Abstract
As far as the considerations in the present chapter deal with questions of law, it is not their purpose to analyse these questions from the perspective of a particular legal order (or of several such orders). Rather, what they aim at is to clarify the problems according to basic principles of law. On rare occasions, though, we will demonstrate certain fundamental normative structures by exemplarily referring to the specific situation in German law. This does not, however, diminish our claim to present a principled, rather than a positivistic, legal analysis.
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For a review on recent advances of brain-machine interfaces and neural prostheses cf. Agar (2004); Berger et al. (2005); see also Stieglitz (2006); as to genetic interventions cf. Donoghue (2002); Kennedy Institute of Ethics Journal (15(1), 2005) for several lengthy essays on the prospects of “genetic enhancement”; for the genetics of psychiatric disorders see van Belzen and Heutink (2006); for a review of research on genomics of learning and memory see Paratore et al. (2006); for a case of genetic enhancement of learning and memory in mice cf. Tang et al. (1999).
At least, as Francis Fukuyama (2002) suggests, to legally restrict research for enhancements.
There is a vast literature on this topic. For a “naturalist” (“realist”, “descriptivist”) account see the seminal papers of Boorse (1975; 1977; 1997); for a “normativist” (“value laden”) account Khushf (1997); Stempsey (2000); Fulford (2001); finally for a differentiating and mediatory account Hofmann (2001); illuminating collections of essays are Caplan et al. (1981) and Humber and Almeder (1997).
Cf. Kersting 2002:144; see also Buchanan et al. 2000:122. This “transcendental character” is nicely illustrated by the old proverb “Health isn’t everything, but without health everything is nothing.”
To be more precise, it is actually the legally founded and, if necessary, enforceable claims to basic medical care (rather than the practical services provided by doctors) that are the primary goods to be distributed justly. The concept of a primary social good is, of course, one of the well-known fundamental concepts in John Rawls’ “A Theory of Justice” (cf. Rawls 1971:§§ 11, 15, 67; see also Rawls 1993:II. 5. §§ 3, 4), even though Rawls himself does not include public health services in his list of primary goods. This omission can be (and has been) criticized for various reasons, even from a Rawlsian standpoint: see for instance Daniels’ “extension” to Rawls’ theory (Daniels 1996:191); for an (only partly convincing) explanation of Rawls’ omission see Pogge (1994:68).
Daniels (1996:232) with J. E. Sabin. This does not mean that we endorse Daniels’ contention that the objective concept of disease can also be developed in purely naturalistic (i.e. non-normative) terms.
This is, as one might expect, a strongly contested thesis. However, it clearly seems to be prevalent in the international debate on social justice and health care. For a rather different position, based on “individual well-being as the fundamental value”, cf. Segev (2005:231–260) (containing numerous further references); also critical of the “normal-functioning approach”, from a different point of view, Stark (2006:31–84). We cannot evaluate even the major arguments that figure prominently in this principled debate about justice. We content ourselves with the stating of our own — and the internationally prevalent — position.
Of course, the entire scope of problems of health care allocation encompasses a lot more than we have touched upon here. Following Norman Daniels, one might distinguish between five basic questions that, to a varying degree, concern or involve health care allocation decisions: (1) >What kind of health care services will exist in a society? (2) >Who will receive them and on what basis? (3) >Who will deliver them? (4) >How will the burden of financing them be distributed? (5) >How will the power and control of these services be distributed? (cf. Daniels 1985:2). We have only elaborated on matters of topic (2) and on a few aspects of topic (4). The discussion of the other topics is of no particular importance to our purposes here.
Bayne and Levy (2005) report two such amputations in 1997 by a Scottish surgeon named Robert Smith. The amputees’ personal (psychic) lives are reported to have significantly improved after the operations.
A recent decision by the German Constitutional Court (Dec. 6th 2006) may illustrate this point. It ruled that a patient dying from an incurable illness, with no more recognised treatment options available, had a claim to a treatment of last resort that he strongly believed in and thus profited from mentally, even though it was deemed futile and useless by established medical standards. Social security, the court says, must provide financial funds even for treatments of that type of last resort with only psychological, but no physiological, effects, if there was no alternative offered by conventional medicine. The decision was criticised and rejected by the majority of commentators on grounds that its guiding principle could not be generalised, for it would be impossible to finance such a generous extension of the scope of proper medicine as a social system (cf. Francke and Hart 2006).
The general notion of a person “creating” or “choosing” his or her own character is, of course, much older in the philosophical literature; cf. Aristotle, Nicomachean Ethics, Book III, Para. 7.
We take “ethics”, in accordance with the universally prevalent use of the term (but differing from the meaning Jürgen Habermas gives it in his book “The Future of Human Nature” [2001]), to be the doctrine, or rather the various doctrines, of morals. “Morals”, on the other hand, is the corpus of rules and principles themselves that govern the right and/or good human acting.
Of course, there is a lot more to be said about the relations and interconnections between law and ethics. This is particularly true with regard to the normative content of the respective principles in both fields. Many, or even most, of those principles are to a large extent alike, equivalent or overlap with each other. That is why some legal philosophers consider the entire realm of law just a special instance of the so-called “general practical (i.e. normative) discourse” (cf. Alexy 1983:261). Whether this is plausible or not is of no relevance to our argument above. For here we are only concerned with the most prominent functional difference between law and ethics, not with their normative overlaps or similarities.
Following Feinberg (1986:100).
It must be emphasised here that the eminent progress of the neurosciences in the last decades has significantly blurred the dividing line between physical and mental disorders. As the latest edition of the American “Diagnostic and Statistical Manual of Mental Disorders” (DSM IV) aptly points out: “A compelling literature documents that there is much ‘physical’ in ‘mental’ disorders. [...] The concept of mental disorders, like many other concepts in medicine, lacks a consistent operational definition that covers all situations.” (quoted in Barondes 2003:90–91).
The case and the outcome of the litigation in Barondes 2003:135–136.
U.S. Food and Drug Administration (FDA) Alert 7/2005. “FDA has approved fluoxetine for treating children who have depression or obsessive-compulsive disorder.” (http://www.fda.gov/cder/drug/infopage/paroxetine/default.htm, accessed on 10th January, 2007).
Ibid.
Cf. Foster (2003).
Hence the label “cosmetic neurology,” now widely in use to describe the present and future practice of neuroenhancements (cf. Chatterjee 2004:968).
In specific areas of medicine, the law provides other, usually narrower, limiting criteria for consent-based medical procedures, for instance in so-called “living donations” in transplantation medicine, The reasons for lowering the prohibition threshold of living donations significantly below life-threatening risks are manifold, reaching beyond “soft paternalistic” motives into the sphere of protected public interests. Cf. Merkel (2005).
Not so, for materially insufficient reasons, in German law (cf. note 208 above). However, this is the case in other legal orders.
Legal requirements of valid informed consent usually concentrate mainly on the second basic (“infor mation”) element in our list, sometimes differentiating along other specifications (cf. for the German Law Lenckner 1989:142), thereby presupposing the “preconditions” of the first element.
Oberlandesgericht Düsseldorf, Neue Juristische Wochenschrift 1985:684.
We are, of course, aware that there are quite a few other ways of conceptualising and disentangling the complex bulk of problems that questions of “autonomy” give rise to. Most of these ways, as suggested in the huge literature on the subject, have their own merits in varying theoretical perspectives and their own shortcomings in others (for a comprehensive overview and bibliograhy see Buss (2002); cf. also the illuminating collection of essays in Christman (1989). For our purposes here, Feinberg’s distinctions seem to be a perfect fit.
The opposite, i.e. legally a valid refusal to undergo an abortion, is, of course, equally possible for a 14 year old. On the bulk of rather complicated questions involved here cf. Merkel (2006:§ >218a, marginal nos. 28–31).
The state is not even entitled to refuse the recognition of the consequences of such a medical intervention in order, for instance, to create a negative incentive for future interventions of that kind. The German Constitu tional Court (Bundesverfassungsgericht) ruled in 1978 that the refusal of the state to officially acknowledge the conversion of gender of a (former) transsexual man is unconstitutional (BVerfGE 49 1979:286).
Kant’s further distinctions within his conception of duties to the self are considerably more nuanced than we present them to be here. He distinguishes between perfect and imperfect duties to the self (depending on the logical space they leave for an individual’s decisions on how to discharge them, with “perfect duties” not leaving any such space). Amongst the former, he differentiates between duties to oneself “only as a moral being”, and to oneself as an “animal (physical) and a moral being” (Kant 1907/14 [AAVI]:419–420).
This, of course, invokes the notorious basic problem of utilitarian accounts of ethics. We cannot elaborate on this here. Suffice it to point out that we reject the basic idea of utilitarianism exactly for its inability to take seriously enough the “distinction between persons” (Rawls 1971:27). If it is prudent for an individual to make painful short-term sacrifices for much weightier long-term goods (for example, to go to a dentist now instead of delaying the necessary treatment and making it much more painful later), this cannot morally require anybody to make equally painful sacrifices for equally weighty goods of others (not beyond the narrow limits of required solidarity, anyway). However, utilitarian accounts of ethics are, in principle, committed to demanding just that.
Some of Jürgen Habermas’ reasoning on “The Future of Human Nature” also point in that Kantian direction. He speaks of the “inconspicuous normative interplay between the morally obligatory and legally guaranteed inviolability of persons and the indisposability of the natural mode of their physical embodiment” (Habermas 2001:41).
See our attempt to clarify this, infra 4.5; see also Fost (1986).
I borrow this illustrative example from Brock (2003:364).
Erik Parens speaks of “expressing the value of efficiency” by preferring the shortcut of a “smart pill” to good results in college exams, rather than taking the laborious ways of studying hard and (on the part of the school) improving the teacher-student ratio. Both of these traditional ways he sees to be standing for a different value than (just) that of efficiency; cf. Parens (2002:156).
Note that this use of the term is consistent with its wide-spread use in philosophical discourse, but not with the meaning it bears in Rawls (1971). He uses it as an umbrella concept covering the entire realm of social justice that he concerns himself with, including, above all, the whole range of problems of distributive justice.
Even though some philosophers are very sceptical about that, most prominently so perhaps Nozick (1974).
See also Mehlman 2005, opting against the permissibility of genetic enhancements, while opting for the permissibility of drug-based enhancement in 2004.
Decidedly so Selgelid (2003) and Mehlman (2003), both, however, debating such a social pressure originating from a widespread practice of genetic enhancements, which would certainly amount to a much more profound threat to people’s liberty and physical integrity than mental enhancements through brain interventions.
Joel Feinberg thought it was; cf. Feinberg o. cit., 84–87.
This is our second distinction (cf. 6.5.1 supra) following Buchanan et al. 2000:167.
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(2007). Treatment — Prevention — Enhancement: Normative Foundations and Limits. In: Intervening in the Brain. Ethics of Science and Technology Assessment, vol 29. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-46477-8_7
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