- Email: [email protected]
The commercial exploitation of ethics
Stud. Hist. Phil. Biol. & Biomed. Sci. 35 (2004) 145–153 www.elsevier.com/locate/shpsc
The commercial exploitation of ethics Tim Lewens Department of History and Philosophy of Science, University of Cambridge, Free School Lane, Cambridge CB2 3RH, UK
Abstract In the first part of this paper I consider whether an academic bioethicist is likely to change the arguments she is prepared to voice if she is in receipt of payment from a corporation. I argue that she is not, so long as a number of conditions are met regarding the size of payment, the values of the academic bioethics community, the degree to which she participates in that community, and the transparency of corporate involvements. In the second half I consider a different concern that one might have with corporate payments that relate to the dubious nature of the functions bioethicists might play within those corporations. I argue that three roles—those of marketer, expert and lobbyist—are best avoided, but that a fourth—the dialectical role—does provide a legitimate niche within which a bioethicist may offer consultation. # 2003 Elsevier Ltd. All rights reserved. Keywords: Bioethics; Conflict of Interest; Consulting; Corruption.
What, if anything, is wrong with corporate money going into bioethics?1 The answer will depend on just what kind of funding arrangement we are considering. A biotechnology company might sponsor an academic bioethics centre or a particular research project; it might employ a full-time ethicist on its staff; or it might pay an academic bioethicist for her services as a consultant. In this paper my concern is with the last form of involvement. Even here our concerns will depend on what role the bioethicist is playing. Is she giving advice for internal consumption on the ethical properties of some particular product? Is she writing a series of articles for external publication that will expound these properties? Is she helping to E-mail address: [email protected] (T. Lewens). Elliott’s (2001a,b, 2002) answer to that question is overwhelmingly negative, as is that of Callahan (2001). For more positive responses see Donaldson (2001) and MacDonald (forthcoming). 1
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devise general corporate policies—perhaps regarding clinical trials? Is she educating executives regarding ethical reasoning? Is she helping to devise a strategy to package a product so that suspicious regulators will accept it? I shall examine some of these roles in the second half of the paper. In the first half I look at some very abstract concerns about how payment might corrupt the academic bioethicist.
1. Corruption Many of the roles the academic bioethicist can play in the commercial world involve payment for assessing the ethical properties of some product or set of procedures. There are some quite generic worries we might have about this kind of engagement. Maybe we share Elliott’s aesthetic reaction in finding something distasteful about getting paid on a fee-for-service basis to do ethics (Elliott, 2001a). The very thought leads to the hideous vision of the ethical fat-cat, as loathsome as one who grows rich by selling the word of God. Or perhaps we think that the company in question may be able to gain an unfair strategic advantage by using financial incentives to acquire information the bioethicist possesses and to which it has no entitlement. This presupposes that other responsibilities of the bioethicist give her access to the likely decisions that regulatory bodies, or other similar institutions, will make prior to their formal announcement. Finally, we may fear that the objectivity of her ethical analysis will be compromised. That final fear is my focus in this first section. The worry is that financial gain may affect the bioethicist’s judgement, or at least the arguments she is prepared to voice, so that she argues in favour of positions she would not have backed had she remained an unremunerated observer of the enterprise’s activities. Why might that be? One fear (and probably not the most serious one) will be that if the ethicist stands to gain financially from a company, then this will push her to argue in favour of its products when she undertakes the paid work itself, and also in subsequent unpaid publications that may draw on her experiences with the company. This may be so for a number of reasons: it is conceivable, but unlikely, that the company employs her specifically to write a series of published articles in its favour, and she finds it hard to turn their offer down given her appallingly low academic salary and appallingly high mortgage repayments; more likely she worries that if she does not express approval of the product both internally and externally she will fall out with the company’s executives, they (and others in the same industry) won’t re-employ her, and again a valuable income source will be denied her. Note that I have not said enough about these cases to determine whether they are conflicts of interest in the sense of what Davis terms the ‘standard view’ of that phrase (Davis, 2001). On that view, conflict of interest arises when the bioethicist owes a reliable judgement to the corporation in question, and some other interest (such as the receipt of payment, for example) interferes with the formulation of reliable judgement. But in some of the scenarios I described the bioethicist is not employed to give a reliable judgement; instead she is employed to argue in favour of a product. In other cases the bioethicist’s judgement is not compromised, only
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the views she is willing to voice support for. She might reach the view in the normal way that some product should be prohibited, but decline to express that view, or choose to express a different one. Here she has conflicting interests with respect to the expression of her sincere views, but this is not a conflict of interest. However, there surely are cases where the prospect of payment, or of loss of payment, generates the kind of self-consciousness in the bioethicist that interferes with reliable judgement (‘Am I being too harsh simply to distance myself from the company? Am I being too lenient, because I don’t want to lose this income source?’), and in these cases a conflict of interest sensu stricto would occur. Ashcroft (this issue) discusses conflict of interest in some detail. Here I wish to make only one quick and familiar observation. The conflict of interest faced in a case where one offers advice in return for payment will sometimes be comparatively mild; after all, in almost all cases where one receives payment for professional service there is a chance that one’s judgement might be adversely affected as a result, simply because there are all kinds of cases where harsh, yet honest, judgement may lower one’s chances of re-employment. We must not be so sensitive to conflict of interest that we deny academics payment even for lecturing on the grounds that fear of loss of income might lead them to hide their true views from a classroom. If payment does not corrupt within this domain we cannot assume that it always corrupts outside of it either. And, of course, one faces conflict of interest in many other ways throughout academic life—for example when the judgment one makes in reviewing a book is compromised by one’s relationship (friendly or unfriendly, junior or senior) with the author in question. Serious conflict in the area of consultation could occur even in cases where the corporation offers no payment for the consulting work—for example, when the bioethicist already holds a large amount of stock in the company whose products she evaluates, or when one of the bioethicist’s family members has been adversely affected by the corporation’s activities. In these kinds of cases conflict of interest may distort judgement to a far greater degree. So conflict of interest can arise in academic life even where payment is not a distorting factor, and receipt of payment is neither necessary, nor sufficient, for a serious conflict of interest. Returning to the more general topic of conflicting interests, does the bioethicist really does have good reasons to change her arguments in response to the prospects of financial gain? What does she have to gain from such a decision? It is true that she may secure future lucrative employment if her published work presents the company’s products in a favourable light, yet these gains must be weighed against potential losses. If she takes the decision quite regularly to fall into line with what the corporation wants to hear, and if this tracking relationship is known to the academic community, then she runs a significant risk of losing her professional reputation as an academic, and also any authority she may have in industry as a source of sincere advice regarding the rights and wrongs of any proposed course of action. A general agreement to divulge industry relationships can therefore act to favour decisions to follow one’s intellectual conscience by making a bioethicist’s academic reputation partly contingent on the decisions she makes in her industrial consulting. In such an environment, if financial incentives offered to bioethicists are
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modest enough that the risk of academic ridicule is significant in comparison, then it will rarely be in the interests of a consultant to be swayed in her choice of argument by her fee. There is one important caveat that needs to be added to this line of thought. If the primary function of university-based bioethics units is not to pursue the academic values of truth-seeking and rigour, but instead it is to assist corporations in their goals, then academic bioethicists will not frown on a colleague who produces arguments to order. If academic bioethics is to merit its name, then university bioethicists need to be sure that the majority of their work is not done on behalf of corporate concerns.2 If they fail to do this, then the whole of that part of the academy might cut itself off from the goals of mainstream academia, a university ethicist need no longer fear that producing bespoke bioethics will damage her reputation, and ‘academic bioethics’ becomes an oxymoron. That is one reason to be wary of large corporate donations going to fund ethics centres themselves: the sympathies with the goals of business that close relationships between academics and corporate donors will bring may also alter the values of academic institutions that receive those donations.3 Moving to a more basic question, why should we care even if a bioethicist’s views are swayed by the prospect of fees? In many cases any work the bioethicist does will be for internal corporate consumption only. No report will be publicised and no external communication exists to be assessed by peers. Hence we cannot have quite the same kinds of concerns that we might have in the realm of empirical science, where commercial involvement has long been criticised for the way in which it can stifle normal modes of peer-assessment of published work.4 But even here a bioethicist’s failure to follow his intellectual conscience is a missed opportunity to subject technology to scrutiny. Such consultation is also of limited value to the corporation itself, unless its purpose is to confer an externally visible badge of ethical proficiency (the corporation advertises the fact that is has consulted with some eminent ethical authority) that signals no genuine internal achievement. Clearly for any bioethicist to participate in a system with that purpose would be odious, and members of the broader bioethics community should care not only that such behaviour would call their own sincerity into doubt by association, but also that the existence of such a system would make mendacity the public function of their discipline. 2
Brock (1993) makes a similar point, in the different context of academic involvement in policy formulation. 3 Much of Elliott’s (2001b) case is built on this kind of reasoning. 4 Sheldon Krimsky (1991, p. 27) cites this editorial from New England Journal of Medicine, written in 1980, when concerns were first voiced about the announcement of new scientific discoveries at corporate events, rather than through traditional journals: ‘In place of published data, open to all for examination and critical review, we now get scientific information by press conference. The abrogation by scientists of the normal processes of scientific communication does not help science or the reporters covering it’.
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2. Marketers and experts: two bad roles The last section explored some arguments that suggest a bioethicist might be influenced in her choice of argument by the prospect of payment. I suggested that the chances of this happening will be low so long as the following conditions are met. First, academic values must be strong within the bioethics community. If they are not, then subservience of a particular bioethicist’s work to the values of business will not be frowned upon by the broader bioethics community. Second, the bioethicist in question should devote the majority of her time to academic work. If she does not, then loss of academic reputation may offer no strong disincentive to tailoring her arguments to suit her clients. Third, the relations between the bioethicist’s corporate involvements and her published work should be open to tracking by the academic community. That final condition is often not met, for in many cases corporate relationships are not declared. Its function (in combination with the other conditions) is to make loss of academic credibility a genuine counterweight to the financial incentives associated with pulling one’s punches in public writings about the products or processes of a company that one consults with. Without any tracking, a bioethicist could regularly publish work that ignored or downplayed poor ethical conduct in the corporations she is involved with, without these biases being easily ascertainable by academic peers. If authors were to declare (for example, on their homepages) all of the companies they have consulted with, then a range of potential influences on judgement would become widely observable. True enough, they would be only dimly observable, but that will often be good enough for the measure to achieve its purpose. My discussion so far has ignored some of the most interesting problems posed by consulting relationships. Interests may conflict at a different level. Why on earth would any sensible corporation pay a bioethicist anyway? Doubtless the rubberstamping role mentioned above sometimes explains the ethicist’s value, but are there any less cynical grounds for seeking ethical consultation? Here one might suspect that bioethicists have good reasons to exaggerate the general value of their opinions, in order to stay in the consulting game. And one might equally suspect that the roles corporations lay out for bioethical consultants have functions of doubtful ethical standing. The model that most strongly invites this conclusion is one that casts bioethicists in what I call the marketing role. We imagine the corporation calling on the ethicist in order to get an assessment of the likely match between the ethical properties of a product, and the ethical and regulatory climate of the market into which it is launched. The ethicist’s job is then to give recommendations regarding the acceptability of the product, and perhaps to suggest ways to change it in order to maximise its acceptability by the targeted market. The ethicist is evaluated according to how well her advice helps with product sales, or how accurately she anticipates a product’s unacceptability. It is easy to see why the marketing model would lead us to doubt that bioethicists could ever justify their fees. What is needed from a good marketer is not expertise regarding whether the product in question is (ethically) good or bad, but
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expertise regarding how it is likely to be perceived by potential customers, and how it might comport with existing regulation. Philosophical bioethicists, at least, are simply the wrong people to fill the marketing role. The right people would be psychologists, sociologists and anthropologists equipped to give an empirically-backed account of how the product will be perceived, and lawyers equipped to give expertise on legal and regulatory issues. Bioethicists with more applied interests do have knowledge of sociology, law, and other related disciplines that would enable them to offer observations of relevance to a marketing campaign, but their advice will often be inferior to that offered by specialists in those fields. Few bioethicists will want to give this role up in favour of that of ethical expert—one who earns his fee by informing corporations of what is right and wrong independent of what regulators (or the market) may perceive to be the ethical truth. The problem is not that no corporation would ever wish to know what is truly right and wrong; both instrumental and intrinsic value may be perceived in this kind of knowledge. Some businesses may feel that occupying the ethical high ground will eventually yield an improvement in their image and their profits; some more conscientious executives may care about doing the right thing even when it is not perceived as such, and even when it reduces their profits, or their share prices. The problem with taking on the mantle of ethical expert is simply that only a minority of bioethicists want to describe themselves as knowing the ethical facts better than others, even if they do claim expertise regarding the conduct of ethical argument. Note two aspects to my claim here. It does not turn on metaethical debates about whether there are ethical facts, or ethical truths; regardless of what ethical expertise might consist in, bioethicists are often reluctant to claim it. And I am not arguing that bioethicists are not experts regarding ethical facts; it may turn out that to have expertise regarding ethical facts is to have skill and sensibility in the conduct of ethical argument. That might yield the result that many bioethicists are ethical experts after all, but experts who do not recognise the nature of their expertise. My claim is just that bioethicists themselves typically profess expertise only regarding the arguments for and against various ethical claims, and not regarding ethical facts.5
3. Dialecticians and lobbyists: a better role and a perilous one If bioethicists are of little use in telling businesspeople about the perceived ethical facts, and if they do not profess to tell real ethical facts, then what use can they be at all? Are they guilty of deceptive practice (or wishful thinking) in persuading corporations to pay for their services? I think a modest role does remain for them—the dialectical role—and I try to outline that role in this section. Executives must reason and communicate using ethical concepts. Pharmaceutical corporations, for example, cannot dodge the questions of their commitments to the 5
Moreno (1991) discusses the role of the ethical expert in bioethical consultation in some detail.
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environment, to local communities, or to research subjects.6 The bioethicist is able to assist in the formulation of responses to such questions in virtue of her knowledge of the contours and ambiguities of the concepts used in ethical reasoning. A corporation that seeks to formulate a stance towards, for example, research ethics, can benefit from the presence of an individual in the room who is able to show them how the concept of autonomy is being used in conflicting senses in two different parts of its research policy document. If the bioethicist gives herself this kind of role in the decision-making process then she will, indeed, do the corporation a valuable service. Decisions may be arrived at faster than they would have been, had no ethicist been present to spot individuals talking at cross-purposes; policy documents will be less ambiguous; potentially contradictory recommendations will be brought into alignment with each other; and so forth. There are many questions like this where philosophical input is useful, and these questions often draw together themes from business ethics, bioethics, and environmental ethics. They include: what kind of position does the corporation have in mind when it backs sustainable development? What kind of a thing is trust, that a business might try to encourage it between research subjects and researchers? Has the corporation found a coherent reading of the precautionary principle, when it claims to be following a precautionary approach to the release of GMOs?7 This line of thinking illuminates a fourth and final role for the bioethics consultant—the lobbying role. The bioethicist might advise a corporation on how it can make an ethical case for its products in the face of a suspicious regulator. Regulatory bodies themselves draw on philosophical advice, and any company would do well to present a case that the philosophers in the regulatory group are likely to find as cogent as possible. Again, it is the bioethicist’s professed expertise regarding ethical argument (not ethical facts) that constitutes a valuable resource for the corporation. The problem with the lobbying role is not that bioethicists cannot be effective lobbyists, but that the role’s own ethical credentials are sometimes dubious. Suppose that the ethicist is paid only to produce arguments she considers valid, rather than sound. She holds these arguments at arm’s length, and does not assert their conclusions, yet she is responsible nonetheless for formulating a case intended to promote some technology or practice. The bioethical lobbyist can be guilty of a form of practical hypocrisy unless she ensures that her advice is given only to secure the prospects of technologies and practices she antecedently approves of. The further prudential problem with the lobbyist’s role is that even when the ethicist is without hypocrisy, it may be hard for her to avoid accusations that she is. If it is known that the ethicist is working for money, to boost the chances of some particular technology receiving approval, then onlookers may suspect that 6 The remainder of this paragraph summarises a series of arguments that I owe to Lillehammer (this issue). Lillehammer looks at the examples of autonomy and risk in detail, although he does not mention trust, sustainability, or the precautionary principle. 7 For philosophical approaches to each of these problems see Norton (2002), Holton (1994) and Resnick (2003) inter alia.
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she has become a ‘hired gun’, offering arguments to anyone who pays, and that she is frequently guilty of this kind of hypocrisy as a result. Attempts to make her lobbying activities unknown to others will only increase these suspicions. Any widely held suspicion that a bioethicist is hypocritical will make readers of academic work where she does assert the soundness of arguments sceptical of its sincerity. So the decision to lobby is one that she should not take lightly. The bioethicist who plays the dialectical role in the formulation of broad corporate policy does not take on the lobbyist’s role of advocating particular technologies or practices, yet the dialectician might still contribute knowingly to the clarification, and hence the success, of a general ethical case that she finds repugnant. So the dialectician should avoid this kind of hypocrisy as much as the lobbyist. Yet the risk that however she argues, the dialectician will be seen as hypocritical, is less than in the lobbying case, for the dialectician is not in the business of advocating, or even assessing, products specific to the company in question, and her advice will typically concern abstract questions (such as those about the nature of trust, or of autonomy) that have many plausible answers, none of which is obviously intolerable to corporate ears. The dialectical role, then, is a safer one for the bioethicist to play than the lobbying role. And in contrast with the expert and the marketer, the dialectician need not claim knowledge of the ethical facts, nor need she claim knowledge of public attitudes or of the regulatory environment. But her work is useful all the same. If the bioethicist is honest about the limits of her abilities to shine light on the prospects for any particular technology, then she can expect less frustration from a corporate employer with her inability to contribute directly to the bottom line. It must be acknowledged that she can also expect comparatively low fees for her services, yet that in itself significantly weakens accusations that payment will corrupt her judgement, by making the loss of academic reputation a significant consideration balancing the financial gain she might enjoy if she changes her views to suit the client. There is room for a legitimate and sustainable fee-based bioethics, albeit one that is modestly described to potential clients, modestly rewarded by them, and which remains an infrequent activity of those who offer it. Acknowledgements I am grateful to Richard Ashcroft, Alison Hills, Nick Jardine, Hallvard Lillehammer, John McMillan, Dominic Scott, Bryn Williams-Jones and Ron Zimmern for comments on earlier drafts of this essay.
Corporate involvements It is in keeping with the argument of this paper that I should offer a statement of my own corporate involvements. At the time of writing I have given no bioethics consultation to any corporation. My department was, however, approached just a few weeks ago by Pfizer to supply philosophical advice on topics relating to risk,
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and if their interests and expectations are in keeping with what I have argued here I may acquire a corporate involvement in the near future. Pfizer approached us a good time after this paper was written, but so far as I know no one at Pfizer has ever seen a copy of it, and their interest in having a philosopher think about risk did not come from reading a draft. References Ashcroft, R. (this issue) Bioethics and conflicts of interest. Studies in History and Philosophy of Biological and Biomedical Sciences. Brock, D. (1993). Truth or consequences: The role of philosophers in policy making. In D. Brock (Ed.), Life and death: philosophical essays in biomedical ethics (pp. 408–416). Cambridge: Cambridge University Press. Callahan, D. (2001). Doing good and doing well. Hastings Center Report, 31(2), 19–21. Davis, M. (2001). ‘Introduction’. In M. Davis, & A. Stark (Eds.), Conflict of interest in the professions (pp. 3–21). Oxford: Oxford University Press. Donaldson, T. (2001). The business ethics of bioethics consulting. Hastings Center Report, 31(2), 12–14. Elliott, C. (2001a). Pharma buys a conscience. The American Prospect, 12(17). (Available at www.prospect.org/print-friendly/print/V12/17/elliott-c.html) Elliott, C. (2001). Throwing a bone to the watchdog. Hastings Center Report, 31(2), 9–12. Elliott, C. (2002). Diary. London Review of Books, 28th November, 36–37. Holton, R. (1994). Deciding to trust, coming to believe. Australasian Journal of Philosophy, 72, 63–76. Krimsky, S. (1991). Biotechnics and society: The rise of industrial genetics. New York: Praeger. Lillehammer, H. (this issue). Who needs bioethicists? Studies in History and Philosophy of Biological and Biomedical Sciences. MacDonald, C. (forthcoming) Will the ‘secular priests’ of bioethics work among the sinners? American Journal of Bioethics. Moreno, J. (1991). Ethics consultation as moral engagement. Bioethics, 5, 44–56. Norton, B. (2002). Searching for sustainability. Interdisciplinary essays in the philosophy of conservation biology. Cambridge: Cambridge University Press. Resnick, D. (2003). Is the precautionary principle unscientific? Studies in History and Philosophy of Biological and Biomedical Sciences, 34, 329–344.
The commercial exploitation of ethics Tim Lewens Department of History and Philosophy of Science, University of Cambridge, Free School Lane, Cambridge CB2 3RH, UK
Abstract In the first part of this paper I consider whether an academic bioethicist is likely to change the arguments she is prepared to voice if she is in receipt of payment from a corporation. I argue that she is not, so long as a number of conditions are met regarding the size of payment, the values of the academic bioethics community, the degree to which she participates in that community, and the transparency of corporate involvements. In the second half I consider a different concern that one might have with corporate payments that relate to the dubious nature of the functions bioethicists might play within those corporations. I argue that three roles—those of marketer, expert and lobbyist—are best avoided, but that a fourth—the dialectical role—does provide a legitimate niche within which a bioethicist may offer consultation. # 2003 Elsevier Ltd. All rights reserved. Keywords: Bioethics; Conflict of Interest; Consulting; Corruption.
What, if anything, is wrong with corporate money going into bioethics?1 The answer will depend on just what kind of funding arrangement we are considering. A biotechnology company might sponsor an academic bioethics centre or a particular research project; it might employ a full-time ethicist on its staff; or it might pay an academic bioethicist for her services as a consultant. In this paper my concern is with the last form of involvement. Even here our concerns will depend on what role the bioethicist is playing. Is she giving advice for internal consumption on the ethical properties of some particular product? Is she writing a series of articles for external publication that will expound these properties? Is she helping to E-mail address: [email protected] (T. Lewens). Elliott’s (2001a,b, 2002) answer to that question is overwhelmingly negative, as is that of Callahan (2001). For more positive responses see Donaldson (2001) and MacDonald (forthcoming). 1
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devise general corporate policies—perhaps regarding clinical trials? Is she educating executives regarding ethical reasoning? Is she helping to devise a strategy to package a product so that suspicious regulators will accept it? I shall examine some of these roles in the second half of the paper. In the first half I look at some very abstract concerns about how payment might corrupt the academic bioethicist.
1. Corruption Many of the roles the academic bioethicist can play in the commercial world involve payment for assessing the ethical properties of some product or set of procedures. There are some quite generic worries we might have about this kind of engagement. Maybe we share Elliott’s aesthetic reaction in finding something distasteful about getting paid on a fee-for-service basis to do ethics (Elliott, 2001a). The very thought leads to the hideous vision of the ethical fat-cat, as loathsome as one who grows rich by selling the word of God. Or perhaps we think that the company in question may be able to gain an unfair strategic advantage by using financial incentives to acquire information the bioethicist possesses and to which it has no entitlement. This presupposes that other responsibilities of the bioethicist give her access to the likely decisions that regulatory bodies, or other similar institutions, will make prior to their formal announcement. Finally, we may fear that the objectivity of her ethical analysis will be compromised. That final fear is my focus in this first section. The worry is that financial gain may affect the bioethicist’s judgement, or at least the arguments she is prepared to voice, so that she argues in favour of positions she would not have backed had she remained an unremunerated observer of the enterprise’s activities. Why might that be? One fear (and probably not the most serious one) will be that if the ethicist stands to gain financially from a company, then this will push her to argue in favour of its products when she undertakes the paid work itself, and also in subsequent unpaid publications that may draw on her experiences with the company. This may be so for a number of reasons: it is conceivable, but unlikely, that the company employs her specifically to write a series of published articles in its favour, and she finds it hard to turn their offer down given her appallingly low academic salary and appallingly high mortgage repayments; more likely she worries that if she does not express approval of the product both internally and externally she will fall out with the company’s executives, they (and others in the same industry) won’t re-employ her, and again a valuable income source will be denied her. Note that I have not said enough about these cases to determine whether they are conflicts of interest in the sense of what Davis terms the ‘standard view’ of that phrase (Davis, 2001). On that view, conflict of interest arises when the bioethicist owes a reliable judgement to the corporation in question, and some other interest (such as the receipt of payment, for example) interferes with the formulation of reliable judgement. But in some of the scenarios I described the bioethicist is not employed to give a reliable judgement; instead she is employed to argue in favour of a product. In other cases the bioethicist’s judgement is not compromised, only
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the views she is willing to voice support for. She might reach the view in the normal way that some product should be prohibited, but decline to express that view, or choose to express a different one. Here she has conflicting interests with respect to the expression of her sincere views, but this is not a conflict of interest. However, there surely are cases where the prospect of payment, or of loss of payment, generates the kind of self-consciousness in the bioethicist that interferes with reliable judgement (‘Am I being too harsh simply to distance myself from the company? Am I being too lenient, because I don’t want to lose this income source?’), and in these cases a conflict of interest sensu stricto would occur. Ashcroft (this issue) discusses conflict of interest in some detail. Here I wish to make only one quick and familiar observation. The conflict of interest faced in a case where one offers advice in return for payment will sometimes be comparatively mild; after all, in almost all cases where one receives payment for professional service there is a chance that one’s judgement might be adversely affected as a result, simply because there are all kinds of cases where harsh, yet honest, judgement may lower one’s chances of re-employment. We must not be so sensitive to conflict of interest that we deny academics payment even for lecturing on the grounds that fear of loss of income might lead them to hide their true views from a classroom. If payment does not corrupt within this domain we cannot assume that it always corrupts outside of it either. And, of course, one faces conflict of interest in many other ways throughout academic life—for example when the judgment one makes in reviewing a book is compromised by one’s relationship (friendly or unfriendly, junior or senior) with the author in question. Serious conflict in the area of consultation could occur even in cases where the corporation offers no payment for the consulting work—for example, when the bioethicist already holds a large amount of stock in the company whose products she evaluates, or when one of the bioethicist’s family members has been adversely affected by the corporation’s activities. In these kinds of cases conflict of interest may distort judgement to a far greater degree. So conflict of interest can arise in academic life even where payment is not a distorting factor, and receipt of payment is neither necessary, nor sufficient, for a serious conflict of interest. Returning to the more general topic of conflicting interests, does the bioethicist really does have good reasons to change her arguments in response to the prospects of financial gain? What does she have to gain from such a decision? It is true that she may secure future lucrative employment if her published work presents the company’s products in a favourable light, yet these gains must be weighed against potential losses. If she takes the decision quite regularly to fall into line with what the corporation wants to hear, and if this tracking relationship is known to the academic community, then she runs a significant risk of losing her professional reputation as an academic, and also any authority she may have in industry as a source of sincere advice regarding the rights and wrongs of any proposed course of action. A general agreement to divulge industry relationships can therefore act to favour decisions to follow one’s intellectual conscience by making a bioethicist’s academic reputation partly contingent on the decisions she makes in her industrial consulting. In such an environment, if financial incentives offered to bioethicists are
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modest enough that the risk of academic ridicule is significant in comparison, then it will rarely be in the interests of a consultant to be swayed in her choice of argument by her fee. There is one important caveat that needs to be added to this line of thought. If the primary function of university-based bioethics units is not to pursue the academic values of truth-seeking and rigour, but instead it is to assist corporations in their goals, then academic bioethicists will not frown on a colleague who produces arguments to order. If academic bioethics is to merit its name, then university bioethicists need to be sure that the majority of their work is not done on behalf of corporate concerns.2 If they fail to do this, then the whole of that part of the academy might cut itself off from the goals of mainstream academia, a university ethicist need no longer fear that producing bespoke bioethics will damage her reputation, and ‘academic bioethics’ becomes an oxymoron. That is one reason to be wary of large corporate donations going to fund ethics centres themselves: the sympathies with the goals of business that close relationships between academics and corporate donors will bring may also alter the values of academic institutions that receive those donations.3 Moving to a more basic question, why should we care even if a bioethicist’s views are swayed by the prospect of fees? In many cases any work the bioethicist does will be for internal corporate consumption only. No report will be publicised and no external communication exists to be assessed by peers. Hence we cannot have quite the same kinds of concerns that we might have in the realm of empirical science, where commercial involvement has long been criticised for the way in which it can stifle normal modes of peer-assessment of published work.4 But even here a bioethicist’s failure to follow his intellectual conscience is a missed opportunity to subject technology to scrutiny. Such consultation is also of limited value to the corporation itself, unless its purpose is to confer an externally visible badge of ethical proficiency (the corporation advertises the fact that is has consulted with some eminent ethical authority) that signals no genuine internal achievement. Clearly for any bioethicist to participate in a system with that purpose would be odious, and members of the broader bioethics community should care not only that such behaviour would call their own sincerity into doubt by association, but also that the existence of such a system would make mendacity the public function of their discipline. 2
Brock (1993) makes a similar point, in the different context of academic involvement in policy formulation. 3 Much of Elliott’s (2001b) case is built on this kind of reasoning. 4 Sheldon Krimsky (1991, p. 27) cites this editorial from New England Journal of Medicine, written in 1980, when concerns were first voiced about the announcement of new scientific discoveries at corporate events, rather than through traditional journals: ‘In place of published data, open to all for examination and critical review, we now get scientific information by press conference. The abrogation by scientists of the normal processes of scientific communication does not help science or the reporters covering it’.
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2. Marketers and experts: two bad roles The last section explored some arguments that suggest a bioethicist might be influenced in her choice of argument by the prospect of payment. I suggested that the chances of this happening will be low so long as the following conditions are met. First, academic values must be strong within the bioethics community. If they are not, then subservience of a particular bioethicist’s work to the values of business will not be frowned upon by the broader bioethics community. Second, the bioethicist in question should devote the majority of her time to academic work. If she does not, then loss of academic reputation may offer no strong disincentive to tailoring her arguments to suit her clients. Third, the relations between the bioethicist’s corporate involvements and her published work should be open to tracking by the academic community. That final condition is often not met, for in many cases corporate relationships are not declared. Its function (in combination with the other conditions) is to make loss of academic credibility a genuine counterweight to the financial incentives associated with pulling one’s punches in public writings about the products or processes of a company that one consults with. Without any tracking, a bioethicist could regularly publish work that ignored or downplayed poor ethical conduct in the corporations she is involved with, without these biases being easily ascertainable by academic peers. If authors were to declare (for example, on their homepages) all of the companies they have consulted with, then a range of potential influences on judgement would become widely observable. True enough, they would be only dimly observable, but that will often be good enough for the measure to achieve its purpose. My discussion so far has ignored some of the most interesting problems posed by consulting relationships. Interests may conflict at a different level. Why on earth would any sensible corporation pay a bioethicist anyway? Doubtless the rubberstamping role mentioned above sometimes explains the ethicist’s value, but are there any less cynical grounds for seeking ethical consultation? Here one might suspect that bioethicists have good reasons to exaggerate the general value of their opinions, in order to stay in the consulting game. And one might equally suspect that the roles corporations lay out for bioethical consultants have functions of doubtful ethical standing. The model that most strongly invites this conclusion is one that casts bioethicists in what I call the marketing role. We imagine the corporation calling on the ethicist in order to get an assessment of the likely match between the ethical properties of a product, and the ethical and regulatory climate of the market into which it is launched. The ethicist’s job is then to give recommendations regarding the acceptability of the product, and perhaps to suggest ways to change it in order to maximise its acceptability by the targeted market. The ethicist is evaluated according to how well her advice helps with product sales, or how accurately she anticipates a product’s unacceptability. It is easy to see why the marketing model would lead us to doubt that bioethicists could ever justify their fees. What is needed from a good marketer is not expertise regarding whether the product in question is (ethically) good or bad, but
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expertise regarding how it is likely to be perceived by potential customers, and how it might comport with existing regulation. Philosophical bioethicists, at least, are simply the wrong people to fill the marketing role. The right people would be psychologists, sociologists and anthropologists equipped to give an empirically-backed account of how the product will be perceived, and lawyers equipped to give expertise on legal and regulatory issues. Bioethicists with more applied interests do have knowledge of sociology, law, and other related disciplines that would enable them to offer observations of relevance to a marketing campaign, but their advice will often be inferior to that offered by specialists in those fields. Few bioethicists will want to give this role up in favour of that of ethical expert—one who earns his fee by informing corporations of what is right and wrong independent of what regulators (or the market) may perceive to be the ethical truth. The problem is not that no corporation would ever wish to know what is truly right and wrong; both instrumental and intrinsic value may be perceived in this kind of knowledge. Some businesses may feel that occupying the ethical high ground will eventually yield an improvement in their image and their profits; some more conscientious executives may care about doing the right thing even when it is not perceived as such, and even when it reduces their profits, or their share prices. The problem with taking on the mantle of ethical expert is simply that only a minority of bioethicists want to describe themselves as knowing the ethical facts better than others, even if they do claim expertise regarding the conduct of ethical argument. Note two aspects to my claim here. It does not turn on metaethical debates about whether there are ethical facts, or ethical truths; regardless of what ethical expertise might consist in, bioethicists are often reluctant to claim it. And I am not arguing that bioethicists are not experts regarding ethical facts; it may turn out that to have expertise regarding ethical facts is to have skill and sensibility in the conduct of ethical argument. That might yield the result that many bioethicists are ethical experts after all, but experts who do not recognise the nature of their expertise. My claim is just that bioethicists themselves typically profess expertise only regarding the arguments for and against various ethical claims, and not regarding ethical facts.5
3. Dialecticians and lobbyists: a better role and a perilous one If bioethicists are of little use in telling businesspeople about the perceived ethical facts, and if they do not profess to tell real ethical facts, then what use can they be at all? Are they guilty of deceptive practice (or wishful thinking) in persuading corporations to pay for their services? I think a modest role does remain for them—the dialectical role—and I try to outline that role in this section. Executives must reason and communicate using ethical concepts. Pharmaceutical corporations, for example, cannot dodge the questions of their commitments to the 5
Moreno (1991) discusses the role of the ethical expert in bioethical consultation in some detail.
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environment, to local communities, or to research subjects.6 The bioethicist is able to assist in the formulation of responses to such questions in virtue of her knowledge of the contours and ambiguities of the concepts used in ethical reasoning. A corporation that seeks to formulate a stance towards, for example, research ethics, can benefit from the presence of an individual in the room who is able to show them how the concept of autonomy is being used in conflicting senses in two different parts of its research policy document. If the bioethicist gives herself this kind of role in the decision-making process then she will, indeed, do the corporation a valuable service. Decisions may be arrived at faster than they would have been, had no ethicist been present to spot individuals talking at cross-purposes; policy documents will be less ambiguous; potentially contradictory recommendations will be brought into alignment with each other; and so forth. There are many questions like this where philosophical input is useful, and these questions often draw together themes from business ethics, bioethics, and environmental ethics. They include: what kind of position does the corporation have in mind when it backs sustainable development? What kind of a thing is trust, that a business might try to encourage it between research subjects and researchers? Has the corporation found a coherent reading of the precautionary principle, when it claims to be following a precautionary approach to the release of GMOs?7 This line of thinking illuminates a fourth and final role for the bioethics consultant—the lobbying role. The bioethicist might advise a corporation on how it can make an ethical case for its products in the face of a suspicious regulator. Regulatory bodies themselves draw on philosophical advice, and any company would do well to present a case that the philosophers in the regulatory group are likely to find as cogent as possible. Again, it is the bioethicist’s professed expertise regarding ethical argument (not ethical facts) that constitutes a valuable resource for the corporation. The problem with the lobbying role is not that bioethicists cannot be effective lobbyists, but that the role’s own ethical credentials are sometimes dubious. Suppose that the ethicist is paid only to produce arguments she considers valid, rather than sound. She holds these arguments at arm’s length, and does not assert their conclusions, yet she is responsible nonetheless for formulating a case intended to promote some technology or practice. The bioethical lobbyist can be guilty of a form of practical hypocrisy unless she ensures that her advice is given only to secure the prospects of technologies and practices she antecedently approves of. The further prudential problem with the lobbyist’s role is that even when the ethicist is without hypocrisy, it may be hard for her to avoid accusations that she is. If it is known that the ethicist is working for money, to boost the chances of some particular technology receiving approval, then onlookers may suspect that 6 The remainder of this paragraph summarises a series of arguments that I owe to Lillehammer (this issue). Lillehammer looks at the examples of autonomy and risk in detail, although he does not mention trust, sustainability, or the precautionary principle. 7 For philosophical approaches to each of these problems see Norton (2002), Holton (1994) and Resnick (2003) inter alia.
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she has become a ‘hired gun’, offering arguments to anyone who pays, and that she is frequently guilty of this kind of hypocrisy as a result. Attempts to make her lobbying activities unknown to others will only increase these suspicions. Any widely held suspicion that a bioethicist is hypocritical will make readers of academic work where she does assert the soundness of arguments sceptical of its sincerity. So the decision to lobby is one that she should not take lightly. The bioethicist who plays the dialectical role in the formulation of broad corporate policy does not take on the lobbyist’s role of advocating particular technologies or practices, yet the dialectician might still contribute knowingly to the clarification, and hence the success, of a general ethical case that she finds repugnant. So the dialectician should avoid this kind of hypocrisy as much as the lobbyist. Yet the risk that however she argues, the dialectician will be seen as hypocritical, is less than in the lobbying case, for the dialectician is not in the business of advocating, or even assessing, products specific to the company in question, and her advice will typically concern abstract questions (such as those about the nature of trust, or of autonomy) that have many plausible answers, none of which is obviously intolerable to corporate ears. The dialectical role, then, is a safer one for the bioethicist to play than the lobbying role. And in contrast with the expert and the marketer, the dialectician need not claim knowledge of the ethical facts, nor need she claim knowledge of public attitudes or of the regulatory environment. But her work is useful all the same. If the bioethicist is honest about the limits of her abilities to shine light on the prospects for any particular technology, then she can expect less frustration from a corporate employer with her inability to contribute directly to the bottom line. It must be acknowledged that she can also expect comparatively low fees for her services, yet that in itself significantly weakens accusations that payment will corrupt her judgement, by making the loss of academic reputation a significant consideration balancing the financial gain she might enjoy if she changes her views to suit the client. There is room for a legitimate and sustainable fee-based bioethics, albeit one that is modestly described to potential clients, modestly rewarded by them, and which remains an infrequent activity of those who offer it. Acknowledgements I am grateful to Richard Ashcroft, Alison Hills, Nick Jardine, Hallvard Lillehammer, John McMillan, Dominic Scott, Bryn Williams-Jones and Ron Zimmern for comments on earlier drafts of this essay.
Corporate involvements It is in keeping with the argument of this paper that I should offer a statement of my own corporate involvements. At the time of writing I have given no bioethics consultation to any corporation. My department was, however, approached just a few weeks ago by Pfizer to supply philosophical advice on topics relating to risk,
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and if their interests and expectations are in keeping with what I have argued here I may acquire a corporate involvement in the near future. Pfizer approached us a good time after this paper was written, but so far as I know no one at Pfizer has ever seen a copy of it, and their interest in having a philosopher think about risk did not come from reading a draft. References Ashcroft, R. (this issue) Bioethics and conflicts of interest. Studies in History and Philosophy of Biological and Biomedical Sciences. Brock, D. (1993). Truth or consequences: The role of philosophers in policy making. In D. Brock (Ed.), Life and death: philosophical essays in biomedical ethics (pp. 408–416). Cambridge: Cambridge University Press. Callahan, D. (2001). Doing good and doing well. Hastings Center Report, 31(2), 19–21. Davis, M. (2001). ‘Introduction’. In M. Davis, & A. Stark (Eds.), Conflict of interest in the professions (pp. 3–21). Oxford: Oxford University Press. Donaldson, T. (2001). The business ethics of bioethics consulting. Hastings Center Report, 31(2), 12–14. Elliott, C. (2001a). Pharma buys a conscience. The American Prospect, 12(17). (Available at www.prospect.org/print-friendly/print/V12/17/elliott-c.html) Elliott, C. (2001). Throwing a bone to the watchdog. Hastings Center Report, 31(2), 9–12. Elliott, C. (2002). Diary. London Review of Books, 28th November, 36–37. Holton, R. (1994). Deciding to trust, coming to believe. Australasian Journal of Philosophy, 72, 63–76. Krimsky, S. (1991). Biotechnics and society: The rise of industrial genetics. New York: Praeger. Lillehammer, H. (this issue). Who needs bioethicists? Studies in History and Philosophy of Biological and Biomedical Sciences. MacDonald, C. (forthcoming) Will the ‘secular priests’ of bioethics work among the sinners? American Journal of Bioethics. Moreno, J. (1991). Ethics consultation as moral engagement. Bioethics, 5, 44–56. Norton, B. (2002). Searching for sustainability. Interdisciplinary essays in the philosophy of conservation biology. Cambridge: Cambridge University Press. Resnick, D. (2003). Is the precautionary principle unscientific? Studies in History and Philosophy of Biological and Biomedical Sciences, 34, 329–344.