Biotechnology, Bioethics and Liberalism: Problematizing Risk, Consent and Law
Bryan, Bradley, Health Law Journal
At the conclusion of the famous article of 1953 announcing the molecular structure of DNA, Watson and Crick observed "that the specific pairing we have postulated immediately suggests a possible copying mechanism for genetic material." (1) Six months later, Pope Plus XII addressed the First International Conference of Medical Genetics on ethical issues. The Pope said that since the aim of genetics "is to influence the transmission of hereditary factors in such a way as to promote what is good and eliminate what is harmful," genetics is "morally irreproachable." (2) In these two events we have a prediction and a warranty: the scientist predicts the future fruitfulness of a biotechnological science, the Bishop of Rome warrants its moral value. The relationship between attempts to fulfill the prediction and maintain the warranty typifies what we now call "bioethics."
This paper begins an examination of the way bioethics turns to law in its confrontation with biotechnology. There are three aspects to the bioethical encounter with biotechnology. First, bioethics accepts biotechnological facts as truths. Second, bioethics understands consent as the antidote to the risks of biotechnology it diagnoses. Third, bioethics turns to the positive law of procedural liberalism as the way to secure and guarantee consent. The paper aims only to raise the question of the implicit understanding of the human being and law one finds in the bioethical encounter with biotechnology. (3)
This paper does not pose policy questions or offer solutions, nor could it without self-contradiction. The task of the paper is not to improve bioethics, or correct it, or identify its mistakes so as to achieve a "proper" vantage point from which to solve "problems" with biotechnology. Rather, the paper aims to begin an inquiry into the way being human is understood at the intersection of biotechnology, bioethics, and liberalism. Such an inquiry can present no "solutions" for "moving forward."
I. Two Moments of Biotechnology: Variation and its Measure
Some twenty years after Watson and Crick's prediction, Paul Berg, Herbert Boyer and Stanley Cohen developed the technique of recombining "cut" strands of DNA into new genetic material, forming "recombinant DNA." (4) There are now many kinds of genetically engineered products, and many kinds of living beings under design in labs around the world. Biotechnology presents the allure of making us smarter, letting us live longer, healing us more effectively, and giving us better food. Modification of genetic material, the main activity of biotechnology, is the way these temptations are to be made real.
Contemporary reflections on biotechnology often cite the two main events of this modern phenomenon as (i) the discovery of the molecular structure of DNA and (ii) the development of recombinant DNA. But these reflections imply that isolated instances of technical advance capture the technicity of biotechnology, and of how biotechnological facts "are". These advances have certainly led to effective results. However these advances manifest only a new precision in identifying and configuring the variables of biological phenomena. (5) The significant moments, the ones that have come to define the way biological phenomena present themselves as variables, were much earlier. To see the technicity that determines biotechnology requires a look at two prior moments: Darwin's identification of the problem of specie variation and Mendel's development of statistical methods for identifying and predicting genetic variation.
Up until the mid-nineteenth century, the way to distinguish biological phenomena was through taxonomy. The development of taxonomy occurred along with the identification of species as the way to demarcate differences in that order of nature. (6) Species provided a foundation for classification by expressing the perpetuation of distinct kinds over time. …