Mirror of Justice

Rob Vischer writes, in his posting today, that "[i]t is no answer to say that these embryos will be destroyed eventually anyway ..."  But it is a fundamental mistake, I think, to deny the moral relevance of the fact that "these embryos will be destroyed anyway ..."  Why?  Let Gene Outka explain.  (Outka is Dwight Professor of Philosophy and Christian Ethics, Yale University.)  What follows are excerpts from Outka's paper.  (Click here to read Outka's paper in its entirety.)

[Beginning of excerpts.]

I commend as a normative point of departure the conviction that ... "the human individual, called into existence by God and made in the divine image and likeness, ... must always be treated as an end in himself or herself, not merely as a means to other ends."  ...  To regard each person for his or her own sake, as one who is irreducibly valuable, authorizes a sphere of inviolability ...  And it heightens sensitivity to multiple ways we may go wrong, e.g., when we dominate, manipulate, and self-aggrandize.  To affirm inviolability and to abjure domination capture deeply important commitments.  They direct moral attention along lines I take to be permanently valid.

...

I propose to invoke and extend the nothing is lost principle.  I first learned of this principle from Paul Ramsey.  While he was committed to an absolute prohibition against murder as the intentional killing of innocent life, he was prepared to attach two exempting conditions to it.  One may directly kill when two conditions obtain:  (a) the innocent will die in any case; and (b) other innocent life will be saved. These two conditions stipulate what nothing is lost means.  They originally extend to parity-conflicts, where one physical life collides directly and immediately with another physical life, and we cannot save both....  I will argue that it is correct to view embryos in reproductive clinics who are bound either to be discarded or frozen in perpetuity as innocent lives who will die in any case, and those third parties with Alzheimer's, Parkinson's, et. al., as other innocent life who will be saved by virtue of research on such embryos.

I grant that this extension at best stretches the nothing is lost principle nearly to the breaking point. For I defend the extension (and perhaps the original principle) as a move to the effect that (a) nothing more is lost, and (b) less is lost, or at least, someone is saved. One reason it is worth considering is because we face a particular instance of a general phenomenon, namely, that novel developments arise, for which no clear precedents suffice to guide us. We should seek both to extend traditional moral commitments and incorporate new developments as cogently as we can. To labor the obvious: some of the controversies we are examining only make sense after the age of in vitro fertilization dawned. It stands behind them, amplifying questions about "end" and "means" that our forebears could not foresee. Unless we are prepared to repudiate in vitro fertilization as such, so that we sympathize with infertile couples but refuse them a right to overcome their condition by any means that science and their financial resources make available, we must take the moral measure of these new possibilities.

...

[R]ightly or wrongly, "excess" embryos are a tenacious datum, for they are a result of the practice as it currently exists.  I welcome the day when such necessity vanishes, and welcome in the meantime "adopting" mothers willing to implant embryos, when the genetic couple consents.  Not to welcome these things belies the claim that embryos as well as fetuses are irreducibly valuable. Nevertheless, it looks as if embryos in appreciable numbers will continue to be discarded or frozen in perpetuity.  They will die, unimplanted, in any case. (Nothing more will be lost by their becoming subjects of research.)  Again, it is the absence of prospects of these innocents that partly extends the first exempting condition.  It is the enhancement of prospects to other innocent life that partly extends the second exempting condition.  (Less will be lost, or at least, someone may benefit.)  These judgments taken together summarize the case I wish to make.

...

My extension goes so far, and no further.  It includes embryos conceived to enhance fertility, but who will never be implanted.  It excludes embryos created exclusively for research, where we intentionally create them, in order to disaggregate them....  The circumstance of in vitro fertilization includes a recognition that "excess" embryos are endemic to the procedure to date.  At a minimum, we foresee this.  Still, we intend in the procedure to alleviate infertility, not to create embryos for research.  Thus a significant continuity holds, despite this difference.

...

How much remains of the injunction to treat persons as ends in themselves when we allow research on frozen and eventually-to-be-discarded embryos?  I reply that the normative force of the injunction diminishes significantly when we take to heart their prospects.  It diminishes for everyone, and not only for those who allow research.  Some seek to witness to the dignity of embryos by refusing to do anything to them other than to freeze them.  They adhere to the norm I mentioned when canvassing conservative views, that we do best to consider first what we do and forbear, and not simply what will happen.  While this norm counts for me across a range of other circumstances, I find in the present circumstance that such a witness threatens to idle in relation to what the injunction paradigmatically summons us to undertake.  It is difficult to specify what interests we protect and promote, for example, when freezing and discarding are all that we can seriously envisage.  To honor potentiality, where there is no hope of implantation, is to honor perpetual potentiality.  It diminishes action-guiding content, either present or future, from the injunction to treat as an end.  It even affects what we say in the theological context to which I alluded earlier concerning providence and our corresponding love.  For we cannot precisely equate the affirmation that our love should start before recipients become self-aware with an affirmation that we should love recipients who will never become self-aware.  To deny equation is emphatically not to disbelieve in providence in both cases.  And it is not to withhold corrsponding love in both cases.  It aims only to acknowledge that our room for exercising fidelity in action over time may differ.  What we can and cannot do in treating persons as ends will be affected by their prospects.  Our love for an anencephalic infant destined to live a few days without self-awareness and our love for an embryo who will live at most in a perpetually frozen state without self-awareness, has less prospective room than our love for a fetus who is a power underway and who will acquire self-awareness by virtue of his or her self-development.  What we can envisage and do, now and later, has greater scope in the latter instance, which is why termination obliterates a future that the fetus now has in prospect, a future that an embryo frozen in perpetuity itself still lacks.

...

I object to an ironic alliance that those on the "right" and "left" sometimes form, to the effect that we confront a single either/or:  We should forbid all embryonic stem cell research or we should permit it all.  There is, I believe, a more nuanced possibility, where we may distinguish creating for research and only employing for research.  The latter allows us to consider the tangled aftermath of in vitro fertilization as a practice in our culture.  Employment for research connects with the datum of discarded embryos, where the original creation of embryos possesses a non-instrumentalist rationale, namely, the promotion of fertility, so that what we intend does not exhaustively concern benefit to third parties, yet the aftermath allows us to pursue benefits to third parties when we may do so without from the start creating in order to disaggregate.  These differences lead me to argue that the nothing is lost principle illumines a morally significant distinction between creation for research and employment for research.

...

Some may worry that the principle may also allow the general "harvesting" of organs or tissues from the living who are, e.g., terminally ill, or comatose, or condemned to die by authorities of the state as criminals.  The specter of Nazi doctors may well appear before us:  If certain people were slated for death anyway, why not experiment on them to the point of ending their lives to acquire knowledge?  These possible extensions differ from the one I propose here because the embryos in question are in physical limbo, without history or prospects....  It is impermissible to destroy any entity for body parts who has an agential history even if he or she does not now have any considerable future, entities for instance whose maturity (their "potentiality" has long since been realized) deprives their genetic parents of authority to end their existence or to elect to donate them for research.  But the "perpetual potentiality" of the embryos in question distinguishes them markedly enough from these other entities.  "Perpetual potentiality," assuming the claims I made about the two-sidedness of potentiality as we focus on embryos and fetuses, leads us intelligibly to find more affinities than differences between fetal cadavers and the embryos in question.  Whatever other extensions nothing is lost may warrant then, in cases of tragic forced choices (I have not considered these at any length), the extension I offer here pertains to a peculiar case by virtue of what the embryos in question currently are and are not.  John Reeder observes in quoting Baruch Brody that "the basic point of nothing is lost is that, as Brody puts it, the one to be killed does not 'suffer any significant losses...in unrealized potential.'"  I claim that "unrealized potential" carries for the embryos in question distinctive finality that resists generalization.

[End of excerpts.]

I find Outka's argument compelling.  But, of course, I may be misguided.  (Wouldn't be the first time--or the last.)  So, let me ask this question--of Rob Vischer, of Steve Bainbridge, of anyone who rejects Outka's argument:

Where, in your judgment, does Outka's argument misfire?

Michael P.