Precommitment Issues in Bioethics
Robertson, John A., Texas Law Review
Precommitments are strategies used by individuals to rearrange the payoff structure for later decisions in order to influence the choices that are made at a future time. When that time arrives, the precommited person may regret his or her prior choice and seek to avert its effects. If a different Time 2 choice is possible, third parties charged with enforcing precommitments may face difficult questions of which temporal self to heed.
Resolving the issues generated by precommitment behavior ensnares one in complex issues about exercising freedom over time. Precommitments and their dilemmas have a special urgency in the field of bioethics-the application of ethical and legal norms to biomedical practices and decisions that extend or create life. Bioethical situations typically involve questions affecting the body, medical treatment, reproduction, and even life or death. Whether people live, die, or have offspring, or, less significantly, whether they will be the objects of research or be subjected to discomforting or intrusive medical procedures, may be at stake.
Because of the intimate and intrusive nature of biomedical decisions, a central focus of bioethics has been to respect and protect an individual's autonomy in making those decisions.1 Accordingly, much debate and analysis in bioethics has been over whether present autonomy is morally sufficient to justify an action, and if it is, whether the conditions for the informed consent essential to autonomy are satisfied. Indeed, much of the bioethical literature addresses whether the conditions for informed consent in medical practice and human subjects research exist and, if not, whether their absence can be justified.2
Given this normative stance, the use in bioethical situations of precommitments at Time 1 to substitute for actual consent at Time 2 is apt to engender conflict and controversy. Precommitment devices may be the best approximation that one could have for the person's consent when actual consent is not possible due to unavailability or incompetence, a frequent occurrence in some medical settings. If we do not rely on an advance directive at Time 2, we lose the Time 1 opportunity to control such future states. Harder questions arise if the maker of the precommitment is competent and available at Time 2 and now wishes to revoke his Time 1 consent to the action at hand. Yet there will be strong arguments for enforcing at Time 2 the contractual precommitments needed to carry out assisted reproduction and other biomedical projects and, possibly, for enforcing other precommitments. Many cases, however, may lack clear factors for determining whether the Time 1 or Time 2 self should take precedence.3
In this Article, I endeavor to deepen understanding of precommitment behavior by examining how the dilemma of choosing between Time 1 and Time 2 interests is handled in biomedical situations involving medical care, the body, and life or death. I discuss precommitment in three bioethical settings-consent to medical treatment, human subjects research, and assisted reproduction. As in other precommitment settings, no algorithm instructs us how the Time 1 vs. Time 2 dilemma should be resolved. The answer is context and fact dependent, as the following examples will show.
I. Consent to Medical Treatment or Nontreatment
Much of the work of bioethicists involves the rules, norms, practices, and policies for allocation of control over medical decisionmaking. Protecting personal autonomy has come to be a preeminent value in these decisions, with the right of competent patients to decide to have available treatments withheld or provided strongly protected.4 Indeed, current policy debate is now focused on whether personal autonomy should also extend to physician-assisted suicide or even active euthanasia, including questions about the right to exercise that right in advance of incompetency.5 I focus here first on decisions competent individuals make to govern a future time when the person may still be competent and seek a different decision, and then on situations in which the person is incompetent at Time 2 to counter the Time 1 commitment. …