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French, Justice Robert --- "Ethics at the beginning and ending of life" (FCA) [2003] FedJSchol 1

Ethics at the Beginning and Ending of Life


Justice Robert French[1]


Professor Margaret Somerville describes “doing ethics” as:


“... the great contemporary exploration of our moral universe, an exploration that parallels that of our physical universe throughout the new science.”[2]


The search for ethics can be regarded, she suggests, as a development in the formulation of values so that rather than just seeing our values as received by tradition and passively adopted, we can view them as arising out of our search and so enjoy a shared commitment to them.


The exploration of our physical universe has already generated the plausible hypothesis that there may be many different universes characterised by a variety of physical laws.[3] It has also encountered the difficulty of constructing theories of Everything from which a physical reality can be explained. It has found, as astrophysicist, John D Barrow, observed:


“...there is more to Everything than meets the eye.”[4]


It is beyond hypothesis that the exploration to which Professor Somerville refers must encounter the reality that there is more than one universe of moral discourse. It is not taking a morally relativistic position to say that human diversity produces a range of moral and ethical perspectives between societies and, as we may observe at the closer quarters of our own community, within societies. The ferocity and difficulty attending public debates about euthanasia, abortion and embryo stem cell research, to name three prominent examples, demonstrate areas of fundamental difference. This diversity is also reflected in the different theories and approaches of academic and professional ethicists.


Concerns about the direction of science, particularly in the area of genetic and reproductive technology and in the termination or prolongation of life, have generated a tendency to turn to ethics as offering a theory of Everything about right and wrong action. It also seems to have engendered an increasing reliance on ethicists as public policy life coaches to guide us on our way. The persons so involved may have a variety of more or less relevant qualifications and experience and, in some cases, little or none of either. The potential for ethical advice to become a commercial service is obvious. It is exemplified in a website set up by an organisation based in Pennsylvania and called “Ethics Quality Inc”. This organisation offers “Ethics and Culture Management Services”. It advertises “Ethics Training Aids for Employees”. One such aid is promoted thus:


101 Fallacies and Ethical Lower Forms

This handy four page 8-1/2 x 11” color laminate highlights eleven deductive and five inductive fallacy categories, and over 40 specific lower forms, totalling over 101 of the most common logical fallacies and ethical lower forms. The shortest path to improving organizational ethics is to prevent these forms from corrupting the ethical reasoning process. To prevent them, one must first be aware of them. Put this laminate into the hands of all employees, and ethics will improve.”


The price is $12.95 with discounts for volume over two dozen.


Presumably, the promoters of Ethics Quality Inc perceive a market need or they would not go to all the trouble of setting up the website and offering their products and courses. There is no doubt that the demand for ethical advice is pervasive. In Australia there is a plethora of ethics committees set up in universities, hospitals and other institutions and as statutory bodies under Commonwealth and State law. The Gene Technology Act 2000 (Cth) creates a Gene Technology Ethics Committee which requires people with expertise in one or more of a number of areas which include “ethics and the environment”, “health ethics”, “applied ethics”, “law”, “religious practices” and “issues of concern to consumers in relation to gene technology”. Professor Somerville refers to judges as the “contemporary bishops” and the courts as “cathedrals of a secular society”. These metaphorical labels might more realistically attach to ethicists and ethics committees albeit they should perhaps be downgraded to “ministers” and “church halls” respectively. Their existence and growth raises the question whether, and to what extent, they are in truth being resorted to as a means of ascertaining ethical options for decision-makers. It is at least reasonable to suppose that for some decision-makers the primary utility of ethicists and ethics committees is to accord legitimacy to decisions or policies by a kind of ethical certification – a secular equivalent of the old Church sanction for printed works reflected in the Latin terms “nihil obstat” and “imprimatur”. If this be a factor in the use of ethicists and ethics committees then it may also inform the choice of ethicist and the composition of such committees.


How then are we to judge expertise in ethics? What are the criteria by which we determine whether an ethics committee is working “well” or not? What are the quality control standards for ethicists? If I were the Minister for Health and were faced with a choice of two ethicists with different perspectives, say Professor Margaret Somerville from McGill and Professor Peter Singer from Princeton as possible appointments to the Gene Technology Ethics Committee, who would I chose, and how would I make that choice? Would I say that Princeton outweighs McGill. Would I say that Singer’s views are a bit too utilitarian for my liking and that those of Somerville are closer to my personal values and perhaps of some important constituent groups who would be more comfortable with her appointment? Are there any ways of deciding who is the “better” ethicist or is it just whistling in the wind to even ask the question. At the very least there should be some minimum standards by which an ethicist should be judged even if they do not assist in choosing between those who meet those standards.


At least for the purpose of judging those who are engaged by public or private bodies to provide advice on ethical issues (professional ethicists), there may be some guidance to be derived from the minimum standards which are generally applied to other professional advisers such as lawyers, accountants and auditors. These import requirements of:
1. honesty
2. objectivity
3. independence
4. competence
5. diligence


These requirements have a reasonably clear functional relationship to the tasks any professional adviser may be required to undertake whatever may be the normative frame of reference in which he or she operates.


A professional ethicist may be expected to be honest. This requires at least that the opinions expressed by that ethicist are his or her own opinions and not a statement of what he or she thinks that someone might want to hear. This does not mean that an ethicist will be acting dishonestly when advocating an ethical argument on behalf of a “client” as long as it is plain that that is what is being done. The latter scenario ordinarily should not arise for a member of an ethics committee, statutory or otherwise.


It might be expected that the honest ethicist will make clear the assumptions upon which he or she operates in offering ethical opinions particularly any important personal values which may inform such assumptions. This would require a degree of self-examination and a readiness to recognise that those values and assumptions may not be shared by the recipient of the ethicist’s advice. The honest ethicist will also disclose the factual basis upon which advice is offered, including the material, evidentiary or argumentative and directed to the specific case, to which he or she has had resort.


The honest ethicist may hesitate about providing an opinion where to do so would facilitate what that ethicist would regard as unethical or immoral behaviour. So an ethicist who regards capital punishment as an impermissible interference with the right to life might not feel able to accept an assignment to advise on the relative ethical merits of different modes of execution. This constraint is proposed not simply to promote consistency of behaviour in the ethicist’s moral universe, but to ensure that the ethicist is able properly to carry out the function entrusted to him or her.


Objectivity in the provision of opinions on ethical matters may sound like an oxymoron. Nevertheless it should be possible to give content to a standard of objectivity which respects the theoretical approach and normative framework of the ethicist but accepts that this may engender outcomes which are not necessarily reflective of his or her personal preferences. Some provisional criteria underpinning a standard of objectivity might include:

1. That the opinion offered by the ethicist would be regarded as reasonably open on the facts of the case by other ethicists sharing the same theoretical approach and normative framework whether or not they might themselves have come to different opinions;

2. The formation of the ethicist’s opinion is unaffected by considerations foreign to the ethicist’s theoretical approach and normative framework and in particular considerations of what the ethicist himself or herself would do in the situation on which an opinion is sought (if the circumstances are such that the ethicist could contemplate the possibility of being confronted by a relevant personal choice).


The concept of independence is related to that of objectivity although it is best regarded as an instrumental criterion which will support the standards of honesty and objectivity. Independence will involve the absence and avoidance of any conflict of interest that might compromise the ethicist’s ability to offer honest or objective opinions. Where a conflict of interest may exist full disclosure of the relevant circumstances should be given prior to provision of the opinion.


Competency may be judged in a relative sense again within the theoretical and normative framework within which the particular ethicist operates. The fact that a utilitarian ethicist and a deontological ethicist might proffer different solutions to the same ethical problem does not mean that one is competent and the other not. Each provides a competent ethical solution if the solution is provided by reference to all the relevant facts and reflects the application of principles and modes of analysis consistent with the theoretical and normative framework of the ethicist providing the opinion.


Diligence requires the ethicist, inter alia, to determine all facts relevant to the opinion to be offered, and carefully to apply to those facts the relevant modes of analysis and normative framework. Where all relevant facts are not available and, in particular, where some critical fact is missing the opinion would have to be qualified accordingly.


These standards as may be seen overlap and in part depend on the notional assessment of reputable peers. That does not mean that they may not be useful. They are characteristic of the professional standards of conduct applicable at law to many professional advisers. No doubt in the particular context of ethicists offering advice, either as individuals or as members of committees, they would require considerable development but they may provide a useful starting point.


The preceding discussion throws up some issues about the place of professional ethics in the provision of specific transactional advice, in the formulation of administrative practice and public policy and in the development of the law. Transactional advice, administrative practice, public policy and the law may provisionally be placed in an ascending hierarchy of importance and permanency. It is not gainsaying the significance that may attach to particular decisions, practices or policies to say that the law is the most formal secular public declaration of binding and enforceable rules of behaviour. So the intersection of ethics and law has a particular importance that has engaged leading jurisprudential theorists as well as the practitioners of law-making in which category legislators and, within their proper field of activity, judges, may be placed.


The intersection raises acute problems in areas of ethical contention particularly those concerned with the beginning and the ending of life. It may properly be said, as Professor Somerville says, that ethics should inform the law[5] – but whose ethics? There are different and conflicting ethical world views ( I hesitate to call them “theories”). Professor Somerville favours deontological ethics. This involves the expression of certain principles. In the case of Professor Somerville those principles are said to be derived from concepts of “inherent wrongness”, “profound respect of human life” and “deep respect for the human spirit” as well as “metaphysical reality”. Professor Singer, on the other hand, writes of consequentialist ethics of which his favoured utilitarianism is a species.[6] Consequentialist ethics focuses on goals or desired outcomes and judges’ actions by the extent to which they advance those goals. So it is to be contrasted with the deontological, principle or rules-based ethics. A utilitarian treats an action as right if it produces an increase in the happiness of all who are affected by it which is equal to or greater than the increase in happiness produced by any alternative action.


Professor Singer contends that the universal aspect of ethics is that which requires us to go beyond our own likes and dislikes in making ethical judgments. However, it has not enabled us to derive an ethical theory of Everything that will give us guidance about right and wrong. He says:


“The problem is that if we describe the universal aspect of ethics in bare, formal terms, a wide range of ethical theories including quite irreconcilable ones, are compatible with this notion of universality; if on the other hand we build up our description of the universal aspect of ethics so that it leads us ineluctably to one particular ethical theory we shall be accused of smuggling our own ethical beliefs into one definition of the ethical – and this definition was supposed to be broad enough and neutral enough to encompass all serious contenders for the status of ‘ethical theory’.” [7]


Singer supports a broadly utilitarian position by arguing that the universal aspect of ethics provides a persuasive basis for it. The utilitarian position requires a consideration by the person faced with making an ethical decision of that person’s own interests and the interest of all others who may be affected by that decision. Utilitarianism is not a final theory. But if non-utilitarian moral rules or ideas are to be adopted, good reasons should be given for doing so. Other ethical ideals like individual rights, the sanctity of life and justice, are in some respects incompatible with utilitarianism.[8]


It is apparent that ethicists of utilitarian or deontological or other persuasions may adopt different views about their practical application. This is obviously so even within those two broad churches. There may be two principles-based ethicists who have widely divergent views on whether certain things are or can be “inherently wrong”, to coin a term used by Professor Somerville. Utilitarians may have different measures of benefit or ways of identifying the “interests” of people.


So it may not be possible to appoint an ethicist to a committee, however eminent and well regarded the appointee may be, and expect to produce outcomes in practice or in specific cases which can be described by universal agreement as “ethical”. There is nevertheless a popular conception that ethics is a science of moral solutions and that ethicists are its expert practitioners. One of its definitions in the New Shorter Oxford English Dictionary is “the science of morals; the branch of knowledge that deals with the principles of human duty in the logic of moral discourse; the whole field of moral science.” Here, however, the word “science” does not seem to be used in the sense of an exact science and field of knowledge which will produce unique solutions to ethical problems. It would seem to be the latter misconception of which Andrew Dutney, Chairperson of the South Australian Council on Reproductive Technology, has observed:


“If bioethics is to be an agent of life and healing in a time of cultural crisis, this popular image needs to be corrected.” [9]


In the Scientific American magazine in 1999[10] an American researcher on embryonic stem cells referred to the work of “an expert panel of ethicists and researchers” which had concluded that some embryo research including derivation and analysis of human embryonic stem cells was “ethically justifiable” and that it warranted consideration for federal funding. Dutney observes that the finding that the destruction of human embryos for the purpose of harvesting stem cells is “ethically justifiable” is, a non-finding. Almost anything can be justified ethically by the skilful ethics advocate.[11]


There are “tragic choices” involved in modern civilisation which are negotiated and renegotiated in our society.[12] These tragic choices can be related to some of the matters identified by Professor Somerville,[13] such as:


1. Reproductive technology including:

(a) pre-natal genetic screening;

(b) surrogate motherhood;

(c) abortion;

(d) selective reduction of multiple pregnancy;

(e) in utero gender selection;

(f) in vitro fertilisation;

(g) pre-implantation genetic diagnosis;

(h) ovarian tissue transplant;

(i) ovarian tissue transplant from aborted foetuses;

(j) post-mortem storage and use of sperm;

(k) access to reproductive technology by same sex partners or single people;

(l) human cloning – reproductive;

(m) human cloning – therapeutic.

  1. Xenotransplantation – transplantation of organs from animals.
  2. Euthanasia and assisted suicide.
  3. The withdrawal or withholding of life support.
  4. Displacing and overriding parental objections to the treatment of minors.
  5. Circumcision.
  6. The denial of health care to individuals.

Professor Robert Lee of Cardiff Law School has coined the term “biomedical diplomacy” to describe how society approaches such choices.[14] For these involve not just the individuals and their families, but the medical profession, officials, legislators, the courts and the media. The choices that are developed involve multi-dimensional considerations and competing ethical perspectives. As Dutney says:


... the intensity of this ‘biomedical diplomacy’ is closely related to the fact that we live on a technological frontier that no one completely understands, and that we are moving into a future that no one can confidently predict that is, when it comes to ‘tragic choices’ people just have to make these days we generally do not know what they should do. The best we can manage is to negotiate the limits of what, in a particular society, people may do.”[15]


In this context, which goes beyond individual choice to public policy and law making, we can accept the role of the ethicist as advocate for a particular perspective which may inform and clarify the issues which fall for decision at a communal or societal level. The function of the lawyer as advocate is a limited but helpful analogy. It should not be too disturbing that the ethicist’s virtues of honesty, objectivity and independence may apply even to ethical advocacy. And it may be that encouragement may be drawn from the observation by Lee and Morgan that approaches to biomedicine in pluralist Europe are marked by agreement “whose depth and breadth far outweigh moral disagreement whether the supporting reasoning is of a broadly consequentialist or deontological kind”.[16]


How then is the reader of someone like Professor Margaret Somerville, to react to her critics who are concerned about her use of such terms as:


“profound respect for life”
“deep respect for the human spirit”
“inherently wrong”


These critics would no doubt passionately reject her reference to respect for the human spirit as:


the intangible, invisible, immeasurable reality that we need, to find meaning in life and to make life worth living - that deeply intuitive sense of relatedness or connectedness to the world and the universe in which we live.”[17]


Russell Blackford, writing in the May 2001 edition of Quadrant, said, among many other things critical of Somerville’s approach:


“Somerville is entitled to hold and express her science-spirit view if it reflects her deepest intuitions about these matters. However it provides an unacceptable basis for public policy decisions.” [18]


In truth, there is little risk that in the long run the formation of the law or public policy will be dominated by reductionist science, fundamentalist religion, the science-spirit hybrid of Margaret Somerville or the utilitarian approach of Peter Singer. The formulation of policy and the making of law about the creation and ending of human life, is a process where different views will be advanced by different constituencies. The very difficulty of the choices involved is reflected in the existence of powerful and articulate proponents in contention about them. And even in those cases where the judges are called upon, within the framework of the common law or statute law, to make evaluative decisions or choices the essence of the judicial tradition is conservative.[19] This is so, whether we are talking about so called “judicial activists” or “gradualists” or “Big C Conservatives”, each of which terms is a plausible candidate for inclusion in Professor Julius Stone’s categories of illusory and meaningless reference.[20]


The role of the courts and the evaluative assessments of the judges have more scope where the boundaries of the common law are being tested as in wrongful birth or wrongful life actions and in such countries as Canada and the United States which have constitutional guarantees, sometimes in tension with each other, of the right to life, due process, equality before the law and the like.[21] Such constitutional guarantees are usually accompanied by societal overrides which may involve the courts in balancing individual and communal interests in a way that the ethicist might well find familiar.


The use of the term “biomedical diplomacy” does not involve the proposition that the ethicist is just one voice in the ruck of social negotiation, of no greater consequence than the person in the street. In this respect, Professor Singer makes the persuasive point that the moral philosopher or ethicist may have more time to collect all the relevant facts about a particular decision or area of decision-making and by training and experience be more than ordinarily competent in argument and in the detection of invalid inferences. Such a person should also have an understanding of moral argument and concepts. The ethicist or moral philosopher also has more time to think about moral issues.[22]


The scientific and technological future in the biomedical area is laced with uncertainty. It is not good enough simply to invoke the nostrum, “when you cannot see where you are going you must not go”, which was applied by the House of Lords many years ago to a driver who complained that there was no way he could have seen an oncoming vehicle because his view was obstructed.

The task of the ethicist is first to gather the facts. In the field of bioethics that may require independent, scientific advice. It may require probing to determine risks. Public policy, informed by ethics, can balance benefits against risk and determine future direction. The ethicist is most persuasive when taking a utilitarian approach identifying the relevant interests by reference to tangible harms and benefits. This is true even for Professor Somerville who, quite sensibly, does not hesitate to adopt utilitarian approaches where they are compatible with her deontological framework. This simply recognises political and social reality. For example, the risk of cross-species transmission of viruses associated with xeno-transplantation is something which most people and policy makers can understand even if there may be disagreement as to its extent. The risk in introducing an assisted suicide or euthanasia law, that its practical administration will go beyond the limits it sets, is also able to be understood by most without resort to respect for life and the human spirit.[23] The risk of sliding into a regime in which consent may be pressured and protective medical prior screening become nominal, is something which anybody who has observed human decision-making systems in operation can understand. The more numinous considerations of the human spirit and metaphysical damage to which Professor Somerville refers may provide other lines of argument in some categories of case such as stem cell research or reproductive human cloning. They will however be less persuasive in a secular society than reference to utilitarian considerations, except to those who already hold such values. And being considerations without clear logical limits they open the way to a variety of interlocutors in the public debate including the organised religions whose intervention at an institutional level is not always helpful in contentious public debate on issues of this kind. For they have a tendency to absolutize ethical positions. Professor Max Charlesworth, a Catholic philosopher has written that the Catholic Church which relies on a “natural law” theory of ethics subjects it to the teaching authority of the church:


“... and in effect transforms the basic ethical precepts into ‘truths of faith’.”[24]


As he says:


“... Christian and non-Christian alike – have to make do with the ordinary ethics of human enquiry ... This is in fact, what most Christians do in their reflections on ethical issues. When one looks at what are put forward as examples of ‘Christian ethics’, it can be seen that they are for the most part exercises (some unexceptional, some dubious) in ordinary ethics.” [25]


Dutney expresses a similar view in agreeing with the theologian, Alan Sell, “... that there is no more a Christian ethics distinct from all other ethics than there is a Christian mathematics distinct from all other mathematics”.[26]


Conclusion
Bioethics addresses fundamental questions about the beginning and the ending of life and is inextricably attached to wider considerations of what happens between those two events.


The role of ethical theory and of ethical advisers in public administration and law must be taken seriously and assessed with careful detachment. Any tendency to commercialisation or comodification of ethics as a “product” is damaging to the whole of society. So too is the corruption of ethics to a form of politically convenient certification of proposed actions, practices or laws. There may be a need to develop ethics for ethicists. These should be expressed in standards of conduct, competency and integrity which may generally be accepted by those who practice in the field, as well as by those who use their services or simply listen to what they have to say. Such standards can be developed notwithstanding that it must be accepted that ethicists cannot be expected to provide among themselves the same answers to the difficult problems which may be posed for them. At the beginning and the ending of life, there are few clear-cut answers. Whatever advice an ethicist can give, somebody, probably not an ethicist, will have to make the final decision.



[1] This revised paper was first presented by way of commentary on a presentation by Professor Margaret Somerville at the Supreme and Federal Court Judges’ Conference held in Adelaide in January 2003
[2] Somerville, The Ethical Canary – Science Society and the Human Spirit, Viking 2000 p xiii
[3] Greene, B, The Elegant Universe, Vintage (2000) pp 366-368. For a more technical account see A Linde, “Inflationary Cosmology and the Question of Teleology” in Haught JF (ed) Science and Religion in Search of Cosmic Purpose, Georgetown UP (2000) at pp 9-10.
[4] Barrow JD, Theories of Everything, Clarendon Press, Oxford (1991) p 210
[5] Somerville, op cit p 266
[6] Singer, Writings on an Ethical Life, Fourth Estate (2002) pp 16-17
[7] Singer, op cit p 15
[8] Singer, op cit p 17
[9] Dutney A, Playing God – Ethics and Faith, Harper Collins Religious (2001) p 46
[10] Pedersen R, Embryonic Stem Cells for Medicine, Scientific American (1999) Vol 10 No 3 pp 18-23
[11] Dutney, op cit p 49
[12] Dutney, op cit pp 49-50
[13] The topics that follow, follow the outline of topics in The Ethical Canary.
[14] Lee R and Morgan D, Regulating Risk Society: Stigmata Cases, Scientific Citizenship and Biomedical Diplomacy (2001) 23 Sydney Law Review p 23
[15] Dutney, op cit p 50
[16] Lee and Morgan, op cit p 308
[17] Somerville, op cit p xi-xii
[18] Blackford R, Margaret Somerville and the Perils of Bioethics, Quadrant, May 2001 p 50. For a response see M Somerville, Reductionism v Complexity: A Canary in the Bioethics Crossfire Quadrant, July-August 2001 pp 30-35 and by way of rejoinder, Blackford R, Bioethics v Liberal Society: A Reply to Margaret Somerville, Quadrant, September 2001 pp 51-55.
[19] In this context decisions which recognise the right of a competent adult to refuse life saving treatment, even if not terminally ill, are essentially conservative in character. For discussion of recent law on this topic see Manning, Autonomy and the Competent Patient’s Right to Refuse Life-prolonging Medical Treatment – Again (2002) 10 Journal of Law and Medicine 239-247.
[20] Stone J, Legal System and Lawyer’s Reasonings Maitland Publications (1968) p 241 et ff.
[21] Rodriguez v Attorney-General of British Columbia (1994) 107 DLR (4th) 342; Washington v Glucksberg [1997] USSC 75; (1997) 521 US 702; Gian Kaur (Smt) v State of Punjab (1996) 2 LRC 264
[22] Singer, op cit p 6
[23] See, for example, J Keown; Euthanasia, Ethics and Public Policy: An Argument against Legalisation, Cambridge University Press (2002)
[24] Charlesworth M, Religious Inventions: Four Essays, Cambridge University Press (1997) p 151
[25] Charlesworth, op cit p 151
[26] Dutney, op cit p xi


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