Owning up to Our Agendas: On the Role and Limits of Science in Debates about Embryos and Brain Death

Husserl E. , The Crisis of European Sciences and Transcendental Phenomenology (Evanston: Northwestern University Press, 1970): at 6 and 9.

Human Embryo Research Panel, National Institutes of Health, Report of the Human Embryo Research Panel, volume 1 (Bethesda, Maryland: National Institutes of Health, 1994).

Rawls J. , Political Liberalism (New York: Columbia University Press, 1993). I fundamentally question the way he draws his distinction between comprehensive philosophical viewpoints and the thin, public notion of justice he seeks to advance. It is worth noting that the Human Embryo Research Panel, supra note 2, directly cites Rawls on the idea of public reason. Supra note 2 at 40, note 20.

Veatch R. , “Abandoning Informed Consent,” Hastings Center Report 25 (1995): 5–12.

While my sketches of the naturalist, romantic, and theist simply provide an example of each, I tried writing these so they could also be taken as general schemas. To this extent, my naturalist is, I think, a fair representative of the following influential viewpoints: DeGrazia D. , Human Identity and Bioethics (Cambridge: Cambridge University Press, 2005); Dennett D. , Freedom Evolves (New York: Penguin Books, 2004); Gazzaniga M. , The Ethical Brain (New York: Dana Press, 2005); Parfit D. , Reasons and Persons (Oxford: Oxford University Press, 1986); Singer P. , Practical Ethics (Cambridge: Cambridge University Press, 1993); Singer P. Animal Liberation (New York: Harper Perennial, 2001); Steinbock B. , Life Before Birth: The Moral and Legal Status of Embryos and Fetuses (Oxford: Oxford University Press, 1996); McMahan J. , The Ethics of Killing (New York: Oxford University Press, 2003). (I've simply selected a few representative publications, mostly from the books of fellow speakers at this Pitts conference. The naturalist viewpoint represents much of current bioethical orthodoxy, so the list could be endless.) In addition, I would place ideas found in John Rawls, supra note 3, in the naturalist camp. Rawls constructs the veil of ignorance so the person behind it reasons as a naturalist. The sources of insight central for the romantic or theist are excluded. This is not neutral. The primary goods, as well as the risk averse character of reasoning behind the veil are governed by naturalist commitments; people are egoistic utility maximizers, and they give disproportionate weight to material and hedonistic goods (and I would include Rawls' account of social recognition in these categories). His related notions of “public rationality” and “well ordered society” are vehicles for artificially constraining public debate, so that the naturalist commitments are privileged.

Here I don't take romanticism and theism as mutually exclusive. I include as representative works those which advance the romantic themes without explicit reference to confessional religious concerns; thus, for example, Kierkegaard, Schliermacher, and, more recently, Kass can all be taken as representatives, even though they are also theists. Influential representatives of the romantic position in bioethics might include Elliott C. , A Philosophical Disease: Bioethics, Culture, and Identity (New York: Routledge, 1998); Elliott C. , Better Than Well: American Medicine Meets the American Dream (New York: W. W. Norton and Company, 2004); Frank A. , The Wounded Storyteller: Body, Illness, and Ethics (Chicago: University of Chicago Press, 1997); Kass L. , Life, Liberty and the Defense of Dignity: The Challenge for Bioethics (New York: Encounter, 2005); Leder D. , The Absent Body (Chicago: University of Chicago Press, 1990); Leder D. , The Soul Knows No Bars: Inmates Reflect on Life, Death and Hope (Lanham, MD: Rowman and Littlefield Publishers, Inc., 2000); Toombs K. , The Meaning of Illness (Dordrecht: Kluwer Academic Publishers, 1992); Zaner R. , Ethics and the Clinical Encounter (Englewood Cliffs, NJ: Prentice Hall, 1988); and many others who focus on the “lived body” and the “illness experience,” e.g., those who utilize phenomenological and hermeneutical resources for addressing practical ethical issues. Leon Kass provides an especially interesting example, not just because of his recent leadership role on the President's Council of Bioethics, but because of his long-standing interest in the role and limits of science. The following citation from his earlier Toward a More Natural Science (New York: The Free Press, 1985): at 5–6, nicely captures a central romantic concern: “The sciences are not only methodologically indifferent to questions of better and worse. Seeking answers only in terms of their deliberatively abstract questions, they find, not surprisingly, their own indifference substantively reflected in the nature of things…. Nature, as seen by our physicists, proceeds deterministically, without purpose or direction, utterly silent on matters of better and worse, and without a hint of guidance as to how we are to live. According to our biological science, nature is indifferent even as between health and disease: Since both healthy and diseased processes obey equally and necessarily the same laws of physics and chemistry, biologists conclude that disease is just as natural as health.” Many advocates of “narrative ethics” could also be placed in this camp. Here it is important to distinguish romantic interest in “narrative” from the naturalist's “biographical narrative.” For narrative ethicists (broadly defined) literary and narrative “tools” are irreducible; we thus find in the moral and creative arts a genuine resource for understanding ourselves and others, and no analytical distinction between biological vs. biographical identity could capture what is meant. In fact, for narrative ethicists, the analytical distinction is itself placed within one particular narrative, e.g., that of a positivist science that seeks to free itself from metaphysical commitments that infect and distort knowledge. A nice review of the debate surrounding narrative ethics can be found in Clouser K. D. and Hawkins A. H. , eds., “Literature and Medical Ethics,” Journal of Medicine and Philosophy 21, no. 3 (1996); and Nelson H. , Stories and Their Limits: Narrative Approaches to Bioethics (New York: Routledge, 1997).

Influential representatives of the Christian viewpoint in bioethics include: Hauerwas S. , Suffering Presence: Theological Reflections on Medicine, the Mentally Handicapped, and the Church (Notre Dame: University of Notre Dame Press, 1986); Lammers S. and Verhey A. , eds., On Moral Medicine: Theological Perspectives in Medical Ethics (Grand Rapids, MI: Wm. B. Eerdmans Publishing Co., 1998); Meilander G. , Bioethics: A Primer for Christians (Grand Rapids, MI: Wm. B. Eerdmans Publishing Co., 2004); Ramsey P. , The Essential Paul Ramsey, eds. Werpehowski W. and Crocco S. (New Haven: Yale University Press, 1994). The Christian viewpoint on many specific bioethical issues is nicely clarified by essays in the journal, Christian Bioethics, e.g., 9, no. 2 (2004) on physician assisted suicide, Delkeskamp-Hayes C. ed. 8. Kass collected Hawthorne's “The Birth-Mark” along with other essays in Kass L. , ed., Being Human: Core Readings in the Humanities (New York: W. W. Norton, 2004). 9. The response of the naturalist to the romantic on this point is nicely worked out by K. Danner Clouser in his overview of narrative ethics, supra note 6.

The naturalist viewpoint on death is nicely worked out by DeGrazia McMahon Parfit , and Singer , supra note 5.

The romantic view of death is nicely addressed by the authors in supra note 6; see also Camus A. , The Myth of Sisyphus: And Other Essays (New York: Vintage, 1991); Heidegger M. , Being and Time (San Francisco: Harper, 1962); Tolstoy L. , The Death of Ivan Ilyich (New York: Bantam Classics, 1981).

For the Christian view on death, see the essays in supra note 7; also Lysaught M. T. , “Suffering, Ethics, and the Body of Christ,” Christian Bioethics 2 (1996): 172–201; and Lysaught M. T. , “Choosing Palliative Care: Do Religious Beliefs Make a Difference?” Journal of Palliative Care 10 (1994): 61–66; and the essays in Christian Bioethics 1, no. 3 (1995), and 2, no. 2 (1996).

See Rawls , supra note 5.

For a review of the libertarian context of embryo research preceding the Human Embryo Research Panel and of the focus on funding of subsequent reflection, see Khushf G. , “Embryo Research: The Ethical Geography of the Debate,” Journal of Medicine and Philosophy 22 (1997); Tauer C. , “Embryo Research and Public Policy: A Philosopher's Appraisal,” Journal of Medicine and Philosophy 22 (1997); the original mission to “provide advice as to those areas that (1) are acceptable for Federal funding, (2) warrant additional review, and (3) are unacceptable for Federal support” is outlined in HERP, supra note 2, at ix. A brief historical overview is provided in chapter 1 of that document.

For a review of some of the laws related to embryo creation and use, see National Bioethics Advisory Commission, Ethical Issues in Human Stem Cell Research, Volume II: Commissioned Papers (Rockville, Maryland: National Bioethics Advisory Commission, 2000), especially the reviews by Andrews L. and Kinner J. K.

See supra note 14 for a review of this history.

For general criticism of such artificially constructed communal consensus, see Engelhardt H. T. , Foundations of Bioethics (New York: Oxford University Press, 1996). For some comments on HERP membership, see Annas G. Caplan A. and Elias S. , “The Politics of Human Embryo Research – Avoiding Ethical Gridlock,” New England Journal of Medicine 334, no. 20 (1996): 1329–1332. However, while noticing the potential problems in membership, these authors do not think the absence of conservative representation accounts for deeper deficiencies of the report; for them the key problem is that “the panel did not make a persuasive moral case for the conclusion,” ibid, at 1330. I agree with the final criticism, but think the Panel's rhetoric has been far more successful than the above authors think (my discussion of their twinning argument will make this clear); to this extent, the Panel has not been “more or less ignored,” as the authors state. (They too narrowly viewed the Panel's influence in terms of its immediate charge; that the NIH director did not act to fund such research was seen as “ignoring” the Panel.)

Supra note 2, chapter 3.

A review of these features of the abortion debate and the issues related to just taxation can be found in Khushf G. , “Intolerant Tolerance,” Journal of Medicine and Philosophy 19 (1994): 161–181.

On this point, the HERP Panel was clear about its core task. Annas, Caplan, and Elias likewise acknowledge that any funding of embryo research (they call it “compromise”) will require “disentangling the subject of research on embryos from the continuing debate on abortion,” and they share the HERP's goal that abortion “should not be permitted to hold every related issue of medical ethics hostage,” supra note 17, at 1329. But they don't sufficiently appreciate why the “twinning argument” provides the most fruitful avenue for doing this (as I outline below). It should be noted that conservatives have different motives for separating embryo research from abortion; for them, the woman's liberty interest no longer plays its leading role (as it does in the abortion debate), thus the balance tips in the direction of protecting early human life; see, for example, President's Council on Bioethics, Human Cloning and Human Dignity (New York: Public Affairs, 2002): 135, and Callahan D. , “The Puzzle of Profound Respect,” Hastings Center Report 25, no. 1 (1995): 39–40.

Even a modest review of the twinning literature would require a separate essay. Some representative examples are found in the following essays: Singer P. and Dawson K. , eds., Embryo Experimentation: Ethical, Legal and Social Issues (Cambridge: Cambridge University Press, 1990); Evans D. and Pickering N. , eds., Conceiving the Embryo: Ethics, Law and Practice in Human Embryology (The Hague: Martinus Nijhoff Publishers, 1996). Roman Catholic critics of the conservative view on immediate humanization have played an important role in development of the twinning arguments; e.g., Diamond J. J. , “Abortion, Animation, and Biological Humanization,” Theological Studies 36, no. 2 (1975): 305–324; Ford N. M. , When Did I Begin? (Cambridge: Cambridge University Press, 1989); McCormick R. A. , “Who or What is the Pre-Embryo?” Kennedy Institute of Ethics Journal 1 (1991): 1–15; Shannon T. and Wolter A. , “Reflections on the Moral Status of the Pre-Embryo,” Theological Studies 51 (1990): 603–626; Tauer C. , “The Tradition of Probabilism and the Moral Status of the Early Embryo,” Theological Studies 45 (1984): 3–33. One of the more influential policy uses of this argument is, “The Warnock Report,” Report of the Committee of Inquiry into Human Fertilisation and Embryology (London: HMSO, 1984). Wherever the 14 day cut off is used in policy, the twinning argument lurks behind it as the justification. Review of the international law on this can be found in National Bioethics Advisory Commission, supra note 15, especially at H-9.

Supra note 2, at 9.

Supra note 2, at 9.

Ford , supra note 21, at 212, who is cited by the Panel, defines an individual as “a single concrete entity that exists as a distinct being and is not an aggregation of smaller things nor merely a part of a greater whole; hence its unity is said to be intrinsic.” This notion is also cited by Shannon and Wolter , supra note 21, at 612, in their development of the twinning argument.

Supra note 2, at 47.

Thus the Human Embryo Research Panel speaks of a “logical paradox,” supra note 2, at 36. This language of “logical contradiction” permeates the twinning literature, and it can be used to distinguish two forms of twinning arguments. The “weak form” simply works out a specific tradition of interpreting personhood, and often allows for alternative traditions where the twinning argument would not work; see e.g., Bole T. , “Zygotes, Souls, Substances, and Persons,” Journal of Medicine and Philosophy 15 (1990): 637–652. But such arguments would not perform the needed role in policy disputes. Thus, the pervasive form of the twinning argument is the “strong” one; namely, that no person could reasonably hold that the early embryo (so-called “pre-embryo”) is a person. In these arguments, the “facts” of twinning take on a kind of independent status, and proponents of the argument down own up to their own philosophical tradition. Nice examples of this approach can be found in Evans D. , “Conceiving the Embryo”; Evans M. , “Human Individuation and Moral Justification,” and Mori M. , “Is the Human Embryo a Person? No,” all in Evans and Pickering, supra note 21. There are, of course, various attempts to nuance the relation between science and ethics, but they all involve attempts to sustain the idea of (at most) a slight, obvious interpretive step from the scientific facts. Thus the scientific facts “fly in the face of logic. Of course people cannot be forced to think rationally and they might in fact persist in their earlier view but that would have been shown to be a confused view and one not worthy of defense – and certainly not one on which regulation of the treatment of human embryos should be based.” Evans D. , supra note 21, at 4–5.

This “obvious rejoinder” is clearly stated by the President's Council on Bioethics, Human Cloning and Human Dignity (New York: Public Affairs, 2002): 176–177: “the possibility of twinning does not rebut the individuality of the early embryo from its beginning. The fact that where ‘John’ alone once was there are now both ‘John’ and ‘Jim’ does not call into question the presence of ‘John’ at the outset.”

This view of science is nicely stated in Rosenberg A. , The Structure of Biological Science (Cambridge: Cambridge University Press, 1985).

See, for example, Hein H. , “The Endurance of the Mechanism-Vitalism Controversy,” Journal of the History of Biology 5, no. 1 (1972): 159–188.

A nice philosophical and historical review of these views and their current influence can be found in Manfred F. , Das Individuelle Allgemeine (Frankfurt am Main: Suhrkamp Verlag, 1977).

An extensive review of such “vitalism” in current philosophy and religion goes far beyond this essay. H. Driesch provides a survey in his History and Theory of Vitalism (London: Macmillan and Co., 1914), his discussion of Kant is at 67–92; much of phenomenology involves a related criticism of science, and an attempt to rightly account for the whole. Nice examples of such philosophical work can be found in Bergson H. , An Introduction to Metaphysics: The Creative Mind (New Jersey: Rowman and Allanheld, 1965); Canguilhem G. , The Normal and the Pathological (New York: Zone Books, 1991); and Ellul J. , The Technological Society (New York: Vintage Books, 1964). Religious views would take many forms, from Western reflection on “soul” or “animation” to Eastern accounts of “vital energy” (e.g., qi or prana). For the influence of such views on alternative healing traditions in medicine, see Kaptchuk T. and Eisenberg D. , “The Persuasive Appeal of Alternative Medicine,” Annals of Internal Medicine 129 (1998): 1061–1065. For an account of immediate ensoulment that is critical of dualistic, Western accounts of the “soul,” see Breck J. , “Procreation and ‘The Beginning of Life,’” St. Vladimir's Theological Quarterly 39, no. 3 (1995): 215–232.

Representative examples include Howsepian A. A. , “Who, or What are We?” Review of Metaphysics 45 (1992): 483–502; Johnson M. , “Delayed Hominization: Reflections on Some Recent Catholic Claims for Delayed Hominzation,” Theological Studies 56 (1995): 743–763; Mirkes R. , “NBAC and Embryo Ethics,” National Catholic Bioethics Quarterly 1, no.2 (2001): 163–187; Oderberg D. , “Modal Properties, Moral Status and Identity,” Philosophy and Public Affairs 26 (1997): 259–98; and Tollefsen C. , “Embryos, Individuals, and Persons: An Argument Against Embryo Creation and Research,” Journal of Applied Philosophy 18, no. 1 (2001): 65–77.

This particular study is a favorite of skeptics; see for example, Shermer M. , “Skeptic: None So Blind,” Scientific American (March 2004); the original research can be found in Simons D. J. and Chabris C. F. , “Gorillas in Our Midst: Sustained Inattentional Blindness for Dynamic Events,” Perception 28 (1999): 1059–1074. More extensive surveys of the literature and the original videos can be found at <http://viscog.beckman.uiuc.edu/djs_lab/> (last visited December 5, 2005).

A nice review of the historical context can be found in Driesch H. , The Science and Philosophy of the Organism (London: Adam and Charles Black, 1908): at 25–75, section A, part I. A review of Weismann and Roux is found at 52–59 in subsection B 1.

Driesch presents his sea urchin experiments in supra note 34, at 49–65.

Driesch , supra note 34, at 76f.

Driesch H. , The Problem of Individuality (London: Macmillan and Co., 1914): at 16. The figure is from page 18.

Driesch , supra note 37, at 4.

Driesch , supra note 37, at 19.

Hein , supra note 29.

“The degree of manifoldness of a natural system cannot increase from itself.” Driesch advances several arguments for this claim and couples this with his account of a harmonious equipotential system. Driesch, supra note 37, at 48.

Driesch discusses “factor E” in supra note 34, at 132–145. “E” stood for “entelechy,” a term Driesch takes from Aristotle. Fukuyama discusses his “factor X” (the whole-making feature of humanity) in Our Posthuman Future: Consequences of the Biotechnology Revolution (New York: Farrar, Straus and Giroux, 2002). Fukuyama does not directly cite Driesch. It is rather remarkable that he independently developed an argument that so closely parallels Driesch's argument for vitalism, although Fukuyama draws on notions of complexity and emergence instead (the modern terms for addressing the vitalist motifs).

Driesch H. , Man and the Universe, Johnston W. H. , trans. (London: George Allen and Unwin Ltd., 1929): at 65.

Driesch , supra note 43, at 66–67.

Watson J. , Recombinant DNA, 2nd ed. (New York: Scientific American Books, 1998): at 2.

Driesch , supra note 37, at 31.

If we see the early embryo as a “mere sum” and think that an individual whole emerges at a later stage, we still have the fundamental philosophical problem of how a whole arises out of a mere sum at this later stage. The assumptions integral to current twinning arguments simply push the deep, unanswered problem past the horizon of debate on the early embryo, so that the difficulties can be bypassed.

Fukuyama uses the phrase “factor X,” supra note 42; Hurlbut uses the phrase “unified organismal principle of growth,” supra note 27, at 310. Both of these individuals are members of the President's Council of Bioethics.

Kass L. , “We Don't Play Politics with Science,” The Washington Post March 3, 2004, at A 27.

Here are just a few representative citations: Mooney C. , “Irrationalist in Chief,” The American Prospect 12, no. 17 (2001); Smith W. J. , “Kass, in the Firing Line,” at <www.nationalreview.com/comment/smith200312050930.asp> (last visited December 5, 2005); Wilkie D. , “The Puzzle of Leon Kass,” at <www.crisismagazine.com/june2002/feature3.htm> (last visited December 5, 2005); Blackburn E. H. , “A ‘Full Range’ of Bioethical Views Just Got Narrower,” at <www.washingtonpost.com/ac2/wp-dyn/A35471–2004Mar6> (last visited December 5, 2005); Noah T. , “Leon Kass, You Silly Ass!” at <http://slate.msn.com/id/2096848> (last visited December 5, 2005).

See the Personal Statement of Gazzaniga M. , supra note 27, at 290–294.

President's Council on Bioethics, supra note 27, at 290.

Personal Statement of Janet Rowley, President's Council on Bioethics, supra note 27, at 342.

President's Council on Bioethics, supra note 27, at 310.

President's Council on Bioethics, supra note 27, at 339.

See Kass , supra note 8, at xxii.