Sandel on Embryo Ethics

With a hat tip to both Reason's Ronald Bailey and Arts & Letters Daily, herewith, with commentary, are excerpts from Harvard professor Michael J. Sandel’s recent Boston Globe column on the subject of embryo ethics. First, Sandel fairly states what is, more or less, my own position, as follows:

Human beings are not things. Their lives must not be sacrificed against their will, even for the sake of good ends, like saving other people's lives. The reason human beings must not be treated as things is that they are inviolable. At what point do we acquire this inviolability? The answer cannot depend on the age or developmental stage of a particular human life. Infants are inviolable, and few people would countenance harvesting organs for transplantation even from a fetus. Every human being -- each one of us -- began life as an embryo. Unless we can point to a definitive moment in the passage from conception to birth that marks the emergence of the human person, we must regard embryos as possessing the same inviolability as fully developed human beings.

Then:

This argument can be challenged on a number of grounds. First, it is undeniable that a human embryo is "human life" in the biological sense that it is living rather than dead, and human rather than, say, bovine. But this biological fact does not establish that the blastocyst is a human being, or a person. Any living human cell (a skin cell, for example) is "human life" in the sense of being human rather than bovine and living rather than dead. But no one would consider a skin cell a person, or deem it inviolable. Showing that a blastocyst is a human being, or a person, requires further argument.

True. The issue isn’t whether a human blastocyst is merely human life but whether it is a human life. As a matter of ordinary language, what we call a human life is a human being. Moreover, what we typically call a human being is a person. Of course, convention and ordinary language do not settle the matter. Strictly speaking, they are not even arguments in support of one view versus the other. But neither are they wholly lacking in probative value. How we weigh that probative value is another matter, of course, but there are likely to be good reasons why we pre-reflectively sort out the world the way we do just as there are likely to be good reasons why biologists may choose to differentiate the life cycle of complex living organisms by deeming one stage a blastocyst, another a fetus or embryo, another as immature and yet another as mature or adult. Just as ordinary usage is far from dispositive insofar as ethical considerations are concerned, so too are biological terms of art.

Sandel continues:

Some try to base such an argument on the fact that human beings develop from embryo to fetus to child. Every person was once an embryo, the argument goes, and there is no clear, non-arbitrary line between conception and adulthood that can tell us when personhood begins. Given the lack of such a line, we should regard the blastocyst as a person, as morally equivalent to a fully developed human being.

Well, some may make that argument. I don’t. I think the better argument and the real point is rather who should bear the moral burden of proof. Regarding a human blastocyst (and note how those who hold Sandel’s position not only employ the distancing language of biology but also avoid as much as possible using the morally critical adjective "human") as a person calls for a moral decision. But so, dear reader, does calling you or me or Prof. Sandel a person.

That we typically have neither factual nor normative grounds to deny the personhood of, well, of another person means only that accepting or acknowledging such personhood is the standard condition and paradigm of our experience. If you accept the proposition that under ordinary circumstances those other beings you encounter every day are not only human beings in the biological sense but in the morally significant sense, i.e., persons, then the moral force of the so-called non-arbitrary line or slippery slope argument derives from personhood being a defeasible claim. That is, X (where X might be you or me or a child or infant or crowning pre-born or human blastocyst or even a Harvard professor) is a person unless, well, unless what?

Answers to the “unless what” question can be and have been offered to claim personhood in some such cases and deny it in others, but consideration of the soundness or persuasiveness of such answers and arguments is beyond the scope of this post which is intended only to respond to Sandel’s column. He considers the non-arbitrary line argument, as he phrased it, unpersuasive. I agree. But if the burden of proof falls, as I believe it morally must, on those who would contend “This X is not a person; therefore, we may harvest its cells or organs,” then it falls to Sandel’s side of the dispute to provide the morally significant criteria that make the line, wherever it may be drawn, not arbitrary.

More Sandel:

Consider an analogy: although every oak tree was once an acorn, it does not follow that acorns are oak trees, or that I should treat the loss of an acorn eaten by a squirrel in my front yard as the same kind of loss as the death of an oak tree felled by a storm. Despite their developmental continuity, acorns and oak trees differ. So do human embryos and human beings, and in the same way. Just as acorns are potential oaks, human embryos are potential human beings.

The acorn analogy seems to be very popular among academics, but I fail utterly to grasp its persuasiveness. How we should regard persons or, for the sake of argument, even putative persons is qualitatively different than how we should regard other entities or beings, and that is so regardless of how our taxonomy of such other beings might play out. The moral rights of non-human animals, sentient machines or intelligent space aliens aside, whatever my reasons for regarding an acorn one way and an oak tree another way may be, my relationship will be, to use Martin Buber’s distinction, an I-it relationship and not an I-thou relationship.

The analogy, in other words, is simply not relevant for precisely the reason the dispute arises in the first place; namely, that persons are different from non-persons in a moral sense. How we distinguish between persons and non-persons is therefore necessarily a matter of providing morally significant criteria. There may be all sorts of non-morally significant differences between oak trees and acorns, but there aren’t any morally significant criteria, at least none that I can think of. Again, that isn’t to claim that developmental differences in the lives of human beings are of no moral significance at all. Sometimes they are, sometimes they aren’t.

For that matter, it is one thing to note that there are morally significant differences among persons that are a function, for example, of their age or stage of development but that do not go to whether they are persons, another to assert that the fact that such distinctions exist are themselves evidence in support of denying the status of personhood in other cases. Arguing that a three year old child shouldn’t be allowed to do whatever it wants or given access to dangerous weapons, for example, is irrelevant both to whether that child is a person and to whether it was a person some three and a half years ago.

Sandel again:

The distinction between a potential person and an actual one makes a moral difference. Sentient creatures make claims on us that nonsentient ones do not; beings capable of experience and consciousness make higher claims still. Human life develops by degrees.

This is completely question begging. The matter disputed precisely being what is a person and what isn’t, of course potential persons, as a subcategory of the vast universe of things that are not persons, are, well, not persons. Peter Singer and the PETA crowd aside, whether merely being a sentient creature suffices to “make claims” on us is, to put it mildly, not yet a settled matter, and Sandel’s mere assertion takes us no closer to settling it. Human life does indeed develop by degrees, but that is not to say we are clueless as to when and how it begins. Again, the question is whether that point in the life of a human being or some later point establishes that human being’s personhood.

Those arguing the later point typically assert something along the lines of Sandel’s “beings capable of experience and consciousness make higher claims still.” I agree. But what counts as being a “being capable of experience and consciousness” remains to be fleshed out, as it were. Must such a being be capable at present? Certainly, that can’t be the relevant criterion, otherwise we would not be people while asleep or unconscious (say, under anesthesia). What level of consciousness is necessary to make those higher claims? Does a newborn’s suffice or is a neonate still merely a potential person. Mind you, there are logically consistent and ethically defensible arguments to support the neonate’s merely potential personhood. Whether they comport with our moral sentiments is another matter. It takes a highly developed level of intellectual and ethical sophistication to believe, for example, that non-human animals have rights but third trimester prenates don’t. I don’t claim that Sandel believes that – I don’t know one way or the other – but some people do believe it.

The rest of the Sandel article raises objections to President Bush’s supposedly morally inconsistent position on embryonic stem cell research on grounds that it is, um, morally inconsistent. I am no apologist for the Bush Administration, but I will offer a couple of observations in response. First, it is true that the logically consistent view of those who contend that there is something immoral about embryonic stem cell research because human embryos are human beings must be “that the 400,000 excess embryos languishing in freezers in US fertility clinics” are also human beings. Whether “they should also be leading a campaign to shut down what they must regard as rampant infanticide in fertility clinics” is another matter.

Whether what Sandel calls Bush’s “don’t fund, don’t ban” policy is morally inconsistent or not, legitimate moral distinctions can be made regarding the proper use of federal funds without raising the underlying moral objection to a Kantian categorical imperative. So, too, a robustly utilitarian ethos of the sort all too familiar at, say, Harvard and Princeton can quite reasonably agree, for example, to permit abortions in cases of rape or incest as the regrettable price to pay in a political compromise to save other human lives. There is no per se moral inconsistency or failing in saving however many people one can from a burning building despite not being able to save all the others. Not even from an ivy-covered building at Harvard.