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Bioethics and Medical Ethics

Embryo Research as a Paradigm of Ethical Pragmatics

Dieter Birnbacher

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ABSTRACT: Research on the human embryo is one of the most obstinately controversial issues of international bioethical debate. There has not been enough of a consensus on this issue to allow for more than a formal compromise within Europe. I argue in this paper for a pragmatic approach to the problem which accords priority to "want-regarding" considerations but does not fail, as most utilitarian approaches do, to give due weight to the "morality-dependent harms" caused by the practice of embryo research to those rejecting it from other than want-regarding principles. I suggest that in deeply controversial bioethical issues a consistent want-regarding perspective should be prepared, under certain narrow conditions, to make pragmatic trade-offs between the inherent merits of the practice in question and the averse emotions of the public. These conditions are that the averse emotions are widespread, felt to be of existential importance, and stable under additional information, and that the costs in terms of reduced freedom and foregone humane progress do not seem excessive.

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Research on the human embryo is one of the most obstinately controversial issues of international bioethical debate. There has been not enough of a consensus on this issue to allow for more than a formal compromise even within Europe. In Germany, embryo research has been strictly prohibited since the Embryo Protection Act came into force in 1990. In other countries, such as Great Britain, research on the human embryo is permitted under certain narrowly defined conditions. But even in the countries with a ban on embryo research so much political pressure is exercised for a less rigid policy especially by medical and biological researchers that there is reason to doubt whether the ban on embryo research will be maintained in the long run.

What is interesting about the debate from a philosophical point of view is the remarkable absence, for most of the time, of clear and stringent principles. Thus, there is some kind of consensus, at least in Europe, that human embryos should not be produced for research purposes. If embryos are made the objects of research at all they should be "supernumerary" embryos coming from in vitro fertilisations which have aimed at implantation in the maternal womb but which, for some reason or other, have not been used for this purpose. Even if there is an obvious moral difference between, one the one hand, producing an embryo with a view to allow it to develop into a mature human being and, on the other hand, producing with a view of doing research with it and discarding or destroying it afterwards, it still remains to be explained why so much weight is given to intention in this context, given the fact that even embryos produced for reproductive purposes run a risk of failing to reach maturity. Another issue where principles are hard to find is the differentiation between "consuming" embryo research and abortion. Aborting an embryo up to 14 days of normal development is commonly judged to be ethically less objectionable than doing research with it, so that we have the paradoxical situation that manipulating a human embryo is held to be more objectionable than killing it. Sure, there are a number of circumstantial factors that might explain the differentiation. Research is an impersonal, unemotional and commonly institutionalised affair, whereas abortion is something personal and emotional. But again, it is far from clear that these intuitive factors have the ethical relevance they should have if the moral differentiation is to be maintained.

What are the arguments against embryo research in the early stages of its development (up to 14 days)? To take up Brian Barry's useful distinction, one may classify the arguments as either want-regarding or ideal-regarding. They are want-regarding if they refer to the satisfaction of preferences, interests or to valuable experiences of conscious beings, they are ideal-regarding if they refer partly or exclusively to values, principles and ideals not reducible to the preferences, interests or experiences. My reason to prefer this dichotomy of ethical arguments to others is that I think that it is plausible to postulate a general normative priority for want-regarding arguments over against ideal-regarding arguments. Want-regarding arguments are more universalizable (in a non-Harean sense) in so far as they are based on value assumptions shared by all axiological standpoints. Whereas the moral relevance of interests and the satisfaction of preferences is accepted by any axiology we know there is considerable dispute, among cultures, world-views and people, about the values underlying ideal-regarding arguments such as metaphysical conceptions of man, ontological values and ideals of virtue. Of course, arguments referring to preferences and interests of conscious beings are easily deprecated as shallow and banal as compared to arguments based on some deeper vision of man and reality. On the other hand, they have the advantage to be much more likely to meet the claim to universal validity inherent in moral principles and moral judgements. You are on much safer ground, epistemologically, in claiming preference-satisfaction as an objective value than making the same claim for preference-independent values like human dignity (in some of its senses), sanctity of life or ontological harmony.

It might seem evident that on the premiss that want-regarding considerations have ethical priority the common objections against embryo research do not stand up to criticism. In fact, this is the result arrived at by utilitarian bioethicists like Richard Hare and Peter Singer. On the face of it, this reasoning is conclusive. There is every reason to believe that an embryo up to the stage of 14 days of normal development is non-sentient and cannot have preferences, wants or any other kind of conscious experience which might be affected by the way others are dealing with it. On a purely want-regarding basis, therefore, there is no reason why we should not manipulate and finally kill it for research purposes. Given that it is certain that a human embryo will never reach the stage at which consciousness begins, either by natural causes or by human intervention, there can be no valid objection to embryo research on this basis, at least as far as the embryo is concerned. Talking of the "needs" of the embryo at this early stage (which might me frustrated by manipulation or killing) makes sense only as a metaphorical manner of speech which cannot carry ethical weight. There is even reason to doubt whether the talk of "obligations" towards the embryo (sometimes used in the literature) is really meaningful. It seems that obligations "towards" a being (and not only "with regard to" that being, to use the Kantian terms) presuppose that that being is capable of sentience, if not at present then at some later stage of development.

The standard objection to the want-regarding reasoning is that it ignores the specifically human quality of the embryo and in so far fails to do justice to the central intuition that it is not just embryo research but human embryo research that gives rise to ethical criticism. Let me make it clear from the start that this objection need not be understood in a way that makes it vulnerable to the speciesm attack. This objection need not be taken to mean that it is the specifically human quality of the embryo that makes it worthy of a degree protection not granted to embryos of non-human species. It can also be taken to refer to the fact that there would be a profound and disturbing incongruity in our ways of dealing with human beings if their right to protection would be made dependent on their stage of individual development. In this interpretation it is not the fact that human embryos are human that matters but the fact that human embryos would in fact be granted full protection as outgrown human individuals if they had not been made the objects of research. It is not their humanity that matters but their individual potentiality — even though both factors are indirectly related by the circumstance that, as a matter of fact, the outgrown individuals of the human species are granted more protection against killing and manipulation than individuals of non-human species.

It is clear, however, that from a purely want-regarding point of view, potentiality is as irrelevant as species membership, given that the potential in terms of want-satisfaction of the individual foregone can be fully substituted by the potential in terms of want-satisfaction of other individuals. The potentiality principle which says that if x has certain rights, a potential x has the same rights, or the same rights to a lesser degree, is itself an ideal-oriented principle. And though the individual potential in terms of want-satisfaction of the human embryo which is made the object of research is, as it were, wasted, this is no serious objection from a want-regarding point of view as long as there is no scarcity in human potential and as long as the research is not itself wasteful qua futile or redundant. On a want-regarding basis — as indeed on some versions of the individual potentiality principle — moral status and moral rights are clearly supervenient on developmental status. The moral status changes with changes in biological and psychological status, so that the moral status of a human being from conception through to birth to adulthood to old age, death and final dissolution undergoes a succession of normative shifts. Obviously, this is more in conformity with widespread moral intuition than either a pure species principle or the potentiality principle in some of its versions. On a pure species principle the human zygote would more worthy of protection than an adult chimpanzee, which. at least in my view, is grossly counterintuitive. On a pure, expectancy-independent potentiality principle the required degree of protection would be the same for all stages of development if only there is a chance that the embryo will develop into a born individual under optimal conditions, which, again, is highly counterintuitive. On an expectancy-dependent potentiality principle, again, an average human embryo in its third month would be even more worthy of protection than an average human adult since its life expectancy is greater. What is equally obvious, on the other hand, is that the want-regarding principles comes into conflict with widespread intuitions in denying the human embryo any normative status whatsoever.

As is well known, moral philosophers are deeply divided on the issue which side is to dominate if principles clash with intuitions. It is true, ultimately even principles depend on intuitions, but then the question is on which level of generality intuitions should serve as standards — on the level of general principles, of moral rules, or of concrete moral judgements. I personally doubt whether intuitions in bioethics are sufficiently fixed and sufficiently stable to yield standards against which moral norms can be measured. There is considerable disagreement even among professional ethicists about what degree of protection is due to human embryos in their first stage of development, and indeed, whether they deserve protection at all. Some writers are more inclined to accept experiments on early human embryos than on mature mammals, arguing, plausibly to my mind, that mature mammals are more natural objects of empathy and emotional identification. Some think that the early embryo deserves not so much respect as a person, or respect of its "human dignity", but rather the kind of piety that is due to human corpses, i. e. a weak kind of protection that can be is overridden by utilitarian or other consequentialist considerations. At the other extreme, some Catholic writers tend to grant even to the early human embryo the full status of a person and to extend to it, at least in theory, the protection due to adult human individuals. Taken together, the intuitive situation is simply too chaotic to base principles on anything like intuitions.

My thesis is that the purely want-regarding perspective, as exemplified by Hare and Singer, goes wrong in failing to give sufficient weight to indirect want-regarding considerations. The consideration I have in mind is the widespread emotional reaction to the practice or prospect of embryo research. As, among others, Mary Warnock has pointed out, this reaction is of a particularly intense and elementary character. It is more instinctive than considered or rational, which, however, should not tell against but rather in favour of its moral relevance. It is true, this instinctive reaction comes in various degrees. In some persons, it is no more than a slight uneasiness, in others it is a feeling of great intensity and existential import. Its core content can be described as the sentiment that human life in whatever stage of development should not be instrumentalised in that radical way in which embryos are instrumentalised in "consuming" embryo research. This feeling is so widespread in Germany that the Constitutional Court (the Bundesverfassungsgericht) went so far as to apply the second formula of Kant's Categorical Imperative (according to which man should not be treated as a mere means) even to the human embryo in its various abortion decisions, in spite of an ongoing controversy among jurists and philosophers about whether the early human embryo is rightfully subsumed under the constitutional concept of human dignity. This feeling also might help to explain why the belief is widespread that manipulation of the human embryo by research is a more serious violation of the principle of "Menschenwürde" than killing it, given the fact that scientific manipulation is seen as a more radically instrumentalising act than complete destruction.

It might be objected that these feelings are essentially bound up with certain moral viewpoints, and that if these viewpoints are indefensible these feelings cannot be appealed to as arguments against embryo research. Would it not be viciously circular to appeal to moral feelings of indignation, protest or shame in order to justify the moral judgements implied in these very feelings? Should one not have independent grounds for the truth of these implicit judgements in making the feelings count against the practice in question?

This objection rests on a misunderstanding. What is relevant form a want-regarding viewpoint is not the truth or adequacy of these feelings but their mere existence. What counts, from a want-regarding perspective, is nothing but the actual occurrence of these feelings, together with the fact that these feelings are stable under additional information, and that they are felt by those who have them to be of central and existential importance.

In my view, then, there are good want-regarding arguments against the practice of embryo research, even though of a purely indirect kind. They do not derive from any inherent "rights" of the human embryo, nor from its inherent normative status. Instead, they derive from the fact that this kind of practice is felt to be unacceptable to morally sensitive observers, on explicit or implicit principles which themselves cannot be endorsed on the basis of purely want-regarding principles.

I call this kind of indirect argument "pragmatic" because is essentially depends on a number of contingent circumstances over which the ethicist has no control but which his principles compel him to take into account in his practical judgements. There contingent facts on which the argument essentially depends are of two kinds :

1. The emotional reaction must be sufficiently intense, sufficiently stable and sufficiently widespread to qualify, in want-regarding terms, as a valid objection against a practice that is otherwise unobjectionable on want-regarding grounds;

2. The actual and potential harm done by foregoing the practice felt to be unacceptable must be weighed against the "morality-dependent harms" (Honderich) caused by doing or accepting it.

At the present moment, both conditions seem to me to be fulfilled in the case of embryo research, at least in the cultural climate from which I come. Reserves about embryo research are strong enough to deserve to be protected, and the prospects of embryo research in scientific, medical and cultural respects do not seem substantial enough to tilt the balance to the permissive side. This holds true for the present. The situation may change completely, both in descriptive and normative respects, if new prospects open up and embryo research should, for example, prove to be necessary to develop or refine a spectacularly successful cancer therapy. It is to be expected that such a situation would not only change the normative balance but also — for reasons of reducing cognitive dissonance — the psychological situation by weakening reserves about this kind of research.

Making indirect reasons central to one's moral stance toward some controversial practice has some puzzling and irritating elements which should not be left unnoticed:

1."Pragmatic" arguments against or in favour of a certain practice, of the kind presented here, have obvious relativistic implications. If the issue whether embryo research is immoral or not depends less on its inherent nature than on its contingent cultural and historical setting the same practice can be morally permissible in one setting and not permissible in another.

2. "Pragmatic" arguments with respect to psychological acceptance or non-acceptance run the risk of being overly conservative. Are we perhaps overly sentimental in protecting existing moral sensibilities? If acceptance is made a condition of acceptability, how can we make room for moral reform and more enlightened and more adequate moral attitudes, especially in view of the fact that moral emotions are less easy to change by rational argument than moral judgements so that changes in moral emotions often lag behind changes of moral conviction? If non-acceptance of embryo research tells against the permission of embryo research, does not non-acceptance of homosexuality equally tell against the permission of homosexuality? Mary Warnock's reply to this was that the social rejection of embryo research cannot be compared to the social rejection of homosexuality because the latter largely rests on "uneducated opinion". But this reply is hardly satisfactory since it is far from clear that the rejection of embryo research is altogether more "educated". In fact, the crucial difference between homosexuality and embryo research is not the degree of education testified by their rejection but the moral costs incurred by a moral or legal ban. These are incomparably higher in the case of a ban on homosexuality than in the case of a ban on embryo research. This shows that sentimental arguments of the kind proposed are not, after all, overly conservative. It all depends on the values in the other scale of the balance. As soon as important values like personal freedom and health are compromised by a conservative moral strategy there is every reason to change the strategy in a reformist direction.

3. The kind of "pragmatic" argument given against embryo research is not without its psychological paradoxes. The ethicist who decidedly gives priority to want-regarding arguments is driven by these very arguments to take the side of those who oppose embryo research from normative premises which he personally does not accept. He is compelled by his very principles to deviate from what these principles seem to suggest. The psychological dilemma created by this kind of "moral heteronomy" is undeniable, but it should be carefully distinguished from the allegation of a logical or moral dilemma. The philosopher who gives priority to want-regarding arguments is in no way inconsistent in paying due regard to the preferences of others, including their moral preferences. And even morally he does not in any way compromise himself in advocating, as it happens, practical strategies he would not think of advocating himself in abstraction from the preferences and sensibilities of others.

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Barry, B.: Political argument. London 1965.

Birnbacher, D.: Ambiguities in the concept of Menschenwürde. In: K. Bayertz/T. H. Engelhardt (eds.): The principles of Menschenwürde and sanctity of life in bioethics. Dordrecht 1994, 107-122.

Hare, R. M.: Embryo experimentation: Public policy in a pluralist society. Bioethics News 1 (1987), 106-123.

Honderich, T.: "On liberty" and morality-dependent harms. Political Studies 30 (1982), 504-514.

Singer, P. et al. (eds.): Embryo experimentation. Cambridge 1990.

Warnock, M.: A question of life. The Warnock report on human fertilisation and embryology. Oxford 1985.

Williams, B.: Types of moral argument against embryo research. In: R. Chadwick (ed.): Ethics, reproduction and genetic control. London 1987, 185-194.

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