Common Morality and Institutional Ethics Committees

The PBE model is also useful for the numerous institutional ethics committees that are now standard in both government and private sector institutions in Australia.³¹ It seems appropriate in a pluralist society that research involving humans or sentient animals ought to be constrained by ethical protocols, and the PBE method can be usefully employed for this purpose. Australia has a highly developed set of protocols that provide a necessary cross-check for treatment and research involving humans and animals. There are also several acts of parliament that provide guidelines, limitations, and, when necessary, punitive protocols for medical practice and research.³² The primary statutory body responsible for administering research protocols in Australia is the National Health and Medical Research Council (NHMRC). Since the establishment of the NHMRC in 1937, numerous protocols have been developed that protect both researchers and subjects (human or animal). The stated aim of the NHMRC is:

developing health advice for the Australian community, health professionals and governments; and for providing advice on ethical behaviour in health care and in the conduct of health and medical research.³³

31 Peter Drahos, ―Ethics Committees and Medical Research: The Australian Experience,‖ Medicine and Law 8 (1989): 1-9.

32 For example, Human Reproductive Technology Act 1991, Human Tissue Act 1983, Emergency Medical Treatment of Children Act 1960, SA.

33 National Health and Medical Research Council, accessed 10 December, 2008, http://www.nhmrc.gov.au/about/index.htm.

Institutional ethics committees (IECs) play a key role in the NHMRC research policy. An IEC often includes people with professional expertise other than in health (e.g., legal, religious, philosophical) and also a range of non-specialists (patients, indigenous representatives, etc.). The strength of the PBE model is that it provides this diverse group of people with a common set of principles and rules that are relatively straightforward to understand.

In Western Australia, for instance, the IEC that administers the Human Reproductive Technology Act (1991) is the Reproductive Technology Council (RTC). The RTC consists of the following: a Chair, a nominee of the Royal Australian and New Zealand College of Obstetrics and Gynaecology, several clinicians involved in obstetrics and gynaecology (but not IVF), one legal nominee for the Law Society, one nominee from the Health Consumer‘s Council, and several nominees of the Minister for Health that include a philosopher or ethicist, a religious representative, and some health researchers. In such a diverse group the PBE model is useful because it enables people to appreciate their differences and to articulate their concerns via a common set of terms.

For instance, the current religious appointee to the RTC is a Catholic priest and theologian. His objection to stem cell harvesting from embryos is based on the sanctity of life principle, derived in Catholic moral philosophy from the doctrine of creation and the philosophical tradition of natural law.³⁴ This view stands in contrast to the common scientific view that embryos are not persons and therefore

34 Personal communication, 15 February 2007. The writer of this thesis was also a nominee of the Minister for Health (bioethics) to the RTC for several years.

the usual constraints of the Human Tissue Act do not apply.³⁵ In the language of the PBE model, the Catholic theologian can explain why he thinks the principle of nonmaleficence ought to be primary, because harvesting stem cells from a viable embryo does harm to the embryo. Alternatively, the scientist can argue that the principle of beneficence ought to be primary. The process of harvesting stem cells does destroy embryos, but embryos are not persons and major health benefits may well flow from stem cell research.

This ideological impasse between the theologian (nonmaleficence) and the scientist (beneficence) illustrates MacIntyre‘s claim, referred to earlier, that there are no moral scales for weighing the relative merits of moral principles in relation to complex cases.³⁶ In the RTC case above, the theologian‘s concern for the protection of embryos (nonmaleficence) is set against the scientist‘s concern for medical benefits (beneficence), but there is no objective system of measurement to show how or why one principle trumps another. Clearly MacIntyre is right about the impasse but he seems to overstate the problems that flow from this lack of agreement. The thick moral disagreement among members of the RTC over the moral status of the embryo does not negate the role of the RTC to administer the Human Reproductive Technology Act (1991). Members of the RTC are in agreement that the activities of IVF clinics and other research institutions that utilise embryos ought to be constrained by the thin consensus on reproductive issues contained in the Act. The Act was derived from a process of consultation

35 A similar view is expressed by legal representatives but for different reasons. The WA Human Tissue and Transplant Act 1982 allows stem cells to be used for therapeutic purposes only.

36 MacIntyre, ―Why is the search for the foundations of ethics so frustrating?‖, 16-22.

that was consistent with the rule of law in a pluralist society. Hence, thin agreement about process transcends thick disagreement over specific moral issues.

If, as a pragmatist like Williams argues, a liberal society involves a complex mix of moral traditions, the impasse over stem cell harvesting in the RTC case is precisely what one ought to expect. In Williams‘ words,

We use a variety of different ethical considerations, which are genuinely different from one another, and this is what one would expect to find, if only because we are heirs to a long and complex ethical tradition, with many different religious and other social strands.³⁷

In the context of an ethics committee such as the RTC the conversation over stem cell harvesting is not primarily concerned with the resolution of the moral issues involved. The broader conversation over stem cell harvesting arose in Australia because scientists requested access to the thousands of spare embryos left over from IVF procedures. The birth of the first IVF baby in 1978 initially provoked a wave of protest, directed primarily at Robert Edwards and Patrick Steptoe, the two primary collaborators in the IVF process. In the early years, one of the main critics of Edwards and Steptoe‘s method was Robert Winston, one of Britain‘s most high-profile reproductive specialists.³⁸ However, as each new IVF birth diminished the anxiety over the projected birth defects, Winston became a vocal champion of IVF.³⁹ Now, after thirty years of research on children born via the

37 Williams, Ethics and the Limits of Philosophy, 16.

38 Some of the most vocal opponents of IVF were feminist philosophers and theologians. See for example, ―Technology as Patriarchal‖ in Judy Wajcman, Techno Feminism (Williston: Wiley-Blackwell, 2004), 18-22.

39 Robert Winston was host to a three volume video history of IVF, The Baby Makers: The Story of IVF (Bendigo: Video Education Australia, 1999).

IVF process, various studies have shown that IVF children exhibit only a slightly higher percentage of the range of abnormalities that naturally conceived children are born with.⁴⁰ By 2008 approximately 3.5 million babies had been born using IVF techniques, and most Australian states now have several IVF clinics that operate free of the initial angst that Edwards and Steptoe experienced.

Later developments, such as the ability to freeze embryos, a technique for injecting sperm directly into the ovum, and pre-implantation genetic diagnosis were seen as positive by IVF clinicians and their clients. Embryo freezing meant that the process of superovulation, which carries an inherent health risk, could be reduced because embryos not used in the first IVF treatment cycle could be stored for later use; sperm injection increased the number of embryos available for implantation; and pre-implantation genetic diagnosis allowed clinicians to select embryos free of some of the major genetic abnormalities. Once the anxiety over birth defects diminished, the clinical and social benefits of IVF seemed self-evident to people working in IVF and their clients. This success does not imply that the IVF process is free from ethical concerns or free from controversy, so the IVF process in Australia remains strictly regulated. Much of the public anxiety over IVF has diminished, however, because the technique has proved to be relatively safe.

For people opposed to IVF, the fact that this technique has turned out to be relatively safe for woman and babies born via IVF has not diminished their

40 One study did show a significantly higher proportion of major abnormalities for children born from the sperm injection technique. See Michele Hansen, Jennifer J. Kurinczuk, Carol Bower, and Sandra Webb, ―The Risk of Major Birth Defects after Intracytoplasmic Sperm Injection and In Vitro Fertilization,‖ The New England Journal of Medicine 346/10 (2002): 725-730.

concerns about some aspects of this form of reproduction. Recent developments such as embryo freezing, sperm injection, and pre-implantation genetic diagnosis has heightened concern because these new techniques encourage clinicians to produce embryos that are surplus to the immediate reproductive purpose. From this perspective, the fact that there are now thousands of frozen embryos in Australia available for stem cell harvesting remains a secondary problem. The primary moral problem, if one grants a high moral status to the embryo, is any activity that causes harm to an embryo.

When moral principles are used as tools in moral debate, the Beauchamp and Childress approach seems valid even if all they do is to aid conversation. Much of the criticism directed at the PBE model concerns the transition between thin agreement over principles and rules and the thick application of these principles and rules to particular issues through the process of reflective equilibrium.

Beauchamp and Childress slide too easily from common morality agreement over thin moral rules to the application of these principles and rules to thick moral dilemmas. The following section will highlight some of the problems associated with the process of reflective equilibrium.