Defending the Genetic Supermarket

The Law and Ethics of Selecting the Next Generation

Colin Gavaghan

• Publisher: Routledge-Cavendish
• Year: 2007
• ISBN:
  9781135392925
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The controversial topic of the technology of Pre-implantation Genetic Diagnosis, and the muddled approach to this subject adopted by the UK Parliament, is explored in detail in this volume. The author takes the viewpoint that the HFEA has taken insufficient notice to date of certain core ethical principles and makes the case for a much more ethically consistent and humane system than has been managed so far.

Arguing that many of the fears and objections levied against Robert Nozick's notion of the 'Genetic Supermarket' by disability activists, christian bioethicists and radical feminists, amongst others, are internally inconsistent, philosophically unsound or merely highly improbable, the author considers a number of individual policy decisions of the HFEA and addresses such questions as:

• 
  
  

• Can a case be made out for state involvement in such decisions?
• Who stands to be harmed by a supermarket model?
• Are any ethical principles or societal interests threatened by it?

This book is an essential resource for law students of all levels and professionals working within or interested in medical and healthcare law and medical genetics.

Chapter 1
The attack on the genetic supermarket

The truth is that all of us have to contend with our parents, for good or ill, but at least we can’t be committed at birth to spending the rest of our lives as circus performers or bank clerks, or missionaries. We have free will, and the great thing about growing up is personal choice. What choice is there if your parents have already decided that you are going to be deaf, and that deafness will be your defining identity, just as it has been theirs? This is not the beauty of compatibility, it is genetic imperialism.¹

Children need to be valued for themselves. They should never be used as commodities. But that’s precisely what they’ve become through all this mucking around with human embryos.… Using life as a means to an end cannot be anything other than dehumanising. And indeed, children have been turned into artefacts.²

Whilst it is always dangerous to say ‘never’, most of us felt that there were many characteristics for which it would be quite inappropriate to engage genetic technology (such as embryonic selection on the grounds of myopia, or hair-colour).³

The excerpts are reflective of a broad contemporary consensus. Encompassing Hollywood films⁴ and regulatory bodies,⁵ eminent philosophers⁶ and newspaper columnists,⁷ renowned conservatives⁸ and disability rights campaigners,⁹ this unlikely alliance brings its diverse political and ethical perspectives to a narrow confluence on one issue: a very definite ‘no’ to ‘designer babies’.

Of course, the actual reasons why these various people and agencies take this view often differ, as do the precise technologies and outcomes with which they are concerned. For some, the predominant concern is with what they see as the inherently hubristic, sacrilegious or dehumanising connotations of a technology that allows the present generation to choose their successors.¹⁰ For others, the concerns are more concrete, deriving from concern that people will be harmed, devalued or treated unjustly.

It is not possible to evaluate and respond to these concerns without a fuller understanding of their nature, and it is part of my purpose here to unpack and distinguish some of the more interesting species of arguments. Nonetheless, it is impossible to overlook the fact that the case I put forward in this book is likely, at least initially, to be an unpopular one. Because, unfashionable though it may be, my argument is that the best response to decisions posed by technologies of genetic selection is, as far as possible, to leave people alone to make these decisions for themselves.

This is partly because I believe that reproductive decisions are invariably intensely important to people’s life plans and most important interests, so much so that we should be very cautious about taking these decisions away from them. But it also derives from my belief that many of the concerns raised about what Gregory Stock calls germinal choice technologies (GCTs)¹¹ could be addressed better by more rather than less choice, and less rather than more regulation and restriction.

These contentions are not only controversial, they are likely to strike many readers as counter-intuitive. To a substantial extent, our society has come to view safety as almost synonymous with restriction and regulation, invariably by the state. The Precautionary Principle, which has come to occupy a central role in most discussions of new technologies, is almost always interpreted in a way that takes state action as the default position, to be adopted even in the absence of clear evidence of danger.¹² In its approach to genetic testing, the UK’s reproductive regulatory body has prided itself on its ‘cautious’ approach, allowing prospective parents to use only those tests that have been meticulously evaluated, not only for effectiveness but for ethical acceptability.¹³

Yet the notion that state regulation is invariably ‘safer’ than individual choice is not a self-evident, universal truth. While it would, of course, be disingenuous to use the disastrous experience of eugenics to argue against any kind of state regulation, it is perhaps worth keeping in mind that the worst abuses perpetrated in the name of genetics occurred when individual reproductive choice was subjected to state control and subordinated to some idea of the ‘greater good’.¹⁴ In that historical context, it is surprising that state control is so readily assumed to be safer than the alternative; and it is somewhat ironic to hear the fear of eugenics used in arguments for more limitations on reproductive autonomy.

It is important to remember, then, that there is no automatic co-relation between ever greater safety and ever greater state control. Neither, of course, can we automatically assume the opposite. As I will try to show in the next chapter, though, those who seek to restrict individual choice have an extra obstacle to overcome, an obstacle that does not confront advocates of the pro-choice position. This is because of the value widely attributed to respect for autonomy; if a particular law or regulation did not have the effect of curtailing autonomy, by preventing someone from doing as they would otherwise have done, we might ask what purpose it serves.

My approach, then, begins with a pro tanto statement in favour of reproductive choice. Drawing on a long philosophical and political tradition, I will try to show that before the state imposes restrictions on individual choice (especially in areas as important and intimate as reproduction), it should be required to demonstrate a plausible justification for doing so. The question of whether such justifications exist in relation to reproductive choices will be the subject of the remainder of this book.

In setting out the general nature of the proposition I intend to advance and defend, I should, perhaps, take care to avoid one potential mistaken impression. It is not in any sense my intention to argue in favour of the technologies discussed here, in the sense of promoting their use, either in general or for particular purposes. A truly pro-choice position with regard to GCTs must recognise that choices not to use these technologies at all are just as worthy of respect as choices to use them. Just as those who argue pro-choice positions in relation to abortion are sometimes caricatured as being ‘pro-abortion’, I am acutely aware of the danger of being misrepresented as being pro-‘designer babies’.

In fact, there are certain potential uses of GCTs that I, personally, would be more than content if no one ever used: use of these technologies to determine the sex, for example, or (insofar as this proves possible) sexual orientation, of their future offspring. But there is a world of difference between decisions of which we disapprove, and decisions which we would, or should, feel justified in prohibiting. It is this distinction which lies at the heart of the approach I advocate here.

By adopting this position of neutrality, my position is at odds not only with GCT-sceptics and bio-conservatives, but with a smaller body of bioethical commentators who believe that there is a positive moral obligation to make use of the available technology to ensure the birth of the ‘best children possible’. John Harris and Julian Savulescu are perhaps the best-known exponents of the view that prospective parents should use GCTs in this way, though it should be noted that both stop short of calling for this ethical obligation to be given legal weight. As I will attempt to show in Chapter 3, though, this approach relies on accepting certain highly questionable assumptions about the obligations we owe to future generations, and on overlooking some (perhaps uncomfortable) observations about how the choices we make impact on the identities of those who come after us.

My argument in this book, then, is that choices about the genetic composition of future children should, in almost all cases, be left to prospective parents. This would extend as much to those who choose to reject these technologies as to those who wish to use them; as much to those who wish to make ‘unorthodox’ choices as to those who wish to use it for sympathetic purposes, such as the avoidance of serious genetic disorders.

A pro-choice position, however, is not synonymous with a laissez-faire approach. As I will argue, meaningful choice involves more than liberty from state control, and a genuine concern with choice involves considering how such choice can be facilitated. This is especially important if we are to avoid the concerns advanced by writers like George Monbiot, who warns that a ‘free market’ approach to genetic testing could have the undesirable effect of exacerbating existing economic divisions. Genuine choice has a positive as well as a negative dimension, and concerns with both autonomy and justice count against abandoning the less affluent outside the genetic supermarket’s doors.

It does not, however, follow that the only way to avoid such unjust outcomes is by abandoning the technology itself, and in Chapter 7 I consider some alternative approaches that could address concerns with both choice and justice. As will become apparent, a proper consideration of this issue cannot ignore the context in which this conversation is located. Questions about the interaction between genetics, luck and justice are fundamental to any discussion about the sort of society we wish to live in, and to leave behind us, and it may be that the concerns brought into focus by GCTs reverberate far wider than the scope of this book. My contention is that a genuine concern with fairness cannot be addressed by restricting access to GCTs, which are at worst just one manifestation of unfairness. If Monbiot’s concerns are worth taking seriously – as I believe they are – they can only be addressed by a more far-reaching reappraisal of the interaction between genetics, luck and justice. But this will be equally true whether or not we have access to GCTs.

In Chapter 2, then, I will consider what it means to speak of autonomous choice in relation to access to GCTs. The principle of respect for autonomy has been expressed in different forms, and its application to germinal choices is not as straightforwar...

Table of contents

• Biomedical Law and Ethics Library
• Contents
• Acknowledgements
• Chapter 1 The attack on the genetic supermarket
• Chapter 2 Autonomy and germinal choice
• Chapter 3 Children of the genetic supermarket
• Chapter 4 Impossible alternatives: Derek Parfit and the Non-Identity Principle
• Chapter 5 Disability, gender and the threat to the already disadvantaged
• Chapter 6 Saviour siblings and the ‘means-ends’ imperative
• Chapter 7 Justice and the genetic supermarket
• Chapter 8 Defending the genetic supermarket
• Afterword: a frank admission
• Bibliography
• Index