Law and Bioethics

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by Eduardo Rivera López

Contents

Introduction

Bioethics is a branch of normative ethics. It deals with ethical problems that arise in the context of medicine and biomedical sciences. Abortion (cf. abortion), euthanasia (cf. euthanasia), organ transplants, genetic manipulation, cloning, the physician-patient relationship, biomedical research with human subjects, animal rights (cf. animal rights), and justice in the distribution of healthcare services are some of the main areas of bioethical concern. Asserting that bioethics is a branch of normative ethics implies differentiating it both from metaethics and from descriptive ethics. Bioethics does not normally lead with semantic, epistemic, or ontological problems of moral judgments and beliefs. Neither does bioethics merely describe existing moral beliefs or existing social norms. It aims at giving normative guidance, at prescribing what actions, norms, and institutions we should endorse or reject in the context of biomedicine. A comparable characterization of law is impossible here since the concept of law is much more elusive (cf. law, the concept of; nature of law). First, “law” is ambiguous, as it denotes at least two different things: a specific social phenomenon (the set of social rules backed by the coercive power of the state), and the discipline that studies such a social phenomenon (the science of law). The title “law and bioethics” could thus refer to the relationship between bioethics and the existing law, or between bioethics and the science of law, that is, the set of doctrines about the existing law. Second, there is the traditional controversy between legal naturalism and legal positivism (cf. natural law; legal positivism). What we understand by “existing law” may to an important extent depend upon what position we endorse regarding this issue. In order to simplify, I will always refer to the law as the existing law and as the positive law. What is thus the relationship between bioethics and the (existing, positive) law? In what follows, I will describe three possible links.

The practical link

The first link is practical. Bioethicists are often concerned with concrete decision-making. Hospitals, research centers, laboratories, firms, increasingly recur to “bioethics committees,” which are expected to advise doctors and researchers on some of their everyday decisions. In this context, the law functions as a constraint on bioethics. Members of these committees are expected to adjust their recommendations to the positive law; or, at least they should be aware (and make the doctors aware) when the recommendation runs against the law. An example may illustrate this friction. Suppose the law forbids active euthanasia and assisted suicide. A terminal patient is experiencing extreme suffering. She has given her consent for her doctor to prescribe her a lethal drug. The doctor appeals to the bioethics committee of the hospital for advice. Assume that the members of that committee, after deliberation, sincerely believe that this case ethically requires them to follow the patient’s desire. Should the committee recommend this course of action, even against the law? There is, to my knowledge, no straightforward answer to this question. But the important point is that the consideration that the (in their opinion) ethically required (or at least permitted) action is legally prohibited is not ethically irrelevant. First, there might be a prima facie moral obligation to obey the law, and whether thatprima facie obligation is overthrown in this particular case is a further point to be addressed. Second, foreseeable consequences, such as legal prosecution or risk of legal punishment, might have ethical weight. In this kind of situation, where ethical convictions do not coincide with legal norms, one would find it desirable to change the law. This leads us to the second kind of connection between bioethics and law.

The legislative link

Bioethics is here conceived as a source of reasons and arguments for the legislator to change the existing legal norms and/or to create new ones. To be precise concerning how bioethics can help legislation, the following crucial distinction must be drawn. I appeal again to an example to explain that distinction. Consider the problem of abortion. Two kinds of considerations are possible from the bioethical point of view. First, we can ask whether abortion is morally permissible and, if it is, under what conditions and constraints. This is a matter of assessing the individual act of aborting from the moral point of view. Second, we can ask whether abortion should be legally permissible and, if so, under what conditions and constraints. This second kind of question is an ethical question as well. It is not a legal one (or at least not just a legal one).  Both kinds of questions are relatively independent from one another, in the sense that it can be ethically impermissible to commit abortion, while it can also be ethically impermissible to legally prohibit it, and vice versa. They are, however, interconnected. That connection is a further (and major) problem for bioethics, and for ethics in general (consider the relationship between the problem of whether we should keep our promises, and under what conditions, and the problem of whether the state should enforce our promise-keeping). Yet, elucidating it would exceed the scope of this entry (cf. legal ethics; law and morality; legal moralism; van der Burg 1998, p. 53; Beuchamp/Chldress 1994, p. 10). With this distinction between personal ethics and legal ethics in mind, bioethics can contribute to legislation, to the extent that legal norms concerning medicine and biomedical sciences in general can be assessed from the moral point of view.

It is worth noting that this second function of bioethics holds enormous importance in our days. As long as medicine and biological sciences progress (and they do so rapidly), the need for new legal regulations must be permanently addressed. Thus, in many countries (including most European countries and the US) a large and increasing number of bioethical commissions, task forces, and agencies advise governments and legislatures about how new medical and biological technologies should be legally regulated. Let me mention just a few. The National Consultative Ethics Committee for Health and Life Sciences (France), The President’s Council on Bioethics (USA), and The German National Ethics Council (Germany) are some of the bodies addressing all kinds of bioethical problems. Others are more specific, like the ELSI, a program concerned with ethical, legal, and social issues of genetics (it is associated with the Human Genome Project), or those committees affiliated with particular medical associations, such as the Ethics Committee of the American Society of Reproductive Medicine, or with particular government agencies, such as the Ethics and Law Committee of the Human Fertilization and Embryology Authority (United Kingdom). At times, the function of these commissions is to elaborate legislative proposals in a formal sense. However, their purpose is sometimes legislative in a broader sense, for example, offering ethical guidelines for professional conduct or advising the government on the regulation of a certain activity.

Let me illustrate these rather general descriptions of the legislative link with an example. Assisted Reproductive Technology (ART) has been regulated in many countries in the last three decades. This has involved taking sides on crucial bioethical issues. Some of these issues concern the ethical status of the human embryo, for example, whether a human embryo “in vitro” may or may not be eliminated, or cryopreserved, and if it may, under which conditions. Other issues concern the fact that ART allows for new patterns of parenthood: homosexual parenthood, embryo donation, gamete donation, subrogate motherhood. Those decisions have been made appealing to formal or informal bioethical counseling. But the legislative regulation of all these matters is not static. It is an ongoing matter since new medical technologies continuously pose new challenges to the existing law, which requires revision. Moreover, there is also a permanent change in public moral opinions and attitudes toward certain practices. This makes it possible and sometimes necessary to modify legal regulations. For example, in the UK, ART is regulated by the 1990 “Human Fertilization and Embryology Act.” This act does not mention cloning. In 1999, the above-mentioned Human Fertilization and Embryology Authority, together with the Human Genetics Advisory Commission, released a report, called “Cloning Issues in Reproduction, Science and Medicine,” in which the introduction of an explicit ban on reproductive cloning in humans is suggested. This resulted in the Human Reproductive Cloning Act, sanctioned by the Parliament in 2001. It is interesting to note that the report includes reflections of a fundamental (bio)ethical character, for example, when it discusses (and partially rejects) the argument that “human beings may never be treated merely as means to an end, but only as an end”. A final remark on the legislative link between law and bioethics. I hope the example I have been considering illustrates this link clearly. However, it is worth emphasizing that the impact of bioethics on the law at the legislative and executive levels is sometimes less open and explicit. There is a tendency among lawyers and doctors to mask bioethical problems and decisions under the cover of law and/or medicine. One clear example of this tendency is today’s broadly accepted definition of death, so-called brain death. It was first proposed by the famous “Ad hoc Committee of the Harvard Medical School” in 1968, and has been adopted by almost every country. A medical committee presented the proposal as a medical issue, whereas, in fact, the matter is entirely bioethical since the concept of person is essentially normative. The same is true of law and bioethics. Many of the reports released by advisory committees or task forces tend to cover ethical problems and decisions under the (perhaps more authoritative) voice of the law. However, those problems and decisions are primarily not legal. They belong, according to the distinction made before, to legal (bio)ethics. The question is not what is legally permissible (or forbidden), but what legal permission (or prohibition) is ethically defensible or rejectable.

The interpretative link

The third connection concerns how we interpret the existing law. I will call this the “interpretative link.” The law must be interpreted. Open texture, essentially contested concepts, the clash of basic principles and of rights are pervasive in those areas of law that are of interest to bioethics (cf. constitutional interpretation). Regulating abortion, euthanasia, transplants, genetics, among many other issues, requires decisions and actions that may affect individuals and their autonomy or liberty at the fundamental level. Therefore, legislation on these issues may affect constitutional rights (cf. constitutional rights). The best explanation of the interpretative link between law and bioethics is by way of example. Let me therefore consider one example at length: the case of euthanasia and assisted suicide in the US. Following two famous cases, Quinlan in re (1976), and Cruzan v. Director, Missouri Department of Health (1990) (the second decided by the US Supreme Court), euthanasia and assisted suicide have been subject to strong legal controversy. The main point of discussion, from the legal point of view, is whether state laws prohibiting euthanasia and assisted suicide violate the constitutional right to liberty and equal protection (see Dworkin 1993, Ch. 7 and 8). More recently, two other cases went to the Supreme Court, Washington v. Glucksberg andQuill v. Vacco (1997). The interesting aspect of these cases for our purpose is not that a court has decided a typical bioethical problem, but that that decision has been preceded by and has incorporated fundamental bioethical discussions. Many briefs of amici curiae appeared prior to the Court’s decision, from which I would like to mention two: one written by six leading philosophers (Nagel, Scanlon, Rawls, Nozick, Thomson, and Dworkin), and the other one, which takes the opposite position, written by three bioethics professors (Annas, Glantz, and Mariner). Without entering into the merits of each of these briefs, they illuminate the inextricable interplay of law and bioethics. The main argument of the philosophers’ brief is legal: prohibiting assisted suicide is unconstitutional because it violates the right to liberty protected by the Equal Protection Clause. However, several of the crucial points of the argument are clearly not legal but fundamentally ethical. For example, they argue against the interpretation of the Cruzan case, according to which “doctors who remove life support are only allowing a natural process to end in death whereas doctors who prescribe lethal drugs are intervening to cause death.” The problem of this interpretation is, according to the philosophers, that it “is based on a misunderstanding of the pertinent moral principles. It is certainly true that when a patient does not wish to die, different acts, each of which foreseeably results in his death, nevertheless have very different moral status. When several patients need organ transplants and organs are scarce, for example, it is morally permissible for a doctor to deny an organ to one patient, even though he will die without it, in order to give it to another. But it is certainly not permissible for a doctor to kill one patient in order to use his organs to save another. The morally significant difference between those two acts is not, however, that killing is a positive act and not providing an organ is a mere omission, or that killing someone is worse than merely allowing a "natural" process to result in death. It would be equally impermissible for a doctor to let an injured patient bleed to death, or to refuse antibiotics to a patient with pneumonia—in each case the doctor would have allowed death to result from a "natural" process—in order to make his organs available for transplant to others. A doctor violates his patient's rights whether the doctor acts or refrains from acting, against the patient's wishes, in a way that is designed to cause death.” I have quoted the brief at length to highlight how a piece of pure moral theory (or pure bioethics) can be relevant to interpreting a legal (constitutional) norm. The same can be said in the case of the second brief. For example, the bioethics professors object to the decision adopted by the Ninth Circuit Court of Appeals on the case, because it “wrongly assumes that physicians who administer drugs for pain relief that could also shorten life intend the death of the patients (79 F.3d at 827). This indicates that the Ninth Circuit Court of Appeals misunderstands the principle of the double effect, in which an action may have two known consequences, only one of which is intended. Thus, the conclusion that pain relief and death are equally intended by a physician who administers a pain-relieving drug that may also shorten life is false. Physicians titrate pain-relieving drugs in an attempt to provide maximum effective pain relief without causing death. The principle of the double effect means that treating the patient's pain is acceptable even if the treatment may hasten death.” Again, the quotation is useful in showing the close link between legal and moral arguments: The principle of the double effect is an archetypical example of a moral principle. It is still more interesting that the Supreme Court endorses this kind of argumentation (albeit avoiding the ethical terminology). In agreement with the position of the bioethics professors, the Court says inVacco:  “The Court of Appeals […] concluded that some terminally ill people--those who are on life support systems--are treated differently than those who are not, in that the former may ‘hasten death’ by ending treatment, but the latter may not ‘hasten death’ through physician assisted suicide (80 F. 3d, at 729). This conclusion depends on the submission that ending or refusing lifesaving medical treatment ‘is nothing more nor less than assisted suicide’ (Ibid). Unlike the Court of Appeals, we think the distinction between assisting suicide and withdrawing life sustaining treatment, a distinction widely recognized and endorsed in the medical profession and in our legal traditions, is both important and logical; it is certainly rational.”  To ground this position, the Court appeals to legal precedents, according to which the law “distinguishes actions taken ‘because of’ a given end from actions taken ‘in spite of’ their unintended but foreseen consequences.” This “rational” distinction obviously resembles the moral principle of the double effect and is not in the Constitution. The conclusion we should draw from this example of the interpretative link is clear: the Constitution, and legal norms in general, do not interpret themselves. The interpretation of the law must and often does appeal to extra-legal resources. Many of these extra-legal arguments belong to bioethics (or, in general, to ethics) in a clear, straightforward sense.

Conclusion

It may be interesting to close with a caveat. In each of the three above links between law and bioethics a picture of bioethics as a highly structured and developed discipline may have arisen. In fact, bioethics has developed into a kind of “profession” and acquired some degree of social authority either to make decisions within the law, to create new legal norms, or to interpret the law. This professionalization has been criticized and, to some extent, the critics are right. Bioethics seems to be increasingly playing in our secularized society the same role that religion played earlier (cf. Engelhardt 2002). Be this as it may, nothing could be further from my purpose than depicting bioethics as a monolithic body of truths. Bioethics is an incipient discipline, which shares its epistemic weaknesses and its rather erratic methodology with ethics, and in general with philosophy. The significance of bioethics for the law consists simply of its capability to highlight the fact that we cannot make central social choices concerning biomedical sciences by appealing solely to the law or to medicine. They are issues of genuine ethical concern.

Bibliography

Institutions and ethics committees, as well as legal cases and briefs, are easily available in internet.

-Beuchamp, T. L. and Childress, J. F. 1994, Principles of Biomedical Ethics. Fourth Edition. Oxford: Oxford University Press.

-Dworkin, R. 1993, Life’s Dominion. New York: Alfred A. Knopf inc.

-Engelhardt, H. T. 2002, “The Ordination of Bioethicists as Secular Moral Experts”, in E. F. Paul, F. D. Miller, and J. Paul (eds.), Bioethics. Cambridge: Cambridge University Press.

-Van der Burg, W. 1998, “Law and Bioethics”, in H. Kuhse and P. Singer, A Companion to Bioethics. Oxford: Blackwell.

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