Liberty and Solidarity

A recent exchange of essays on Bioethics Forum, the Report’s free online service, touches on a question at the heart of the special set of essays in this issue: when would it be appropriate to restrict individual liberty to control aspects of procreation? The Forum essays—by Alice Dreger and jointly by Aaron Greenberg and Michael Bailey—address the prospect of using preimplantation genetic diagnosis to make sure that one’s child is heterosexual. Dreger objects to this use of PGD, mainly on the grounds that if ever fewer people are homosexual, and if a test is in widespread use to select against homosexuality, then those who are homosexual anyway will suffer even worse discrimination than they already do. But ultimately—and reluctantly—she agrees with Greenberg and Bailey that a government ban would be inappropriate. She settles for public opprobrium.

What would it take to justify a restriction on an important liberty? This question is one of several at play in the essays in this issue on regulating reprogenetic technologies—technologies, that is, that bring together the fields of assisted reproduction and genetics to help parents make decisions not only about whether and when to have children, but also about what kind of children to have. In the lead essay of the set, Franco Furger and Francis Fukuyama argue for a strategy that has no precedent in the United States but is modeled on the approach used in the United Kingdom (and is similar to a proposal advanced by Hastings scholars Erik Parens and Lori Knowles in a special report in this journal in 2003). They call for a new federal entity that would be buffered from politics and provide “flexible and dynamic” regulation explicitly grounded in ethical principles and guided by “a robust procedure of public consultation.” The four commentaries accompanying their essay offer contrasting views of various aspects of the proposal—three about the proposed regulatory process, and one about a substantive issue that Furger and Fukuyama believe merits liberty-restricting regulation.

One way of approaching the question of how to justify a restriction of an important liberty is to see it as a philosophical problem. Greenberg and Bailey argue, for example, that liberty can be constrained only to avoid a harm that is both likely and severe. Furger and Fukuyama would expand the criteria to include protection of well-being. They also hold, however, that deciding when to restrict reproductive liberty is ultimately a political problem, not just a philosophical one, and so needs to be moved “beyond bioethics” (as they suggest with the title of a longer report they have written about their proposal). The regulatory structure they recommend would move these decisions not only into the public sphere, but also partly to the public itself: citizens, through the consultative procedure, would help decide when the public well-being needs protecting.

Deciding how to cross the line from philosophy to politics—from opprobrium to a ban—has been decidedly difficult for critics of biotechnology. Since part of the point of talking about “liberty” and “rights” is to protect individuals from public sentiment, the line should not be crossed easily. On the other hand, arguably, “liberty” can be initially enshrined in law, and later protected, only on the strength of public sentiment, and the public can therefore also be trusted to help refine basic liberties. The challenge is to involve the public in the right way—to have them adequately informed and able to weigh relevant moral concerns. Furger and Fukuyama’s hope is that a carefully conducted process of public consultation will meet this goal. The question, in a way, is whether the public can be philosophical.