Saturday, January 27, 2007

PGD paper

I am writing this post on my return train journey from Exeter to Oxford. I just spent the last three days at an excellent interdisciplinary conference on “Governing Genomics”, organized by Egenis. I’ve been to Exeter a few times before for various conferences in the past, and it is a very beautiful campus.

This morning I presented my paper on regulating the non-medical uses of PGD. I actually presented this same paper just last week to a group of philosophers at the James Martin advanced research seminar at Oxford, so it was a nice contrast to receive back-to-back feedback from a group of philosophers and then a group of (primarily) non-philosophers. Receiving feedback from scholars in different disciplines, with different interests and expertise, is useful for a whole host of reasons. It exposes you to different ways of looking at an issue, or new dilemmas or hard cases or possible solutions that you might not have entertained.

The goal of my paper is to explore a normative framework for addressing the issue of regulating non-medical uses of PGD. And in this blog I will outline some of the preliminary thoughts that motivated me to develop the position I take in the paper, though I will not (at least now) get to the real details and heart of my argument. But writing this blog has been useful to me nonetheless as it has compelled me to make explicit some of the more general concerns explored in the paper.

Firstly, what is PGD? Preimplantation genetic diagnosis involves screening embryos before they are implanted in a women’s uterus. Parents who undergo IVF can have their embryos screened for a variety of genetic disorders. This screening process involves removing one or two cells from a three-day old (eight-celled) embryo. You can do this without jeopardizing the integrity of the embryos. Once they are tested, a more informed decision can be made concerning which, if any, of those embryos should be implanted. You can learn more about PGD here.

Some believe that even permitting the medical uses of PGD is controversial (see here ). But in my paper I focus on a much more controversial (and thus, for a philosopher, more interesting!) range of issues- regulating the non-medical uses of PGD. Currently it is possible to utilize PGD to screen for the gender of embryos though this is banned in both Canada and the United Kingdom. And one could envision, as science progresses further, new screening capabilities becoming possible, testing not only for the likelihood of developing disease, or gender, but for complex phenotypes like behavioral characteristics. What should we be willing to say about this prospect? Do we want to permit parents to have these new discretionary powers to influence the phenotypes of their offspring? This raises fundamental questions about the scope and limits of reproductive freedom. And it is important that we start thinking about these issues now so we are prepared to meet the ethical and legal challenges that lay ahead in the years to come.

It is of course worth noting that we currently give parents a vast amount of discretionary power to influence the life prospects of their children and potential offspring. Not only are we free to decide if we want to have children in the first place, how many, and when; but expecting mothers can pursue environmental interventions (e.g. diet, abortion) that have a profound impact on a child’s (and potential child's) wellbeing. And once a child is born parents have a vast degree of discretionary power to influence the physical, intellectual and moral development of their children.

This parental freedom is of course limited by a principle of no harm. If the actions or omissions of a parent threaten the safety and wellbeing of a child (or potential child) the state may legitimately intervene. But beyond satisfying the minimalist requirement of a duty of no harm, parents are free to influence the development of a whole variety of phenotypes. Lets call this state of affairs the “status quo”. And the interesting question is: will the status quo equip us to address the complex ethical and legal concerns which the genetic revolution raises? I think it will not. Before I say why let me outline what I anticipate those who defend the status quo will argue.

At this stage one might be inclined to say that regulating the non-medical uses of PGD should simply be subject to the same standards (i.e. the “status quo”) that we invoke in the larger case of reproductive and parental freedom. In other words, non-medical uses of PGD should be permitted provided they do not pose a significant risk of perceptible damage to an identifiable individual. So, for example, they should be prohibited if and only if such screening technologies pose a significant risk of harm to the prospective mother or the embryos that are implanted.

Those liberals and libertarians inclined to take this stance will thus want the discussion to end there. If something like Mill’s liberty principle has not been contravened, then we should permit liberty to reign unabated. End of debate.

But this is not my stance. And it’s not for a variety of reasons. One reason is that, while I would probably be inclined to defend the status quo in the pre(genetic) revolutionary context, I would not defend it in the post-revolutionary context. The reason is that my defense of the status quo is, in large part, pragmatic rather than principled. I do not believe, by virtue of giving birth to a person, that one is (unconditionally) morally entitled to play such a formative role in influencing the development of their offspring.

So if the status quo is defensible (and I’m open to the possibility that it may not be) it is not defensible by reference *solely* to a principle of no harm or the autonomy of parents. Rather, it’s that society could not (without huge expense, invasion of privacy, and other bad consequences etc.) regulate what goes in the family to ensure parents satisfy more than a duty of no harm. Parents are morally required to do a lot more than satisfy the principle of no harm. They are obligated to *love* their children, which goes way beyond the duty of no harm. But to legally compel parents to love their children is not something the state could effectively do and it would probably do a good deal of harm when trying to compel parents to love their children. (note: though there might be non-coercive measures, like creating incentives, that could better secure these goals without those costs. So the state could take the cultivation of parental love to be a goal, its just not something to be achieved through coercion).

This is worth pointing out because a prohibition on non-medical uses of PGD (as well as prenatal genetic modification) is interesting because it may prove to be an effective way to limit parental discretionary power in a way does not have all the negative costs of trying to limit that freedom after a child is born. Rather than trying to police the family we could simply prohibit fertility clinics from offering PGD to parents who undergo IVF. So for me there is no principled defense of the status quo. Rather, given a number of background considerations- about the way the family functions, and the limits of what can be achieved through state coercion, etc. something like the status quo is probably a reasonable position to take in the pre-revolutionary context. But possibly not in the post-revolutionary context.

So, what do I argue then? In the paper I defend a normative framework that I think can help us grapple with the different concerns that arise in case of permitting non-medical uses of PGD. That normative framework is not the standard philosophical arguments one encounters in ethics and political philosophy (e.g. Kantian ethics, utilitarianism, virtue ethics, etc.), but rather it’s the theory deliberative democracy. Recall my post on the rise of deliberative democracy. There are of course many versions of the ideal of deliberative democracy. But I focus on the specific version advanced by Gutmann and Thompson in their excellent (second book) entitled Why Deliberative Democracy?

I won’t go through all the details of why I think this normative theory is useful for the particular debates concerning non-medical uses of PGD, but let me just briefly highlight two important parts of the theory that are vital for this particular policy issue.

Firstly, deliberative democracy is a “second-order” social theory rather than a “first-order” theory. First-order theories seek to win a philosophical argument; they attempt to resolve moral disagreement by showing that rival principles should be rejected. So libertarians will argue that concerns of equality, or the fact that there is popular opposition to gender selection for family balancing, are not legitimate grounds for overriding reproductive freedom. Conversely, some feminists might be inclined to argue that reproductive freedom does not include the freedom to have a child of a particular kind, thus a ban on gender selection is not liberty-restricting and thus a ban should be imposed because it protects equality. And procedural democrats might be inclined to invoke the fact that there is popular opposition to these uses of PGD as a justification for a ban. All of these kinds of debates are first-order arguments. The aim is to show that liberty, equality, or the aggregation of preferences should win the day in terms of determining if we should permit non-medical uses of PGD like gender selection.

This can be contrasted with a second-order theory like deliberative democracy. Deliberative democracy is a second-order theory in that it seeks to find a reasonable balance between the conflicting values and principles that arise in the debate among first-order theories. So rather than championing a principle of liberty, equality, or democracy, deliberative democracy is a *pluralistic public ethic*, one that seeks to give due attention to a diverse range of substantive and procedural values. This makes it very useful when tackling the issue of regulating non-medical uses of PGD. For a diverse range of values and principles arise in this context. And the real challenge we face is determining what would constitute a reasonable balance between respect for reproductive freedom, equality and democratic law-making.

So the idea of exploring a second-order analysis of the stakes involved in debates over gender selection and other uses of PGD is, I think, a novel and important endeavor to pursue. It gives us a much more inclusive normative framework than the standard liberal strategy of invoking Mill’s harm principle.

The second distinctive feature of deliberative democracy that I think is very important when examining the issue of PGD is Gutmann and Thompson’s emphasis on the idea of “provisionality”. This means that the principles of deliberative democracy are both morally and politically provisional. They must be open to revision in light of new moral insights and empirical discoveries. And this is vital for ensuring we implement a fair and humane regulation of new genetic technologies like PGD. The amount of weight we place on protecting reproductive freedom vs equality or some other aim needs to be influenced by the background context of the society in question (e.g. its level of patriarchy, health of its democratic practices, etc.) and by key considerations concerning these new technologies (e.g. their price, how accurate the tests are for screening complex phenotypes, etc.). So we need a *flexible* normative framework, one that incorporates the requirements of provisionality. Again, this makes deliberative democracy an attractive normative framework to invoke.

So where does all of this get us? Should we permit parents to utilize PGD for non-medical purposes like gender selection? Well that’s ultimately up to us as a society (not me) to decide. But, for what it’s worth, here is a brief summary of my two cents worth (the complete paper gives the longer answer).

A second-order analysis of these issues will take us away from thinking in terms of false dichotomies like: “Should X (e.g. gender selection) be permitted or prohibited?”. Taking the prescriptions of deliberative democracy seriously will lead us to measures that seek to *reasonably balance* the diverse stakes that arise in this context. And this will likely lead us to consider less restrictive measures (e.g. perhaps a ban on selection of gender for first child, or a requirement that you already have two children of the same sex, etc.) rather than outright bans on gender selection.

Furthermore, given the lack of empirical evidence concerning the likely societal impact permitting these technologies would have on our society (e.g. impact on equality, gender balance, etc.) we should take a provisional attitude. So what we decide now, concerning what constitutes a proper balance between respect for liberty vs respect for equality, is not the end of the dialogue and debate. We need to revisit these issues as new screening technologies become possible, as the price for PGD falls, and in light of empirical evidence concerning what actually motivates parents to pursue these technologies.

Putting all this together suggests, at least to me, that those who currently propose outright bans on the non-medical uses of PGD like gender selection really face an uphill battle. And that the current prohibition on gender selection, in both the UK and Canada, is not justified. And I think we owe those parents whose reproductive freedom we are infringing a compelling justification for why their liberty is being curtailed. To fail to do so is, I believe, to fail to satisfy the moral requirements of deliberative democracy.