaii); Thomas Murray (President
of The Hastings Center); Diane Scott-Jones (Professor in the Department of
Psychology at Temple University). Executive Director Eric Meslin (Ph.D. in
philosophy with a concentration in bioethics from The Kennedy Institute of
Ethics and the Department of Philosophy at Georgetown University). Bioethics
consultants: LeRoy Walters, (Director of the Kennedy Institute of Ethics at
Georgetown University); Jeffrey Kahn; numerous other staff._152_


It is not difficult to understand why NBAC would be agreeing with the DHHS
legal counsel that federal funding of human embryonic stem cell research could
"ethically" go forward._153_

F. The NIH Guidelines for Research Involving Human Pluripotent Stem Cells:



Despite the 1996 Congressional ban on human embryo research, in December 1999
the National Institutes of Health (NIH) announced its Draft Guidelines for
Research Involving Human Pluripotent Stem Cells, in which it argued that by its
reading of the ban on human embryo research NIH funds (only) could be used to
fund research using human embryonic and fetal stem cells which were privately
derived._154_ The Guidelines were finalized and published in August 2000._155_

Aside from any number of serious problems associated with these guidelines, of
particular interest once again are the definitions of a "human embryo" and a
"human being" provided by NIH Director Harold Varmus in his testimony before a
subcommittee of the Senate of the United States._156_ By this time many in the
bioethics lobby had judiciously avoided the use of the scientifically erroneous
term "pre-embryo", so that term could no longer be used as their "scientific"
justification for using human embryos in research. A new term was required to
fill this void.

In his official testimony Varmus stated that a human embryonic zygote [he used
the term, "the product of fertilization of an ovum"] and all its developing
stages up to the blastocyst stage [5-7 days after fertilization], is just a
collection of "totipotent stem cells" [i.e., just "parts" of an embryo] which
only have the "potency" to become "a mature human organism" - but even then
"only if it is implanted". That is, Varmus defined an embryo as just stem
cells, rather than as a whole human organism which consists, in part, of stem
cells. This definition of a human embryo is patently scientifically false and
thoroughly misleading._157_ It would seem that the scientifically erroneous
term "pre-embryo" has now been replaced by the equally scientifically and
erroneous term "just stem cells"._158_

And the inevitable question arises, "Where are all the good scientists?" How
could they have remained so silent for so long about all this crude and
blatantly erroneous "science", which has now infiltrated and embedded itself
into so many textbooks, court decisions, laws, regulations and "commission
reports", and now in this testimony by the Director of NIH before a Senate
subcommittee?

The science of human embryology has long demonstrated beyond any doubt
whatsoever that these early human embryonic stages to which Dr. Varmus referred
are all really developing stages of a whole human being, not of just a part of
a human being, e.g., not of just stem cells alone. A stem cell is only a part
of a whole organism; an organism (such as a human being) is the whole thing.
Further, while it is true that the single-cell human embryonic zygote, and the
cells of the developing human organism up to the blastocyst stage, are
"totipotent" (relatively speaking, and actually a passe term now, given Dolly
and other recent cloning experiments), it is also scientifically true that
those same stem cells when separated from the whole embryo (referred to as
fission, or asexual twinning or cloning) would each singly be a new whole human
embryo, i.e., a new human being. Thus the term "totipotent" can properly refer
only to the cells of the early embryo while they are part of that whole embryo,
and not when they are separated from that embryo. Further, the developing
embryonic human being does not just have a "potency" (or a "potential human
being") to develop later into a human being, as Dr. Varmus states.
Scientifically we know that it already is a living human being. The terms
"potency" and "potential" are not scientific terms but are mediaeval scholastic
philosophical terms -- and have always been misapplied in these debates at
that. These philosophical terms should play absolutely no role whatsoever in
determining scientifically when a human being begins -- that is a strictly
scientific question, which should be answered by the experts in this field --
human embryologists._159_ Politicians, philosophers, lay commissioners, lawyers
and physicians have no academic credentials or academic standing to redefine
the scientific field of human embryology.

Perhaps the most amazing "scientific" statement by Director Varmus before the
Senate sub-committee was his definition of a "human being" -- that these early
totipotent and pluripotent "cells" will not become a "mature human organism
unless and until it is implanted." This too is decidedly misleading, but not
surprising, given the continuous and erroneous scientific definitions of a
"human being" throughout all of these bioethics events. Circumstantially, it is
true to say that if an already existing embryo is not implanted it will die --
i.e., it will not be allowed to mature to its adult stage of development. But
that does not mean that this early embryo is not yet a human being.
Scientifically, the single-cell embryonic human zygote and all of its early
developmental stages is already a human being (i.e., a human organism),
regardless of whether or not it is implanted. Scientifically we know that every
human being begins his or her physical existence at fertilization (or cloning).
Implantation, or lack thereof, simply refers to whether or not an already
existing whole human being will continue to exist or not. No change of what it
is takes place at implantation, only whether or not the whole human being that
is already there continues to live and grow. It is really quite simple: if the
early human being implants, then it can live and grow to maturity; if it
doesn't implant, then the early human being will die young.

And Dr. Varmus' use of the phrase, "an entire mature human organism, e.g., a
human being," is not only scientifically misleading - it is scientifically
bizarre. A "mature human organism" is only one of many stages of development of
a whole human being - hardly the only stage. Scientifically, the embryonic
organism and the mature organism are one and the same organism. The embryonic
organism is just younger and at a less developed stage of growth. This
definition of a "human being" by Dr. Varmus would actually define a "human
being" as just a mature organism! And this from the senior scientific research
officer of the United States. It is no wonder that human embryologists have
never been included in these bioethics proceedings.

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XI. THE PENETRATION OF BIOETHICS



Regardless of a multitude of failings and flaws, these bioethics principles of
autonomy, justice and beneficence have been used -- as originally defined -- as
the explicit basis for many major public policies,_160_ governmental
regulations, private sector and industry guidelines, even international
guidelines still in use today - e.g., the federal OPRR regulations on the use
of human subjects in medical research, The Common Rule, Institutional Review
Board Guidebooks, Hospital Ethics Committee Guidebooks,_161_ most policies for
hospitals and other health care facilities, the international CIOMS/WHO
Guidelines for the use of human subjects in Third World countries, etc. That
is, these bioethics principles are explicitly defined in these documents in the
same way as they were defined in The Belmont Report and by the early
bioethicists, e.g., Beauchamp, Childress, Walters, etc. These bioethics
principles also now literally redefine the "ethics" of other disciplines, e.g.,
business ethics,_162_ and ethics in engineering._163_ Even our country's
military schools have restructured their ethics courses and have essentially
reduced them to courses in bioethics (often using many of these same
bioethicists as their professors). Many colleges and universities already
require a course in bioethics in order to graduate, and most medical and
nursing schools have incorporated it in their curricula. Bioethics is even
being taught now in the high schools. And what is being taught as bioethics are
the Belmont principles, or renditions of one or more of these principles as
defined in Belmont terms. Nods may be given to "alternative" propositions here
and there, but in the end it is the language of principlism which sets the
standards.

Bioethics has also influenced the law_164_ and the media._165_ It is now often
even referred to as "federal ethics"_166_ because of its federal origins and
its application in public policy making. (Indeed, the web address for NBAC is
"bioethics.gov"). As Jonsen remarks, "'Federal ethics' became a significant
source of opinion in bioethics as public moral discourse took place not only on
federal premises but also in state agencies, professional societies,
institutional committees, and public forums."_167_

Bioethics is now international. As of 1997, there is an International
Association of Bioethics, whose founders were Australian bioethicists -- their
first president being Peter Singer. The Council for International Organizations
of Medical Sciences (CIOMS), associated with the World Health Organization and
UNESCO, has demonstrated interest in bioethics for decades now, and has issued
international guidelines on many topics, including transplantation, the
definition of death, and human research. Since 1985, the Council of Europe has
had a Committee of Experts on Bioethical Issues, which with wide international
consultation, composed a Convention for Bioethics containing guidelines on
major bioethical issues. UNESCO formed an International Bioethics Committee in
1993. The European Community and its legislative arm, the European Parliament,
have formulated bioethics policy and sponsored bioethical studies. Centers and
institutes of bioethics exist worldwide, "from Bonn to Beijing, and from
Bangkok to Buenos Aries", as Jonsen quips. The 1994 UNESCO Directory lists 498
such centers outside of the United States._168_

C. Is Bioethics A "Discourse"?



X. BIOETHICS: DISCIPLINE OR DISCOURSE?



So, what is bioethics? Is it a legitimate "science", an academic field with
it's own proper subject matter and method, and therefore with its own proper
"experts"? It is the same as "ethics per se", or as "medical ethics per se"? Or
is it something else?

A. Does Bioethics Have a Proper Subject Matter?



In observing even the little presented above, the answer is obviously "no";
bioethics does not have a proper subject matter. From the very beginning, as
the historical details and documents have demonstrated, bioethics is a very
recent sub-field of normative philosophical ethics which was created by the
National Commission in 1979 in its Belmont Report -- by mandate of the U.S.
Congress.

But it's normative "theory" has been proven to be theoretically and practically
defunct -- even by many of the Founders of the field themselves, as well as by
others inside and outside the field. Its "ethical principles" are theoretically
indefensible, and practically impossible to logically and coherently apply. It
never did and never could have had a well-defined subject matter that could
pass the muster of serious critical academic evaluation -- on any level. Yet it
continues to be understood, taught and applied as "principlism", and its
"experts" continue to flood the halls of health care facilities, courts,
congress and government departments and agencies.

Precisely because of the inherent failure of the "Belmont principles",
eventually many other "voices" within bioethics, and "outsiders" who were
interested for one reason or another, were brought into the fray. Today
"bioethics" is in fact a disunified "polyglot" of many different systems of
ethics, theology, philosophy, politics, commerce and federal government. As
Jonsen puts it: We return to the question, "is bioethics a discipline? In the
simplest sense, it certainly is. A discipline is a body of material that can be
taught, and bioethics is and has been a teachable and taught subject since the
mid-1970's. In the strictest sense, it is not a discipline. A discipline is a
coherent body of principles and methods appropriate to the analysis of some
particular subject matter. Bioethics has no dominant methodology, no master
theory. It has borrowed pieces from philosophy and theology. Its theological
pieces are the secular remnant of the sanctity of the person, the urgency to
examine human experience in light of some sort of transcendent values, and the
concern to translate those values into practical life. It adopted several
pieces of philosophy: the relatively recent division of ethical discourse into
two normative theories, deontological and consequentialist, and the modern
version of traditional contract theory. It also took another philosophical
piece that is largely methodological, namely, the critical work of casting
questions in logical form and inquiring about the premises behind them. In
addition to these philosophical and theological pieces, fragments of law and
the social sciences have been clumsily built onto the bioethical edifice._169_
(emphases mine)


It would seem rather disingenuous, however, for Jonsen to try to duck the
question by defining "bioethics" now as a "discipline" in the "simple sense"
rather than in the "strict sense". Either bioethics is a valid discipline --
with its own valid proper subject matter, ethical principles, method and
experts -- or it isn't a proper discipline at all.

B. Does Bioethics Have A Proper Method?



The answer again is "no"; bioethics does not have its own proper method. The
method of bioethics from the beginning has likewise been controversial,
controverted, and "polyglot". This is not new, as Jonsen would seem to suggest.
It has recently simply become more "polyglot" -- a condition actually viewed
enthusiastically by Jonsen: "The notion of a discipline as a body of principles
and methods surrounding a dominant theory is attractive, but probably an
archaism. Academic disciplines today are mosaics of theories, with principles
and methods formulated in diverse ways."_170_

In fact, however, its classroom "method" usually consists of the Harvard Law
School rendition of the legal method of case studies, "evaluated in the light
of one or another of the bioethics principles."_171_ But a legal does not an
ethics method make; nor can the law fundamentally tell us what is ethical or
not. And yet once again, by what justification is one bioethics principle
chosen over either of the other two bioethics principl