The objective of this article is to find middle ground between the supporters and opponents of biotechnology by perpetuating the existing legal compromise pertaining to the complete range of health and welfare doctrines relevant to the biotechnological industry. The author aspires neither to add to nor detract from this liberal democratic consensus, but to preserve its constitutive balance between positivism and natural law and over-regulation and under-regulation in the hopes of stabilizing new political fault lines developing around the few biotechnological innovations already grabbing headlines. The most feasible solution is to extend the existing liberal democratic compromise with respect to equal protection, reproductive rights, the First Amendment, human subject experimentation, patent law, and parental rights. This includes banning or monopolizing certain biotechnologies and extending substantive special respect to the ex vivo living human embryo. Biotechnology must not be left to regulate itself.
I am thy creature, and I will be even mild and docile to my natural lord and king if thou will also perform thy part, that which thou owest me. (1) Most agree that biotechnology is leading to a revolution in medicine. Less appreciated is the challenge biotechnology poses to the prevailing liberal democratic consensus pertaining to health and welfare. Biotechnology necessarily impinges upon key health and welfare doctrines at the core of our collective understanding of what it means to advance personal autonomy, self-determination, liberty, and equality within a market economy.
Supporters are confident that the biotechnological industry will affirm these values and channel potentially life-saving biotechnological innovations in directions harmless to all but the human embryo. (2) They favor essentially a self-regulated industry, where medical professionals decide whether and when to create or modify human clones, kids, and chimera. (3) In contrast, opponents of biotechnology fear the natural inclination of the market is to lead us toward " the dehumanized hell of Brave New World." (4) They assert a fundamental, deontological right to ban or strictly limit nearly all forms of biotechnological research.
The modest objective of this Article is to find middle ground between these camps by perpetuating the existing legal compromise pertaining to the complete range of health and welfare doctrines relevant to the biotechnological industry This Article aspires neither to add to nor detract from this liberal democratic consensus, but to preserve its constitutive balance between positivism and natural law and over-regulation and under-regulation in the hopes of stabilizing new political fault lines developing around the few biotechnological innovations already grabbing headlines. (5)
Part I explores human cloning and two other key biotechnologies that will frame the political debate, including genetic screening and genetic engineering. To provide an historical political economic perspective, we compare their development with a standard model of technological change embracing invention, innovation, and diffusion. This section concludes that biotechnology is leading to a more radical transformation of the political economy than any previous cluster of innovations, because it will impact not merely our tools, but our species.
Part II identifies the primary international and national legal regimes that genetic screening, human cloning, and genetic engineering will either radically alter or which will regulate them, including equal protection, reproductive rights, the First Amendment, human subject experimentation rules, patent law, and parental rights. From the constitutional and other legal principles underpinning these regimes we illuminate the contours of the existing liberal democratic consensus.
Part III wrestles with how to extend this consensus to the biotechnological industry without modifying the existing legal regimes. It explores a variety of policy recommendations, which become tougher as the legal issues become less familiar and jurisprudential philosophies are counterposed. Biotechnology uniquely raises questions like what rights should be accorded ex vivo living human embryos. Applying the special respect paradigm, I conclude human embryos merit some substantive rights the unregulated biotechnological industry would not accord them.
In Frankenstein, Mary Shelley reminds us of the consequences of failing to temper technology. (6) Victor Frankenstein created a monster that when released into the world without direction or moral guidance was left to create a community on its own violent terms that proved less humanitarian than the society from which the creature emerged. (7) In the last scene, the monster destroys its creator. (8) This Article offers one strategy for avoiding a similar mistake: merely extending the prevailing legal regime to govern biotechnology.
This section explores the radical implications of genetic screening, human cloning, and genetic engineering for the political economy. It compares the path that biotechnology is taking with a standard model of radical technological change, and concludes that biotechnology will lead to an even more radical transformation of the political economy than other technologies have caused.
Scholars have developed a standard model for technological change incorporating three phases: invention, innovation, and diffusion. (9) Invention is the process of arriving at an idea for a product or process and demonstrating its feasibility. (10) Innovation is the process by which the invention is first brought into use through improvements and refinements of the invention. (11) Diffusion involves the spread of the innovation into general use, thereby impacting the political economy. (12) Ordinarily, this process follows what is termed an S-curve. (13)
At the bottom of the S-curve, the slope is relatively fiat. This is because in the initial phase after invention, an innovation spreads slowly due to its high price, novelty, and inefficiency. (14) As the innovation improves, more consumers adopt it, providing experience, feedback, and funds for additional advances attracting more consumers. (15) The curve steepens as diffusion increases rapidly. However, the rate of diffusion ultimately slows again as further improvements are impossible, economies of scale are maximized, and most of the public has purchased the innovation. (16) The S-curve flattens again at this point.
Innovations usually cluster together, reinforcing one another and diffusing together along the S-curve or slowing one another down. (17) Bottlenecks involving one innovation in a cluster can hinder diffusion of others, whereas advances with one may accelerate the diffusion of others. (18) The invention of the Watt engine with a separate condenser is an example of the latter, because it led to a chain of innovations improving steam engine performance, including rotary motion, the governor, the compound engine, and the high-pressure engines. (19) Improvements in metallurgy, especially iron and steel, also improved the efficiency of the steam engine. (20)
Bottlenecks or advances in technological diffusion are caused not only by technology, but also the legal, institutional, and managerial environment. (21) The most radical innovations often arise as pure scientific discoveries, but their diffusion ultimately requires or triggers not merely ancillary technologies, but also sociotechnical and legal adaptation. (22) The doctrine of negligence, for example, emerged around 1825, as a separate basis for tort liability "probably stimulated a good deal by the enormous increase of industrial machinery in general and by the invention of railways in particular." (23)
As an innovation interacts with its environment by requiring or triggering ancillary technologies, socio-technical, and legal changes, it eventually becomes cheap, reliable, and safe enough to create significant consumer demand and, thus, to round the lower S-curve. After introduction of the Watt steam engine and related improvements together with a new liability system, for example, steam technology diffused rapidly from rail to water pumps, sea transport, agriculture, electricity generation, assembly lines, and other areas until the range of possible uses for the Watt engine was exhausted and further improvement of the engine was impossible. (24)
On the upswing of the S-curve, rapid diffusion of an innovation can lead to serious political, social, and economic dislocations. For example, the steam engine and a few other technologies led to the Industrial Revolution, (25) including its radical new patterns of organization, management, and labor, as well as its social externalities. (26)
Structuralists have tried to generalize about the cyclical impact of radical clusters of innovations on the international political economy. (27) At the micro level, product business cycles are well accepted, suggesting that as a technology ages, social displacements occur as manufacturing moves to less developed countries where factors of production are cheaper. (28) At the macro level, Kuznets, Schumpeter, and Mensch drew a causal connection between the so-called Kondratieff long wave and the most radical technology clusters to date. (29) Other scholars have tried to draw linkages between these long cycles and international conflict and changes in world leadership. (30)
Whether or not these macro linkages exist, the standard model of technological change clearly suggests it triggers social, economic, and legal change. This is not to imply a crude technological determinism diminishing the importance of other influences. (31) Rather, it is merely to emphasize that technological and social and legal inventions are associated and, further, that the most radical innovation clusters have been associated with the...