Biotech and theodicy: what can and what ought we to do in procreative technology?

• Author: Ahlers, Rolf

Part I of this article deals with some theoretical issues concerning the way our culture arrives at moral judgments and the way the law functions relative to public moral concerns. I will illustrate my points with reference to, and through discussion of, the report promulgated by the National Bioethics Advisory Commission (NBAC) of 1999, which was established to advise former President Clinton on the ethics and law of stem cell research. Part II will focus on some philosophical and religious issues connected to the nature of the humanhood of embryos and fetuses. Specifically, it asks--and answers--two questions: (1) What provides human dignity to embryos? and (2) When does humanity begin in the embryological development?

Part III contains some concrete proposals about what types of stem cell research or cloning can be ethically and legally allowed. Finally, in a brief Part IV, I will directly address a point implicit in the previously discussed issues. It is the argument that our scientific capacities require us to "play God," and that the recognition of this theodiceic requirement enables us to make more precise judgments than would the rejection of any tampering with procreative technology. I will argue that it is necessary to overcome the cultural denial of this theodiceic role in order to make precise ethical judgments. This denial is rooted in a long tradition, especially virulent in the Roman Catholic tradition, of rejecting the legitimacy of modernity and seeking a return to a premodern naivete. (1) But precise ethical judgments require us also to face the unreflected naivete that is evident in some highly progressive futurists who would simply claim that "science knows best." (2)

1. SOME THEORETICAL ISSUES UNDERLYING STEM CELL RESEARCH

   In our attempt to master human diseases, not many areas hold as much promise as stem cell research. (3) However, the ethical difficulty is that, at this time, the most promising and truly pluripotent stem cells can only be derived from human embryos. (4) Because the moral status of the human embryo is the central issue in this debate, (5) the fact that embryonic stem cells (ES cells) at this time hold forth the most promise requires us to focus on this issue. It was Kant's injunction that human beings must never be used as a means to different ends. (6) Bioethicists generally reject nontherapeutic research (7) done on human subjects. So in stem cell research, we are confronted with a classical dilemma. On the one hand, the imperative to promote human well-being by means of this new technology has hardly ever been more urgent. On the other hand, however, the ethical mandate to protect and promote the well-being of human beings, to which embryos possibly belong, has never been higher. (8) Ethics advisory boards have been established during the last twenty years not only to safeguard that well-being, but also to provide guidance on what is permissible and what is not.

   Such groups, including the governmental National Bioethical Advisory Commission (NBAC) of 1998 and its predecessors, and similar private groups such as the Geron Bioethics Advisory Board, (9) are faced with a plurality of ethical perspectives and traditions. They have to deal with that fact somehow. Throughout its report, the NBAC attempts to balance broad spectrums of views of individuals and groups. That strategy raises the question: Whose values should prevail? But if one hopes to address the question of the ethics of stem cell research realistically, it is not sufficient to observe a pluralism of values in the hope of deriving the most acceptable compromise from that plurality. Hume proclaimed that ethical certainty about what we ought to do can surely not be found in this way. (10) Ethics, in principle, has little to do with that realm of 0the plurality of views, although, of course, a body such as the NBAC must listen to those voices--in the same sense that a politician must. But any politician knows that the common maxim of "govern-ment by the polls" is not such a good idea, and so too the NBAC should have recognized that any moral recommendation of what ought to be done cannot be derived from that plurality of views.

   On the question of what we ought to do, we must turn to the tradition of German Idealism. It was Kant who said: "It was the recollection of David Hume which ... interrupted [my] dogmatic slumber" (11)--the slumber of cultural indecisiveness and indifference that tends to assign equal value to all positions. (12) Kant's wakefulness provided a viable philosophical alternative in his theory of Categorical Principles in Law, which has found in the work of the German philosopher of law, Otfried Hoffe, (13) a notable representative of a universalizable legal theory. (14) It is important to note that Hoffe speaks of "reason in law." (15) This position is an important corrective of today's faddish perspectives variously identified as structuralism, (16) critical legal theory, critical gay legal theory, and other views. (17) These views of critical legal theory are based upon the thesis that proposals in law and ethics are fashioned by massive concentrations of political or economic power (18) or, even worse, by nothing more than an "enchantment of reason." (19) In this intellectual fad, philosophy and law have taken a position "beyond all reason;" Farber and Sherry have recognized this as a radical assault on truth in American law. (20)

   These theoretical issues are relevant to the ethics of stem cell research because the way in which these ethics are approached is clearly influenced by theoretical concerns. In my view, the NBAC stands in the shadow of Hume's skepticism and indecisiveness. It hopes to listen to--and to incorporate, or at least appease--as many concerns as possible. (21) That is always commendable. But I must add that such concerns belong, in the sarcastic remarks of Max Weber, to the "civil phraseology" of our "peaceful cultural labor." (22) Ethical judgments such as these have been under attack not only by monistic Islam, (23) but also, and more deeply, by Western critics of liberalism ranging from Charles Taylor and Alasdair MacIntyre to the growing movement of American Hegelianism. (24) The type of judgment made by the NBAC is not truly an ethical judgment--it is a political judgment, (25) for it is no more than, in Kant's terminology, a hypothetical judgment suffering from the pathology of a pooling of public opinions.

   In the end, though, the NBAC did make recommendations to the President that carried the legal weight of public accountability regarding stem cell research. (26) Key recommendations of its perspective are valid not only because of what it practically recommended, (27) but also because of the "majesty of the law" (28) attached to its recommendations, though the process by which the NBAC arrived at its recommendations has problems of its own. (29) Some examples of those difficulties follow.

   In undertaking its stem cell deliberations, the NBAC was not charged with making judgments on the question of abortion. The ethics of stem cell research is, however, closely related to the ethics of abortion. This is clear from concerns expressed regarding cadaveric embryonic germ cells (EG cells) derived from aborted embryos. In its deliberations, the NBAC refers to many views of abortion, but is unwilling to take a position itself. This is related to the issue of how we arrive at ethical and legal judgments on stem cell research and abortion. In my view, it is necessary, but not sufficient, to refer to "[t]hose who believe that elective abortions are morally acceptable" or "[t]hose who view elective abortions as morally unjustified" (30) in arriving at ethical and legal "recommendations." The NBAC does promulgate such recommendations, but how did it arrive at them--through a prudential "balancing" or "weighing" of multiple factors? (31) In affirming that "abortion is an institutionalized practice in which certain categories of human life (the members of which are considered by some to have the same moral status as human adults) are allowed to be killed," (32) the NBAC recognizes the existence of a moral judgment made "by some," but is not itself making a moral judgment. Furthermore, to give additional examples of moral recommendations, the NBAC is careful to separate the abortion decision from the request to donate cadaveric embryonic material for research on EG cells. (33) And it will permit ES cell research only on surplus embryos obtained from in vitro fertilization (IVF) conducted for purposes of promoting procreation. (34) The NBAC would prohibit the creation of embryos for purposes of stem cell research. (35)

   These recommendations raise the basic ethical question of when human life begins, and what can be considered to be human life. (36) In all these cases, however, the question is unsatisfactorily raised for these reasons: (a) The NBAC lists the various perspectives represented by religious groups such as Roman Catholics, Protestants, and Jews; then (b) mentions its own "intermediate position," which states "that the embryo merits respect as a form of human life, but not the same level of respect accorded persons." (37) The NBAC, however, does not say why the embryo merits respect. The NBAC, throughout its report, merely presents various perspectives and does not appear to know--or is not able to formulate--what constitutes "moral status" and what philosophical or theological grounds could or must be provided to establish "humanness." It appears that the best it can do is to observe that neither the more "conservative" nor the more "liberal" perspectives, that affirm or deny the moral status of the embryo, are able to present their positions convincingly. (38) The NBAC states:

   Although it is not clear that those who advance this [more liberal] view are able to establish the point at which, if ever, embryos first acquire the moral status of persons, those...