Neuroethics and International Biolaw

This title is not my own but taken from Chapter 3 of Joseph Badaracco’s book Defining Moments. Although this book is directed to managers in the corporate world, the insights that Badaracco has apply are applicable to the Universal Declaration on Bioethics & Human Rights, and for that matter to any credo, constitution or set of guiding principles.

To begin, let me remind us of the extremely important insight raised by Aristotle in Book V of the Nicomachean Ethics. There he notes that law must necessarily deal in general language, and this is a defect. For justice concerns the particular case. Aristotle is no relativist but realizes this: the easy part is to state general truths such as “protect autonomy” and “maximize harm and minimize pain”. The hard part, however, is to determine what “protecting autonomy” means. In fact, we could even focus on the word autonomy noting that whereas some see autonomy simply as the “absence of constraints” others (such as myself) see it as the presence of a very specific type of teleological goal oriented experience. Point one is this: Grand Principles are “futile” because the hard part – and the part about which we disagree – is on how to apply them.

To illustrate, consider clause 1 of Article 3 which reads:
Human dignity, human rights and fundamental freedoms are to be fully
respected.
Relevant to bioethics is a situation actually mentioned in Badaracco’s book concerning RU-486 – a drug developed by Rousel-Uclaf that is known as the “French abortion pill”. The pill is highly effective in inducing miscarriage during the first 5 weeks of pregnancy. The question is, does the Universal Declaration on Bioethics & Human Rights provide clear guidance on whether such a drug violates its tenets ?. I would argue NO. For some, the unborn possess the same rights and freedoms as the born. And even if we assume for the sake of argument that the unborn do not have fundamental rights , the question remains as to whether preventing access to RU-486 violates a fundamental right of women. In other words, if a safer, non-surgical method of abortion exists, are we violating a right in denying this method to women. And if so, does the government have a positive duty to provide this method, or do they merely have a ‘negative duty’ not to interfere with the decision of a woman to use it??

So while principles may do some work in making explicit important values, the hard work is determining how the principles apply in concrete situations.

Nor is this the only problem with “Grand Principles”. For conflicts of values are inevitable, as Badaracco points out. The tough decisions are right vs. right decisions – decisions wherein two competing values are at stake and we must decide which one trumps. So let me focus on clause 2 of Article 3 which reads:
The interests and welfare of the individual should have priority over the sole interest of science or society.
Now on one reasonable reading, this clause stands for the proposition that individual rights trump the “common good” and is therefore a repudiation of a utilitarian ethic. But then Article 14, entitled SOCIAL RESPONSIBILITY AND HEALTH lays out ends at which all governments should be aimed such as “access to adequate nutrition and water”. But suppose that there is not enough food & water. Further, suppose that one’s conception of “fundamental rights” includes property rights and that person P owns land that has water. Does the government then have the right to take the water from P’s land to give to those who need it? And if so, does this not conflict with clause 2 article 3 which, to remind you reads:
The interests and welfare of the individual should have priority over the sole interest of science or society.
As a citizen of the U.S. and a student of the law I can tell you that one of the fundamental debates concerns the scope of just one little word “liberty”. This is significant. For the Universal Declaration on Bioethics & Human Rights contains lots of words that evoke the noble sentiments (autonomy, dignity). But the problems are 1) we disagree about what these terms mean; and 2) we disagree about what value should trump when two come into conflict (individual rights vs common good). The Universal Declaration on Bioethics Human Rights is an admirable first step, but the hard part is realizing its meaning in particular concrete situations. The Declaration can be interpreted to support government funding of RU-486, and it can also be interpreted to prohibit RU-486. The “right thing to do” is underdetermined by declarations. The meaning and implementation of “grand principles” ultimately rests with the discernment of the individuals and their particular choices — expressed by concrete actions — about who they want themselves, their nation, their world, to become.