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A "Supreme Court" for Bioethics?

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The recent decision by President Obama to disband his predecessor's Council on Bioethics raises important questions regarding the role of professional bioethicists in contemporary society. We live, after all, in an age of moral and medical transformation. Advances in technology are occurring at such a rapid clip that scientific professionals and the general public have a difficult time keeping pace with the ethical implications of these developments. Within the past week, British researchers have created human sperm from embryonic material, New York State has authorized cash payments for women's eggs, and the National Institutes of Health has issued new guidelines for the federal funding of stem cell research. Meanwhile, Congress is debating which procedures to cover and which to exclude from whatever national healthcare plan emerges after a summer of negotiation. Hardly a day goes by without headlines predicting mass casualties during a flu pandemic or pundits analyzing a case of religious parents who refuse cancer treatments for their child. The issues are often so complex, and the progress so fast, that even full-time ethicists find these emerging dilemmas to be puzzling. So while an advisory panel might serve the President well in grappling with policy choices, the American people would also benefit from a separate, high-profile body, composed of diverse thinkers, which would inform and guide public opinion on matters at the nexus of ethics and science. One might think of this as a "Supreme Court" for Bioethics.

I do not mean to suggest that we create another judicial panel with legal authority to adjudicate controversies. Instead, I envision a body of eminent bioethical thinkers modeled roughly after the French Academy. Since 1635, that august and widely-esteemed band of forty immortels, devoid of any formal legal authority, has protected the integrity of the French language and steered the French people in linguistic and literary matters. American bioethics cries out for a similar institution.

A Bioethics Court would enable both private citizens and public entities to bring "cases" and conundrums forward for a public hearing, after which the court's membership--arbitrarily set at nine--would issue advisory opinions to the parties. However, since these rulings would be entirely non-binding, far more important than the "verdict" would be the written opinions that accompanied each decision. This framework would force our leading bioethicists to make their arguments on a national stage and to rely solely on intellectual rigor in defense of their conclusions. The general public, as well as scientific researchers and those in the healthcare professions, might benefit enormously from such dialogue. So might state lawmakers, who could look to these opinions for wisdom as they craft their own legislation. The principal goal of such a body, of course, would be to educate the American people on perplexing bioethical questions so that ordinary citizens could develop their own informed opinions. In the long run, with prestige its only source of authority, this panel might serve as a depolarizing and depoliticizing force to counterbalance the sound bites and diatribes that have come to dominate the discussion of bioethical issues within existing political institutions. Without any formal power, the "justices" might be liberated to pursue honest debate and, whenever possible, meaningful consensus.

A Bioethics Court would achieve credibility only if its membership reflected a broad swath of ideological opinion and harnessed a wide array of philosophical approaches. To that end, one might specify that the justices be allotted by political party, as with regulatory agencies such as the Federal Election Commission. Seats might be designated specifically for academics, health care professionals, lawyers, and spiritual leaders. Members would be uncompensated, to avoid any possibility of conflicts of interest. Unlike with the existing federal courts and regulatory bodies, or even with past incarnations of Presidentially-appointed ethics commissions, the success of a Bioethics Court would depend fundamentally upon rejecting political litmus tests and recruiting as diverse a group of participants as possible. The reality is that, despite the media's focus on such hot-button issues as embryonic stem cell research and euthanasia, most issues in bioethics do not divide cleanly along obvious "left vs. right" or "religious vs. secular" lines. Whether to permit dialysis patients to solicit kidneys via newspaper advertisements, and how to allocate ventilators during a swine flu pandemic, are the sorts of questions that defy easy answers or simple classification. But the questions are no less pressing. A Bioethics Court, serving the nation much as an ethics committee serves an individual hospital, might help us find solutions.

To believe that a Bioethics Court will achieve a quick consensus on the moral questions that divide our society would be highly naïve. What we need, in the long run, is a national bioethics curriculum in the public schools that arms all citizens with the philosophical tools necessary to analyze these questions for themselves. However, a Bioethics Court might be a first step toward returning civility and meaningful engagement to public discourse on these highly-fraught issues. If nothing else, nine learned opinions from eminent thinkers, issued side-by-side, might help us to recognize precisely what it is that we disagree about and why. In explaining the Obama administration's decision to disband President Bush's Bioethics Council, White House press officer Reid Cherlin said that the President favored a committee designed to offer "practical policy options" rather than "a philosophically leaning advisory group." If I were President, I imagine that I would want the same. However, the two visions are not mutually exclusive, particularly if two distinct bodies are created.

As a professional bioethicist, I remain confident that no emerging technology has the power to undermine our civilization. The greatest threat that any scientific advances pose is the fiery rhetoric that often surrounds their discussion and implementation. The debate over medical innovations, rather than the technologies themselves, is what threatens to tear us apart. A Bioethics Court--or some similar entity--might go a long way toward establishing a more civil and enlightened public debate of matters desperately in need of wise and careful reflection.