By James Toomey
Many countries are skeptical of biotechnology. Restrictions on cloning, in vitro fertilization, surrogacy, and genetic modification in agriculture are common. But perhaps no country goes quite as far as Switzerland.
In the early 1990s, Switzerland added to its constitution by popular referendum two articles that restrict the use of biological technologies in its Confederation. Article 119 bans the traditional bugaboos of human bio-conservatives (cloning, surrogacy, human genetic intervention, etc.), and further stipulates that legislation on any new technologies must “ensure the protection of human dignity.” Article 120 mandates that legislation related to biological technologies in other organisms must “take into account . . . the dignity of living beings . . .” What?
Part of the reason these provisions are in the constitution has to do with Switzerland’s unique approach to constitutional law through perennial amendment by referendum, an approach that has resulted in a constitutional right to musical education (Art. 67a) and a constitutional ban on minaret building (Art. 72). But the constitutional concept of “dignity,” as codified in Arts. 119 and 120, has had real, enduring, and evolving legal and practical effects.
Boiling live lobsters was banned just last February as being against their dignity. The Federal Ethics Committee on Non-Human Biotechnology, at the behest of legislation, spent years and money philosophizing about the dignity of plants. This concept of dignity has led to the complete absence in Switzerland of genetically modified organisms at any point in the agricultural supply chain (unique even in GMO-hostile Europe) and has forced Swiss people abroad in search of surrogacy and more freely available, less homophobic IVF.
Last January, I traveled to Switzerland and interviewed lawyers, scientists, activists and government officials to try to get to the bottom of what the legal concept of dignity really means. My conclusion is that, taken together, the Swiss constitutional concept of human dignity as it applies to biotechnology and the concept of the dignity of the creature codify a kind of deeply contestable worldview based on the deeply contestable assertion of the moral value of nature. By which, of course, what is meant is a moral value of world’s gene pool and its distribution circa A.D. 1990.
“Dignity” in Swiss constitutional law doesn’t mean just anything. Perhaps it could; it is an obviously broad and squishy term. But the way in which the term has been interpreted, starting with the specific prohibitions on human biotechnology in Article 119, betrays a clear moral core that enables the legislature and the courts to apply the concept of dignity to new situations as they arise.
Genetic intervention in other species is a prima facie violation of their dignity. Interfering with the independent life of a plant for no good reason is morally objectionable. And egg donation is banned while sperm donation is allowed in a regime that mirrors the fact that natural human copulation has always been a “donation” of sperm. (I’m not making this up — one of the academics I interviewed told me this).
The moral message is clear and consistent: nature is presumptively good; our intervention with it presumptively bad.
This is a perfectly reasonable moral view to have. Many people certainly do. But it is an objectionable proposition of constitutional law. It is objectionable not merely because of the negative effects it has on the prices of food and reproductive freedom of people. It is objectionable, on a deeper level, precisely because it is the constitutionalization of a metaphysically contestable worldview.
In its pretensions to moral hegemony, the Swiss constitutional concept of dignity takes from individual Swiss people the right to grapple with the deeply contested moral issues of biological technologies for themselves and make their own decisions. It takes from them the right to rule on their own worldview. It is objectionable, in short, for the same reasons that the constitutionalization of a particular religion is objectionable.
The Swiss constitutional concept of dignity is not a religious notion, at least not in any narrow sense. (Although it is, perhaps, worth noting that the term “dignity” is commonly invoked in explicitly religious and substantively similar objections to biotechnology). It is not directly associated with any particular religion. But we don’t care about freedom of religion because many of its adherents meet in churches or mosques, sing songs or celebrate holidays, or call themselves Buddhists or Scientologists. We care about freedom of religion because we care about freedom of belief and specifically we care about freedom of belief on these first questions of ontology that bear on our moral status in the universe, the moral status of nature, and on the origin and destiny of our species. This is what is meant by the concept of freedom of conscience. And it is this foundational principle of liberalism that Switzerland, through its legal concept of dignity as a restraint on biotechnology, currently defies.
Freedom of conscience is a canonical proposition (Art. 15) of Swiss constitutional law. The Swiss people should repeal Arts. 119 and 120, or amend them so as to take out the concept of dignity which codifies a moral worldview, to reflect this ancient aspiration. Indeed, these articles and the law of nature they embody are a profound deviation from the principles of independence and democracy that have always made Switzerland special. It is a country that has been near evenly divided between Catholics and Protestants since the days they fought wars over that sort of thing. It is a polyglot federation amid Europe’s nation-states. Swiss people pride themselves on their independence. Let’s let them be.