What is "Bioethics"? pg.5

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[D. The problem of "personhood": (con't)]

[Book V, p. 721] Why, in the first place, although they are all of a good sort, are not some better than others? True. And do you breed from them all indifferently, or do you take care to breed from the best only? From the best. And do you take the oldest or the youngest, or only those of ripe age? I choose only those of ripe age. And if care was not taken in the breeding, your dogs and birds would greatly deteriorate? Certainly. And the same of horses and animals in general? Undoubtedly. ... What consummate skill will our rulers need if the same principle holds of the human species! Certainly, the same principle holds; but why does this involve any particular skill? Because, I said, our rulers will often have to practice upon the body corporate with medicines. Now you know that when patients do not require medicines, but have only to be put under a regimen, the inferior sort of practitioner is deemed to be good enough; but when medicine has to be given, the doctor should be more of a man ... Our rulers will find a considerable dose of falsehood and deceit necessary for the good of their subjects; we were saying that the use of all these things regarded as medicines might be of advantage. ... And this lawful use of them seems likely to be often needed in the regulations of marriages and births. ... The principle has been already laid down that the best of ether sex should be united with the best often, and the inferior with the inferior, as seldom as possible; and that they should rear the offspring of the one sort of union, but not of the other, if the flock is to be maintained in first-rate condition. Now these goings on must be a secret which the rulers only know, or there will be a further danger of our herd, as the guardians may be termed, breaking out into rebellion.

[Book V, p. 722] Had we not better appoint certain festivals at which we will bring together the brides and bridegrooms, and sacrifices will be offered, and suitable hymeneal songs composed by our poets: the number of weddings is a matter which must be left to the discretion of the rulers, whose aim will be to preserve the average of population. There are many other things which they will have to consider, such as the effects of wars and diseases and any similar agencies, in order as far as this is possible to prevent the State from becoming either too large or too small.... We shall have to invent some ingenious kind of lots which the less worthy may draw on each occasion of our bringing them together, and then they will accuse their own ill-luck and not the rulers. ... And I think that our braver and better youth, besides their other honours and rewards, might have greater facilities of intercourse with women given them; their bravery will be a reason, and such fathers ought to have as many sons as possible. ...And the proper officers, whether male or female or both, for offices are to be held by women as well as by men. ... The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be. Yes, he said, that must be done if the breed of the guardians is to be kept pure. They will provide for their nurture, and will bring the mothers to the fold when they are full of milk, taking the greatest possible care that no mother recognizes her own child; and other wet-nurses may be engaged if more are required. Care will also be taken that the process of suckling shall not be protracted too long; and the mothers will have no getting up at night or other trouble, but will hand over all this sort of thing to the nurses and attendants.116

Historically, eugenics is hardly new. Yet most do not see (or want to see) the eugenic implications of major arguments throughout the history and literature of bioethics. Indeed, the term "eugenics" was rarely if ever raised in the hallowed halls of academe. However, such arguments, as we have seen, have been found throughout the works of the early bioethicists, and especially embodied in the advancing bioethics literature with its various definitions of early human beings, or vulnerable adult human beings, as "non-persons". Such definitions of "person" would rapidly be transferred to "bioethics issues" across the life-spectrum in the looming bioethics and public policy debates, inexorably linking the definitions of "life" and "death" -- and everything in-between.117

VIII. The Reign of Bioethics

A. The Ethics Advisory Board:

During the considerations of the National Commission, it recommended that certain kinds of research with the fetus and with children be submitted to a "National Ethics Advisory Board" that would be established within the Department of Health, Education and Welfare. In response, the Ethics Advisory Board118 was appointed by Califano in 1977. It is interesting to note how Jonsen describes the membership of this EAB, who were to be available as "consultants" on all DHEW programs and policies, and who were to review all research proposals that had been indicated by the National Commissions, or any others submitted to them by the Secretary: "He appointed as chair James C. Gaither, a San Francisco lawyer with no experience in the arena of health and ethics, but surrounded him with a stellar cast: two bioethicists, Richard A. McCormick [of "pre-embryo" fame] and Sissela Bok, and six physicians: Drs. David A. Hamburg, Donald A Henderson, Daniel C. Tosteson, Henry W. Foster, Robert F. Murray and Mitchell W. Spellman, the last three of whom were African-American. There were also several lawyers and lay members."119

One does have to wonder how such a membership can give "ethical advise" on such an array of complex health care and scientific research issues with little or no formal background or credentials in ethics, health care or scientific research. An M.D. degree does not in any way equate with a Ph.D. degree in a bench science research field. Related to that fact is the fact that the use of the correct science is the very first ethical requirement in these analyses (as forcefully articulated for decades by international research ethics guidelines such as the Nuremberg Code and the Declaration of Helsinki). Using blatantly incorrect science in the design, protocol or analysis of an experiment is per se unethical, as well as unscientific. Note also that there was no human embryologist on this Board, which might explain why it could finally recommend that most kinds of fetal research were "ethically" acceptable if reviewed by them first. This tactic would be used by similar bioethics committees and panels to follow.

Of interest, again, is the position that the EAB took on the "moral status" of the early human embryo in their Report, in which they recommended the use of federal funds for in vitro fertilization (IVF) research (a form of human embryo research). Reiterating the conclusion of the National Commission: " ... the human embryo is entitled to profound respect, but this respect does not necessarily encompass the full legal and moral rights attributed to persons."120 This conclusion had already been embraced by ACOG and the American Fertility Society several years earlier.121 (Several of the members of their "ethics committees" included Dr. Howard Jones, Richard McCormick, Clifford Grobstein, LeRoy Walters and John Robertson. Robertson122 later used the scientifically erroneous "pre-embryo" argument in ultimately winning the Tennessee IVF frozen embryo case.)

The enduring effect of such disingenuous politics has been to morph what is a strictly scientific question into one that is strictly philosophical or "moral" -- enabling the objective scientific facts of human embryology to be cast as just one "moral position" among many other "moral positions" to be weighed and balanced for "consensus" purposes.

In 1980 the Ethics Advisory Board was dissolved by Secretary Harris (DHEW) after the establishment of the President's Commission.123 The fate of IVF research and fetal research was held in suspension until such time as another EAB could be appointed to consider the issue more fully. (As we will see, this would eventually be accomplished in 1993 with the passage of the NIH Revitalization Act, and in 1995 with the appointment of the National Bioethics Advisory Commission (NBAC) by President Clinton.)

B. The President's Commission:

The President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research was created, again, by Congress, at the request of President Carter, on Nov. 9, 1978.124 The President's Commission completed its mandate by Dec. 20, 1982, issuing final reports on 10 pressing issues: the definition of death; informed consent; genetic screening and counseling; differences in the availability of health care; life-sustaining treatment; privacy and confidentiality; genetic engineering; compensation for injured subjects; whistleblowing in research; and the IRB guidebook.125 It was not required to address the more controversial issues of fetal research and IVF research, although it did address infanticide in its Report on Deciding to Forego Life-sustaining Treatment. And unlike the National Commission, it's authority was not restricted to DHEW, but extended to all federal agencies doing human research.126

The appointed 11-member Commission rotated a number of commissioners and staff during its operation. Again, though a listing of these participants may seem tedious to some, including it would facilitate a better understanding of what bioethics is and who its practitioners are:

The Chairman of the President's Commission was Morris B. Abram (New York attorney, former President of Brandeis University and U.S. Representative to the United Nations Commission on Human Rights). The various Commissioners with medical research and/or practice who served during this period included: Mathilde Krim (associate member of the Sloan-Kettering Institute for Cancer Research and coordinator of its International Laboratories for the Molecular Biology of Interferon Systems): Arno G. Motulsky (professor of medicine and genetics, and Director of the Center for Inherited Diseases at the University of Washington); Frederick C. Redlich (professor of psychiatry at UCLA Medical School, former Yale Medical School Dean, Acting Director of the Veterans Administration Hospital in Brentwood, California)); Mario Garcia-Palmieri (professor and Head of the Department of Medicine at the University of Puerto Rico and former Secretary of Health for the Commonwealth); Donald Medearis (Chief of the Children's Service at Massachusetts General Hospital); Charles Wilder (professor of pediatrics at Harvard University); Charles Walker (physician in private practice in Nashville, Tennessee, and a member of the Board of Trustees at Fisk University); Frances K. Graham (Hilldale Professor of Psychology and Pediatrics at the University of Wisconsin, former President of the Society for Research in Child Development); George Dunlop (professor of surgery at the University of Massachusetts Medical School, former President of the American College of Surgeons; Daher B. Rahi (physician in private practice in St. Clair Shores, Michigan, former President of the Michigan Association of Osteopathic Physicians and Surgeons; H. Thomas Ballantine, Jr. (clinical professor of neurological surgery at Harvard Medical School, Senior Neurosurgeon at Massachusetts General Hospital; Bruce Kelton Jacobson (Director of the Family Practice Residency Program at John Peter Smith Hospital in Fort Worth, Texas, associate professor of family practice and community medicine at Southwestern Medical School; and Kay Toma (physician in private practice in Bell, California, President of the Bell Medical Center. 127

Other Commissioners outside the fields of medical practice and research included: Renee Fox (medical sociologist and Annenberg Professor of the Social Sciences at the University of Pennsylvania); Albert Jonsen (Chairman of the Bioethics Group for the five University of California schools of medicine, and member of the former National Commission); Patricia King (associate professor of law at Georgetown University, member of the former National Commission -- later went to the Department of Justice); Carolyn Williams (faculty member in epidemiology and nursing at the University of North Carolina at Chapel Hill); Anne Scitovsky (Chief of the Health Economics Division of the Palo Alto Medical Research Foundation); Seymour Siegel (professor of ethics and theology at the Jewish Theological Seminary of America, professor of humanities in medicine at the Medical College of Pennsylvania; Lynda Hare Smith (Colorado Springs housewife, advisor to the Chancellor of the University of Colorado Health Science Center); and John Moral (Director of the Moran Foundation in Houston, Texas, former owner of a company that makes diagnostic reagents and instruments for the professional medical community).128

The Staff of the Commission was directed by Alexander Capron (professor of law and of human genetics, and professor of law, ethics , and public policy at Georgetown University). Deputy Director was Barbara Mishkin (former Assistant Director of the National Commission, Staff Director of the HEW Ethics Advisory Board). Other staff included: Joanne Lynn (former director of clinical services in the Division of Geriatric Medicine at George Washington University); Alan Weisbard (practicing attorney in New Jersey); Alan Meisel (professor of law, psychiatry, and sociology at the University of Pittsburgh). Staff ethicists were: Daniel Wikler (University of Wisconsin); Dan Brock (chairman of the department at Brown University), and Allen Buchanan (University of Minnesota and the University of Arizona). Other staff included: Susan Morgan (former Director of the Division of Health Resources and Services Analysis in the DHHS); Mary Ann Baily (former assistant professor of economics at Yale University); Kathryn Kelly (training in public health and social welfare); Marian Osterweis (Departments of Community and Family Medicine and of Sociology at Georgetown University); Bradford Gray (senior staff member at the Institute of Medicine and former staff sociologist for the National Commission); Andrew Burness (former assistant for health and education policy to Representative Richardson Preyer of North Carolina); Dorothy Vawter (graduate of the Kennedy Institute of Ethics at Georgetown University). In addition, there were a plethora of "research assistants", "public information officers", "editors", "researchers", "administrative officers", "support staff", and "President's Commission Commonwealth Fellows and Student Interns".129

While it is undeniable that a broad range of talents were tapped, and that much great, good and heroic work was accomplished by both the National Commission and the President's Commission, an undercurrent of concern about their makeup, the definition of "ethics" used, and the roles such commissions should play in this society was ever present. This concern was articulated sometimes by referring to such efforts as "commissioning ethics", and best summed up earlier by one of the original scholars of the Hastings Center, Robert Morison. Quoting from Jonsen:

"Director Capron drew up a plan of action that was not merely a schedule but a concept paper that reviewed the mandates in terms of leading ideas and problems. Woven into this paper were quotations from many prominent individuals in science, policy, and ethics whose views Capron had solicited about the Commission's work. Most eloquent of these comments was a long letter from Robert Morison, professor emeritus of biology at Cornell. Professor Morison sketched his views on the relation between ethics, law, and religion and reviewed the brief history of 'the infelicitously named bioethics,' the results of which he 'was reasonably happy [with], but I fear for the future.' The future he feared was one in which ethics and religion were turned into law and regulation: 'What one fears is that the Commission may become the mechanism whereby the speculations of the ethicists become the law of the land. It is already far too easy for abstract notions of right and wrong to emerge as deontological rules which begin their public life as 'guidelines' but culminate in the force of law.' Morison's letter was a sobering reminder of the anomalous role of an 'ethics commission' in a pluralistic, secular society."130 (emphases mine)

Indeed, Morison's concerns were well-placed. As we shall see below, the recommendations of these two major bioethics commissions did indeed form the explicit basis of many regulations and laws -- both private and public, national and international.

A recent attempt at legislation in the State of Maryland actually intended to subserve the law to bioethics. The proposed statute concerning the use of "decisionally incapacitated" human subjects in medical research, introduced in the State of Maryland legislature in early March 1999, was explicitly grounded on these same three bioethics principles, as its first draft by the attorney general's Working Group explicitly states.131 Included in that draft were the following comments: "The goal of this project is that '[f]or a change, law may be the handmaiden of ethics and ethics served by the law rather than vice versa."132 This proposed statute purported to "respect the autonomy" of mentally ill human subjects to such an extreme that it would allow them to give informed consent to choose "research agents" who would then "substitute their judgments" as to whether or not these mentally ill persons would have wanted to participate in even high risk, no direct benefit medical research for "the greater good of society", were they competent -- an absurd and dangerous interpretation of autonomy and altruism, indeed.

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