On the Possibility of Progress in Managing Biomedical Technologies: Markets, Lotteries, and Rational Moral Standards in Organ Transplantation

• Author: Michael H. Shapiro
• Position: Professor of Law, University of Southern California
• Pages: 13-69

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I Introduction: Our Apparently flat (or descending) Learning Curve

Are we still trying to figure¹ out how to distribute scarce lifesaving medical resources? Or when to let (or make?) people let go of life? Or whether it's legally and morally proper (obligatory?) to force mind-altering medicine on incompetent criminal defendants to make them competent to stand trial,² or on insane condemned persons so they will know they are being executed when we execute them?³

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We have long had such problems and there is every reason to suppose they will remain intractable. People who work in other areas seems to do lots better. Even Fermat's last theorem was proven after all these years. Sooner or later, the mysteries of Dark Matter will be (more or less) resolved. Our earlier successes justify some degree of confidence that such achievements will continue.

If we have been chronically unable to handle our everyday traditional problems in identifying morally and legally correct behavior, how can we expect to figure out really complicated moral and legal problems, such as whether and how we should alter germ lines, or technologically enhance human powers, or clone people?

Many of us, much of the time, have relatively benign feelings toward biomedical scientists and engineers, although this is far from universal, and they are often demonized in movies and other forms of entertainment. But few offer serious compliments to those who are supposed to guide us in managing these technologies, whether lawmakers, courts, or amateur or professional commentators generally, including the scientists themselves when they offer their policy opinions. The professionals who invent and develop the technologies make what they view as progress all the time-a blunt fact rubbed in the faces of "ethicists" and law persons every time the Nobels or other laurels are awarded to scientists, and at many other opportunities.

So, why are we still stumbling about when dispensing scarce biomedical resources, or trying to discern the proper stance on human cloning?⁴ A generation has passed since the Seattle dialysis crisis⁵ and we do not yet know how, in principle, to devise distribution systems that simultaneously satisfy all our basic values-whatever they are-and allowPage 15 us to craft legal regimes that implement those systems. How smart can we be if in all that time we have forged no clear consensus about the best way to deal with the now-famous problem of whom to save, or assist, when not all can be saved or assisted?⁶ In particular, how is it that those professionals specifically called upon to help formulate solutions- lawyers, philosophers/bioethicists, theologians, bartenders, barbers-have so thoroughly failed us? Where are the answers? And if experts can't come up with solutions, why do we continue the consultations? Why are we supporting a full-employment (or welfare?) system for these sages?

But many have come to see that the lack of solutions is not just the product of weak intellects. To see this, start thinking about the very idea of a "solution" in these spheres. What would count as one? For many (if not most) of our problems in managing technologies, there is in principle no set of conclusions that could properly be called a solution-if by "solution" we mean some process and outcome that satisfies all our basic values. There may be a chance of significant consensus in various circumstances, thus allowing at least temporary closure, but the generation and continuation of consensus is too thin a possibility to rely on. But if "'ought' implies 'can,' " doesn't " 'can't' imply 'not-ought' "? (I skip the reservations about this familiar moral-theoretic maxim.)⁷ Why should anyone be faulted for not doing what they can't do-say, solve the distributional problem in a morally/theoretically satisfactory way-through no antecedent fault of their own?⁸

I have written about these supposed deficiencies of moral/legal analysis before,⁹ but here, I briefly apply the preceding questions about the supposed lack of progress in managing technology to organ transplantation and closely related issues.

There are many who assert that there is a large and rapidly inflating "gap" between moral and legal analysis, on the one hand, and biomedical and other technological developments, on the other. Practitioners of moral and legal analysis must therefore strive harder to "catch up" with or at least draw nearer to the latter. But there are no coherent plans for doing so are ever offered-except largely procedural ones for creating committees or agencies that themselves can formulate no fully reliable decision makingPage 16 procedures.¹⁰ This of course does not make such bodies useless. They may, for example, promote a sense of democratic participation, depending on their structure and representativeness.¹¹ Nevertheless, no clear and consistent set of substantive criteria is available to allow these procedural devices to work as anything other than Black Boxes (or so critics might urge).

What is this "gap" anyway, and what does one do to "catch up" or "close the gap" or "make progress"?

The gap, despite its emptiness, has components. It is partly the (increasing) ratio of unanswered questions to answered ones (assuming we can tell the difference); partly the perception that the unanswered questions are often foundational and of serious practical import; and-more controversially-that it is within our powers to substantially narrow this moral fissure.

As I said, however, the universal failure to produce solutions to specific problems or plans for how to do so is not the product of human dimness. Although moral and legal "progress" is possible on some refined, though important, meanings of "progress," complete closure of the gap is impossible-at least in the sense of providing the unique right answers with which all rational persons must agree, or even all rational persons within a given culture and of like mind. Despite the many striking parallels between moral and legal argumentation, on the one hand, and the crafting and (dis)confirming of scientific hypotheses, on the other,¹² the two realms of discourse are quite distinct in their capacities to provide "answers," and the answers they produce are very different. This remains so even though our determinations of scientific fact are always subject to revision in light of new evidence, or even old evidence seen from a new perspective. Scientific indeterminacy or uncertainty is generally quite different from moral and legal uncertainty, although some aspects of scientific indeterminacy may include a conceptual component. (Try to provide a definitive account of what a number is.) The fact that doubts attend both scientific and moral and legal reasoning does not entail any sort of "equivalence" between these spheres; the nature of the uncertainty inPage 17 these realms differ substantially, although only this brief mention of the divergences between moral and scientific epistemology¹³ is possible here.

The limited (if nonzero) opportunities for determinacy in moral and legal analysis are well known, but it is sometimes worth illustrating these limitations in particular areas. Because of the visibility of transplantation issues and various other bioethical problems, it is especially important to chart what can and cannot be expected from human thought. Perhaps doing so is itself a form of progress.

II The Idea of Moral Progress and its Application to Developing and Managing Biological Technologies

"Progress" means quite different things in different contexts-no surprise here.

A Progress in behavior

The "default" meaning of...