Legal Expertise, Scientific Knowledge, and Medical Ethics at a Crossroads

In Les Animaux dénaturés,¹ Vercors tells the story of a journalist, Douglas Templemore, who becomes aware of the existence of a species of monkey, which may be the missing link between animals and Neanderthal Man. The newly discovered species, termed “tropis”, soon attracts the interest of an industrialist, who sees in this being the making of the perfect worker. The tropis is dexterous, and possesses the ability to quickly assimilate new tasks, however as an “animal” could easily be sequestered in work-camps without regard to questions of salary or working conditions. Douglas, horrified by the possible fate reserved to the tropis, decides to force society to recognize the humanity of these beings, by fathering a tropi-human hybrid, and subsequently killing his offspring. His rationale is that he will be accused of murder, and since one may only be accused of murder when the victim is a human being, the status of the tropis will be established, and the population protected from exploitation. Douglas is subsequently accused of murder—however the Court has great difficulty determining his guilt, as this hinges on whether tropis are human beings. A corollary question the Court examines is what specifically distinguishes humans from animals…

Vercors’ story is prescient in many ways for eliciting certain of the problems society now faces in the era of genetic manipulation. Though the existence of tropis presumably came about in a natural evolutionary process, it would be relatively easy to create animals with human characteristics (and vice-versa) through the insertion of select genes from one species into the other.² Such genetic manipulations need not be only concerned with inter-species gene-swapping, but also extend to the techniques surrounding genetic enhancements, whereby embryos may be “created” in which certain traits—such as eye color or a given disease—are selected for or against. Pursuant to his plan to protect the tropis through legal recognition, Douglas killed the being he had created; scientists carrying out embryonic research routinely “destroy” the embryos they use.³ Les Animaux dénaturés is also prophetic for the role Vercors sees the law playing in such a brave new world—or our current genetic world. The law has not foreseen the existence of tropis, just as much of our current laws have lagged behind scientific developments in the area of genetics.⁴

In the past, the law has sought guidance from science, and its representatives in the form of expert witnesses, to “keep up” with our changing society. Their expertise, however, in the new era of genetic manipulation, is no longer necessarily determinant. A new post-genetics discourse is emerging in which philosophers and ethicists are challenging scientists and society to begin to examine the consequences of the new genetic technologies.

In The Case against Perfection, Michael J. Sandel examines how society’s increasing use of “genetic enhancements”, be it for the selection of children with specific characteristics, or by athletes in order to increase their performance, results in a moral unease regarding the use of these techniques. Sandel examines many of the arguments for and against such genetic enhancements, and it is interesting to note how those arguments differ not only in substance, but also in their telos or scope.

Most of Sandel’s arguments stem from a consequentialist perspective. For instance, he explains how genetic enhancements may eventually create two classes of human beings—those who have the financial means to purchase genetic enhancements, and those who do not. (For non-medical genetic enhancements are all predicated on a free market business model, and are unlikely to become available under social Medicare insurance schemes.) Another result he examines is how the widespread use of genetic screening may lead to an accrued imbalance of the male/female population ratio, as certain groups tend to prefer male children (such as is the case...