Taking Ourselves Seriously: The
Dworkinian Principlism in Genetic
James A. Rice*
* Assistant Professor, Department of Philosophy, Lingnan University,
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
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.
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.
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. 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. 
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. 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.”
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.
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.
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.
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”.
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. 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. 
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. In setting out its decision, Maurice Kay
J. stated “[t]he task of the court is legal rather than ethical”. 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. 
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.” Accordingly, the Authority appealed
against the decision.
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.
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”.  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,
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’.
dismissing the subsequent appeal, the House of Lords affirmed the Court of
Appeal’s decision, authorising both the PGD and the HLA typing. 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.  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.
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”.
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
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
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”.  His Lordship then goes on to make the
inference that in practice, such a distinction ought to be left to the relevant
statutory authority.  This view raises the question as to just
what this distinction actually is as between what the Act prohibits and what
the Act allows.
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
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. 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?
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.
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)”. 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
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. 
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. In his decision Hoffman sets out the
reality of the moral issues that confronted the court as well as the
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).
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. 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”.
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
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
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).
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?
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). 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?
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.  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”.  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
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.” 
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
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”. 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.
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. Genetic alteration on the other hand
greatly narrows or closes off entirely the possible options of children.
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.
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”. 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.
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
A similar application of imperfect knowledge to preconceived bigotry was
operating in the eugenics movement of the nineteenth and twentieth centuries.
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”. 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).” 
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. 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. 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”). 
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”. 
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)”. 
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.  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”.  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. 
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.”  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.
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”. 
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”: 
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. 
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. 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
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. 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:
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
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?  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
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
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. 
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”. 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”. 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.
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.  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. Brian Appleyard has presciently argued
that science should only ever be a part of the whole, “if it becomes the
whole picture, catastrophe ensues”.
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. 
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.
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.
Vogel, “Korean Team Speeds Up Creation of Cloned Human Stem Cells” Science, 20 May 2005, pp. 1096-97. “With speed and efficiency that
will make waves in laboratories around the world, scientists have created
nearly a dozen new lines of human embryonic stem (ES) cells, ones that for the
first time carry the genetic signature of diseased or injured
Lemonick, C. Thomas and A. Park, “Woof, Woof! Who’s Next?” Time Magazine, 15 August 2005, p.
54. Here the authors report the
cloning in South Korea
in 2005 of an Afghan hound, who was named, “Snuppy” by its creator,
Professor Woo Suk Hwang.
“Hwang won’t say what’s next, but the next logical
step would be to clone a primate.
Human cloning may still be an anathema, but the world seems to be
inching ever closer.”
 R (On the application of Quintavalle) v
Human Fertilization and Embryology Authority,  2 All ER 555; 
 R (On the application of Quintavalle) v
Human Fertilization and Embryology Authority,  All ER 265-66.
Human Fertilization and Embryology Act 1990, Halsbury’s Statutes
(4th Edn) (2001 reissue) 291, 332.
  2 All ER 111.
  3 All ER 270.
  3 All ER 271.
  2
All ER 555;  UKHL 28.
  2
All ER 559.
  2
All ER 561.
  2
All ER 563.
  EWCA Civ 667;  QB 168; Online. LexisNexis® Academic. (21 July 2004).
Parfit, Reasons and Persons (Oxford UP 1986) 24-5.
“There is one ultimate moral aim: that outcomes be as good as
 Airedale NHS Trust v Bland,  1 All
  1
All ER 849.
Dworkin, Life’s Dominion,
(Knopf, 1993) 224: [T]he value of
autonomy…derives from the capacity it protects: the capacity to express
one’s own character-values, commitments, convictions, and critical as
well as experimental interests-in the life one leads.
  1
All ER 853.
  3
All ER 266.
acknowledge here that this issue of finding a genetic link to homosexuality
remains a controversial one.
However, let’s say that a “gay gene” is ultimately
found. That screening for this
trait might ever be done is the possibility that I wish to raise here.
 F. Kamm,
“Genes, Justice and Obligations to Future People”, Social Philosophy and Policy, Vol. 19,
No. 2, (2002) 365.
 N. Holtug, “Altering Humans – The Case for
and Against Human Gene Therapy”, in Medical
Ethics, Ed. M. Boylan (Prentice Hall 2000) 327.
 In, J. Glover, What Sort of People Should There Be? (Penguin 1984) 149.
Buchanan,, D. Brook, N. Daniels, & D. Wikler, From Chance to Choice, Genetics & Justice (Cambridge UP 2000) 28-46.
et al, From Chance to Choice, 4.
 Plato, Republic, Trans. Robin Waterfield (Oxford UP 1993) (Chap.
xvi, v 458-59) 172. In the Republic, Plato makes reference to
“breeding stock” in animals.
He then draws a comparison to similar “breeding” in human
beings and reasons that to allow “unregulated unions” would result
in what he calls, “profanation” of the species. Plato’s concept of profanation can
be evidenced in the twentieth century eugenics movement and is referred to in
that context as “degeneration”.
Harris, “Is Gene Therapy A Form of Eugenics?” Bioethics 7: 2/3 (1993) 178-87.
“Is Gene Therapy A Form of Eugenics?” 184-5.
Dworkin, Sovereign Virtue (Harvard UP
2000) 4-7. Dworkin argues that a government may not
necessarily violate human rights if it adopts a view held in good faith of what
specific rights follow from this basic duty of equal concern.
 J. Rice,
“The End of Human Rights?” International Journal of Applied
Philosophy 17: 1 (2003) 141-42.
Beauchamp and J. Childress, Principles of
Biomedical Ethics, ed. 4 (Oxford
UP 1994) 38, 100-01.
Beauchamp and Childress, 59-61.
Ainslie, “Bioethics and the Problem of Pluralism” Social Philosophy and Policy Vol. 19:2
Carter, Reflections of an Affirmative
Action Baby, (Basic Books 1991) 144-45.
et al, From Chance to Choice, 71.
Kitcher, The Lives to Come: The Genetic
Revolution and Human Possibilities (Simon and Schuster 1996) 202.
Hayek, Law, Legislation and Liberty (Routledge
1982) Vol. , 14 -15
Nozick, Anarchy, State and Utopia (Oxford UP 1990) 314-15.
Dworkin, Taking Rights Seriously
(Harvard UP 1977) 83.
Life’s Dominion (Knopf, 1993)
Life’s Dominion, 82.
Life’s Dominion, 83.
 Brown v Board of Education, Topeka, Shawnee County, Kan., 347 U.S.
115, (U.S. Supreme Court held that public education along racially
segregationist lines was unconstitutional). Consider Dworkin’s assessment of
consequentialism (and of its main paradigm, utilitarianism) in relation to this
“A pragmatist justice of a general
utilitarian cast of mind would have asked himself whether a decision for the
plaintiff children, based on the illegality of all official segregation in
schools, was really best for the future, all things considered. He might have decided that it was, but
he would have had to consider strong practical arguments to the contrary. It was perfectly sensible to think that
such a dramatic change in the social structure of a large part of the country,
ordered by a court that is not responsible to any electorate, would produce a
backlash that would damage rather than advance education…”
(Dworkin, Law’s Empire (Harvard
UP 1986) 220-21.
“Human Gene Therapy: Down the Slippery Slope?” Bioethics, 7:5 419.
Appleyard, Brave New Worlds; Staying
Human in the Genetic Future, (Harper Collins 1999) 160.
Life’s Dominion 241.