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Human cloning and human dignity
RBMOnline - Vol 10. Supp 1. 2005 50–55 Reproductive BioMedicine Online; www.rbmonline.com/Article/1571 on web 5 November 2004
Human cloning and human dignity Dieter Birnbacher was born in 1946 in Dortmund, Germany. He studied philosophy, English and linguistics at the universities of Düsseldorf, Cambridge, UK (BA degree, 1969), Hamburg (DPhil degree, 1973) and Essen (Habilitation, 1988). In 1993 he was appointed Professor of Philosophy at the University of Dortmund, and since 1996 has been Professor of Philosophy at the University of Düsseldorf. Dr Birnbacher’s main fields of interest are ethics, applied ethics and anthropology. He is vice-president of the SchopenhauerGesellschaft, Frankfurt am Main, and a member of several permanent commissions of the German Medical Association.
Dieter Birnbacher Philosophisches Institut, Universitätsstrasse, 1,D-40225 Düsseldorf, Germany Correspondence: e-mail: [email protected]
Abstract Judging from the official documents dealing with the moral and legal aspects of human reproductive cloning there seems to be a nearly worldwide consensus that reproductive cloning is incompatible with human dignity. The certainty of this judgement is, however, not matched by corresponding arguments. Is the incompatibility of reproductive with human dignity an ultimate moral intuition closed to further argument? The paper considers several ways by which the intuition might be connected with more familiar applications of the concept of human dignity, and argues that there is no such connection. It concludes that the central objections to human reproductive cloning are not objections relating to dignity but objections relating to risk, especially the risks imposed on children born in the course of testing the method’s safety.
Keywords: human dignity, impersonal dignity, reproductive cloning, World Health Organization
Introduction Judging from the official documents dealing with the moral and legal aspects of human cloning, there seems to be a nearly worldwide consensus that reproductive cloning is incompatible with human dignity and should be prohibited by law. As a rule, this judgement is taken to imply a particularly strong moral condemnation, and, furthermore, one that is categorical and independent of consequences. The intuition underlying the judgement seems to be that reproductive cloning is in itself a violation of human dignity, and that it should not be attempted even if we were certain that it could be done without serious risks to the potential clone, its environment and society at large.
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At the same time, the certainty with which the moral judgement about reproductive cloning is expressed is not matched by corresponding arguments. The intuition seems, as it were, a moral ultimate, incapable of being backed up by reasons. Intellectually, this is an unsatisfactory situation, and it is certainly interesting to observe that a corresponding feeling seems to be shared even by some of the authors of these documents. In one of these, from the World Health Organization (WHO), one is surprised to find something like an invitation to contribute to the search for legitimizing grounds for the condemnation of human cloning, thereby
implying that the available arguments are far from sufficient to justify the emphatic initial judgement. As stated in the WHO resolution WHA51.10 ‘. . . cloning for the replication of human individuals is ethically unacceptable and contrary to human dignity and integrity’. Elaboration of the ethical, scientific, social and legal considerations that are the basis of this call for the prohibition of reproductive cloning should continue (World Health Organization, 1999). Whether or not this search for further arguments for a prohibition of cloning is going to be successful, the case is a challenge for philosophy even as it stands. There are three questions which philosophy is called upon to answer: (i) what exactly is the intuition underlying the nearly unanimous judgement on human cloning? (ii) what concept of human dignity is presupposed by this judgement? (iii) how far is this concept of human dignity connected to other current uses of the concept? The last question is, I think, especially important. We need some conceptual background in order not only to decide whether the appeal to the concept in the context of human cloning is ethically adequate but also to decide whether the use of the concept in this context is meaningful in the first place. Embedding this use of the concept in the established semantic
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field is indispensable especially in view of the challenge of the long-standing tradition in the philosophical criticism of language, according to which not only particular applications of the concept but the concept itself is fundamentally flawed. For Schopenhauer and others following him, ‘human dignity’ is a typical example of a Leerformel, a piece of rhetoric devoid of cognitive content, or, as Schopenhauer had it, ‘an important sounding formula’ which, unless supplemented by further and more concrete principles, is ‘insufficient, without proper content and inherently problematic’ (as written by Schopenhauer 1818, see Schopenhauer, 1988).
Whose dignity? Let us first ask who the subject is to which human dignity is ascribed: whose dignity is at stake in human reproductive cloning? There are, in sum, four candidates: (i) the cloned child, (ii) the persons whose cells are used in the process of cloning, (iii) the embryo that is the immediate product of the cloning procedure, (iv) humanity or mankind in the sense of the human species as a whole. Of these four candidates, the first pair might be called personal, the second pair impersonal. These categories are important because there is no unitary and homogeneous concept of human dignity, but rather a family of meanings in the Wittgensteinian sense, the members of which behave differently not only semantically but also syntactically (Birnbacher 1998, p. 330). While human dignity as applied to persons presupposes an individual bearer, this is not the case with dignity as applied to the human species as a whole. While human dignity as applied to persons can be explained as a kind of moral right, human dignity as applied to the human species as a whole, or, for that matter, to human embryos or human corpses, cannot, for conceptual reasons, be explained as a moral right. The corresponding obligation to respect human dignity can only be conceived as a morally imperfect duty.
What exactly does ‘human dignity’ mean when applied to individual persons? Among the meanings assigned to human dignity in its application to individual persons, one meaning stands out as central and one other as marginal. In its central meaning human dignity is a constellation of moral rights which impose on others a certain number of negative and positive duties. Respecting dignity, in this sense, implies treating others humanely by treating them as humans and not as things. In its marginal meaning human dignity means a kind of moral status. Dignity is lost, or compromised, by acting in strongly immoral ways, especially by acting in ways that violate the human dignity of others. Individual human dignity in its central use is typically the dignity of the victim, individual human dignity in its marginal use is typically the dignity of the trespasser. In violations of human dignity, both, as it were, have their dignity compromised, the victim by being treated in a way a human being should not be treated by virtue of his humanity, the trespasser by treating others (or himself) in a way a human being should not do in virtue of his humanity. In its current use, human dignity in its central individualistic sense seems to comprise at least the following five moral
rights: (i) the right not be made the object of humiliation or to be treated in humiliating ways, (ii) the right to a minimum of freedom of action and decision, (iii) the right to receive assistance in undeserved situations of need, (iv) the right to a minimal quality of life and freedom from suffering, (v) the right not to be used to others’ purposes without consent and with seriously adverse effects to oneself. This list is inevitably vague (indeed, as vague as the concept of human dignity itself), but it covers at least the central behaviours that are commonly classified as violations of human dignity such as prosecution for racial or religious reasons, torture, brainwashing, and the refusal of the biological minimum of existence. It also covers those acts of ‘instrumentalization’ (a highly misleading expression) Kant meant to exclude by the second formula of his Categorical Imperative – to treat no one as a mere means but always also as an end in itself (Kant, 1903, p. 428) – such as slavery, selling people into foreign military service and excessive punishments for the gratification of tyrants or the populace. It is a fair assumption that it is first of all the cloned child whose dignity is seen by those who think that cloning is contrary to human dignity as being compromised. Therefore, the question must be asked in what sense this might be the case, and in what way this sense connects with the meaning given to individual human dignity in more familiar situations. In fact, I can think of no such meaning. The essential feature of violations of human dignity in its individual sense is that the individual concerned is severely negatively affected by the behaviour of others, and even to such extremes that its very humanity is called into question. No such thing is to be expected in the case of human cloning. This is not to say that cloning might not have harmful effects on the cloned child. These effects concern especially the rights to freedom [(ii) in the above list] and the right not to be made a ‘mere’ means to the purposes of others [(v)]. Concerning freedom, the expectations surrounding a cloned child might be so strong as to seriously diminish its chance to make authentic choices. If the lifetimes of the ‘original’ and the life of the clone overlap and the ‘original’ takes the upbringing of the cloned child in its hands, there is a serious risk that the child will be so closely bound to the ‘original’ that it has only a small chance to develop a personality of its own. Similar risks exist concerning ‘instrumentalization’. The cloned child might be brought up in a way that makes it as faithful a replica of the ‘original’ as possible and that is primarily oriented by the desires of others instead of by its own potentialities. That these risks are real does not amount, however, to saying that cloning is a violation of human dignity in the sense outlined, for two reasons. First, these risks are only contingently related to cloning, they are not inherent to it. They do not explain, therefore, the categorical nature and the intensity of the verdict expressed by most relevant declarations. It is not the procedure of cloning itself that reduces the options open to the cloned child or subjects its development to the expectations of others, but the way it is brought up after the process of cloning has been completed. It is true, its genetic make-up is essentially predetermined by cloning. But somebody’s freedom is
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restricted by his or her genetic make-up only to the extent that this leaves no or very little room for autonomous development, e.g. by severely and inevitably debilitating genetic conditions. The probability that this occurs is, however, the same (or, in fact, even less) for cloned than for normal children. The fact that the genome of the clone is the result of choice and not of chance is not in itself a reason to assume that the freedom of the cloned child is less than that of a normal child. The same holds for the dimension of ‘instrumentalization’. If the cloned child falls victim to instrumentalization, the source of its being made a mere means cannot be the very process that brings it into being. Instrumentalization needs an object to work upon. At the period instrumentalization might set in, the process of cloning is, as a matter of logic, a thing of the past. What might mislead our thinking here is the idea of control exercised over the child. Cloning a child means to exercise a high degree of control over its genetic make-up, and indirectly also over its phenotype. It does not mean to exercise a correspondingly high degree of control over its concrete life. Secondly, the risks mentioned, though real, do hardly have the dramatic and radical quality required to turn their realization into violations of human dignity. Exerting pressure to force the development of a child into a preferred direction or to impregnate a child with a preferred identity (e.g. concerning its religious orientation) are too close to normality to justify the extreme moral censure implied by an appeal to human dignity. Jürgen Habermas’ (2001) fear that a large-scale predetermination of the genetic make-up of the following generation would undermine the basis of equality, autonomy and mutual respect on which liberal society is built, seems to be very unsecurely founded and warnings to that effect unnecessarily alarmist. There are, in fact, significant social risks coming in the wake of modern reproductive possibilities which we might want to avoid, e.g. an extended responsibility of parents for the ‘quality’ of their offspring. But these evils do not constitute violations of human dignity unless coupled with more substantial evils such as the deliberate cloning of a race of slaves or born pariahs. Does the violation of human dignity lie in the fact that the future child is made an object of the parents’ wishes, as it is sometimes claimed (see e.g. Rosenau, 2004)? Obviously, in cloning, the cloned child is the object of the parents’ wishes. The question is only whether the child, by being made the object of a wish, is thereby reified, or treated as a thing. What, one wonders, is reifying in realizing the wish for a child of a certain description? Neither the wish for a child of a certain description nor the steps taken to realize this wish can literally affect or harm the child. As long as the process of creating the child by cloning is not yet completed, the child exists only as an intentional object. How should it be possible, however, to violate the dignity of an intentional object? The violation of an intentional object could at most count as a symbolic violation. Even if one concedes this, it would be highly misleading to put such merely symbolic violations of human dignity on the same level with real violations of the dignity of real persons by subsuming them under the same moral and legal concept.
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Nor is it incompatible with the human dignity of a future child to engender it with further purposes in mind than just having children. The wish to have a child for dynastic reasons or to
stabilize a threatened marriage are certainly not without moral problems. But these problems do not justify the strong verdict implied by the appeal to human dignity. My conclusion is that I am at a loss to make sense of the idea that cloning is contrary to the individual human dignity of the cloned child. There seems to be no way to establish a continuity between this idea and more familiar applications of the concept to individual human beings. What about the idea that human cloning is contrary to the dignity of the parents or other persons who provide the material from which the process of cloning starts? The idea that the human dignity of the agent is compromised by a strongly immoral act is a Kantian, or even ultra-Kantian, idea, and it is no surprise, given the close dependence of the German Grundgesetz on Kantian ethics, that it has been invoked, up to this day, in German constitutional law. A particularly telling example in this respect is the treatment in German constitutional law of cruelty to animals. Before animals were recently granted an autonomous constitutional status in the Grundgesetz, the standard argument of German constitutional lawyers for the punishability of cruelty to animals was that this behaviour constituted a derogation of human dignity: the agent’s own human dignity. Similar examples can be found in the history of the legal debate about reproductive medicine. In the debate about artificial insemination in the 1960s it was not unusual for German constitutional lawyers to argue that this procedure must be legally prohibited because it violates the individual human dignity of the persons involved, especially the dignity of the potential parents (Geiger, 1960). Both examples are, of course, examples of an implicit legal moralism. In both cases, it was clear to all involved that the respective behaviour was held to be punishable not because it in fact violated any legal rights of potential victims but because it was seen as gravely immoral. Since animals did not have constitutional legal status at the time, their legal status could not be invoked to restrict constitutional liberties such as the freedom of research. Furthermore, since artificial insemination, if it is a crime at all, is a victimless crime, it is not obvious whose legal rights might be violated by the practice. This is precisely why human dignity was invoked as a kind of normative carte blanche to provide the semblance of a legal justification. The problem with the idea that cloning constitutes a violation of a dignity of the people from whose material the clone is produced is obvious: it presupposes that cloning is profoundly immoral. It cannot by itself explain why it is immoral. Cloning can only violate the human dignity of the persons involved if there are independent reasons for its immorality.
Impersonal dignity Is the violation of human dignity involved in human cloning a violation of some kind of impersonal dignity, a dignity attributed not to human individuals but rather to the property of being human, a property that is possessed not only by fullblown human persons but also by derivative forms of humanness such as the pre- and post-stages of personal human life, human embryos and human corpses?
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Whether human dignity can or should be attributed to nonpersonal forms of humanness is, of course, highly controversial. It is a matter of controversy especially in societies in which human dignity is not only a moral but also a legal concept, and in which failures to respect human dignity in the impersonal sense are treated as a criminal offence. In Germany, opposition to the application of the constitutional concept of human dignity to human embryos is growing, but the official view is still the one supported by the Constitutional Court in its decision against the liberal abortion law of 1975 which stated that human dignity ‘is a property of human life wherever it exists’ (Bundesverfassungsgericht, 1975). Even those who defend the application of the concept of human dignity to human embryos and human corpses cannot, however, deny that the concept of human dignity differs from the concept applicable to human persons both in meaning and in normative weight. That there is a difference in meaning can hardly be denied because with human dignity in the impersonal sense there is not in every case a right-holder whose rights are disregarded by corresponding violations. If, for example, doing commerce with human embryos or human corpses is rejected as being contrary to human dignity, it is not clear that the violation of dignity involved can be understood as a violation of rights. Though most ways of dealing with corpses that are condemned as contrary to human dignity can be constructed as violations of moral rights of the deceased person, this strategy is not possible with analogous dealings with human embryos. If embryo experimentation is rejected as being contrary to human dignity, this cannot be conceived as an anticipated derogation of the potential future rights of the person into which the embryo develops, since there will not be any person: embryo experimentation is ethically problematic just because it is incompatible with the survival of the embryo. It would be absurd to construe the violation of the dignity possessed by a human embryo as the violation of the right of a purely potential person. This is precisely one of the reasons why doctrines such as orthodox Roman Catholic moral theology or traditional German constitutional law regard the human embryo as a right-holder after all. Another reason why the dignity ascribed to human embryos and human corpses differs in meaning from the ‘personal’ concept is that there are far fewer things by which dignity can be disregarded. It does not make sense to say of either embryos or corpses that they are humiliated, persecuted, tortured, neglected or deprived of elementary freedom. There is only one kind of treatment by which the dignity of human embryos and corpses may be violated, namely using them – in the Kantian sense – merely as a means, e.g. for purely commercial purposes or, in the case of human embryos, to other purposes than their survival and development. If this extension of the concept of human dignity is accepted at all, embryo research, for whatever purposes, would clearly constitute a violation of human dignity in this sense, wherever it does not contribute to the survival and development of the individual embryo. Besides the semantic differences, there is an obvious difference in normative weight. Nobody seriously thinks (though the representatives of the Vatican, for example, speak as if they did) that violations of impersonal dignity constitute moral offences of the same gravity as violations of human
dignity in its personal sense. If this were so it would be hard to explain why e.g. embryo research, wherever it is legally prohibited, is threatened with criminal sanctions far below those for corresponding violations of the human dignity of children or adults. Compare, for example, the legal sanctions for the retrieval of cells from early embryos, resulting in the subsequent death of the embryo involved in the retrieval of embryonic stem cells, with an analogous practice on children. In both practices, human beings are ‘instrumentalized’ in a fairly radical way. However, while the criminal sanctions in the latter case are draconic, and rightly so, they are negligible and near to symbolic in the case of the embryo. In legal systems in which violation of human dignity is a criminal offence it is, therefore, highly misleading to talk of ‘human dignity’ at all in the context of offences against ‘impersonal’ dignity. It would be more appropriate to categorize offences of this kind as offences against decency or piety. The harm which is done in these cases is largely or exclusively symbolic harm, like the harm done by blasphemy, by the denigration of certain religious creeds and other acts criminalized for the offence they give to the feelings of majorities or minorities. For such minor offences, an emphatic legal concept such as human dignity is inappropriate. Does human reproductive cloning involve ‘instrumentalizing’ a human embryo in the sense of making it a mere means to purposes beyond its survival and development? Clearly not. The embryo produced by cloning is produced precisely with the intention to survive and to develop into a full-blown human being, however unusual the materials from which the life of the embryo is expected to evolve. Neither the production of the embryo nor its cultivation can be classified as violations of human dignity. Neither involves acts by which the embryo is ‘instrumentalized’ in the sense that it is used or manipulated as a means for purposes other than its own survival. The production of the embryo cannot constitute such a violation, because otherwise the same would have to be said about invitro fertilization. As soon as the embryo exists, however, it is manipulated for no other purposes than its continued existence and development. If anything is ‘instrumentalized’ in reproductive cloning it is the materials from which the cloning starts, the nucleus of a somatic cell of the ‘original’ and the denucleated egg with which it is made to merge. These materials cannot, however, count as bearers of human dignity even in the watered-down sense of impersonal dignity. It remains to examine the fourth candidate, the idea that reproductive cloning violates the dignity of the human species as a whole. In a certain sense, the idea of a generic dignity is the fundamental idea from which ideas of human dignity in all other senses are derived. They all depend on the idea that human beings have a privileged status merely by virtue of being human. The fact that human dignity in its generic sense is the fundamental notion does not help us, however, in the search for concepts of generic dignity to which the intuition that cloning is against human dignity may be fruitfully related. The ideas of generic human dignity developed in antiquity, in the Renaissance period and in the enlightenment are moral ideals rather than moral principles. They tell us how the human species should ideally develop but not what kind of humans we should feel obligated not to bring into existence.
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There are two lines of thought that might be pursued with more hope of success. The one is the analogy with the idea that we should abstain from deliberately producing monsters by tinkering with the species barrier between man and animals. Germline intervention or other manipulations aiming at the production of interspecies hybrids between man and ape, say, are universally prohibited, and certainly not only in order to spare the potential hybrid a miserable life. The idea behind the prohibition seems rather a kind of purity principle, analogous to the verdicts, in many cultures, on inter-racial or inter-ethnic marriages: the barrier between species should not be jeopardized, the purity of the species should not be called into question, and a fundamental orientation of the members of the human species should not be shaken. Seen in this way, the underlying intention of the species purity principle is not primarily negative eugenics, the wish to prevent a miserable or deficient life, but the wish to prevent the irritation caused by the potential birth of a modern analogue of Frankenstein’s monster. This analogy, however, seems hardly more than the beginning of an explanation. Human cloning, though highly manipulative, does not cross the species barrier nor does it produce monsters. It produces temporally delayed identical twins. The potential birth of a clone would give rise to irritation, but it would not give rise to the kind of metaphysical irritation that the birth of a human–animal bastard would provoke. Nevertheless, the analogy with the principle underlying the prohibition of the deliberate production of interspecies hybrids may be the best clue to the principle underlying the aversion to human cloning we can hope for. Cloning seems to be objected to primarily because it is seen as something monstrous or perverse. Differently from the production of interspecies hybrids, however, its monstrosity cannot be pinned down to the monstrosity of its results. What connects human cloning with the deliberate generation of monsters is the factor of transgression, the fact that with human cloning one more natural barrier is crossed by human technology. By substituting the deliberate reduplication of a given genome for the chance recombination of genes, nature’s sovereignty is once more relativized and subjected to human control. Understood in this way, the continuity becomes apparent between the rejection of reproductive cloning and the rejection of germline intervention. In both cases, human dignity in its generic sense is invoked to ban a potential extension of technical control over natural processes in an emotionally sensitive area, and thus to prevent the irritation of deep-seated orientations and certainties. That, it seems, is the nearest we can come to an understanding of the verdict on human cloning by locating it in a field of existing, though mostly implicit, principles.
An open question, and a warning
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This line of thought leaves us, however, with a problem. If the rejection of cloning is based, at least primarily, on a principle of monstrosity or perversity, and the monstrosity in question is assigned to the procedure rather than to the results, then the underlying principle should be identified with a principle of naturalness rather than a principle of dignity. The dignity of mankind has been defined, in all traditions which have made use of the generic concept, as consisting in the capacity to
transcend natural limits. The idea of respecting the order of nature as we find it, or even to regard it as sacrosanct, is more typical of the theological tradition of seeing the order of nature as divinely sanctioned. Is human dignity, in the verdict on human cloning, only a camouflage for a much more powerful, but rarely openly proclaimed principle of naturalness? That this principle is indeed powerful and shapes the attitudes not only of the general public but also of leading thinkers does not come as a surprise to those familiar with recent developments in nature ethics. That the principle is no less powerful in bioethics is only beginning to be realized (Siep, 2004). If this is so, the invocation of human dignity appears to be a deliberate misnomer, a specimen of ‘conceptual politics’. The declarations bringing together cloning and human dignity simply exploit the pathos of the established concept of human dignity to protect something much less lofty and spiritual, though deeply felt as worthy of protection: the preservation of as much as possible of what we have come to regard as natural and unattainable to human manipulation. Let me add, in conclusion, that the invocation of human dignity in the context of cloning, apart from being misconceived, tends to obscure the real ethical problems with human cloning. These, as I see them, lie in the substantial risks imposed on the cloned child, not only in a potential future routine application of the method but also in the process of testing its safety. However much the safety of the method may have been demonstrated in other mammals, applying it to humans remains a hazard. Since it is unlikely that the first series of cloned children will be used merely as guinea pigs, these tests will not amount to a violation of human dignity. But it is doubtful whether the risks can be justified by any potential successive benefits. Cloning, unlike IVF, is a luxury good. It does not answer any real need. Therefore, it seems to me, the present legal ban is justified not only in the short but also in the long term.
Recommended further reading Birnbacher D 1998 Do modern reproductive technologies violate human dignity? In: Hildt E, Mieth D (eds): In Vitro Fertilization in the 1990s. Towards a Medical, Social and Ethical Evaluation. Ashgate, Aldershot, UK, pp. 325–333. Bundesverfassungsgericht 1975 Entscheidungen, vol. 39. Karlsruhe, p. 41. Geiger W 1960 Rechtsfragen der Insemination. In: Guttmacher AF (ed.) Die künstliche Befruchtung beim Menschen. Diskussionsbeiträge aus medizinischer, juristischer und theologischer Sicht. Schmidt, Köln/Marienburg, Germany, pp. 37–73. Habermas J 2001 Die Zukunft der menschlichen Natur. Suhrkamp, Frankfurt/M. Kant I 1903 Grundlegung zur Metaphysik der Sitten. In: Werke, Akademie-Ausgabe, Band 4 [Reimer, Berlin, Germany (1903), pp. 385–464]. Rosenau H 2004 Der Streit um das Klonen und das deutsche Stammzellgesetz. In: Schreiber H-L, Rosenau H, Ishizuka S, Kim S (eds) Recht und Ethik im Zeitalter der Gentechnik. Deutsche und japanische Beiträge zu Biorecht und Bioethik. Vandenhoeck and Ruprecht, Göttingen, pp. 135–168. Schopenhauer A 1988 Die Welt als Wille und Vorstellung I. Sämtliche Werke, hrsg. Hübscher, Band 2. 4. Aufl. Brockhaus, Mannheim. Siep L 2004 Konkrete Ethik. Grundlagen der Natur- und Kulturethik. Suhrkamp, Frankfurt/M.
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World Health Organization 1999 Cloning in Human Health. Report by the Secretariat, 1 April 1999. www.who.int/entity/ethics/en/A52_12pdf [accessed on 3 November 2004].
Received 4 October 2004; refereed and accepted 21 October 2004.
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Human cloning and human dignity Dieter Birnbacher was born in 1946 in Dortmund, Germany. He studied philosophy, English and linguistics at the universities of Düsseldorf, Cambridge, UK (BA degree, 1969), Hamburg (DPhil degree, 1973) and Essen (Habilitation, 1988). In 1993 he was appointed Professor of Philosophy at the University of Dortmund, and since 1996 has been Professor of Philosophy at the University of Düsseldorf. Dr Birnbacher’s main fields of interest are ethics, applied ethics and anthropology. He is vice-president of the SchopenhauerGesellschaft, Frankfurt am Main, and a member of several permanent commissions of the German Medical Association.
Dieter Birnbacher Philosophisches Institut, Universitätsstrasse, 1,D-40225 Düsseldorf, Germany Correspondence: e-mail: [email protected]
Abstract Judging from the official documents dealing with the moral and legal aspects of human reproductive cloning there seems to be a nearly worldwide consensus that reproductive cloning is incompatible with human dignity. The certainty of this judgement is, however, not matched by corresponding arguments. Is the incompatibility of reproductive with human dignity an ultimate moral intuition closed to further argument? The paper considers several ways by which the intuition might be connected with more familiar applications of the concept of human dignity, and argues that there is no such connection. It concludes that the central objections to human reproductive cloning are not objections relating to dignity but objections relating to risk, especially the risks imposed on children born in the course of testing the method’s safety.
Keywords: human dignity, impersonal dignity, reproductive cloning, World Health Organization
Introduction Judging from the official documents dealing with the moral and legal aspects of human cloning, there seems to be a nearly worldwide consensus that reproductive cloning is incompatible with human dignity and should be prohibited by law. As a rule, this judgement is taken to imply a particularly strong moral condemnation, and, furthermore, one that is categorical and independent of consequences. The intuition underlying the judgement seems to be that reproductive cloning is in itself a violation of human dignity, and that it should not be attempted even if we were certain that it could be done without serious risks to the potential clone, its environment and society at large.
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At the same time, the certainty with which the moral judgement about reproductive cloning is expressed is not matched by corresponding arguments. The intuition seems, as it were, a moral ultimate, incapable of being backed up by reasons. Intellectually, this is an unsatisfactory situation, and it is certainly interesting to observe that a corresponding feeling seems to be shared even by some of the authors of these documents. In one of these, from the World Health Organization (WHO), one is surprised to find something like an invitation to contribute to the search for legitimizing grounds for the condemnation of human cloning, thereby
implying that the available arguments are far from sufficient to justify the emphatic initial judgement. As stated in the WHO resolution WHA51.10 ‘. . . cloning for the replication of human individuals is ethically unacceptable and contrary to human dignity and integrity’. Elaboration of the ethical, scientific, social and legal considerations that are the basis of this call for the prohibition of reproductive cloning should continue (World Health Organization, 1999). Whether or not this search for further arguments for a prohibition of cloning is going to be successful, the case is a challenge for philosophy even as it stands. There are three questions which philosophy is called upon to answer: (i) what exactly is the intuition underlying the nearly unanimous judgement on human cloning? (ii) what concept of human dignity is presupposed by this judgement? (iii) how far is this concept of human dignity connected to other current uses of the concept? The last question is, I think, especially important. We need some conceptual background in order not only to decide whether the appeal to the concept in the context of human cloning is ethically adequate but also to decide whether the use of the concept in this context is meaningful in the first place. Embedding this use of the concept in the established semantic
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field is indispensable especially in view of the challenge of the long-standing tradition in the philosophical criticism of language, according to which not only particular applications of the concept but the concept itself is fundamentally flawed. For Schopenhauer and others following him, ‘human dignity’ is a typical example of a Leerformel, a piece of rhetoric devoid of cognitive content, or, as Schopenhauer had it, ‘an important sounding formula’ which, unless supplemented by further and more concrete principles, is ‘insufficient, without proper content and inherently problematic’ (as written by Schopenhauer 1818, see Schopenhauer, 1988).
Whose dignity? Let us first ask who the subject is to which human dignity is ascribed: whose dignity is at stake in human reproductive cloning? There are, in sum, four candidates: (i) the cloned child, (ii) the persons whose cells are used in the process of cloning, (iii) the embryo that is the immediate product of the cloning procedure, (iv) humanity or mankind in the sense of the human species as a whole. Of these four candidates, the first pair might be called personal, the second pair impersonal. These categories are important because there is no unitary and homogeneous concept of human dignity, but rather a family of meanings in the Wittgensteinian sense, the members of which behave differently not only semantically but also syntactically (Birnbacher 1998, p. 330). While human dignity as applied to persons presupposes an individual bearer, this is not the case with dignity as applied to the human species as a whole. While human dignity as applied to persons can be explained as a kind of moral right, human dignity as applied to the human species as a whole, or, for that matter, to human embryos or human corpses, cannot, for conceptual reasons, be explained as a moral right. The corresponding obligation to respect human dignity can only be conceived as a morally imperfect duty.
What exactly does ‘human dignity’ mean when applied to individual persons? Among the meanings assigned to human dignity in its application to individual persons, one meaning stands out as central and one other as marginal. In its central meaning human dignity is a constellation of moral rights which impose on others a certain number of negative and positive duties. Respecting dignity, in this sense, implies treating others humanely by treating them as humans and not as things. In its marginal meaning human dignity means a kind of moral status. Dignity is lost, or compromised, by acting in strongly immoral ways, especially by acting in ways that violate the human dignity of others. Individual human dignity in its central use is typically the dignity of the victim, individual human dignity in its marginal use is typically the dignity of the trespasser. In violations of human dignity, both, as it were, have their dignity compromised, the victim by being treated in a way a human being should not be treated by virtue of his humanity, the trespasser by treating others (or himself) in a way a human being should not do in virtue of his humanity. In its current use, human dignity in its central individualistic sense seems to comprise at least the following five moral
rights: (i) the right not be made the object of humiliation or to be treated in humiliating ways, (ii) the right to a minimum of freedom of action and decision, (iii) the right to receive assistance in undeserved situations of need, (iv) the right to a minimal quality of life and freedom from suffering, (v) the right not to be used to others’ purposes without consent and with seriously adverse effects to oneself. This list is inevitably vague (indeed, as vague as the concept of human dignity itself), but it covers at least the central behaviours that are commonly classified as violations of human dignity such as prosecution for racial or religious reasons, torture, brainwashing, and the refusal of the biological minimum of existence. It also covers those acts of ‘instrumentalization’ (a highly misleading expression) Kant meant to exclude by the second formula of his Categorical Imperative – to treat no one as a mere means but always also as an end in itself (Kant, 1903, p. 428) – such as slavery, selling people into foreign military service and excessive punishments for the gratification of tyrants or the populace. It is a fair assumption that it is first of all the cloned child whose dignity is seen by those who think that cloning is contrary to human dignity as being compromised. Therefore, the question must be asked in what sense this might be the case, and in what way this sense connects with the meaning given to individual human dignity in more familiar situations. In fact, I can think of no such meaning. The essential feature of violations of human dignity in its individual sense is that the individual concerned is severely negatively affected by the behaviour of others, and even to such extremes that its very humanity is called into question. No such thing is to be expected in the case of human cloning. This is not to say that cloning might not have harmful effects on the cloned child. These effects concern especially the rights to freedom [(ii) in the above list] and the right not to be made a ‘mere’ means to the purposes of others [(v)]. Concerning freedom, the expectations surrounding a cloned child might be so strong as to seriously diminish its chance to make authentic choices. If the lifetimes of the ‘original’ and the life of the clone overlap and the ‘original’ takes the upbringing of the cloned child in its hands, there is a serious risk that the child will be so closely bound to the ‘original’ that it has only a small chance to develop a personality of its own. Similar risks exist concerning ‘instrumentalization’. The cloned child might be brought up in a way that makes it as faithful a replica of the ‘original’ as possible and that is primarily oriented by the desires of others instead of by its own potentialities. That these risks are real does not amount, however, to saying that cloning is a violation of human dignity in the sense outlined, for two reasons. First, these risks are only contingently related to cloning, they are not inherent to it. They do not explain, therefore, the categorical nature and the intensity of the verdict expressed by most relevant declarations. It is not the procedure of cloning itself that reduces the options open to the cloned child or subjects its development to the expectations of others, but the way it is brought up after the process of cloning has been completed. It is true, its genetic make-up is essentially predetermined by cloning. But somebody’s freedom is
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restricted by his or her genetic make-up only to the extent that this leaves no or very little room for autonomous development, e.g. by severely and inevitably debilitating genetic conditions. The probability that this occurs is, however, the same (or, in fact, even less) for cloned than for normal children. The fact that the genome of the clone is the result of choice and not of chance is not in itself a reason to assume that the freedom of the cloned child is less than that of a normal child. The same holds for the dimension of ‘instrumentalization’. If the cloned child falls victim to instrumentalization, the source of its being made a mere means cannot be the very process that brings it into being. Instrumentalization needs an object to work upon. At the period instrumentalization might set in, the process of cloning is, as a matter of logic, a thing of the past. What might mislead our thinking here is the idea of control exercised over the child. Cloning a child means to exercise a high degree of control over its genetic make-up, and indirectly also over its phenotype. It does not mean to exercise a correspondingly high degree of control over its concrete life. Secondly, the risks mentioned, though real, do hardly have the dramatic and radical quality required to turn their realization into violations of human dignity. Exerting pressure to force the development of a child into a preferred direction or to impregnate a child with a preferred identity (e.g. concerning its religious orientation) are too close to normality to justify the extreme moral censure implied by an appeal to human dignity. Jürgen Habermas’ (2001) fear that a large-scale predetermination of the genetic make-up of the following generation would undermine the basis of equality, autonomy and mutual respect on which liberal society is built, seems to be very unsecurely founded and warnings to that effect unnecessarily alarmist. There are, in fact, significant social risks coming in the wake of modern reproductive possibilities which we might want to avoid, e.g. an extended responsibility of parents for the ‘quality’ of their offspring. But these evils do not constitute violations of human dignity unless coupled with more substantial evils such as the deliberate cloning of a race of slaves or born pariahs. Does the violation of human dignity lie in the fact that the future child is made an object of the parents’ wishes, as it is sometimes claimed (see e.g. Rosenau, 2004)? Obviously, in cloning, the cloned child is the object of the parents’ wishes. The question is only whether the child, by being made the object of a wish, is thereby reified, or treated as a thing. What, one wonders, is reifying in realizing the wish for a child of a certain description? Neither the wish for a child of a certain description nor the steps taken to realize this wish can literally affect or harm the child. As long as the process of creating the child by cloning is not yet completed, the child exists only as an intentional object. How should it be possible, however, to violate the dignity of an intentional object? The violation of an intentional object could at most count as a symbolic violation. Even if one concedes this, it would be highly misleading to put such merely symbolic violations of human dignity on the same level with real violations of the dignity of real persons by subsuming them under the same moral and legal concept.
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Nor is it incompatible with the human dignity of a future child to engender it with further purposes in mind than just having children. The wish to have a child for dynastic reasons or to
stabilize a threatened marriage are certainly not without moral problems. But these problems do not justify the strong verdict implied by the appeal to human dignity. My conclusion is that I am at a loss to make sense of the idea that cloning is contrary to the individual human dignity of the cloned child. There seems to be no way to establish a continuity between this idea and more familiar applications of the concept to individual human beings. What about the idea that human cloning is contrary to the dignity of the parents or other persons who provide the material from which the process of cloning starts? The idea that the human dignity of the agent is compromised by a strongly immoral act is a Kantian, or even ultra-Kantian, idea, and it is no surprise, given the close dependence of the German Grundgesetz on Kantian ethics, that it has been invoked, up to this day, in German constitutional law. A particularly telling example in this respect is the treatment in German constitutional law of cruelty to animals. Before animals were recently granted an autonomous constitutional status in the Grundgesetz, the standard argument of German constitutional lawyers for the punishability of cruelty to animals was that this behaviour constituted a derogation of human dignity: the agent’s own human dignity. Similar examples can be found in the history of the legal debate about reproductive medicine. In the debate about artificial insemination in the 1960s it was not unusual for German constitutional lawyers to argue that this procedure must be legally prohibited because it violates the individual human dignity of the persons involved, especially the dignity of the potential parents (Geiger, 1960). Both examples are, of course, examples of an implicit legal moralism. In both cases, it was clear to all involved that the respective behaviour was held to be punishable not because it in fact violated any legal rights of potential victims but because it was seen as gravely immoral. Since animals did not have constitutional legal status at the time, their legal status could not be invoked to restrict constitutional liberties such as the freedom of research. Furthermore, since artificial insemination, if it is a crime at all, is a victimless crime, it is not obvious whose legal rights might be violated by the practice. This is precisely why human dignity was invoked as a kind of normative carte blanche to provide the semblance of a legal justification. The problem with the idea that cloning constitutes a violation of a dignity of the people from whose material the clone is produced is obvious: it presupposes that cloning is profoundly immoral. It cannot by itself explain why it is immoral. Cloning can only violate the human dignity of the persons involved if there are independent reasons for its immorality.
Impersonal dignity Is the violation of human dignity involved in human cloning a violation of some kind of impersonal dignity, a dignity attributed not to human individuals but rather to the property of being human, a property that is possessed not only by fullblown human persons but also by derivative forms of humanness such as the pre- and post-stages of personal human life, human embryos and human corpses?
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Whether human dignity can or should be attributed to nonpersonal forms of humanness is, of course, highly controversial. It is a matter of controversy especially in societies in which human dignity is not only a moral but also a legal concept, and in which failures to respect human dignity in the impersonal sense are treated as a criminal offence. In Germany, opposition to the application of the constitutional concept of human dignity to human embryos is growing, but the official view is still the one supported by the Constitutional Court in its decision against the liberal abortion law of 1975 which stated that human dignity ‘is a property of human life wherever it exists’ (Bundesverfassungsgericht, 1975). Even those who defend the application of the concept of human dignity to human embryos and human corpses cannot, however, deny that the concept of human dignity differs from the concept applicable to human persons both in meaning and in normative weight. That there is a difference in meaning can hardly be denied because with human dignity in the impersonal sense there is not in every case a right-holder whose rights are disregarded by corresponding violations. If, for example, doing commerce with human embryos or human corpses is rejected as being contrary to human dignity, it is not clear that the violation of dignity involved can be understood as a violation of rights. Though most ways of dealing with corpses that are condemned as contrary to human dignity can be constructed as violations of moral rights of the deceased person, this strategy is not possible with analogous dealings with human embryos. If embryo experimentation is rejected as being contrary to human dignity, this cannot be conceived as an anticipated derogation of the potential future rights of the person into which the embryo develops, since there will not be any person: embryo experimentation is ethically problematic just because it is incompatible with the survival of the embryo. It would be absurd to construe the violation of the dignity possessed by a human embryo as the violation of the right of a purely potential person. This is precisely one of the reasons why doctrines such as orthodox Roman Catholic moral theology or traditional German constitutional law regard the human embryo as a right-holder after all. Another reason why the dignity ascribed to human embryos and human corpses differs in meaning from the ‘personal’ concept is that there are far fewer things by which dignity can be disregarded. It does not make sense to say of either embryos or corpses that they are humiliated, persecuted, tortured, neglected or deprived of elementary freedom. There is only one kind of treatment by which the dignity of human embryos and corpses may be violated, namely using them – in the Kantian sense – merely as a means, e.g. for purely commercial purposes or, in the case of human embryos, to other purposes than their survival and development. If this extension of the concept of human dignity is accepted at all, embryo research, for whatever purposes, would clearly constitute a violation of human dignity in this sense, wherever it does not contribute to the survival and development of the individual embryo. Besides the semantic differences, there is an obvious difference in normative weight. Nobody seriously thinks (though the representatives of the Vatican, for example, speak as if they did) that violations of impersonal dignity constitute moral offences of the same gravity as violations of human
dignity in its personal sense. If this were so it would be hard to explain why e.g. embryo research, wherever it is legally prohibited, is threatened with criminal sanctions far below those for corresponding violations of the human dignity of children or adults. Compare, for example, the legal sanctions for the retrieval of cells from early embryos, resulting in the subsequent death of the embryo involved in the retrieval of embryonic stem cells, with an analogous practice on children. In both practices, human beings are ‘instrumentalized’ in a fairly radical way. However, while the criminal sanctions in the latter case are draconic, and rightly so, they are negligible and near to symbolic in the case of the embryo. In legal systems in which violation of human dignity is a criminal offence it is, therefore, highly misleading to talk of ‘human dignity’ at all in the context of offences against ‘impersonal’ dignity. It would be more appropriate to categorize offences of this kind as offences against decency or piety. The harm which is done in these cases is largely or exclusively symbolic harm, like the harm done by blasphemy, by the denigration of certain religious creeds and other acts criminalized for the offence they give to the feelings of majorities or minorities. For such minor offences, an emphatic legal concept such as human dignity is inappropriate. Does human reproductive cloning involve ‘instrumentalizing’ a human embryo in the sense of making it a mere means to purposes beyond its survival and development? Clearly not. The embryo produced by cloning is produced precisely with the intention to survive and to develop into a full-blown human being, however unusual the materials from which the life of the embryo is expected to evolve. Neither the production of the embryo nor its cultivation can be classified as violations of human dignity. Neither involves acts by which the embryo is ‘instrumentalized’ in the sense that it is used or manipulated as a means for purposes other than its own survival. The production of the embryo cannot constitute such a violation, because otherwise the same would have to be said about invitro fertilization. As soon as the embryo exists, however, it is manipulated for no other purposes than its continued existence and development. If anything is ‘instrumentalized’ in reproductive cloning it is the materials from which the cloning starts, the nucleus of a somatic cell of the ‘original’ and the denucleated egg with which it is made to merge. These materials cannot, however, count as bearers of human dignity even in the watered-down sense of impersonal dignity. It remains to examine the fourth candidate, the idea that reproductive cloning violates the dignity of the human species as a whole. In a certain sense, the idea of a generic dignity is the fundamental idea from which ideas of human dignity in all other senses are derived. They all depend on the idea that human beings have a privileged status merely by virtue of being human. The fact that human dignity in its generic sense is the fundamental notion does not help us, however, in the search for concepts of generic dignity to which the intuition that cloning is against human dignity may be fruitfully related. The ideas of generic human dignity developed in antiquity, in the Renaissance period and in the enlightenment are moral ideals rather than moral principles. They tell us how the human species should ideally develop but not what kind of humans we should feel obligated not to bring into existence.
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There are two lines of thought that might be pursued with more hope of success. The one is the analogy with the idea that we should abstain from deliberately producing monsters by tinkering with the species barrier between man and animals. Germline intervention or other manipulations aiming at the production of interspecies hybrids between man and ape, say, are universally prohibited, and certainly not only in order to spare the potential hybrid a miserable life. The idea behind the prohibition seems rather a kind of purity principle, analogous to the verdicts, in many cultures, on inter-racial or inter-ethnic marriages: the barrier between species should not be jeopardized, the purity of the species should not be called into question, and a fundamental orientation of the members of the human species should not be shaken. Seen in this way, the underlying intention of the species purity principle is not primarily negative eugenics, the wish to prevent a miserable or deficient life, but the wish to prevent the irritation caused by the potential birth of a modern analogue of Frankenstein’s monster. This analogy, however, seems hardly more than the beginning of an explanation. Human cloning, though highly manipulative, does not cross the species barrier nor does it produce monsters. It produces temporally delayed identical twins. The potential birth of a clone would give rise to irritation, but it would not give rise to the kind of metaphysical irritation that the birth of a human–animal bastard would provoke. Nevertheless, the analogy with the principle underlying the prohibition of the deliberate production of interspecies hybrids may be the best clue to the principle underlying the aversion to human cloning we can hope for. Cloning seems to be objected to primarily because it is seen as something monstrous or perverse. Differently from the production of interspecies hybrids, however, its monstrosity cannot be pinned down to the monstrosity of its results. What connects human cloning with the deliberate generation of monsters is the factor of transgression, the fact that with human cloning one more natural barrier is crossed by human technology. By substituting the deliberate reduplication of a given genome for the chance recombination of genes, nature’s sovereignty is once more relativized and subjected to human control. Understood in this way, the continuity becomes apparent between the rejection of reproductive cloning and the rejection of germline intervention. In both cases, human dignity in its generic sense is invoked to ban a potential extension of technical control over natural processes in an emotionally sensitive area, and thus to prevent the irritation of deep-seated orientations and certainties. That, it seems, is the nearest we can come to an understanding of the verdict on human cloning by locating it in a field of existing, though mostly implicit, principles.
An open question, and a warning
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This line of thought leaves us, however, with a problem. If the rejection of cloning is based, at least primarily, on a principle of monstrosity or perversity, and the monstrosity in question is assigned to the procedure rather than to the results, then the underlying principle should be identified with a principle of naturalness rather than a principle of dignity. The dignity of mankind has been defined, in all traditions which have made use of the generic concept, as consisting in the capacity to
transcend natural limits. The idea of respecting the order of nature as we find it, or even to regard it as sacrosanct, is more typical of the theological tradition of seeing the order of nature as divinely sanctioned. Is human dignity, in the verdict on human cloning, only a camouflage for a much more powerful, but rarely openly proclaimed principle of naturalness? That this principle is indeed powerful and shapes the attitudes not only of the general public but also of leading thinkers does not come as a surprise to those familiar with recent developments in nature ethics. That the principle is no less powerful in bioethics is only beginning to be realized (Siep, 2004). If this is so, the invocation of human dignity appears to be a deliberate misnomer, a specimen of ‘conceptual politics’. The declarations bringing together cloning and human dignity simply exploit the pathos of the established concept of human dignity to protect something much less lofty and spiritual, though deeply felt as worthy of protection: the preservation of as much as possible of what we have come to regard as natural and unattainable to human manipulation. Let me add, in conclusion, that the invocation of human dignity in the context of cloning, apart from being misconceived, tends to obscure the real ethical problems with human cloning. These, as I see them, lie in the substantial risks imposed on the cloned child, not only in a potential future routine application of the method but also in the process of testing its safety. However much the safety of the method may have been demonstrated in other mammals, applying it to humans remains a hazard. Since it is unlikely that the first series of cloned children will be used merely as guinea pigs, these tests will not amount to a violation of human dignity. But it is doubtful whether the risks can be justified by any potential successive benefits. Cloning, unlike IVF, is a luxury good. It does not answer any real need. Therefore, it seems to me, the present legal ban is justified not only in the short but also in the long term.
Recommended further reading Birnbacher D 1998 Do modern reproductive technologies violate human dignity? In: Hildt E, Mieth D (eds): In Vitro Fertilization in the 1990s. Towards a Medical, Social and Ethical Evaluation. Ashgate, Aldershot, UK, pp. 325–333. Bundesverfassungsgericht 1975 Entscheidungen, vol. 39. Karlsruhe, p. 41. Geiger W 1960 Rechtsfragen der Insemination. In: Guttmacher AF (ed.) Die künstliche Befruchtung beim Menschen. Diskussionsbeiträge aus medizinischer, juristischer und theologischer Sicht. Schmidt, Köln/Marienburg, Germany, pp. 37–73. Habermas J 2001 Die Zukunft der menschlichen Natur. Suhrkamp, Frankfurt/M. Kant I 1903 Grundlegung zur Metaphysik der Sitten. In: Werke, Akademie-Ausgabe, Band 4 [Reimer, Berlin, Germany (1903), pp. 385–464]. Rosenau H 2004 Der Streit um das Klonen und das deutsche Stammzellgesetz. In: Schreiber H-L, Rosenau H, Ishizuka S, Kim S (eds) Recht und Ethik im Zeitalter der Gentechnik. Deutsche und japanische Beiträge zu Biorecht und Bioethik. Vandenhoeck and Ruprecht, Göttingen, pp. 135–168. Schopenhauer A 1988 Die Welt als Wille und Vorstellung I. Sämtliche Werke, hrsg. Hübscher, Band 2. 4. Aufl. Brockhaus, Mannheim. Siep L 2004 Konkrete Ethik. Grundlagen der Natur- und Kulturethik. Suhrkamp, Frankfurt/M.
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World Health Organization 1999 Cloning in Human Health. Report by the Secretariat, 1 April 1999. www.who.int/entity/ethics/en/A52_12pdf [accessed on 3 November 2004].
Received 4 October 2004; refereed and accepted 21 October 2004.
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