Regulating Human Biological Enhancements:
Questionable
Justifications and International Complications
Henry T.
Greely
Enhance: 3. To make
greater, as in value or desirability. Webster’s Unabridged Dictionary
(2d. ed. 1934).
From the definition, it seems that to enhance something
would be a good thing. But when humanity is at issue, enhancement is
controversial
even though human beings historically have struggled to enhance
themselves. Humans used stone tools, fire, clothing, and domesticated
plants
and animals for enhanced safety, health, nourishment, and power—making
ourselves “greater”. The difference
today is our growing knowledge
of biology.
Human power over living things is not new. Our agricultural
ancestors effectively created all of our crops and our domestic animals;
selecting, culling, and crossing individual plants to create wheat, corn, and
rice and to turn wolves into everything from great
danes to chihuahuas. The
biological revolution of the last 50 years has brought a level of control that,
although not unlimited,
is certainly unprecedented. Science can now form
creatures by mixing genes, cells, and tissues not just among near relatives, but
across biological orders, classes, and kingdoms. We can make genetically
identical copies of many mammals. And, if we chose, we
could begin a project
that could be described as b[1]uilding
biological super-humans. The controversy today centers on the use of new,
technical methods to change the structure or function
of the human body,
typically through drugs or drug-like substances or through surgical
interventions.
Some view the prospect of “enhancing”
humanity as liberating, and
exciting;[2] for others it seems to be
disturbing, even frightening. The vast literature on enhancement is rapidly
increasing, exploring many
aspects of a wide variety of
enhancements.[3] This article tries
to add two things to that literature: an analysis of whether human
biological enhancement is meaningfully different from other forms of
human enhancement and a discussion of some of the implications of international
realities for the regulation of enhancement.
The article begins with
examples of controversial human biological enhancements and a review of the
arguments against such enhancements.
Next, it intensively examines whether
human biological enhancements are meaningfully different from other kinds of
human enhancement.
Then it analyzes ways in which human cultural diversity and
splintered political sovereignty cut against effective curbs on such
enhancements. The article concludes that human biological enhancements are not
inherently different from other forms of enhancing
technologies and regulation
of enhancement technologies remains a challenge.
I. Human Biological Enhancements: Examples and
Objections
The story of humanity is the history of enhancement. Stone tools,
control of fire, and clothing all enhanced the success of hunter
gatherers.
Agriculture enhanced food supply and population size and made possible the
specialization of labor. Writing systems
enhanced our ability to communicate,
among people and across time, and strengthened our memories; printing reduced
the costs of mass
distribution of information. Metallurgy and engineering,
electricity and computers have all increased what humans can do and what
we can
be. These enhancements came with their social costs, including toil, war, and
stress. The legend of the Golden Age is a
legend of life before the
enhancements called civilization. Although the legend is deeply attractive, it
is unimaginable that anyone
would seriously consider a return to the hunter
gatherer existence of our ancestors, even with their enhancing stone, wood, and
bone
tools.
Controversy today focuses on enhancements that seem different
because they increase our abilities by enhancing our biological selves
through
new technical inventions. This article will discuss five
examples—cosmetic surgery, personality improvement, sports
performance
enhancing drugs, genetic enhancements, and cognitive enhancements—but only
after making one very important distinction.
A. Enhancement Uses versus Medical Uses
Technologies that are controversial as enhancements are largely viewed as
mundane when used
“medically”.[4] These
medical uses either restore normal function to someone who has lost it through
injury or disease or confer normal function
on someone who, generally because of
birth defects, never had it. Precisely the same surgical technique is
encouraged, covered by
public and private health plans, when it restores a nose
damaged in an accident but is somewhat controversial; and not covered by
health plans when it improves the aesthetics of a nose to be within the normal
range of attractiveness. When cosmetic
surgery is performed to treat
psychological disorders, such as shyness or low self esteem, it is unclear as to
whether it is a medical
treatment or an enhancement. (Vaccinations may also be
viewed as intermediate between medical and enhancing technology; they are
not
usually used to treat disease but to prevent it by enhancing the subject’s
immune system.)
The use of otherwise enhancing technologies to help
someone with a disease or defect is rarely controversial because of its
“enhancing”
characteristics; the focus is on its restoration of
normal function. There are, however, at least two examples of disputes about
those kinds of uses. One involves professional sports, when the Professional
Golf Association (PGA) denied Casey Martin the use
of a golf cart during
tournaments, because it was an “enhancing technology”, even though
he had a circulatory disorder
that made walking extremely
painful.[5] The United States Supreme
Court held that the PGA’s policy violated the Federal Americans with
Disabilities Act. As the Court noted, there was no evidence that the
combination of his disability and the golf cart gave him an advantage over a
golfer with healthy legs. The second concerns a technology called a cochlear
implant that can alleviate some forms of deafness.
Some members of the deaf
community initially opposed the use of cochlear implants in deaf children
because the implants had the
potential greatly to reduce, or even eliminate
deafness, and thus to eradicate deaf
culture.[6]
This distinction
between applauded medical uses and controversial enhancement uses of biological
technologies is important for two
reasons: First, it demonstrates that it is
the purpose for which the technology is used, not the technology itself,
which makes some enhancements controversial. Second, it explains the
increasing
flow of human biological enhancements. These technologies are almost always
sought and developed to cure disease or disability.
Health care systems provide
large, well organized, and lucrative markets for expensive new technologies.
The medical, restorative
powers of plastic surgery, anabolic steroids, human
growth hormone, Ritalin, and cochlear implants also bear extensive enhancement
side effects. To borrow a term from arms control, these are “dual
use” technologies, with substantial public, political,
and financial
support for their development for medical uses. The enhancing uses are usually
an unintended, but controversial, consequence.
B. Controversial Human Biological
Enhancements
Some of the discussion that follows is methodologically suspect: the
discussion regarding which enhancements are controversial and
why people find
them controversial is based on subjective impressions. This personal
introspection is surely not strong evidence
of a culture’s beliefs, but,
without the time or funds to commission massive surveys or multiple focus
groups, I can hope that
it offers a perspective that may provoke interest in
this type of analysis. Furthermore, even if there is some validity in that
analysis, it is only an analysis of the culture in which I live, a mainstream
version of the culture of the United States.
Egyptian burials provide
evidence that people enhanced their attractiveness from at least the dawn of
civilization, while cosmetic
surgery has existed since the early 20th
century.[7] Cosmetic surgery does not
have a stigma when used to repair the ravages of injury or disease or birth
defects. When used for these
ends, cosmetic surgery is both socially approved
and generally covered in health care costs. When the same techniques are used
to
reshape roughly normal noses, breasts or penises, or to remove fat, the
surgeries become controversial and are not generally covered
by health
insurance. On the other hand, enhancing one’s appearance through diet and
exercise is normally approved; as, to
a lesser extent, is the use of cosmetics,
hair dye, skin creams, and other beauty aids.
The rise of
neuropharmacology, from early sedatives to current antidepressants, has been
accompanied by concern about the use of such
drugs by people who are not
“sick”. Prozac Nation, Listening to Prozac, and
similar works have talked about the use of these drugs for “personality
enhancement”.[8] Improving
one’s personality by anger management, will power, religious conversion,
meditation, stress reduction, and similar
methods seems unobjectionable. During
the 20th century, psychotherapy and counseling also became acceptable. The
history of social
responses to intoxicants, including alcohol, as
“personality” or “mood” enhancers is
mixed.
Perhaps the form of human biological enhancement most recently
discussed in the press is the use of performance enhancing drugs in
sports.[9] “Doping”
stories have made headlines—from erythropoietin for endurance, to steroids
and human growth hormone for
strength and injury recovery, and to stimulants for
concentration. At the same time, enhancing performance through better nutrition,
conditioning, techniques, equipment, and even mental preparation through sports
psychology, has remained uncontroversial. As with
cosmetic surgery and
neuropharmacology, the interventions used were developed for treatment of
various pathologic conditions, but
proved to be useful for enhancing healthy
people.
While public discussion of enhancement has focused on sports,
much of the academic discussion in recent years has focused on
genetics.[10] Some discussion has
concerned parents (or states) enhancing the next generation through
selection of particular genetic variations for children, either through
selective abortion or through selection of genetically “better”
embryos through pre-implantation genetic diagnosis. In many countries, this
technology has been accessible to parents for several
years. Other discussions
have examined more direct interventions through gene transfer (often referred to
inaccurately, or at least,
to date, too optimistically, as gene
“therapy”), either into existing humans or in germ line transfers to
eggs, sperm,
or zygotes.[11] These
methods are being developed to treat disease, but thus far those efforts have
had very limited success.
Cognition provides a final example of
enhancement.[12] At this point,
biological technologies for improving a healthy person’s cognitive
abilities are quite limited. A few pharmaceuticals,
such as Adderall, Ritalin,
and Modafinil, show some ability to improve concentration or alertness in
healthy people. Intense efforts
at finding drugs to improve memory in those
with dementia may well lead to another category of enhancing interventions.
There are
also non-pharmaceutical possibilities, notably through
neuro-electronic interfaces. These methods of directly connecting the human
nervous system to electronic devices are aimed at restoring the function of
inputs to the brain (the way cochlear implants can restore
hearing to some deaf
persons) or the functioning of body parts that need outputs from the brain (as
through research aimed at bridging
spinal cord injuries). Much older forms of
cognitive enhancement, such as education, are not controversial; the prospect of
students
using “memory pills” is.
C. Five Objections
I have addressed objections to enhancement in several earlier
works.[13] I believe those
objections fall into five categories: safety, coercion, fairness, integrity,
and naturalness.
Safety objections focus on the risks that enhancement
technology holds for its recipient. Thus, the bad health effects of anabolic
steroids are an argument against their use. This argument must consider the
risks that societies already allow their members to
take.
Coercion is a
more complicated objection. In its most direct form, the argument about frank
coercion worries about people being
ordered to use enhancements against their
will, perhaps by governments or employers. Parental coercion deals with
children who cannot
give informed consent to risks imposed on them by others,
including parents who may have a strong interest in their enhancement.
A third
argument concerns implicit coercion, when people, in a particular context, feel
they have no real choice but to use an enhancement.
Weight lifters or
bodybuilders, for example, may currently feel that if they want to compete
successfully, they must use performance-enhancing
drugs. It is possible that in
the future, mental enhancements will make aspiring pre-medical students feel
compelled to use a memory
pill for help with organic chemistry.
Fairness objections focus in two ways on the advantages that the
enhanced person will have over those who are not enhanced. One
set of concerns
centers on particular competition, athletic or otherwise, in which the enhanced
person will have an advantage, or
can look more broadly at the enhanced
person’s whole life. The second set focuses on the overall social
unfairness of allowing
optional and costly enhancements—if
enhancements are expensive, only the rich and their children will be enhanced.
At the extreme, these fears
include the possibility of an enhanced and
self-perpetuating “nobility”, possibly evolving themselves through
genetic
interventions into a superior
species.[14]
Integrity is
an issue in two different ways. In an obvious way, if particular enhancements
are illegal or against the rules in some
competitions, the integrity of the
enhancement users and of the competition will be undermined. The more
interesting question about
integrity, though, asks whether enhancements that are
not prohibited undermine the integrity of an activity. Some argue, for example,
that biological enhancements contravene the ideal of sports. Although that
ideal may rarely or never be fully met, enhancement nonetheless
should be banned
in order to preserve the value competitors and fans take from
sports.[15] Those who believe in
meritocracy might make similar arguments against the use of cognitive
enhancements by students.
The last objection to enhancement may well
be the most powerful component in the popular concern about them: human
biological enhancements
are objectionable because they are unnatural. This may
come from a religious view (they change humans from what God intended), from
a
view derived from evolution (they change humans from what natural selection, or
evolution, or nature “intended”), or
just from a more visceral
reaction (the “yuck factor”).
Enhancement has a bad
reputation in Western cultures, which likely stems from religion. These
concerns appear in Genesis:
And the LORD God said, Behold, the man is become as one of us, to know good and
evil: and now, lest he put forth his hand, and take
also of the tree of life,
and eat, and live for ever: Therefore the LORD God sent him forth from the
garden of Eden, to till the
ground from whence he was taken. So he drove out
the man; and he placed at the east of the garden of Eden Cherubims, and a
flaming
sword which turned every way, to keep the way of the tree of
life.[16]
Parallel to the Hebrews, the Greeks told of Prometheus, enhancing mankind
with the gift of fire, but suffering an eternity of torment
as a result; and of
Icarus, who used his father’s invention to fly too high and so fell to his
death. Modern literature has
seen FAUST, FRANKENSTEIN, THE ISLAND OF DR.
MOREAU, and, most interestingly, BRAVE NEW WORLD. In each case the attempt of
mankind
to rival the gods ends in disaster, or, at least, dystopia. (Fictional
accounts of successful enhancement are far rarer, whether
because they go
against our cultural grain or whether they just lack dramatic tension. Arthur
C. Clarke’s CHILDHOOD’S
END is one interesting example of this
approach.[17]) This deep cultural
archetype of the dangers of men attempting to “become too much” can
certainly affect reactions to
bioscience[18] and to human
biological enhancement.
II. Are Human Biological Enhancements
Meaningfully Different from Other Forms of Human Enhancement?
Human enhancement is everywhere, from clothing to the Internet, from jet
planes to cosmetic surgery, and from education to anabolic
steroids.
“Enhancement,” as a controversial issue, seems to be limited to new
technical interventions that change the
human body’s structure or
functioning, typically through “medicine-like” interventions: drugs
or genes, surgical
removals or implants. But are those enhancements really
different in ways that have meaning, for either ethical or policy analysis?
This section of the article explores that question. It starts by
discussing the weak foundations for an important and generally assumed
distinction between tools and changes to the human body that enhance our
abilities. It then looks at the distinctiveness of human
biological
enhancements with respect to the five general objections to enhancement
discussed above. It follows with a discussion
of five other factors that may
affect our views of human biological enhancement. It concludes that human
biological enhancements
for the most part are not meaningfully different from
other kinds of human enhancement and that they should not be treated differently
just because they are biological enhancements.
A. Tools versus Selves
Reports of tool use by non-human primates, porpoises, and even birds
make it increasingly clear that Homo sapiens is not the only
tool-using animal, but our tools are clearly central to our existence. Thomas
Carlyle wrote “Man is a Tool-using Animal .
. . . Nowhere do you find him
without Tools; without Tools he is nothing, with Tools he is
all.”[19] Over its history,
Homo sapiens has enhanced the quality and quantity of its lives mainly
through the use of tools. Our species’ hominid ancestors used stone
tools
for pounding, cutting, and other purposes; our species’ innovations range
from clothing and controlled fire to personal
computers and nuclear weapons.
Tools, defined broadly, enormously enhance our abilities over those of
humans in a “state of nature”. They allow us
to eat better, be
stronger, move faster, communicate over greater distances, and generally to do
more. Yet, with the exception of
a few religious sects, such as the Old Order
Amish, few people feel qualms about using modern tools. And even the Old Order
Amish
allow the use of some tools, those similar to the tools used by their
ancestors when the sect was founded.
Helping a man change himself so
he can throw a discus a foot farther is controversial; letting men build tools
to shoot bullets thousands
of feet, and shoot rockets thousands or millions of
miles, is not. It would be controversial to engineer humans who were capable
of
even slow and limited flight, yet we do not think twice about crossing the
Pacific at enormous speeds and heights. Why?
I think most of us would
react that the tool is not the self, or, at least, is not so perceived. Tools
are not part of our biological
organisms. They can be added or subtracted.
They are (usually) inanimate, lifeless objects (although some working animals,
such
as sheep dogs, are effectively “tools”). Using tools does not
change “us.”
But is that really true? Eyeglasses have been
part of my life for over forty years. Although I do take them off to sleep, to
shower,
or to swim, they seem more a part of me than, say, my useless smallest
toe. They seem more a part of me than various internal, unperceived
and largely
unknown organs, such as my appendix or my spleen. Eyeglasses are a medical
intervention, not an enhancement, but the
point here is that they are
“tools” that can feel like part of oneself. And other tools,
not used as medical interventions, can produce the same reaction. Athletes in
some sports
talk of feeling that the bat, the glove, and the racquet are
extensions of their arms. In some moods, a personal computer connected
to the
Internet can feel like another, vastly powerful, organ. Cars, cell phones, and
iPods similarly take on deeply personal meanings
for people, complete with their
own “personalizing” touches, marking the tool as distinctively
belonging to the owner—
or, perhaps, distinctly part of the owner.
Even apart from tools that blur the distinction between our things and
ourselves, why, after all, should we make such a distinction?
If we focus on
the action performed, the end accomplished, is there a difference between a
person using binoculars and a person
engineered to have spectacular distance
vision? The objection must be to the means, not to the end, which in
both cases is better distance vision, but what is the meaningful difference?
The next
sections of this paper will consider, and dismiss, several ways in
which one might argue that tools are inherently different from
human biological
enhancements. I am not confident that this effort clearly demonstrates that
they are not different; I do believe
it shows that the argument for a moral
distinction between the two is not an easy one.
One other aspect of
the tool/self distinction should be noted. There are some interesting things
that exist somewhere in the middle
of this apparently sharp distinction, tools
that are implanted into the body and become “part” of it—heart
pacemakers,
cochlear implants, and, to some extent, prosthetic limbs. Thus far,
these exist for medical reasons, to restore or preserve “normal”
functioning. Rapidly improving technologies for connecting neural systems
directly with electronic systems hold out the prospect
of direct mental control
of “tools”[20] or of
direct inputs into the brain from artificial sensory organs, implanted or
distant.[21] This could be used for
restoration, as in restoring lower body motion and sensation to those with
spinal cord injuries. It could
also be used for enhancement, bringing closer to
reality the possibility of “bionic” people or cyborgs, who seem
problematic
because they are cases where tools have become major
components of selves. [22]
On the other hand, fantasies of a rapid spread of cyborgs need to be
tempered by an appreciation of the power of tools. If a person
can use
binoculars, why run the expense, the risk, and, for the near future at least,
the lower quality, of an implanted distance
vision system? It may be that the
first cases of enhancement through implanted tools will occur in injured or
disabled people who
will need a cochlear implant or artificial retina—with
its attendant costs, risks, and quality issues—to restore their
abilities,
but decide they should try one that enhances their capabilities beyond the
normal human range.[23]
B. The Five Objections to
Enhancement
Four of the five objections to human biological enhancement face the
problem that they also apply both to non-biological enhancements
and to human
biological enhancement when used in medicine. This lack of distinctiveness is
not necessarily a fatal blow to these
objections. It might make sense, for
example, to use a technology to treat deadly pancreatic cancer while banning its
use to sculpt
more sharply chiseled biceps for a bodybuilder. One could further
argue that it may be preferable to prevent the spread of new bad
practices even
if their existing uses are too firmly planted to uproot. Nevertheless, the fact
that those four objections are not
specific to human biological enhancement
significantly affects the arguments.
1. Safety
Human biological enhancements certainly may be unsafe. Even those that
are approved for medical uses may be unsafe for enhancement
uses. First, the
medical clinical trials may not have examined their safety in healthy people at
the doses used for enhancement.
This seems to be the case for anabolic
steroids, which athletes use very differently from the way doctors prescribe
them. Second,
safety is a relative term. A drug or a surgical procedure may be
safe enough to use when weighed against the risks of some diseases,
but not in
the context of another disease, or of the enhancement of a healthy person.
Previous medical approvals of enhancing technologies
as safe may provide some
useful evidence of the enhancement’s safety, but they cannot be
conclusive.
The safety objection is, at most, an argument for
regulating the safety of human biological enhancements in ways akin to the
regulation
of the safety of medical interventions. One should note that, even
with medical interventions, states generally regulate the safety
of drugs and
medical devices by requiring pre-market approval, but do not apply such prior
safety regulation to medical procedures such as new surgical techniques.
But non-biological human enhancements are not subject to any general
pre-market safety approval. Nor, for that matter, are most other human
activities, from skydiving to playing rugby to watching television. Societies
regulate the safety of things for a variety of historical,
legal, political, and
cultural reasons, usually, but not always, related to the degree of danger they
present. There seems to be
little reason to treat human biological enhancements
differently, but instead safety regulations should be imposed on those
enhancements
where and how it seems appropriate.
2. Coercion
Coercive enhancement, in all three of its forms (frank, parental, and
implicit) does pose distinctive questions because of the nature
of the intrusion
they involve. Human biological enhancements will almost always involve physical
intrusions into a person’s
body, either through surgical procedures or
biochemical interventions. Such intrusions are not suspect if they are the
result of
a genuinely voluntary decision, but the law has long provided special
protections for a person’s body, ranging from the common
law action for
battery to the decision by the United States Supreme Court that forcible bodily
intrusions by the police could violate
the Fifth Amendment’s guarantee of
due process of law when they “shocked the conscience”.
[24]
Other forms of
enhancement will generally not involve this kind of physical intrusion; an
employer might, for example, require employees
to attend training sessions to
enhance their performance without raising substantial concerns. And although
medical practice often
requires this precise kind of invasion of a
person’s body, competent adults have an almost absolute right to refuse
medical
treatment. The major exception concerns infectious epidemic diseases
where one person’s lack of treatment may endanger many
others; even in
this context, American court decisions upholding mandatory treatment are
generally old and may be questioned in light
of the growth of civil rights over
the past century.[25] Mandatory
treatment for mental illness has a more complicated history, but coerced
treatment, though not eliminated, has been increasingly
limited over the last
several decades. [26]
Coercive enhancements will need to be regulated. Frank coercion needs
to be limited as appropriate; this may well vary with employers,
for example,
being more constrained in what they can order employees to do than the military
is with respect to soldiers, sailors,
and airmen.
Coercion of children
is more complicated. The government requires certain enhancements for children,
notably education and vaccinations.
And we not only allow but encourage and
even require parents to coerce their children into other enhancements, like
nutrition, study
habits, and braces to improve a child’s teeth and smile.
In the United States parental discretion in parenting even has some,
admittedly
poorly defined, constitutional
protection.[27] At the same time,
we put some, admittedly loose, limits on parental discretion when parents are
clearly acting against their children’s
best interests. The unusually
stringent limitations on children’s participation in risky medical
research as to whether or
not the parents consent provide one
example.[28] Some specific forms of
enhancement that are particularly risky might need to be regulated to prevent
their use on children. In
some cases that will mean that the children can make
their own competent decisions when they become adults; this position is widely
recommended for genetic tests where the results do not lead to interventions
during childhood.[29] The harder
questions will revolve around enhancements that are effective only during (or,
in the case of embryonic or fetal interventions,
before) childhood. Some
regulatory scheme, either governmental or professional, may be necessary to
limit the use of risky or unproven
enhancements in embryos, fetuses, or young
children.
Implicit coercion poses the hardest questions. It is said that
most television news presenters in the United States have had cosmetic
surgery
by the time they are 40 years old. That may be the result of implicit coercion;
the need to look youthful in order to be
competitive in a difficult business.
Yet if everyone can be enhanced to the same extent, to retain their own optimal
30 year old
appearance, no one’s competitive position is changed. But
even though the eventual result is the same, people take the risks
of surgery,
spend money, and perhaps feel coerced. Similarly, an athlete may not want to
take a performance-enhancing drug, but
may feel compelled to do so either to
protect his or her livelihood or merely to be competitive. In these cases,
where everyone
engages in the costly behavior (enhancement) to no one’s
ultimate benefit, a successful ban on all performance enhancing drugs
might
improve everyone’s situation.
This may be true if we assume that
only the quality of the performance relative to that of the other competitors is
important, which
might be the case, for example, with many sports. If, on the
other hand, the quality of the performance has both a relative value
to the
actor and an absolute value to others, the situation is more complicated. The
quality of medical research might be such
an example, where using a cognitive
enhancement to become a better researcher both helps one’s own competitive
position among
researchers and, presumably, helps society by producing better
treatments. Each form of biological enhancement may have to be analyzed
separately in light of implicit coercion; in some cases, particularly those
where the benefits would be only relative, it is likely
that either enhancements
should be generally banned (if an effective ban is feasible) or people who
choose not to be enhanced should
be protected from the negative consequences of
their choices.
Of course, whether an enhancement only has value
relative to the performance of other people or has a more absolute value may not
be easy to answer. Is a particular gymnastics routine made possible by an
enhancing technology only valuable to the performers whom
it makes better than
others or does the resulting novelty or beauty have its own value? And, of
course, any regulation is likely
both to have some costs and to be imperfect.
As a practical matter, regulating enhancements in order to avoid implicit
coercion
may often prove extremely difficult.
3. Fairness
The fairness objection, on the other hand, seems less troublesome. The
fairness problems of enhancements are not unique to human
biological
enhancements, nor are they without plausible regulatory solutions. As President
Kennedy said, in a very different context,
“Life is
unfair”.[30] It is hard to
imagine any competition, athletic or otherwise, to which the contestants bring
exactly the same physical, mental, and
emotional capabilities. Many of those
capabilities will be the result of genetic variation, early environment, and
chance, none
of which the contestant “deserved”. It is not clear
why biological cognitive enhancements should be any more, or any
less, unfair
than the cognitive enhancements that come from good nutrition, family
encouragement, good schools, or a preparatory
course for college entrance
examinations. Nor is it clear that the use of a performance-enhancing drug by
an athlete is any more,
or less, unfair than having a great coach, excellent
equipment, the services of a sports psychologist, or good genes. (Some of these
various enhancements, biological or otherwise, may require more or less
“work” by the enhanced person than others; that
issue is discussed
below.) The use of any enhancement that is available only to some may be unfair
to those who do not have access
to it, whether or not it is a human biological
enhancement. One could even imagine a case where biological enhancements were
only
permitted to make competitions “more fair”, by providing
compensating abilities to those who lost out in the genetic,
parental, or early
life environment lotteries.
It might be argued that in some
competitions—athletic, intellectual, occupational, or
other—biological enhancements would
be too valuable and would be
unfair because they would overwhelm all other factors. Professor Max Mehlman
makes such an argument about
the power of inherited genetic enhancement to make
success in life unfair, both within one generation and across succeeding
generations.
As a result, he calls for banning such enhancements.
Alternatively, though, one could solve the fairness problem in that situation
by
making the enhancement available to all, a strategy already used in some
contexts. If we accept primary and secondary education
as an
“enhancement,” as surely we must, the common response to the fear of
unequal access has not been to ban education
but to make it a universal
entitlement. Although this may be an area where it is harder to dislodge
existing practices than to prevent
new ones, those worried about the long term
unfairness of self-reinforcing inequality may prefer to fight for inheritance
taxes and
excellent universal education rather than try to regulate still
speculative human biological enhancement technologies.
There remains a
fairness question of what to do about people who have access to an enhancement,
but voluntarily choose not to use
it. This issue is, in part, discussed above
with regard to implicit coercion. If the costs of foregoing an enhancement are
sufficiently
dire, one might want to protect people against the coercion
implicit in such a choice, as a matter of avoiding coercion more than
as a
matter of fairness.
But even if the situation is not effectively
coercive, we might still feel that fairness requires us to protect some people
from the
effects of their decision not to enhance. For example, one might (or
might not) want to protect people’s choices that are
influenced by
religion. American employment discrimination law not only bans overt
discrimination based on religion, but affirmatively
requires employers to make
reasonable accommodations to an applicant’s or employee’s religious
beliefs, which might involve,
for example, special work schedules or exemptions
from some clothing rules.[31]
Presumably, a religiously motivated choice not to use a human biological
enhancement would be covered by the same provision. In
other situations we
usually allow (or force) people to accept the consequences of their decisions
not to choose an enhancing technology,
just as we let people live with the
results of their educational or investment choices. One might argue that
fairness would require
the protection of someone who does not want to use a
human biological enhancement for principled, but not religious, reasons, only
if
we concluded that the question of enhancement should be viewed as important or
as special as questions of religious observance.
4. Integrity
The integrity objection also applies more broadly than to human biological
enhancements. Parallel to the argument about fairness,
other kinds of
enhancement might undercut “the essence” of the activity. Special
equipment or treatment by a sports
psychologist may be as inconsistent with
“the spirit” of sport as performance-enhancing drugs; test
preparation or cram
courses may be as inconsistent with meritocracy as
cognitive-enhancing pharmaceuticals. Whether human biological enhancements are
inconsistent with the integrity of an activity depends on the definition of the
“essence” of the activity, which will
often be difficult to
determine.[32] That, in turn,
requires some way of determining whether any one group’s definition of the
essential aspects of the activity
should be allowed to bind other people with
other views. Thus, if some people believe performance-enhancing drugs ruin the
meaning
of sports, but others, whether they approve of the use of such drugs or
not, do not believe their use undermines the value of sports,
whose view should
control?
Pluralism is one response. One could let those who want
“pure” sports have “drug-free leagues” and let others
have “open” leagues, just as some people abide by rules governing
amateurs and others prefer professional status. To
do so would be to consider
enhancement a matter of taste, a preference as to which reasonable people might
differ. It might (or
might not) be appropriate for a government to help leagues
enforce their rules, but there seems to be little reason, under the claim
of
integrity, for a government to ban enhancement for everyone.
5. Naturalness
The final objection, naturalness, is akin to integrity but instead of
focusing on the activity affected by the enhancement, it concerns
the integrity
of the species whose member is enhanced. Like the integrity argument, it
requires an agreement on the essence of humanity
itself. For some, that
definition may be religious. Jewish and Christian scripture holds that God
created man in his own image;
presumably, changing man from that image would be
sinful.[33] For those without a
religious basis for their definition, humans in a state of nature might be a
plausible measure of appropriate
humanity (although there are serious logical
problems with the idea that what is “natural” necessarily has
normative
force, often referred to as “the naturalistic
fallacy”[34]).
Both
ways of defining “appropriate humanity” face the problem that little
about today’s humans resembles those
at the time the religious definitions
were created, resembling even less humans in a “state of nature”.
What we eat,
what we wear, how we live, travel, and communicate have all changed
markedly as a result of human enhancements. Even our physical
beings are longer
lived, larger, and generally healthier than in the past. It is not clear why
some changes are natural, or religiously
licit, and others are unnatural or
sinful. And in heterogeneous societies, a group that does come up with a
thorough description
of religiously or naturally appropriate humanity has the
further problem of convincing others that its definition is correct. The
feeling that human biological enhancements, at least in more extreme cases, are
“wrong” has great emotional appeal and,
I suspect, broad popular
support, akin to that of the so-called “yuck factor.” Whether this
feeling can be justified
is less clear.
C. Other Factors
Some other factors seem to be at work in causing controversy about human
biological enhancements. They are not strong or self contained
enough to
constitute independent arguments against enhancements, but are rather perceived
distinctions between biological and other
enhancements or other concerns that
feed public discomfort about biological enhancements. This section discusses
five such factors:
the physical nature of biological enhancements; their
perceived permanence; their unearned nature; their novelty; and, lastly, concern
that human biological enhancements are examples of human hubris.
1. Physical?
Some of the feeling that biological enhancements are different may come
from the sense that they make physical or, in some cases,
biochemical changes in
the body when tools or other enhancements do not. It is not clear why physical
changes should be crucial,
but, in any event, other enhancements do change our
bodies. Weight training and good diet change the shapes of our bodies;
conditioning
and practice change our physical capabilities. Our tools give us
calluses and change our muscles and joints (sometimes for the worse).
Our
clothing changes the texture and color of our skin.
Perhaps most
powerfully, though least visibly, enhancement through learning physically
changes our brains. Memories and mental skills are embodied in physical changes
in how our brains operate. Synapses, the connections
between neurons in the
brain, get stronger or weaker, are destroyed or are created. Anything that one
learns from reading this article
exists in the mind because of those
physical changes in the brain. Learning to read, learning to type, and
learning to play the guitar both cause and are caused by these physical
changes
to the brain. These changes are as real and physical as, though possibly less
tangible than, the changes caused by cosmetic
surgery, gene transfer, or
cognition enhancing pills.
2. Permanent?
Another factor may be the feeling that biological enhancements are more
permanent than using tools or other forms of enhancement.
But this distinction
also fails. Some biological enhancements may be easy to stop, such as
memory-enhancing pills or anabolic steroids.
Others may be hard but possible
to undo, such as cosmetic surgery. Even gene transfer, when and if it ever
becomes feasible,
should probably be reversible through counteracting gene
transfer. Some biological enhancements might be effectively irreversible,
such
as those that affect childhood development—drugs that increase a
child’s growth might be an example—but most
will not be.
In another sense, however, many of these enhancements will be
irreversible. An athlete who has steroid enhanced muscles is always
different
from one who has not, even after the muscles have reverted to normal. But this
is true of all human enhancements, and
indeed of all human experience. Learning
to read has irreversible effects, as does going to law school or falling in
love. Biological
enhancements seem likely, in general, to be no more and no
less irreversible than other enhancements or experiences.
3. Unearned?
The first two factors, physical change and perceived permanence, seem
related to the (weak) distinction between tools and selves.
The third factor,
the unearned nature of biological enhancements, seems related to both fairness
and integrity. People may believe
that muscles from weight training and good
grades from diligent study are earned and therefore good; muscles from anabolic
steroids
and good grades from cognitive- enhancing pills are unearned and are
therefore bad. This assumes first that the enhancement does
not require any
ethically significant effort. Anabolic steroids do not build muscles in people
who do not exercise; they can improve
the muscle-building results of exercise.
Pills that improve attention would not replace studying but would make it more
efficient.
Even cosmetic surgery is arguably “earned,” if not by
cash payments, then by the pain of the recovery period.
The bigger problem with this idea is that we rarely reward pure effort.
Competitions are not judged based on who tries the hardest
or prepares most
diligently. Those factors are often important, but the performance is
determinative, not the effort. The Nobel
Prize is not awarded to the hardest
working scientist; athletic fame and fortune come from successful results, not
mere effort.
Many factors other than hard work affect success in most
endeavors, including inherited traits, good training, and luck. We may not
like
this; we may prefer to believe that our successes are completely the result of
our own efforts and, hence, “earned”
by those efforts. But it takes
very little reflection to recognize that many “unearned” factors
affect success; it is
not clear why biological enhancements should be viewed as
peculiarly inappropriate unearned factors.
4. Novel?
A cynic might note one generally applicable distinction between
controversial and non-controversial enhancements: the controversial
enhancements are newer. Cosmetic surgery, the oldest of the biological
enhancements discussed in this article, is also the least
controversial and
seems to have grown less controversial with time. In vitro fertilization and
recombinant genetic engineering were
both extremely controversial when invented
in the 1970s; both are today routine, at least in most circumstances. Novelty
raises
some legitimate concerns, primarily safety concerns from the limited
extent of our knowledge of the long term effects of an innovation.
Novelty,
however, does not seem to have any independent ethical significance—at
least not in Western culture, which has been
changing at a dizzying rate for the
last several hundred years.
5. Hubris?
Hubris is the last of these other factors. The Greeks originally used
the term to mean presumption toward the gods; it now means
overbearing pride,
presumption, or arrogance. Adam and Eve, the Tower of Babel, Icarus, Dr.
Frankenstein—they all are stories
of people who attempted to do what
humans should not do. Are we really foolish enough, many ask, to believe that
we are wise enough
to change ourselves? It is a fair question. There seems
little reason to believe that we can successfully plan changes in our species.
Our knowledge—our ability to predict the actual consequences of the
changes we effect—is certainly limited; our wisdom—our
ability to
make the ethically or morally appropriate choice even if we could accurately
predict the future—is at least equally
suspect.
But this question
is moot. We are constantly changing our species. Agriculture, writing, and
printing vastly changed human life.
The revolutions of the last two centuries
have made life in the industrial or post-industrial world more distant from the
lives
of modern subsistence farmers. Based on our history, one powerful way to
describe Homo sapiens might be as a species that is constantly
reinventing itself. Human biological enhancements may be a new method of
reinvention, but
they are surely not uniquely, or even particularly, susceptible
to the charge of hubris.
D. Concluding Thoughts on whether Human
Biological Enhancement Is Different
The general approach of this section has been to compare new human
biological enhancements with existing forms of enhancement and
to show that, in
many ways, they are not very different. One could argue, as an anonymous peer
reviewer has suggested, that even
if any enhancement differs in any particular
way only slightly from existing, well accepted approaches, the combination of a
number
of small differences may be important. That may be true, but I would
require an argument about why that combination made an ethically
significant difference.
One might say that if people react viscerally
against a particular enhancement, that reaction itself is evidence that such a
culmination
of small differences has become significant. I see no reason to
believe, as a factual matter, that popular repugnance is necessarily
a
consequence of such a summation of small differences. It seems more likely to
be a negative reaction to some part of the enhancement.
Neither am I willing
to accept repugnance as an independent ethical argument. One’s sense of
repugnance to something—whether
an unusual sexual activity or an
odd-smelling food—may be a good reason not to indulge it oneself. On its
own, it is not a
good argument for prohibiting interested people from trying
it.
III. International
Implications
This article was written by a middle-aged, white, male, American law
professor. That is not an apology, but it is a limitation.
The culture from
which I have tried to draw insights and conclusions is not the culture of all
300 million residents of the United
States and certainly not that of our entire
species. But the fact that the roughly 6.4 billion members of Homo
sapiens form thousands of different cultures, organized into hundreds of
different sovereignties, has crucial implications for the future
of human
biological enhancement.
A. Cultural Diversity
Different cultures react differently to various human biological
enhancements. The wealth of a culture will affect what enhancements
are
available, as will its scientific and medical infrastructure. The economic and
social conditions may make some enhancements
more, and others less, interesting.
A culture where memorized texts are important might be especially interested in
memory-enhancing
drugs. A culture that does not participate in the Olympics may
well not be very interested in performance-enhancing drugs for Olympic
athletes.
Particular enhancements might be unacceptable in some cultures for
specific reasons, as, for example, a pig-based implant might be
unacceptable in
Jewish or Muslim cultures.[35] Some
cultures might find the whole idea of human biological enhancement uninteresting
if what their culture values most cannot be
affected by these kinds of
enhancements. Thus, a culture with a strong religious orientation, away from a
worldly life, might find
most enhancements irrelevant, distasteful, or possibly
irreligious. It would, however, be rash to generalize too strongly about how
certain kinds of cultures would react to some kinds of enhancement. A wonderful
fictional example of a religious use of a modern
technology comes from an Arthur
C. Clarke short story where Tibetan Buddhists install a computer to complete a
prayer cycle, with
surprising
consequences.[36]
But
cultural variation is interesting and important in another sense. One way to
determine what is “natural” is to follow
an Aristotelian definition
of natural law—natural law comprises those rules that all humans (or all
human cultures) accept.
The existence of some positive views of particular
human biological enhancements would be evidence that there is no universally
acknowledged natural law against them.
B. International Rivalry
The billions of living humans are not only members of thousands of
different cultures, but are governed by several hundred sovereign
national
governments. The existence of different sovereignties adds further
complications to the questions of human biological enhancement—some
of
those sovereignties may see human biological enhancement as a competitive
advantage. We know the former East Germany used performance-enhancing
drugs to
improve its competitiveness in the Olympic Games and other international sports
competitions.[37] It seems unlikely
that a government will care enough about its population’s beauty to
encourage enhancing cosmetic surgery,
but other uses are more plausible.
Military applications are the most obvious. Human biological
enhancements might yield better soldiers, for offensive or defensive
purposes.
Already, the United States Defense Department is spending many millions of
dollars on research projects in cognitive
enhancement.[38] These range from
research on maintaining alertness and normal cognitive function in the face of
limited sleep to efforts to use
direct neuro-electronic connections for direct
mental control of weapons. Although long term genetic intervention—the
creation
of armies of cloned warriors—seems unlikely, somatic cell gene
transfer to improve soldiers’ physical abilities, for
either the short or
the long term, seems plausible. So do performance-enhancing drugs.
But not all competition is military. Some countries already see
advantages in competing in the global economy with an educated workforce.
Biological enhancements might prove useful in improving the education of a
country’s population. Nations seem to compete
in scientific research for
short term economic benefits, but also for prestige, military spin offs, and
sheer pride. Such countries
might well encourage human biological enhancements
that improved their researchers—and their researchers’ results.
Even personality or mood enhancers could be of great interest to a national
government, perhaps not as much for international competition
as for avoiding
domestic disaffection and possibly for improving economic outcomes. National
governments might encourage, or compel,
the use of human biological enhancements
for reasons we see as good (public health), bad (political control), or
relatively unimportant
(Olympic medal counts). But, if important enhancements
are available, governments that have the means to use them will not ignore
them.
C. Transnational Regulation
The existence of different sovereignties complicates regulation of
enhancement. If certain kinds of enhancement are felt to be so
bad, for
whatever reason, that they must be banned, to be effective, all of the
world’s states would have to enact—and
to enforc— the ban.
More subtly, the competitive incentives discussed above mean that a ban even in
one country might be undercut
by the use of the enhancement in competing
countries. Without such an international ban, countries that would like to ban
an enhancement
may not feel able to do so for competitive reasons. Even if they
do ban the enhancements, they will then have the problem of preventing
their
nationals from becoming “enhancement tourists” who go outside the
country to get the enhancements they want. But
universal bans on forms of human
biological enhancement will be difficult to create and probably impossible to
enforce.
Unless they embody, or become, “customary”
international law, international treaties or conventions are enforceable only
in
countries that ratify them. It may well prove impossible to convince every
country to ratify a treaty banning some or all human
biological enhancements,
particularly if the objections are based on cultural responses that are not
universally shared. Even if
most countries are willing to sign, the remaining
countries might see an opportunity to build a lucrative specialty as an
“enhancement
haven”. And, of course, even if a convention were
adopted universally, it might not be enforced. At least six international
conventions ban slavery and various forms of forced
labor,[39] yet it is estimated that
millions of people remain
slaves.[40]
The Treaty on
the Non-Proliferation of Nuclear Weapons provides another useful example; 187
countries have ratified this
treaty.[41] At least three of those
that have not ratified the treaty have produced, or are widely believed to have
produced, nuclear weapons:
India, Pakistan, and Israel. North Korea, which is
believed to be producing nuclear weapons, had probably been violating the Treaty
for several years before it formally withdrew in 2003. Some countries that have
ratified and that have not withdrawn from the Treaty
are believed to have
violated, or to be violating, its provisions by seeking to develop nuclear
weapons, including Iran, currently,
and Iraq, in the past. Developing nuclear
weapons is an enormous scientific and industrial endeavor, requiring large,
difficult-to-conceal
facilities and costing billions of dollars.
Human
biological enhancements are likely to be much easier and less expensive to
develop and produce. They will usually flow from
medical developments that will
involve publicly available drugs and devices and openly described procedures.
These “dual use”
technologies should make it easy for a country to
secretly enhance at least some of its citizens. A successful universal
prohibition
of an attractive enhancement seems impossible.
Professor
Mehlman has discussed the problems of international bans on enhancement in
detail with regard to inherited human genetic
enhancements. Although he
strongly supports such bans, his analysis is not encouraging. He calls,
ultimately, for the use of American
economic and political pressure to
“encourage” other countries to adopt and enforce such bans and, at
the extreme, American
military intervention to compel their
enforcement.[42] The feasibility of
such a policy is questionable; recent events in the Middle East make its
attractiveness – inside and outside
the United States – minimal.
Any policy on the regulation of human biological enhancements will have to
confront the reality
that attractive enhancements almost certainly cannot be
universally and enforceably forbidden.
Conclusion
Explanations exist; they have existed for all time; there is always a
well-known solution to every human problem—neat, plausible,
and wrong.
H.L.
Mencken[43]
This is the fifth
time that I have written about human biological enhancement. It will not be the
last. Each time I write about
this question, I see new issues and new
arguments; each time I believe I am approaching nearer to the core of the
problem, but I
am still not close to being comfortable, either viscerally or
intellectually, with a set of final conclusions about human biological
enhancement.
I do believe, though, that the area of enhancement will
have no good easy answers. Many of the broad ethical concerns about human
biological enhancement seem to me unfounded. In most respects these
technologies are not ethically different from other enhancing
technologies we
have long used and accepted.
At the same time, this article is not
intended as an argument that biological enhancement should exist in an
unregulated, laissez
faire status. Each kind of enhancement will need to be
treated on its own, weighing the benefits of the technology against the costs
it
may impose, as well as the costs of regulation. There will be what I would
consider good reasons to restrict or even ban some
human biological
enhancements. And societies may choose to act for reasons I would consider
irrational; for the most part, at least
where human rights are not involved,
people, individually and collectively, are entitled to act on their tastes,
preferences, and
biases. California bans human consumption of horse meat;
Singapore severely restricts the use of chewing gum. Neither action seems
to me
“rational”, but neither seems improper. Societies may well choose
to limit or ban some enhancements for similar
reasons, although, as noted above,
international pressures may limit the effectiveness of those efforts.
The “right answer” about human biological enhancement will
surely vary from technology to technology, from culture to
culture, and from
time to time. We will not be helped to the right answer by viewing human
biological enhancements as qualitatively
different from other human endeavors.
Instead, like all new technologies, we will need to ask whether and how these
technologies
can be used “to make greater, as in value or
desirability” our lives, our societies, and our world.
[1] Stanford University. The
author would like to thank the many audiences on whom these ideas have been
tried out, an anonymous peer
reviewer, and his very diligent research assistant,
Jason Tarricone.
[2] The World
Transhumanist Association is a group that supports human biological enhancement.
See World Transhumanist Ass’n Home Page,
http://www.transhumanism.org (last visited Oct. 8, 2005).
[3] See ALLEN BUCHANAN ET
AL., FROM CHANCE TO CHOICE: GENETICS AND JUSTICE (Cambridge Univ. Press 2001);
CARL ELLIOTT, BETTER THAN WELL:
AMERICAN MEDICINE MEETS THE AMERICAN DREAM (W.
W. Norton & Co. 2003); Frances M. Kamm, Is There a Problem with
Enhancement?, AM. J. BIOETHICS, May-June 2005, at 5; MAXWELL J. MEHLMAN,
WONDERGENES: GENETIC ENHANCEMENT AND THE FUTURE OF SOCIETY (Univ. of
Ind. Press
2003); ENHANCING HUMAN TRAITS: ETHICAL AND SOCIAL IMPLICATIONS (Erik Parens ed.,
Georgetown Univ. Press 1998); PRESIDENT’S
COUNCIL ON BIOETHICS, BEYOND
THERAPY: BIOTECHNOLOGY AND THE PURSUIT OF HAPPINESS (Regan Books 2003); SHEILA
ROTHMAN & DAVID ROTHMAN,
THE PURSUIT OF PERFECTION: THE PROMISE AND PERILS
OF MEDICAL ENHANCEMENT (Pantheon 2003); Michael J. Sandel, The Case Against
Perfection, ATLANTIC MONTHLY, Apr. 2004, at 50.
[4] See the discussion of this
distinction in Eric Juengst, What Does Enhancement Mean?, in
ENHANCING HUMAN TRAITS: ETHICAL AND SOCIAL IMPLICATIONS, supra note 2, at
29.
[5] PGA Tour, Inc. v. Martin, [2001] USSC 41; 532
U.S. 661 (2001); Henry T. Greely, Disabilities, Enhancements and the Meanings
of Sport, 15 STAN. L. & POL’Y REV. 99, 103-12
(2004).
[6] Shortly after the Food
and Drug Administration approved cochlear implants for children in 1990, the
National Association of the
Deaf (NAD) opposed their use. See John
Barry, Silence Is Golden?, MIAMI HERALD, Sept. 22, 1991, at 8; Gene
Warner, Girl, 5, Makes Medical History with Ear Implant, BUFFALO NEWS,
June 23, 1991. In October 2000, however, NAD’s Board of Directors
expressed cautionary approval of the implants.
COCHLEAR IMPLANT COMM.,
NAT’L ASS’N OF THE DEAF, NAD POSITION STATEMENT ON COCHLEAR IMPLANTS
1 (2000), http://www.nad.org/site/pp.asp?c=foINKQMBF&b=138140.
See
MICHAEL CHOROST, REBUILT: HOW BECOMING PART COMPUTER MADE ME MORE HUMAN 130-35
(Houghton Mifflin 2005).
[7] See ENHANCING HUMAN
TRAITS: ETHICAL AND SOCIAL IMPLICATIONS, supra note
2.
[8] See ELIZABETH
WURTZEL, PROZAC NATION: YOUNG AND DEPRESSED IN AMERICA (Riverhead Books 1997);
PETER D. KRAMER, LISTENING TO PROZAC: THE
LANDMARK BOOK ABOUT ANTIDEPRESSANTS
AND REMAKING THE SELF (Penguin Books 1997); ELLIOTT, supra note 2.
[9] Greely, supra note 4,
at 112-25, 128-32.
[10] See BUCHANAN ET AL.,
supra note 2; MEHLMAN, supra note 2.
[11] See DESIGNING OUR
DESCENDANTS: THE PROMISES AND PERILS OF GENETIC MODIFICATIONS (Audrey R. Chapman
& Mark S. Frankel eds., Johns
Hopkins Univ. Press 2003); SUSANNAH BARUCH ET
AL., GENETICS & PUB. POLICY CTR., HUMAN GERMLINE GENETIC MODIFICATION:
ISSUES AND
OPTIONS FOR POLICYMAKERS (2005), available at
http://www.dnapolicy.org/content.labvelocity/pdfs/6/68176.pdf.
[12]
Henry T. Greely, The Social Consequences of Advances in Neuroethics: Legal
Problems; Legal Perspectives, in NEUROETHICS (Judy Illes ed.,
forthcoming 2005).
[13] Henry T.
Greely, Human Genetic Enhancement: A Lawyer’s View, Review of
Wondergenes: Genetic Enhancement and the Future of Society by Maxwell
J.
Mehlman, MED. HUMAN. REV., Fall 2003, at 42 (book review); Greely,
supra note 4; Henry T. Greely, Seeking More Goodly Creatures,
CEREBRUM, Fall 2004, at 49; Greely, supra note 11.
[14] Mehlman talks of our need
to take action to avoid a “genobility” composed of the rich who
genetically enhance their
children, generation after generation, possibly
ultimately becoming a new species. See MEHLMAN, supra note 2, at
120.
[15] Thomas Murray,
Director of the Hastings Center, has made this argument. See
Michael Dobie, Of Might Mice & Super Men, NEWSDAY, March 19,
2005, at B10; Mark Sappenfield, Pervasiveness of Pills Dulls Outrage Against
Steroid-Using Stars, CHRISTIAN SCI. MONITOR, Dec. 10, 2004, at 1.
[16] Genesis 3:22-24
(King James). The story of the Tower of Babel is another example of mankind
being punished for overreaching. Genesis 11:1-9 (King James).
[17] ARTHUR C. CLARKE,
CHILDHOOD’S END (Ballantine
1953).
[18] See
generally, JON TURNEY, FRANKENSTEIN’S FOOTSTEPS: SCIENCE, GENETICS AND
POPULAR CULTURE (Yale Univ. Press
2000).
[19] THOMAS CARLYLE,
SARTOR RESARTUS 31 (Univ. of Cal. Press 2000) (1831).
[20] See e.g., Jose M.
Carmena et al., Learning to Control a Brain-Machine Interface for Reaching
and Grasping by Primates, 1 PUB. LIBR. SCI. BIOLOGY 193 (2003); Jonathan R.
Wolpaw & Dennis J. McFarland, Control of a Two-Dimensional Movement
Signal by a Noninvasive Brain-Computer Interface in Humans, 101 PROC.
NAT’L ACAD. SCI. U.S. 17849 (2004).
[21] CHOROST, supra note
5 (cochlear implants); Mark C. Peterman et al., Localized Chemical Release
from an Artificial Synapse Chip, 101 PROC. NAT’L ACAD. SCI. U.S. 9951
(2004) (artificial retina); A. Asohan, Leading Humanity Forward, STAR
(Malay.), October 14, 2003 (discussing Prof. Kevin Warwick giving himself a new
sense, sonar-based distance finding, through
a neuro-electronic
interface).
[22] Gregory Stock
discusses the difference between capabilities derived from tools and those from
tools embedded within us. A person
with a cochlear implant is a cyborg; a
person with a hearing aid is a “fyborg” – a functional cyborg.
GREGORY STOCK,
REDESIGNING HUMANS: CHOOSING OUR GENES, CHANGING OUR FUTURE
(Mariner Books 2003).
[23] The
character Geordi La Forge from Star Trek: The Next Generation provides a
fictional example. Blind from birth, his artificial vision implant allows him
to “see” the entire electromagnetic
spectrum, an ability that, in
his role as chief engineer, comes in handy from time to time. Non-fictional
examples are provided
by people who, when they get laser eye surgery to improve
below normal distance vision, ask the surgeon to try to give them better
than
normal distance vision. William Saletan, The Beam in Your Eye, SLATE,
April 17, 2005,
http://www.slate.com/id/2116858/.
[24]
Rochin v. California, [1952] USSC 3; 342 U.S. 165
(1952).
[25] MARK A. HALL ET
AL., HEALTH LAW 783-805 (6th ed. 2004); but cf. LAWRENCE O. GOSTIN,
PUBLIC HEALTH LAW: POWER, DUTY, RESTRAINT 204-24 (Univ. of Cal. Press
2001).
[26] GEORGE J. ALEXANDER
& ALAN W. SCHEFLIN, LAW AND MENTAL DISORDER (1998).
[27] Meyer v. Nebraska, [1923] USSC 154; 262 U.S.
390 (1923) (the state cannot prevent parents from having children learn a
foreign language); Pierce v. Soc’y of Sisters[1925] USSC 168; , 268 U.S. 510 (1925) (the
state cannot prevent parents from sending children to private schools).
[28] Additional Protections for
Children Involved as Subjects in Research, 45 C.F.R. §§ 46.401-.409
(2005).
[29] The Am. Soc’y
of Human Genetics Bd. of Dirs. & The Am. Coll. of Med. Genetics Bd. of
Dirs., Points to Consider: Ethical, Legal, and Psychosocial Implications of
Genetic Testing in Children and Adolescents, 57 AM. J. HUM. GENET. 1233
(1995), available at
http://genetics.faseb.org/genetics/ashg/pubs/policy/pol-13.htm (stating that
“If the medical or psychosocial benefits of a genetic test will not
accrue until adulthood, as in the case of carrier status or adult-onset
diseases, genetic testing generally should be deferred”) (emphasis in
original).
[30] President John
F. Kennedy, News Conference at the State Department Auditorium (March 21, 1962)
(transcript available in the John
F. Kennedy Library and Museum), available
at http://www.jfklibrary.org/jfk_press_conference_620321.html. The full
quotation is “There is always inequity in life. Some
men are killed in a
war, and some men are wounded, and some men never leave the country, and some
men are stationed in the Antarctic,
and some are stationed in San Francisco.
It’s very hard in military or personal life to assure complete equality.
Life is
unfair.” Kennedy was responding to a question about the
unfairness of recalling National Guard forces that had earlier seen
hard service
to active duty.
[31] Title VII
of the Civil Rights Act of 1964 § 701(j), 42 U.S.C. § 2000e(j)
(2005).
[32] Justice Scalia made
this argument in the Casey Martin case, as he castigated the Court for trying to
define, or to divine, the “essence”
of golf:
If one assumes, however, that the PGA Tour has some legal obligation to play
classic, Platonic golf—and if one assumes the correctness
of all the other
wrong turns the Court has made to get to this point—then we Justices must
confront what is indeed an awesome
responsibility. It has been rendered the
solemn duty of the Supreme Court of the United States, laid upon it by Congress
in pursuance
of the Federal Government’s power “to regulate Commerce
with foreign Nations, and among the several States,” U.S.
Const., Art. I,
§ 8, cl. 3, to decide What Is Golf. I am sure that the Framers of the
Constitution, aware of the 1457 edict of King James II of Scotland prohibiting
golf because it interfered with the practice of archery, fully
expected that
sooner or later the paths of golf and government, the law and the links, would
once again cross, and that the judges
of this august Court would some day have
to wrestle with that age-old jurisprudential question, for which their years of
study in
the law have so well prepared them: Is someone riding around a golf
course from shot to shot really a golfer? The answer, we learn, is yes.
The Court ultimately concludes, and it will henceforth be the Law of the Land,
that walking
is not a “fundamental” aspect of golf.
Either out
of humility or out of self-respect (one or the other) the Court should decline
to answer this incredibly difficult and
incredibly silly question. To say that
something is “essential” is ordinarily to say that it is necessary
to the achievement
of a certain object. But since it is the very nature of a
game to have no object except amusement (that is what distinguishes games
from
productive activity), it is quite impossible to say that any of a game’s
arbitrary rules is “essential.”
PGA Tour, Inc. v. Martin, [2001] USSC 41; 532 U.S. 661, 670-71 (2001) (Scalia, J.,
dissenting).
[33] It appears
that Islam does not hold that Allah created man in his own image. Instead,
“Allah is unique, unimaginable and
highly exalted above his creation. He
can never and in no way be compared with mankind, who are his creatures and
servants.”
Christine Schirrmacher, The Fall of Man and the Redemption of
Mankind (unpublished essay, on file with author, (June 11, 1997),
available
at
http://contra-mundum.org/schirrmacher/fall.html.
[34]
For a brief discussion of the naturalistic fallacy, see Owen D. Jones
& Timothy H. Goldsmith, Law and Behavioral Biology, 105 COLUM. L.
REV. 405, 484-85 (2005); Owen D. Jones, On the Nature of Norms: Biology,
Morality, and the Disruption of Order, 98 MICH. L. REV. 2072, 2087-88
(2000).
[35] Although at least
Jewish religious leaders do accept the transplantation of pig heart valves in
humans when medically necessary.
See Fred Rosner, Pig Organs for
Transplantation into Humans: A Jewish View, 66 MOUNT SINAI J. MED. 314
(1999), available at http://www.mssm.edu/msjournal/66/PAGE314_319.PDF.
See also Jules Crittenden, Advance Seen on Pig-to-Human
Transplants, BOSTON HERALD, Sept. 18, 1998, at
26.
[36] ARTHUR C. CLARKE, THE
NINE BILLION NAMES OF GOD (reissue ed., New Am. Library
1987).
[37] STEVEN UNGERLEIDER,
FAUST’S GOLD: INSIDE THE EAST GERMAN DOPING MACHINE
(2001).
[38] See Jonathan
D. Moreno, DARPA On Your Mind, CEREBRUM, Fall 2004, at 91.
[39] Universal Declaration of
Human Rights, G.A. Res. 217A, at art. 4, U.N. GAOR, 3d Sess., 1st plen. mtg.,
U.N. Doc. A/810 (Dec. 10,
1948), available at
http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/043/88/IMG/NR004388.pdf?OpenElement;
United Nations, International Covenant on Civil
and Political Rights art. 8,
opened for signature Dec. 16, 1966, 999 U.N.T.S. 171, available at
http://www.unhchr.ch/html/menu3/b/a_ccpr.htm; League of Nations, Slavery
Convention, Sept. 25[1927] LNTSer 19; , 1926, 60 L.N.T.S. 253, available at
http://www.unhchr.ch/html/menu3/b/f2sc.htm; International Labour
Organization, Forced Labour Convention, June 28, 1930, 39 U.N.T.S. 55,
available at http://www.unhchr.ch/html/menu3/b/31.htm; International
Labour Organization, Abolition of Forced Labour Convention, June 25, 1957, 320
U.N.T.S. 291, available at http://www.unhchr.ch/html/menu3/b/32.htm;
United Nations Convention for the Suppression of the Traffic in Persons and of
the Exploitation
of the Prostitution of Others, Dec. 2, 1949, 96 U.N.T.S. 271,
available at http://www.unhchr.ch/html/menu3/b/33.htm.
[40] See, e.g., Pius
Kamau, Slavery a Reality Even Here, DENVER POST, June 23, 2005, at B7;
Nicholas D. Kristof, After the Brothel, N.Y. TIMES, Jan. 26, 2005, at
A17.
[41] Treaty on the
Non-Proliferation of Nuclear Weapons, opened for signature July 1, 1968,
21 U.S.T. 483, 729 U.N.T.S. 161, available at
http://www.state.gov/t/np/trty/16281.htm.
[42] MEHLMAN, supra note
2, at 152-54.
[43] H. L. Mencken, The
Divine Afflatus, N.Y. EVENING MAIL, Nov. 16, 1917, reprinted in
PREJUDICES: SECOND SERIES 158 (Octagon Books 1977). An interesting side note
about this quotation is that it is widely reported
on the Internet as “For
every complex problem there is an answer that is clear, simple, and
wrong.” It is possible,
of course, that Mencken paraphrased his own
quotation at some point after its initial publication in 1917, but it is equally
possible
that the many Internet sites have fed off of one another, with one
misquote spiraling into dozens more. Interestingly, and somewhat
disturbingly,
even purported quotation websites, such as BrainyQuote, have gotten this
quotation wrong. BrainyQuote.com, H. L. Mencken
Quotes,
http://www.brainyquote.com/quotes/authors/h/h_l_mencken.html (last visited Oct.
8, 2005). They seem not to have bothered
to look up the quotations they share
with the world. Even odder is the fact that two different collections of
Mencken’s writings
have different versions of the quotation contained in
the same essay, “The Divine Afflatus.” A MENCKEN CHRESTOMATHY
published the quotation as follows: “Explanations exist; they have existed
for all times, for there is always an easy solution to
every human problem – neat, plausible, and wrong.” H. L. Mencken,
The Divine Afflatus, in A MENCKEN CHRESTOMATHY 443 (Alfred A.
Knopf 1949) (emphasis added). If any reader of this article can provide more
information about
this Mencken quotation, the author (and his research
assistant) would be very interested in learning it.
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