I promised a response to Chris Marschner’s provocative Comment Of The Day on Item #3 in the post, “Ethics Escape. 8/24/2020: The “Not Watching The GOP Convention” Edition. Here it is…
Chris begins,“Before I go any farther, I believe that fetal tissue is crucial to research.” That’s an excellent stipulation; I concur. Thus we agree that obtaining fetal tissue is beneficial, and an objective with positive value for society.
That leaves as the sole issue for ethical debate as whether using the source of such tissue creates such a counterbalancing negative effect that the positive effect, which has been conceded, is overcome and rendered moot.
Chris says he “can see an argument in favor of the Board’s decision to deny access to such tissues.” I can see the arguments; I wouldn’t make the arguments. I’m assuming Chris not only sees them but agrees with them to some extent. Chris goes on,
I may agree with Turley that such research use of fetal tissue does not incentivize women to have abortions. However ,I do believe it incentivizes sellers of such tissues. Such sales make a commodity of aborted fetal tissues and the of other human tissue donations; this is not some far-fetched fear. Do we want to be like China, which forcibly removes kidneys so that others can have a transplant?
I don’t think “may” is reasonable here. Professor Turley states unequivocally that women do not have abortions to harvest fetal tissue, and while it is impossible to prove a negative, there is literally no evidence that indicates this is a problem. Hospitals sell medical waste, including organs for transplant. Chris’s logict applies with equal force to all things removed from patients, who have a right to deny the medical institution from selling it or using them themselves. The patients, by law, cannot sell their tissues and organs themselves, however, and few choose to take the items home as souvenirs. Almost all the time, patients let health care providers dispose of such things as they see fit, and why wouldn’t they?
The “Coma” scenario, where doctors intentionally kill patients to harvest and profit from their organs, has been around for decades, (The Robin Cook novel was written in 1973.) It just hasn’t materialized, and in the case of fetal tissue, nobody would be killed, in the eyes of the law, if medical professionals were selling it as profit center. The argument is a straw man, a separate theoretical problem related to the issue being discussed, but not strictly relevant. In this it is like the anti-cloning debate. Opponents of cloning worry about how the technology might be abused, but that’s a downstream issue. There is nothing inherently unethical about cloning, just as there is nothing inherently unethical about using fetal tissue for research. If unethical practices emerge, you deal with them directly, not by eliminating the otherwise neutral or beneficial process that creates the opportunity for abuse.
Imagine a society that becomes insensitive to the concept of the sanctity of life. It is not outside the realm of possibility that we could begin to allow doctors to withhold life saving but costly treatments in order hasten the demise of a potential donor.
The first sentence is irrelevant in the context of this discussion because, via Roe v. Wade, the law of the land does not acknowledge fetuses as human life. I think Roe was and is a terrible decision; I am certain that the pro-abortion position that unborn children are like warts or parasites is intellectually dishonest and a belief made necessary by the political objective of abortion access rather than justified by reality, but that doesn’t matter. The U.S. position isn’t insensitive to the sanctity of human life because society and the culture, through the courts, have absorbed the legal fiction that fetuses are not human life. If and when that fiction is rejected—personally, I don’t foresee it happening—then the sanctity of life issue becomes relevant. As for the rest of Chris’s statement: that is happening already, thanks in part to the costs of treatment and the limits of insurance.
I won’t say that doctors pressuring a family to take a brain-dead loved one off of life support because a 17-year old woman needs a heart and lung transplant stat is unethical. It theoretically violates Kant’s Categorical Imperative, but Kant wasn’t considering brain dead patients before such patients could be kept alive. This is when Utilitarian balancing is called for. “Are we willing to let doctors or insurers make that call to take the patient off the vent so he can become a heart donor? I certainly hope not, ” Chris asks. Well, we don’t, and shouldn’t, but the input of those not emotionally involved in the decision is valuable.
I don’t know if there is any way to evaluate this except on moral grounds. Ethically, you are not harming anything directly and may actually create great long term value. But this analysis is predicated on speculation as to the future costs and benefits.
On the contrary, these are exactly the kinds of ethical problems that morality is useless in addressing. Easy, sure. Requiring no complex thought, absolutely. But the benefit of rules based on absolutes is that they keep constraining analysis even after the problem has changed. Sound ethical decision-making has to include reasonable assumptions about both long and short term consequences. (Elsewhere on the blog, I call that “ethics chess.”) In the realm of fetal tissue research, the assumptions are that it is likely to cure diseases, save lives and benefit humanity. Morality doesn’t care about that, just as moralists will say war is immoral, and allow the Holocaust to continue if it can’t be halted by killing people. Morality is the meat-axe of societal behavior control. Meat-axes have their uses, but evaluating fetal tissue research trade-offs is not among them.
Now Chris gets into my previous field, criminal law:
When I started thinking about the law, the concept of the fruit of the poisonous tree came to mind. I know that abortions are legal but I am looking at this from the point of view as to why we prohibit the use of evidence of a crime using Constitutionally proscribed methods. We are willing to throw out all sorts of incriminating evidence that ties a serial killer to a crime (waste) to protect the rights of the many. It is for that larger more important purpose that we are willing to waste valuable evidence and let a killer go free. The concept is a doctrine not a law that courts use to create a significant deterrent for law enforcement to not take shortcuts. Making fetal tissue available only for the most important research priorities and denying it to most would create a relatively high quasi-valuation that reflects how we as human being value that which had the potential of becoming a fully formed human being.
Nobody likes the Exclusionary Rule. Eventually it is likely to be eliminated; it certainly is more likely to go the way of the Dodo than Roe v. Wade. The idea of punishing all of society by allowing dangerous criminals to go free (“Dirty Harry” is my favorite anti-Exclusionary Rule/ Fruit of the Poisonous Tree movie) because police missed a step or ten is extreme and draconian, and thus a poor template for any other policy. Moreover, as Chris says, it involves a punishment for egregious government violation of individual rights. The Supreme Court says that fetuses have no rights. As long as that’s true, there’s no abortion analogy to the Exclusionary Rule (and its cousin the Fruit of the Poisonous Tree, since the fruit has been officially declared yummy) in law or ethics.
If human fetal tissue is an important research commodity, and Chris and I agree, on that, and the current state of the law is that no rights of any individual are breached in obtaining it, and there is no identifiable harm to anyone by using what would otherwise be destroyed for likely or even possible human benefit, then there is no valid ethical argument against using human fetal tissue.