On the Relation between Moral, Legal and Evaluative Justifications of Pre-implantation Genetic Diagnosis (PGD)

Transcription

1 On the Relation between Moral, Legal and Evaluative Justifications of Pre-implantation Genetic Diagnosis (PGD) Georg Lohmann ABSTRACT In Germany the question whether to uphold or repeal the judicial prohibition on Pre-implantation Genetic Diagnosis (PGD) is being debated from quite different standpoints. This paper differentiates the major arguments according to their reasons as a) moral, b) evaluative (i.e. cultural/religious), and c) legal. The arguments for and against PGD can be divided by content into three groups: arguments relating to the status of the embryo, focusing on individual actions in the implementation of PGD, and relating to the foreseeable or probable consequences of PGD. In Germany, from a legal perspective, the status of the embryo does not permit the intervention of PGD; from a purely moral perspective, a prohibition on PGD does not appear defensible. It remains an open question, however, whether the moral argument permitting PGD should be restricted for evaluative (cultural) reasons. The paper discusses the species-ethical reasons, for which Jürgen Habermas sees worrisome consequences in the wake of PGD to the extent that we comprehend it as the forerunner of a positive eugenics. It would so disrupt the natural preconditions of our universal morality. The question of whether to prohibit or allow PGD is not merely a question of simple moral and/or legal arguments, but demands a choice between evaluative, moral and (still to be specified) species-ethical arguments, and the question remains open. KEYWORDS Pre-implantation Genetic Diagnosis (PGD); Moral Status of the Embryo; Jürgen Habermas; Species Ethics; Positive Eugenics Introduction The question whether to uphold or repeal the legal prohibition on Pre-implantation Genetic Diagnosis (PGD) in the Federal Republic of Germany is being debated from a wide variety of different standpoints. One task of philosophy is to clarify concepts and arguments. In this spirit, I would like to clarify various kinds of arguments arising around this issue. In a second step I would like to focus on the varieties of reasons offered by proponents and opponents of PGD and attempt to work out their possible influence on a decision regarding the issue. 1. On the relation between moral, evaluative and legal arguments The major arguments offered can be differentiated according to their reasons as a) moral, b) evaluative, and c) legal arguments. 1 A) Moral arguments base an impartial 2 judgement on whether something (a rule, an action) is morally right or wrong. Because of their impartiality they claim to be able to convince every person regardless of particular ideological or religious values. In this way we found universal moral obligations such as equal respect and concern to all, or not harming others etc. Moral subjects, who consider themselves bound to a course on the basis of reasoned convictions, are capable of well-considered, i.e. grounded determinations of their position; but at the same time they remain finite and vulnerable persons due to the particular anthropological nature of their claims. Moral objects, towards whom moral subjects feel themselves bound, would likewise be moral subjects but on the other hand are not capable of well-considered determinations of their own position, though they also of course are characterized by morally relevant qualities, such as the capacity to suffer or to AUTHOR INFORMATION: Georg Lohmann, PhD. Otto-von-Guericke-Universität Magdeburg, Institut für Philosophie, Postfach 4120, D Magdeburg (Germany). Georg.Lohmann@gse-w.uni-magdeburg.de Ethical Perspectives 10 (2003)3-4, p. 196

2 feel pain. Insofar as they have not (yet) become moral subjects, they are genuine moral objects. The universal morality of respect towards persons is in turn dependent on the high esteem accorded to rational capacities for self-determination and on the evaluative belief in the moral relevance of feelings. Through them is expressed an evaluative human self-understanding, which to a certain extent has to be presupposed if the modern moral concept of universal and equal respect is not to be foreshortened in our thinking. Because these values are necessary presuppositions of our moral judgements, they carry a special weight. To ignore them would be to renounce the possibility of rational argumentation. B) Evaluative 3 arguments recommend that we act, or refrain from acting, in certain ways in relation to commonly shared cultural values. They make something appear advisable because it seems we should prefer it or reject it in light of particular values. Evaluative arguments are thus always relational, since they make something appear preferable only in relation to something else. For this reason the notion of an absolute value, one that does not relate at the same time to other values, is conceptually inconsistent. 4 We speak today of a fact of pluralism (John Rawls), of diverse (ideological, religious or cultural) valuations. Evaluative arguments can be of shifting weight; in them is expressed the evaluated relevance and meaningfulness of something for us. An evaluative relevance can clearly come into conflict with the aspect of moral correctness. In such cases we turn to law to find binding and normatively acceptable guidelines for all persons concerned. C) In liberal-democratic civil society, the law decides these conflicts through a political decision on the part of a lawmaker legitimated for this purpose. Modern law itself is bounded by principles of legitimation, especially human rights, and all citizens are treated equally as adressees and as authors of law. A democratic lawmaker is in principle free in his decisions, and can in principle include any aspect or matter in the framing of a legal rule. Nonetheless the claim of legitimacy of law limits this republican sovereignty on the part of the lawmaker. What has priority before any special evaluative concepts is the moral rightness of a decision, and modern law claims to be neutral to special religious or cultural values. This is why a serious breach of general moral norms is not allowed in the name of evaluative ideological reasons. But it can happen that a democratic lawmaker gives the boundaries of the accepted and permitted a more narrow interpretation than morality would justify. This may happen especially when he wishes to give special evaluations a more prominent role, which of course leads to a conflict with the claimed neutrality of the law. Such is the case with the law for the protection of embryos in Germany. 2. A list of the arguments for and against PGD The arguments for and against PGD can be divided by content into three groups: 1. Arguments relating to the status of the embryo. 2. Arguments focusing on individual actions in the implementation of PGD. 3. Arguments relating to the foreseeable or probable consequences of PGD. Since I cannot consider all arguments here individually, I will have to limit my remarks to exemplary arguments within each category. 3. Arguments relating to the status of the embryo Proponents and opponents of PGD are particularly at odds when it comes to appraising the status of the embryo. The judgements arrived at by moral and evaluative ideological arguments are controversial. On the legal front, however, the situation in the Federal Republic of Germany is clear. 5 The Law for the Protection of the Embryo, based on Articles 1 and 2 of the constitution (protection of life and safeguarding dignity), stipulates that from the moment of cellular union, the human embryo is entitled to the basic right to life and human dignity as defined by ethical and constitutional Ethical Perspectives 10 (2003)3-4, p. 197

3 standards. As clear and unambiguous as the situation may seem from the perspective of current law, a closer look reveals that in this case a morally open question has been legally narrowed down and adjudicated with an eye to ideological evaluations. The lawmaker has taken into consideration special ideological and religious valuations concerning the beginning of human life. This becomes especially clear by the manner in which the embryo is accorded the status of a person, and thereby the status of a bearer of subjective basic rights. There have been attempts to ascribe equal legal status to embryos based on the criteria of species membership, potentiality, identity and continuity of the embryo with later life. 6 These justifications, however, always presuppose special (religious or metaphysical) evaluative positions which are not necessarily shared by all citizens. From the standpoint of the moral concept of a universal and equal respect towards all, as outlined above, the embryo in the earliest stages of its development indeed does not seem to qualify for the status of a moral person, for it does not yet possess the faculty of sensation and cannot yet be considered a genuine moral object. To this extent a law proclaiming its inviolability after the model of the constitution s guarantee of protection to persons and their dignity would be morally unfounded. But what can be founded and justified is the concept of a development in stages, whereby the embryo advances to the status of foetus and increasingly goes on to become a genuine moral object and subject. Seen in purely moral terms, then, it would indeed be possible to defend scientific research based on the expenditure of embryos in order to better diagnose and heal diseases. In my remarks above I took note of the fact that, from the start and as their precondition, universal moral principles were bound up with evaluative decisions. If the primitive embryo cannot in fact be considered a person in the moral sense, and thus cannot be granted the status of an inviolable person secure in his rights, it still remains an open question whether the status of inviolable protection cannot be granted using evaluative reasons. This difference between a constitutionally based inviolability (Unverletzbarkeit) and, as he calls it, a species-ethical, i.e. evaluatively founded, safety from infringement (Unverfügbarkeit) is quite important for Jürgen Habermas in his debate with gene technology and with PGD. 7 What is decisive for me is that he does not seek to found the supplementary and corrective concept of a normatively mandated safety from infringement on the notion of the dignity of human life 8 a notion in any case weaker than the moral and legal concept of the dignity of the person. Rather, he seeks arguments that try to define the necessary evaluative presuppositions of a universal morality. 9 Species ethics in his sense means a value standpoint encompassing the necessary presuppositions of universal morality, which because of its intrinsic link to morality can claim a stronger weight than the plural valuations of competing religions and ideological systems. To summarize my discussion thus far: from a legal perspective, the status of the embryo does not permit the intervention of PGD; from a purely moral perspective, a prohibition on PGD does not appear defensible. It remains open, however, whether the moral argument permitting PGD should be restricted because of evaluative (ideological) reasons Arguments focusing on individual actions in the implementation of PGD Once again, I can only discuss the arguments on this point very briefly, using exemplary scenarios. One question of particular importance is whether, after a genetic examination, the necessary sorting out and rejection of those embryos showing alarming anomalies is morally permitted. The action of sorting out per se only becomes an independent problem if the moral status of embryos is given a weak interpretation. If one discovered that an embryo produced in vitro was genetically damaged, then the question arises whether the future parents are obligated to carry out a pregnancy with this embryo. If not, then a Ethical Perspectives 10 (2003)3-4, p. 198

4 rejection and sorting out of this embryo would be allowed. The opposing moral grounds could be the conviction that we cannot be obligated to harm ourselves or others. But in a certain sense we would have to settle for harm or an injury in this case anyway, in the sense that a physical disability amounts to an avoidable harm. This is an extremely difficult problem, for we have no absolute criteria for what constitutes a severe disability (and it can only be a question of severe disabilities). Nevertheless one could say that we do have criteria in a certain field for the most serious kinds of disabilities without being able to make any claims that don t permit exceptions and that it seems defensible not to let a person with such defects come to term. In this respect one could say that, after weighing the case carefully, a sorting out and rejection of such an embryo would be morally permitted. Morally, however, we are obligated to judge not only in one respect, but to take all relevant reasons into consideration. Another aspect restricted solely to the implementation of a PGD is that such an action can hardly be reconciled with a doctor s oath to cure and heal. The doctor is here led to manipulative and instrumental actions that contradict his fundamental ethos of healing. It is an open question whether he violates his moral duties in the process. 11 The more relevant question, to my mind, is whether the possibilities of genetic selection and sorting out, once created, would be applied only to the most severe, commonly recognized disabilities, or whether we would be in danger of intervening in mild or presumed cases of disability, not to mention the possibility of selecting only for purely positive traits. The barriers meant to prevent the abuse of PGD in the direction of so-called positive eugenics 12 seem to me to be very flimsy. The supporters of PGD on the National Ethics Council accent their argument precisely on this point, saying that PGD should be limited only to clearly negative cases of extremely severe and unambiguously diagnosed diseases. 13 But it is striking how divided they were over how to achieve this: either through a legal catalogue of guidelines, or through passage of a more general law. 14 It is probably not possible to give meaningful answers to these questions without making some judgement on the consequences of PGD Arguments relating to the foreseeable or probable consequences of PGD Once again I can only approach this in terms of examples. In general the following consequences of PGD are thought to be especially problematic: a) anxiety about stigmatization of, or discrimination against, disabled human beings; b) the possible misuse of PGD for a discriminatory selection of gender in certain countries (e.g. in China or India); c) a possible instrumentalization and undesired expansion of PGD out of economic interests; d) PGD as a stepping-stone on the way to a liberal, positive eugenics programme. Value judgements in regard to the possible consequences of PGD often start on the basis of so-called slippery slope or broken dam arguments. 15 They express the fear that once X and Y is permitted, there will no longer be any argument strong enough to hold back later, negative developments. Slippery slope arguments seek to hinder permission for something which would in itself be permitted, but in view of later, presumed consequences is deemed undesirable, unwanted or morally impossible. Moreover, the empirical content and the verifiability of prognostic utterances play a great role in our judgement regarding these arguments. I will have to leave this important point to one side, and concentrate instead on questions of morality, evaluative judgement and law embodied in these arguments. The arguments for points a) through c) operate primarily with moral criteria to arrive at a definition of those consequences judged to be negative. Discrimination against the disabled or a discriminatory Ethical Perspectives 10 (2003)3-4, p. 199

5 selection based on gender are not permissible from the standpoint of moral reasons. In particular they represent a violation of the principle of equality, and are therefore clearly against the law as well. However, unlike in case b), it is at least debatable (not verifiable) whether PGD implies any disqualification of the moral status of disabled persons; it also seems empirically doubtful whether the admission and practice of PGD would lead to a worsening of their social situation. 16 But disabled people, who now had to face the spectacle of their own disabilities becoming the target of pre-natal selection, could understandably be shaken and offended in their self-esteem. Although it is certainly not the case that PGD casts their existence into doubt, moral and evaluative norms demand that we pay particular attention to the conditions under which disabled people maintain their undiminished selfrespect. This obligation seems reconcilable with other obligations, and thus no compelling reason to ban PGD can issue from it. A possible economic misuse of PGD would be the expansion of its scope of application for purely economic reasons. No less unacceptable would be an unnecessary price increase in healthcare or the unequal distribution of costs. As in other cases where the possibility of misuse or the threat of injustice arises, legal measures could act to prevent or limit possible harm. For this reason the objections outlined in a) through c) do not seem to add up to compelling reasons against PGD. And where they do name justified worries for the future, these can be prevented or fenced in by legal regulations. Arguments in relation to point d) have been advanced above all by Jürgen Habermas. 17 He sees worrisome consequences in the wake of PGD to the extent that we comprehend it as the forerunner of a positive eugenics, for in this case especially there arises the chance of a gradual change in our attitude to pre-individual life. In place of a performative attitude vis-à-vis a future person, who already in the embryo is treated like a person able to say yes and no, what we have in positive eugenics is the attitude of a tinkerer. Instead of acting in accord with the classical ideal of cultivating life through the improvement of its hereditary features, he steps in like an instrumental engineer acting only according to his own design and processes embryonic cells like material. 18 Such a transformation of basic attitudes is alarming for the reason that it would so disrupt the natural preconditions of our universal morality that, according to Habermas, the very possibility of an unspoiled sense of personal autonomy as well as the recognition of all persons as equal would wither away. In both respects there are misgivings against Habermas s argument, which he does not seem to have fully worked out. I cannot go into them in detail here. 19 What seems important for our line of questioning is that the character of the entire argument is neither directly moral nor evaluative in the usual sense. Habermas claims for his species-ethical form of argumentation, as I pointed out above, a weightier status than that of a (plural) evaluative argumentation. That is why it is no longer a matter of the usual weighing of various social goals and preferences, in which the criterion of the greatest use for the whole group is decisive. Habermas s argument, therefore, at least as he understands it, cannot be called a utilitarian one. 20 Rather what is at stake here is a complex conflict of value measurements which seem to answer a contemporary problem, i.e. should PGD be allowed?, in light of a later, presumed conflict. If it were only a matter of deciding whether to allow the existence of PGD, then it seems to me that Habermas would have to make room for PGD using the same moral criteria that lead him to sanction, or at least tolerate, the existence of a negative eugenics aiming to prevent the most serious disabilities through genetic manipulation. 21 But this moral allowance seems problematic in light of the later conflict. The later conflict is defined between our interest in the integrity of a universal morality of respect for persons, on the one hand, and the (presumed) advantage granted a few parents and children by a positive, liberal eugenics programme. Disregarding all qualifications and assumptions on both sides, we could call it a conflict between our interest in moral principles and our potentially contrary utilitarian expectations. From the perspective of a universal morality of respect for persons, the necessary preconditions of morality have the same weight Ethical Perspectives 10 (2003)3-4, p. 200

6 as the observance of moral principles themselves. And since, within morality, principles have precedence over utility, it seems clear that we would choose to give equal weight to the necessary preconditions of morality as to moral principles; by the same protective logic, we would grant more importance to them than we would to cases of possible utility. Our interest in morality is nourished by the same claim that morality makes for itself. Nonetheless, as Habermas explicitly says, an appreciation of morality as a whole is not itself a moral judgement, but an ethical a speciesethical judgement. 22 The species-ethical judgement is a value judgement through which we announce that we would rather have the status of a member of a society that demands respect for each and cooperative responsibility for all than to live in a society that would mean a life in a moral vacuum. 23 This value judgement is problematical on three counts: 1) It is not certain that the alternative to a stated preference has to be so unrelievedly negative. 2) It is not certain that the dreaded alternative will necessarily follow if the genetic manipulations we have been speaking of finally do take place. This is a question of the empirical probability and the accuracy of prognoses regarding future technical developments, the typical problem of slippery slope arguments. 3) We must consider the status of this species-ethical value judgement itself, which as such corresponds formally, in terms of the extent and reach of its judgement, to the evaluative judgements that touch upon an all-encompassing conception of life. In terms of moral content, however, this species-ethical value judgement enters the scene with a claim to universality, since it claims general validity in the most diverse ideological climates. This tension, this double aspect, has thus far been given too little conceptual attention in Habermas s explications. If, in his view, the universal morality of respect rested upon accommodating life-forms (entgegenkommende Lebensformen) 24, themselves not further philosophically specifiable in the postmetaphysical conditions of the present, then the theorist Habermas suddenly found himself faced with the task of providing a formal-universal theory of these contents, of which his interpretation of his own natural history forms a part. What makes this philosophical enquiry so exciting is the possibility that it may become necessary once again to reformulate the boundaries between metaphysics and post-metaphysics. The question is whether such a species-ethical value judgement amounts to must ultimately amount to a metaphysical claim, in which case it cannot be considered (like other evaluative judgements) with principally equal pluralistic ideological judgements. These basic questions would have to be clarified in order to ascertain the weight of objections based on the alleged stepping-stone function of PGD. If, on all levels of this complex argument, we were simply concerned with questions of an appropriate assessment and judgement of preferences, then indeed the philosophical balloon would burst and the whole enquiry would amount to a normal question of morality. In this case we would have to agree with the position of Reinhard Merkel, for whom a utilitarian decision of the slippery slope problem is not acceptable; for moral reasons, therefore, alleviating the suffering of concrete persons would take precedence over the protection of general social structures, and PGD would be, with the above-mentioned qualifications, legally permissible. 25 If, on the other hand, one is convinced that the debate over the consequences of PGD is not merely a question of simple moral arguments, but demands a choice between evaluative, moral and (still to be specified) species-ethical arguments, then the question remains open. In both cases, of course, the standards of empirical verification remain in force, along with the scientific criteria of an adequate judgement of risks coupled with statements of probability. But having considered all this, the question of whether to prohibit or allow PGD still confronts us with thornier questions than the pragmatism of academic ethical discourse will often allow itself to admit. Ethical Perspectives 10 (2003)3-4, p. 201

7 Notes 1 See Georg Lohmann, Zur moralischen, ethischen und rechtlichen Verantwortung in Wissenschaft und Technik, in Philosophieren aus dem Diskurs. Beiträge zur Diskurspragmatik, ed. Holger Burckhart and Horst Gronke (Würzburg: Königshausen & Neumann, 2002), See Georg Lohmann, Unparteilichkeit in der Moral, in Die Öffentlichkeit der Vernunft und die Vernunft der Öffentlichkeit. Festschrift für Jürgen Habermas, ed. Klaus Günther and Lutz Wingert (Frankfurt am Main: Suhrkamp, 2001), I put evaluative in quotation marks, just to mark that I use evaluative here in the the special meaning (in a broader sense) of cultural evaluative. Dieter Birnbacher is in this context talking of cultural norms ( Kulturnormen ). Dieter Birnbacher, Embryonenforschung erlauben oder verbieten? in Verantwortung in Recht und Moral, ed. Ulfried Neumann and Lorenz Schulz (Stuttgart: Steiner, 2000), 164 ff. 4 See Georg Lohmann, Werte, Tugenden und Urteilsbildung, in Werte in der politischen Bildung, ed. Gotthard Breit and Siegfried Schiele (Bonn: Bundeszentrale für politische Bildung, 2000), In other European countries the situation differs, see Nationaler Ethikrat, Genetic Diagnosis Before and During Pregnancy (Berlin: Nationaler Ethikrat, 2003), For the different argumentation see now: Gregor Damaschen and Dieter Schönecker, Der moralische Status menschlicher Embryonen. Pro und contra Spezies-, Kontinuums-, Identitäts- und Potentialitätsargument (Berlin/New York: De Gruyther, 2003). 7 See Jürgen Habermas, Die Zukunft der menschlichen Natur (Frankfurt/Main: Suhrkamp, 2001), 59 ff. 8 See Habermas, 2001, I interpreted Habermas s approach as an argumentation for indirect duties in a Kantian sense, see Georg Lohmann, Die Herausforderungen der Ethik durch Lebenswissenschaften und Medizin. Zum Streit um den normativen Status des Frühembryos», in Jahrbuch für Recht und Ethik, Vol.10, ed. by B.Sharon Byrd et. al., Berlin: Duncker & Humblot, 2002a, 89 ff. 10 Cf. Georg Lohmann 2002a; See also Jürgen Habermas, Replik auf Einwände, Deutsche Zeitschrift für Philosophie 50/2 (2002): , See Nationaler Ethikrat, 79 f. 12 See Allen Buchanan et al., From Chance to Choice: Genetics and Justice (Cambridge: University Press, 2000), 104 ff. 13 See Nationaler Ethikrat, 59 ff. 14 See Nationaler Ethikrat, 63 ff. 15 See Barbara Guckes, Das Argument der Schiefen Ebene (Stuttgart: Urban & Fisher Verlag, 1997); Bettina Schöne- Seifert, Medizinethik, in Angewandte Ethik, ed. Julian Nida-Rümelin (Stuttgart: Kröner, 1996), 552 ff. 16 See Nationaler Ethikrat, p. 76f. 17 Habermas, Die Zukunft der menschlichen Natur. 18 Habermas, Replik auf Einwände, Ludwig Siep, Moral und Gattungswesen, Deutsche Zeitschrift für Philosophie 50/1 (2002): ; Dieter Birnbacher, Habermas ehrgeiziges Beweisziel - erreicht oder verfehlt? Deutsche Zeitschrift für Philosophie 50/1 (2002): That is the argumentation of Reinhard Merkel. Reinhard Merkel, Forschungsobjekt Embryo (München: dtv, 2002), 208 f. and See Ludwig Siep, 118. Habermas is arguing against PGD in Habermas, Die Zukunft der menschlichen Natur, 117 ff. 22 Ibid., Ibid., See Ibid., 16. For the concept of entgegenkommende Lebensformen in Habermas, see Georg Lohmann, Kritische Gesellschaftstheorie ohne Geschichtsphilosophie? Zu Jürgen Habermas verabschiedeter und uneingestandener Geschichtsphilosophie, in Soziologie und Geschichte. Zur Bedeutung der Geschichte für die soziologische Theorie, ed. Frank Welz and Uwe Weisenbacher (Opladen: Westdeutscher Verlag, 1998), See Merkel, 199 ff., 263. Ethical Perspectives 10 (2003)3-4, p. 202

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