Volume 6, March 20, 2006

www.psljournal.com/archives/all/

 

 

Taking Ourselves Seriously: The Relevance of

Dworkinian Principlism in Genetic Research

 

James A. Rice*

 

* Assistant Professor, Department of Philosophy, Lingnan University, Hong Kong

 

 

Abstract

 

The advances that have been made in the area of genetic technology over the past several years have caused a reflection into the grounds for emerging policy decisions that have emerged as a result of these stunning scientific breakthroughs.  Inevitably, controversies have emerged as a result of these rapidly developing genetic discoveries.  Recent British judicial decisions in this area have appeared to avoid directly dealing with the accompanying ethical issues.  Instead they have appeared to take an ad hoc approach, by looking to statutory authority in aid of the outcome perceived as being the most favorable.  This paper tries to outline the problems associated with this and argues instead, on behalf of what has been termed as Dworkinian principalism. 

 

 

 

The discoveries in genetics and reproductive health have been at the centre of an apparently insatiable quest for knowledge both in terms of scientific importance as well as the realm of popular interest.  However, these same scientific breakthroughs have forced legislators, judges, academics as well as those on the edge of medical research to consider a foundational ethics setting out normative perimeters into such areas. 

 

The issues carried by the new genetics are significant since they imply a redefining of ethical perimeters.  Moreover, events do not have a habit of waiting for a general consensus to be reached about a possible ethical foundation for genetic research or treatment.  These issues are forcing courts to deal with them as they develop from these same technological advances. 

 

Remarkable discoveries which took place in 2004 and 2005 in South Korean laboratories involved in the first instance, the creation of stem cell lines made from cloned human embryos, and then more recently, the creation of “patient specific” embryonic stem cell lines. [1]  As such, these achievements represent a major breakthrough in the field. Furthermore, these scientific advances and the issues that surround them are set not merely against a framework of local or national jurisdiction but within a global one, in which individuals increasingly will seek medical treatment or therapy in whatever location best suits their own perceived needs.  The same South Korean research center’s advances in cloning a dog have even given rise to some speculation about the future cloning of pets. [2]  

 

Yet these advances and the application of such technology have also come with significant controversy.  The final decision in 2005 by the House of Lords in the case of Zain Hashmi highlights such a conflict resulting from recent medical advances.  The decision obviates an urgent need for the interpretation of formal rules concerning a rapidly advancing area of scientific development.[3]  It is not in doubt that laws and regulatory guidelines have already been refined as a result of the rapid developments in biotechnology.  However the underlying principles upon which such legislation is ultimately to be based, matter greatly.   Certainly the task of doing so is not an easy one.  In the words of Lord Phillips, writing in the Court of Appeal, “No one can doubt the difficulty of legislating against a background of fast-moving medical and scientific development.  It is not often that Parliament has to frame legislation apt to apply to developments at the advanced edge of science.”[4] 

 

It is important then, that there be an extensive and rational discussion from diverse backgrounds and all regions of the world regarding the full implications of these emerging technologies.  This paper attempts to contribute to this discussion at a time in which there is great excitement surrounding the prospect of enhancing the quality of human life, as well as a growing level of anxiety surrounding the human implications of science.  I will try then, to focus on the ethical and legal considerations which have arisen as a result of certain related biomedical discoveries, including embryonic stem cell research, and specifically, human leukocyte antigen testing (commonly referred to as “tissue typing”).  In this context, I will also consider the wider issues that these technologies imply in terms of both consequentialist and deontological approaches to justice in terms of recent decisions in the British courts. 

 

 

The Zain Hashmi saga

 

The relevant facts in R (On the Application of Quintavalle) v Human Fertilisation and Embryology Authority (hereinafter Zain Hashmi) are as follows: Zain Hashmi (a six-year-old boy) was born with a serious blood disorder known as beta thalassaemia major (BTM).  In order to stay alive, he required regular and intensive treatment including a cocktail of drugs and blood transfusions.  However even given this course of treatment, Zain’s doctors determined that his long-term life expectancy was poor.  Mrs. Hashmi sought help from physicians who informed her that stem cell tissue taken from the umbilical cord of a sibling with a matching genetic fingerprint could be used in a bone marrow transplant in order to treat Zain’s illness.  Mrs. Hashmi later conceived, however prenatal testing found that the embryo also carried the BTM gene.  She aborted and then produced another child, which was carried to full term.  That child was found not to be a suitable genetic match for Zain. 

 

Mrs. Hashmi and her husband subsequently explored the possibility of employing the technique of in vitro fertilization (IVF) together with a technology known as, “pre-implementation genetic diagnosis” (PGD) as a means of producing a child that would be created with the stem cells necessary for securing a cure for their son’s illness.  In this procedure, fertilized eggs are screened first for the genes that carry the disease.  They are screened again in order to determine whether there is a genetic match with the intended recipient. 

 

The screening is done approximately three days following the IVF procedure at a stage where the embryo has divided into eight cells.  One of these is removed and tested with a genetic probe.  The DNA sequence taken from the cell is tested for tissue match and for the thalassaemia disorder.  This process involves the use of proteins called, “human leukocyte antigens” (HLA) more commonly referred to in the literature as “tissue typing”.  

 

The relevant UK legislation, the Human Fertilisation and Embryology Act (1990) requires that a license first be issued by the Human Fertilisation and Embryology Authority (“the Authority”) the statutory body empowered to oversee and regulate matters relating to human fertility and genetic screening.[5]   In February 2002, the Authority announced that it would issue a license relating to this matter conditional upon several restrictions.  These guidelines included inter alia that the condition of the child to be treated was life threatening, that the embryos to be tested should also be at risk from the same condition affecting the child, that (presumably in other cases) the treatment should not be offered where the intended recipient is a patient, that only the umbilical cord be used in the treatment, and that embryos should not be genetically modified in order to find a tissue match. [6]

 

Mrs. Hashmi made two attempts to conceive a child employing both in vitro fertilization (IVF) and the screening process, PGD.  However, both of these attempts failed at producing a pregnancy.  In December 2001, the claimant, Mrs. Josephine Quintavalle acting on behalf of the group, Comment on Reproductive Ethics sought and obtained permission to judicially review the Authority’s decision to grant the license.  The decision issued by Maurice Kay J. in that same month quashed the decision to issue the license permitting the continued genetic screening of embryos for tissue suitability.[7]  In setting out its decision, Maurice Kay J. stated “[t]he task of the court is legal rather than ethical”.[8]   The court based its decision on the grounds that the first genetic analysis of a cell taken from the embryo involved the “use of an embryo” requiring a license under the Act.  The second question before the court was whether the analysis of a cell for tissue genetic screening and tissue typing “necessary and desirable for the purpose of providing treatment services” under the Act. [9]

 

The court of first instance found that regarding the first question, a license was necessary since the procedure did in fact involve the use of an embryo.  Regarding the second issue, the court applied a strict definition of applying tissue typing to the ability of a woman to carry an embryo after implementation.  It was found that the procedure did not meet the statutory criteria of being “necessary or desirable for assisting women to carry children.”[10]  Accordingly, the Authority appealed against the decision. 

 

The Court of Appeal decided that the lower court had erred by applying too narrow a construction of the definition of “treatment services”. The court went on to hold that,

 

Where the object of the treatment is to enable a woman to bear a child confident that it will not carry a heredity defect, an embryo will only be suitable for the purpose of being placed within her if it is free of that defect. PGD is thus designed to secure that that embryo is suitable for that purpose.[11]     

 

The appellate court also pointed out that “[w]hen the Act was passed women who had reason to fear that they would give birth to children with genetic defects were probably the only section of the population for whom it was envisaged that IVF treatment could be justified on this basis”. [12]  In conclusion, Lord Phillips observed that “times had changed considerably” since the passage of the 1990 Act.  Establishing that the purpose of the treatment was to (a) create a set of embryos, (b) screen the embryos for instance of genetic defect and (c) screen the embryos for the “desired characteristics” of tissue compatibility with his elder brother, the court argued that, 

 

[W]hether the PGD has the purpose of producing a child free from genetic defects, or of producing a child with stem cells matching a sick or dying sibling, the IVF treatment that includes the PGD constitutes ‘treatment for the purpose of assisting women to bear children’.[13]  

 

In dismissing the subsequent appeal, the House of Lords affirmed the Court of Appeal’s decision, authorising both the PGD and the HLA typing.[14]  The Authority had argued that the PGD and the HLA typing were done to determine as to whether a given embryo would be suitable under the Act for the purposes of being implanted in Mrs. Hashmi.  Lord Hoffman dismissed the concerns raised by the appellant who had argued that this meaning of the word, “suitable” was far too wide in that it would allow authorisation for possible future tests to determine characteristics such as gender, skin or hair color, or ultimately, even intelligence. [15]  Hoffman’s reasoning sought to over rule the initial decision by Maurice J in the judicial review, where “suitable” meant that the embryo was viable and nothing more. 

 

The House of Lords reasoned that since many abnormalities develop after birth, the meaning of “suitable” here also could imply an embryo’s being free from genetic abnormalities.  Still, the court acknowledged that this application of the term in the Act did not anticipate the use of HLA typing where one is looking for a specific characteristic in an embryo that possibly could help to treat Zain’s disorder.  Lord Hoffman then examined the 1990 Act, along with the Warnock Commission Report (1984) and the Government’s White Paper, entitled “Human Fertilisation and Embryology: A Framework for Legislation” (1987) for a context to which he could apply meaning to the term, “suitable”.  

 

Lord Hoffman found that while cases such as the possible gestation of human embryos in animals, or human cloning would be manifestly unacceptable, the matter of gender selection was not so clear.   The Warnock Report had indicated that while it may be permissible to undertake gender selection in order to prevent “sex-linked heredity disease” it did not expressly approve of it for merely “social” reasons. 

 

Lord Hoffman reiterated the British Government’s concerns prior to the 1990 Act as expressed in the 1987 White Paper.  That document sought to define “clearly prohibited” areas of research to include both cloning and, “designer babies” that is, “the artificial creation of human beings with certain pre-determined characteristics through modification of an early embryo’s genetic structure.”[16] 

 

In his written opinion, Hoffman attempts to make a distinction between the clearly prohibited areas of research into “designer babies,” from the permissible policy of “allowing a mother to choose to carry a child with characteristics of her choice”. [17]  His Lordship then goes on to make the inference that in practice, such a distinction ought to be left to the relevant statutory authority. [18]  This view raises the question as to just what this distinction actually is as between what the Act prohibits and what the Act allows.

 

On the one hand, the creation of designer babies defined as the “artificial creation of human beings with certain pre-determined characteristics through modification of an early embryo’s genetic structure” is understood here as being clearly prohibited.  On the other, Hoffman finds at the same time, in favor of the policy that allows a mother to “choose to carry a child with characteristics of her choice”.  It would seem then that Lord Hoffman understands the modification of (as opposed to the selection of specific characteristics) in an embryo as being the relevant distinction as between what is clearly prohibited and what is permissible under the Act.

 

Hoffman then examines at some length the issue of gender selection for social reasons, and arrives at the conclusion that it was the intention of Parliament in drafting the Act to leave this issue to the discretion of the Authority.  He infers from this that once one accepts that such a discretionary power is held by the Statutory Authority, there can be no foundation for claiming that selection on the grounds of “other characteristics which the mother might desire” has been prohibited.[19]  However on reflection, what is the real distinction as between these two concepts?  Doesn’t the practice of the latter, entail the same research and procedures of the former?

 

The problem with this line of reasoning is that while the decision seeks to draw a “bright line” at the creation of designer babies, such a distinction (as opposed to the permissible policy of allowing a mother to choose to carry a child with preferred characteristics) is not sustainable.  What is the real difference one might ask as between a policy that forbids genetic altering in order to produce a blond, blue-eyed baby, and one that allows a mother/couple to select a particular embryo, which carries the very same set of genetic characteristics as opposed to other ones?  Furthermore, that the procedure of selecting a suitable embryo was carried out primarily to save Zain’s life tends to overlook the fact that the birth of his youngest brother was in a sense an instrument in this end.

 

One of the common threads in this case is that all three decisions tend to reflect a comment made by Pannick QC (appearing for the Authority) who asserted that, “the issue (before the court) is not one of ethics but of statutory construction (emphasis added)”.[20]  Indeed, statutory construction (and not ethical principle) provides the primary basis upon which this case is framed.   It is perhaps understandable that in this particular case where the court was faced with a stark decision having the potential to save the life of a small child afflicted by a deadly disease, that the learned judges felt compelled to rule in the way that they did.  But the fact that the court chose not to directly address the moral issues involved is significant. 

 

I would argue that the judges addressing this case were somehow determined that the possibility of obtaining a cure to Zain’s illness was not to be blocked, either by the objections from Mrs. Quintavalle’s concern group or from possible roadblocks that might be inherent in the Act itself.  In this regard, it would appear that the decision by the court was founded upon a view of aggregating consequentiaism.  That is the view that the right act in any given situation is that which produces the most aggregate well being, as judged by an objective standpoint. [21]  

 

However, although judges may often be reluctant for various reasons to deal with moral principles in their decisions (as opposed to more familiar judicial guides such as statutory construction or case law) there are times when such ethical consideration becomes necessary.  Lord Justice Hoffman’s judgment in Airedale NHS Trust v Bland may be contrasted with the type of reasoning found in Hashmi.  In Bland, the House of Lords were asked to decide on whether to allow the withdrawal of life-support treatment.  Anthony Bland, a 21-year-old man had been in a persistent vegetative state for nearly four years as a result of being suffocated during the Hilllsborough football stadium tragedy.[22]  In his decision Hoffman sets out the reality of the moral issues that confronted the court as well as the public: 

 

People are worried, perhaps not so much about this particular case, but about where it will lead.  Is the court to assume the role of God and decide who should live and who should die?  Is Anthony Bland to die because the quality of life is so miserable? Does this mean that the court would approve the euthanasia of seriously handicapped people?…This is not an area in which any difference can be allowed to exist between what is legal and what is morally right (emphasis added).[23]

 

In continuing his reasoning Hoffman set out to insure that the principles on which the judgment was based would not lead to “morally unacceptable decisions in the future”.  He did so by considering the foundational principle of the sanctity of life along with another fundamental moral principal, that of the respect for individual human autonomy.[24]  In upholding a decision to withdraw life-support, Hoffman acknowledges that this is a case in which a conflict between these two moral principles required a “painful compromise” to be made between the sanctity of life and the principle of self-determination. 

 

In this case the ultimate compromise was based on the court trying to decide as to what Anthony Bland himself would have chosen.  Hoffman wrote in this case, “from what we have learned of Anthony Bland from those closest to him, that forced as we are to choose, we think it more likely that in his present state, he would choose to die than to live”. This decision was based upon a respect “to allow him to die and be mourned by his family that to keep him grotesquely alive”.[25] As the boundaries of biotechnology expand into ever more controversial areas, there is a corresponding need for systematic ethical thinking regarding the normative implications that these technologies impose on society.

 

Slippery slopes and shopping at the genetic supermarket

 

Despite such an apparent reluctance to fully explore the moral implications, neither the Court of Appeal nor the House of Lords in Hashmi suggested that this decision should be seen as eliminating all legal restrictions on genetic intervention: 

 

It is (however) plain that while Parliament outlawed certain grotesque possibilities (such as placing a live animal embryo in a woman or a live human embryo in an animal) it otherwise opted for a strict regime of control.  No activity within this field was to be left unregulated.  There was to be no free for all (emphasis added).[26]

 

But while Lord Phillips offered the briefest comment on what he considered “grotesque practices” neither he writing in the Court of Appeal nor Lord Hoffman in the House of Lords set out guidelines on a bright line as to enable the evaluation of what future practices would be acceptable.  The actual decision, (based as I have argued on the court’s ad hoc assumptions of a favorable outcome) does not offer any real guidance for the future as to the underlying values that serve to establish the ethical quality of those practices.  In this respect one must ask, how is this case to set out legal rules in future disputes involving screening for other characteristics such as gender selection for merely social reasons as was considered by Lord Hoffman? 

 

This problem by now has become more than an academic one and the threat of those “morally unacceptable” decisions referred to in Bland is real.  Already, tissue typing is being carried out in the United States with the intended purpose of gender selection for social reasons (as opposed to screening for life threatening diseases).[27]  The field of genetic screening offers the promise in the not too distant future, of screening embryos not only for diseases (such as BTM) but for other more fundamental applications as well.  Future implications of genetic technology are profound.  Could a consumer-driven demand for desired traits in children begin to alter the very nature of human reproduction?  In other words, does the advent of tissue typing (or for that matter the project of the new genetics as a whole) pose the ethical “slippery slope” that could well lead to the same “grotesque practices” as described by Lord Phillips in Hashmi?

 

One can reasonably foresee that in the near future, screening could be done regarding height, intelligence and (given the possibility of the isolation of a gay gene) being able to use tissue typing in order to screen for the trait of homosexuality. [28]  In an effort by parents to produce the best possible child, the line between screening for disease and for “desirable traits” may well become increasingly blurred.  Peter Singer has famously argued that, “…for most parents, giving their children the best possible start in life is extremely important”. [29]  According to Singer, it is unlikely to suppose that a couple would feel that carrying a child with a disability to term (such as Downs Syndrome) will equip him/her with the best possible start.  So just as it is reasonable to abort fetuses with crippling disabilities such as Downs, it is also just as reasonable to select children for intelligence, height and even aesthetic appeal. 

 

…to say that the future just sketched is no nightmare, but a better society than we now have, one full of healthier, more intelligent, taller, better-looking – perhaps more ethical? – people.  There is therefore no “slippery slope” because the slope is not down to an abyss, but upward to a higher level of civilization than we have achieved so far. [30]

 

Singer is making this argument as the second of what he claims are three possible reactions to the growing array of possibilities for genetic modification.  The first of these choices would be to reject (or ban) all forms of modification including the prenatal screening for birth defects.  The second choice, outlined above would be to embrace such genetic modification, and the third choice according to Singer would be to adopt the choice referred to by Robert Nozick in Anarchy, State and Utopia, whereby we refrain from judgment regarding genetic modifications and the financial transactions that accompany them and “allow the genetic supermarket as to rule.”  [31] He adds that under this alternative, any altruistic individuals or groups may offer genetic services for whatever reason to anyone who is willing to accept them.  

 

Yet on closer examination, it is argued that such reasoning is flawed.  As F.M. Kamm has pointed out, in an article entitled, “Genes, Justice and Future People”, Singer’s application the principle of individual free choice tends to break down when “some are given the right to determine the outcome for another person – namely a child”.[32]  Kamm’s point here is not necessarily to make a claim about the status of a given embryo or fetus as having either the legal or moral status of a person. 

 

Instead, Kamm is making the more narrow argument that to allow parents (or for that matter, the state) to select certain genetic alterations on behalf of a child, is not merely to make a self-concerned choice. Instead it carries with it the potential to impinge on the right of that child to what Kamm calls an “open future”.  This argument, which I believe to be a good one, is that while parents may make several significant choices on behalf of their children, such as schooling, religion, nutrition, etc., the affected child always has at least the possibility or the “hope of rebellion” from these parentally prescribed regimens.[33]  Genetic alteration on the other hand greatly narrows or closes off entirely the possible options of children.

 

Furthermore, Singer’s other claim made in the “Genetic Supermarket” article, that what amounts to a form of voluntary eugenics could somehow produce more ethical people, begs real skepticism.  But beyond the highly remote possibility of an “ethics gene,” Singer’s thesis of a future, genetically engineered social upland must be earnestly addressed. This is not to argue against all types of genetic screening (or intervention) are to be feared. 

 

Niles Holtug has also sought to offer some reassurance regarding the issue of the slippery slope argument in genetic technology by pointing out that,  “[I]f there are certain uses of an otherwise beneficial technology we want to exclude, and there undoubtedly are, we should introduce regulations that would protect us from these uses, rather than exclude the technology”.[34]  However, at the same time we need to consider the scope of any future gene therapy is because of the fact that the sobering legacy of the eugenics movement of the last century cannot be ignored. 

 

The history of the eugenics movement as expressed by Francis Galton (and brought to its extreme in the form of Nazi policies of “racial hygiene” that included forced sterilization, euthanasia, and murder) should serve to remind that for all of their allure, scientific theories have often got things badly wrong.  And even if the science is ultimately well founded, as the frontiers of genetic knowledge recede, might we not also become victims of applying contemporary human prejudices along with this new genetic technology?  John Mackie has observed in this regard that, “…if the Victorians had been able to use genetic engineering, they would have aimed to make us more pious and patriotic”.[35] A similar application of imperfect knowledge to preconceived bigotry was operating in the eugenics movement of the nineteenth and twentieth centuries.[36]   

 

Allan Buchanan et al, writing on the implications of the new genetics have raised the prospect of, “whether, like the sorcerer’s apprentice, we will suffer the consequences of partial knowledge, overestimating our power to predict and control the causal chains we initiate through the application of our new-found knowledge”.[37]  They consider the need for an accompanying set of values that can clarify what practices are ethical.  The question they raise in this context is, “[e]ven if we were more assured than we should be that out technical control will be complete, we would continue to wonder whether we will be able to distinguish between what we can do and what we ought to do (emphasis added).” [38] 

 

The eugenics movement can be ultimately be traced to Plato who argued that man is born to a particular position in life and the harmonious society is one in which all individuals serve within their own appointed station.[39]  A key question to ask here is how closely does the new project of genetics resemble the old project of eugenics with its own fundamental prejudices?  While it is possible to argue that the “old” eugenics was based on imperfect knowledge, John Harris has addressed such concerns about the future role of gene therapy.[40]  In this regard, Harris argues in favor of the principle that gene therapy is to be permitted where it is done to protect health and life (as opposed to other “so-called cosmetic or frivolous uses of gene therapy”). [41]

                                                                                   

Dworkinian principlism and the issue of disagreement

 

These questions ought to go to the heart of any jurisdiction’s policy review concerning guidelines relating to the application of biotechnology.  In the context of a discussion concerning the issue of ethical foundations upon which any future biotechnology guidelines ought to be based, I argue that foremost consideration ought to be that of justice and equal concern for the dignity of persons.  And yet it is because people often disagree about justice that societies need what Dworkin has referred to as “principles of fairness”. [42] 

 

Dworkin has argued that despite the need for accommodation of dissenting visions of justice, if a state adopts a particular policy, which constitutes a rejection of a fundamental respect of its people, it violates their human rights.  He attempts to build his case by first employing the views of Bentham as indicated by the inclusion of the vocabulary of sentience: “with concern, that is, as human beings who are capable of suffering and frustration (emphasis added)”.  Dworkin combines these views together with those of a Kantian ethic: “with respect, that is, as human beings who are capable of forming and acting on intelligent conceptions of how their lives should be lived (emphasis added)”. [43]

 

Tom Beauchamp and James Childress, propose in regard to persistent disagreement about morality, four principles that they categorize as (respect for) autonomy, nonmaleficence, beneficence and justice. [44]  They argue that in the lack of agreement about any one moral theory, these four moral principles form the basis for a common set of ethical principles.  And in this regard they draw on the Rawlsian notion of “justice as fairness”. [45]  In response to the principlism as proposed by Beauchamp and Childress, Donald Ainslie has argued that such a position is not adequate since these criteria would hardly be accepted by all.  For example, it would not be accepted by radical libertarians (or for that matter, Nietzcheans).  He advances an alternative argument that any ethical theory must not be dogmatic, but instead ought to be able to accommodate an ethical pluralism. [46] 

 

But are moral principles as proposed by Beauchamp and Childress really “oppressive and arbitrary” as Ainslie suggests, given that they cannot accommodate all possible views?  In contrast to this position, Stephan Carter has argued that “[w]e must never lose the capacity for judgment, especially the capacity to judge ourselves and our people …[To do] otherwise, at the end of the line lies a pile of garbage.” [47]  It is argued here that it is this judgmental attribute of morality that has the capability to distinguish that, which is garbage from that which has value. 

 

 From chance to choice - genetic lottery to genetic equality

In their treatment of justice and genetics, Buchanan, et al have argued that while basic social institutions already reflect a commitment to intervention in the “natural lottery” in respect to congenital disease, “presumably any philosophical account of justice must acknowledge the necessity of such interventions”. [48] But the writers go further and speculate that in theory, genetic intervention may also be applied even more fundamentally.  They consider the situation “where only those whose genetic assets fall within certain parameters tend to develop certain cognitive abilities beyond a certain level”: [49] 

 

Suppose also that, in general, only those who develop these abilities beyond this level are able to learn the mathematics needed to succeed in all but the very least desirable jobs, in a technologically advanced society.  Under such conditions, those whose genetic constitutions prevent them from reaching the needed threshold of abilities will experience significant limitations on their opportunities unless something is done to overcome this impairment. [50]  

 

Philip Kitcher has also argued in favor of a genetic redistribution.  He believes that a voluntary form of eugenics in the form of selection for desired traits in children is not only inevitable but desirable.  In The Lives to Come, he writes on behalf of what he calls a future “eugenic utopia”.  Under such a scheme, genetic information would be obtained in prenatal testing and desirable genetic attributes would (in theory at least) be made available to all.[51]  His utopian genetically engineered world is however; premised upon an assumption of the kinds of societies whose decision-makers possess the kind of wisdom, beneficence and a “respect for difference”. 

However Kitcher’s vision would appear to be an all too familiar utopian illusion that is more in keeping with the literature of science fiction than of either sound political philosophy or social reality.[52]  Apart from a prima facia resistance to a genetically engineered utopia, one may well be minded of F.A. Hayek’s skepticism to these kinds of constructionist approaches to social or economic realms.  In this regard, Hayek has argued that constructivist rationalists of the past have suffered from what he calls a “synoptic delusion”. By this, he refers to:

 

“the fiction that all the relevant facts are know to some one mind, and that it is possible to construct from this knowledge of the particulars a desirable social order.   Yet all those who are fascinated by the beautiful plans which result from such an approach because they are ‘so orderly, so visible and so easy to understand’ are the victims of the synoptic delusion and forget that these plans owe their seeming clarity to the planner’s disregard of all of the facts he does not know.” [53]  

 

Could a view of justice based upon redistribution of genetic endowment ever be properly perceived as being either likely or desirable or is it yet another synoptic delusion?  What are to be the long-term consequences of Robert Nozick’s genetic supermarket, where market forces allow parents to select what genetic traits in children such as gender, skin or eye color are in greatest demand? [54]  Seen in such a context, this utopian ideal of genetic equality begins to resemble a trend toward a genetic uniformity, a kind of mono-form culture, driven by popular trends and governed by imperatives of the market. 

But even if a consequentialist position with regard to a human gene therapy were to be generally accepted, who then is to determine (and by which criteria) what any such genetic enhancement would be?  Which authoritative body is properly entitled to determine that a genetically “suitable” individual, genetically engineered to be tall, blond, and having a cognitive ability to obtain better than average SAT scores would be more suitable than a person very different from that ideal; someone like say, Stevie Wonder?   Given that one were to allow the plausibility of a consequentialist view, the burden must rest with its advocates to show conclusively that the traits that they would propose to screen for are in actual fact, ones which produce the greatest aggregate well-being, as judged by an objective standpoint.

The case for principle

According to Dworkin’s legal and moral theory, the application of principle is required by judges in deciding cases involving public policy issues, without having to fall back on the brutal logic of utilitarianism: 

 

Arguments of policy justify a political decision by showing that the decision advances of protects a collective goal of the community as a whole…Arguments of principle justify a political decision by showing that the decision respects or secures some individual or group right. [55]

 

In Life’s Dominion, Dworkin endeavors to establish a position of human life as being inviolable or what he terms as “sacred”, based, “in two combined and intersecting basis of the sacred: natural and human creation”.[56]  Here, Dworkin argues that certain things in the realm of nature may be understood as a creative Endeavour (the preservation of particular animal species) and in art (the preservation of particular works of art) contain special intrinsic value.  He claims that, “that combination of nature and art – two traditions of the sacred – supports the further and more dramatic claim that each individual human life, on its own, can be understood as the product of both creative traditions”.[57]     He goes on to argue that a human life commands both respect and protection:

 

Any human creature, including the most immature embryo, is a triumph of divine of evolutionary creation, which produces a complex, reasoning being from, as it were, nothing, and also of what we often call the “miracle” of human creation, which makes each new human being both different from and yet a continuation of the human beings who created it.[58]   

 

It is important to recall here that the language of Lord Hoffman in Bland carries with it this foundational use of moral principle in order to progress toward establishing legal rules for dealing with these emerging issues.   In this way the application of principle provides the theoretical basis through which rights are respected even in the face of collective goals. [59]  So too, this same concept of principle is necessary in the realm of evaluating the challenges that scientific advances pose to those human values that have long been the basis for those of our instincts that are among our most humane.   The criterion of principle in judicial decision making (which sure to come in the wake of the decision in Hashmi) serves to employ a principled approach to justice over an ad hoc or a consequentialist one.       

A fundamental drive toward knowledge is said to be found at the centre of the human condition.  But along with this need to know ever more, there must also be constant evaluation of knowledge, in terms of its use and application.  Holtug, has made a similar admission in this regard in that, “All knowledge is potentially dangerous.  Our moral task is to ensure that we make the right use of it, not to give up knowledge.[60]  Brian Appleyard has presciently argued that science should only ever be a part of the whole, “if it becomes the whole picture, catastrophe ensues”.[61]

 

…For what must be able to judge and evaluate science; it must be a part of a culture.  If we can’t, there is nothing to discuss.  Whatever science and the scientists say must be right.  Step over this cliff, they might say, the fall will do you good, and we can only believe they must be right. [62]

 

In future, there will be other difficult cases, similar in this nature to Hashmi and Bland.  But the challenge not only for decision-makers but also for all individuals is to constantly apply critical and ethical evaluation to scientific advance.   Just as a blind acceptance of ideology has led in the past to totalitarian excess, an uncritical application of science in the absence of moral constraint carries the real potential for catastrophic results. In Life’s Dominion, Dworkin responds to the alternate threats or promises of future scientific developments and the difficult issues that will inevitably confront society in the realm of scientific progress.  He acknowledges these advances and speculates about a need to reflect upon the natural and the human contributions to the sanctity of human life and then offers this conclusion:   

 

[I]f people retain the self-consciousness and self-respect that is the greatest achievement of our species, they will let neither science nor nature simply take its course, but will struggle to express, in the laws they make as citizens and the choices they make as people, the best understanding they can reach of why human life is sacred, and of the proper place of freedom and its dominion.[63]

 

Taking rights seriously, entails upholding individual and group rights in favor of public policy goals.  Taking ourselves seriously then, is to favor an approach to the human application of genetic technology that fully reflects the sanctity of life as opposed to an unexamined rush to adopt such changes based merely on a perception (for good or ill) of best outcomes.