The Way We Do Bioethics

By James Toomey

Professor S. Matthew Liao of NYU presented a paper last week at the Health Law, Bioethics, and Biotechnology Workshop. Liao’s theory of rights-worthiness is based on the presence of a genetic basis for a moral sense. So babies, fetuses, the vetegative, all are human rights-holders, other animals are presumptively not (but could be if we found they had the genes for moral sense) and, with a little line drawing about the nature of an organism, corpses are excluded.

It is, perhaps, a somewhat strained effort to justify a deep moral intuition that all human beings, no matter how brain-damaged, are entitled on their own merit to a full panoply of human rights.

Personally, I’m skeptical.

But I think this process, this effort to find moral principles by rationalization from moral intuitions, raises real questions about the way we do bioethics, at least since the field became primarily concerned with novel technologies.

Indeed, there’s a plausible case to be made that rationalization of moral intuitions is all contemporary bioethics is. Leon Kass, for example, is quite open about that. Michael Sandel’s influential work explicitly draws on moral intuitions about sports, talent and child-rearing.

The other side, the side more excited about these technologies, is less open about this kind of reasoning. But it’s not hard to see that there’s some of that going on. Ingmar Persson and Julian Savelescu write with enthusiasm that we are so depraved that failure to enhance ourselves would literally be the end of the world. John Harris thinks excitement for enhancement is well near the most obvious thing going.

The problem with this kind of reasoning, of course, is that intuitions are useless to rationalize where not universally shared, and that’s most of the time. Moreover, it could be extraordinarily dangerous — in the abstract it certainly sounds like a baseless, if not insane, way to do ethics.

Imagine basing a moral system extrapolated on the intuitions of the witch-burners. Maybe there are some things we could all agree on, throughout time and place. Maybe me, Kass, Jim-from-Appalachia, Confucius, and Hitler would agree that it’s wrong to torture babies for no reason. But this insight isn’t going to get us very far. We don’t live in a world in which people do things for no reason.

We seem left, then, with the fact that when Kass looks at Prometheus and sees hubris, I see a martyr.

Has ethics always been this way?

It must have been, to a certain extent. Plato has moral intuitions. So does Aristotle. But it cannot be that this is how moral philosophy always works, for the simple reason that a lot of times the causality goes the other way. That is, moral philosophy creates intuitions, too, it doesn’t just justify them. If you ask a classroom of today’s collegiate eighteen-year olds whether something is morally justified, they’ll ask about whether it helps more people than it hurts, or respects individual rights, or furthers communitarian values. They won’t ask about what God has to say. That’s because secular moral theories have won (or, alternatively, that’s because today’s universities are seminaries of left-liberal godlessness; my point stands either way).

This can only be because, over the past several centuries, millions of people had their moral intuitions challenged on their face. Maybe it was after they read Darwin or Marx or Freud. Maybe it was after they started reading novels. Maybe after they lived through the apocalypse of world war. No doubt however it happened it was hard, and it probably didn’t happen spontaneously. But many somethings have happened to many people that caused them to or helped them reevaluate their moral intuitions, take new stock of the world and to be willing to accept new moral theories. My point, I hope, is not that this kind of change of moral views requires a worldview-shattering new theory or cataclysm. My point, I guess, is that it has to be possible.

If we’re going to have these conversations about bioethics in a way that will convince each other, in a way that will move forward the largely stagnant debates of the past forty odd years (“this is awesome!”; “this is gross!”) we’re going to need something more than moral intuition. We’re going to need a common language, a common aspiration, a common currency. It’s not obvious that we have one at the moment. The bio-conservatives (for lack of a better word; I acknowledge this ideology has almost no correlation, ideological or otherwise, to the political right) talks about dignity, and they know it when they see it. The bio-progressives (ditto) talk about freedom and health and wealth. But maybe there’s something there. The bio-conservatives as much as anyone else believe in the promise of technology to heal the hurt. And the bio-progressives, as much as anyone else, find beauty and meaning in human frailty and the resilience it enables, in art and in memory.

We have different views about the good life, there’s no doubt about that. But we have views about the good life. And to relegate these to the background, to treat them merely as the source of the moral intuitions that provide our moral rules, relegates us ad infinitum to a dialogue of the deaf. Those are the questions we need to discuss and on which we need to be willing to convince and be convinced. They are, in the words of Michael Sandel, the questions that “modern philosophers and political theorists tend to shrink from” “[s]ince the[y] . . . verge on theology.” But they are the questions that unless we discuss, we will be left where we are: coming up with smart reasons why ourselves and our friends have the right feelings.

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About James Toomey

James Toomey is a third-year law student at Harvard Law School. His fellowship project seeks to understand the perspectives of seniors on when and how the law should intervene in their decision-making if they were to develop dementia. His research interests include bioethics, regulation of biotechnology, elder law, and law enforcement.

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