Human Dignity and Bioethics: Essays Commissioned by the President's Council on Bioethics

COmmentary on Nussbaum, Shell, and Kass

Diana Schaub

The repellent results of a focus on developed quality-of-life capabilities without an acknowledgment of either the equality of human rights or the unique dignity of the human being are on display in Martha Nussbaum's essay. She characterizes her approach as "Aristotelian/Marxian" (with a soupçon of Kant)-a philosophic mutation that the thinkers themselves (as she freely admits) would not have recognized or thought viable.

On the assumption that the proof is in the pudding, let me cut straight to the policy outcomes she envisions. Nussbaum tells us that it is impermissible for government to strive to rid communities of the scourges of drugs and prostitution that destroy the lives of individuals and families; however, the heroin-addled "sex workers" do have a political entitlement to bicycle paths to promote their "health capabilities." It's unclear whether helmets will be required, but should you wind up in a bad state (brain-injured, or persistently vegetative from all those legal drugs, or just terminally old and unhappy), the health workers will be there to ease you off. As Nietzsche said of Zarathustra's last man: "A little poison now and then: that makes for agreeable dreams. And much poison in the end, for an agreeable death." As Nussbaum sketches the future, there will be a choice of ways to kill yourself, and even quite a few ways to kill your fellows, so long as they are the sort who don't have any "future-directed plans." Although factory farming of sentient nonhuman animals won't be allowed, factory farming of human embryos for tissues and organs would be unproblematic.

I don't want to leave the impression that I'm opposed to bicycle paths or in favor of the mistreatment of farm stock. In fact, I am very sympathetic to the call to reconsider our obligations to the natural world; both animal husbandry and environmental stewardship should be part of our bioethical inquiries. Nonetheless, it seems to me perverse to create entitlements to niceties for those beings, whether human or nonhuman, who are in their prime with certain functional capabilities, while refusing to protect the inalienable right to life of each and every human being. But bicycle paths and public parks (including, I assume, dog parks for our highly sensitive and complexly communicative canine companions) are "interesting and fun," whereas protecting human life is burdensome.

Protecting human life is especially burdensome for women. Accordingly, Nussbaum is receptive to the argument (while cagily withholding a final endorsement) that women should not be made to "bear a burden of life support that males are not required to bear." Since pregnancy and motherhood are not fairly distributed among males and females-and, thus, certainly couldn't pass constitutional muster-mothers must have the option to abort their children. That is the legal remedy for nature's (or God's) injustice to women. Should a woman come to regret the choice she has made, the drugs, recreational and/or lethal, will be there for her. According to Nussbaum, she could even clone herself and start afresh.

Unlike Nussbaum who treats the works of the philosophers as brightly colored scraps to be stitched together in a policy quilt of her own liking, Susan Shell conscientiously uncovers the thought of a particular philosopher. In most serious discussions of bioethics, reference is bound to be made to Immanuel Kant. Shell seeks to go beyond this obligatory acknowledgment of Kant's influence on our doctrines of personal autonomy and informed consent. She argues that a fuller understanding of Kant-including elements of what might be called a non-Kantian Kant-could continue to deepen and guide our bioethical reasoning, even correcting (by limiting) the doctrine of autonomy.

In his essay, Leon Kass delivers a powerful critique of Kant's approach to dignity which he regards as too abstract and disembodied:

Precisely because it dualistically sets up the concept of "personhood" in opposition to nature and the body, it fails to do justice to the concrete reality of our embodied lives, lives of begetting and belonging no less than of willing and thinking. Precisely because it is universalistically rational, it denies the importance of life's concrete particularity, lived always locally, corporeally, and in a unique trajectory from zygote in the womb to body in the coffin.¹

Shell seeks to counter this impression of Kant as a "rigid dualist" by explicating "Kant's notion of 'humanity' as embodied rationality."

Interestingly, all three of these authors (Nussbaum, Kass, and Shell), in their quest for the sources of human dignity, insist on the meaning to be found in our embodiment. For Nussbaum this leads to a reconsideration of the worth of "those human capacities in which animals also partake, such as sentience, everyday (non-moral) practical reasoning, emotion, and the capacity for love and care"-a reconsideration that ends by extending entitlements to other animals (most of them at least, although Nussbaum isn't so sure about non-dynamic "sponges"). Kass, although an admiring analyst of animal beauty and nobility, does not turn to the body in order to invert hierarchies or contest man's place. Rather, he argues that only by understanding human life as "a grown-togetherness of body and soul" can we achieve and maintain our special dignity: "The defense of what is humanly high requires an equal defense of what is seemingly 'low.'" For Kass, natural desires are only "seemingly" low since they are, in effect, transmuted and elevated by being pursued in certain (humanly dignified) ways. Feeding can become dining and procreation can become family life. Shell's presentation of Kant similarly aims for a more full-blooded and integrated view of human life-although I doubt that it will be enough for Nussbaum and Kass to retract the reservations they both express against Kant.

Nonetheless, by drawing attention to Kant's notion of embodiment, Shell is able to show that Kant does not grant an unrestricted license to "the reciprocal freedom of consenting adults." She sketches the limits upon autonomy that follow from the requirement "that one must respect oneself 'as an animal being.'" Whereas Nussbaum's view seems to be that only government can debase human beings (by failing to provide the necessary entitlements for developing one's capabilities), Shell highlights the possibility of self-degradation and the Kantian obligation "to treat humanity in oneself, no less than in others, as an 'end in itself.'" There would doubtless be prostitutes in Kant's world, since human beings fail in their obligations to self and others, but there could not be the government-enabled sex workers that Nussbaum approves.

The Kantian bioethics that Shell articulates emphasizes caution, restraint, and due humility in our treatment of our bodies. But, according to Shell, these limits may not apply universally. Near the end of her essay, she suggests that Kant offers a "punctuated account of human development," which means that moral standing is not inherent to all human beings at all stages of life, but rather is an accrued quality linked to the acquisition of specific faculties-in the case of Kant, the faculty of moral reasoning. In applying this notion of accrued moral status to bioethics, Shell indicates that Kant himself might have regarded even newborns as lacking full moral standing. While Shell is not prepared to join Kant (and Peter Singer) in this opinion, she does wonder whether this notion of accrued moral status might not make embryo-destructive stem cell research permissible. She herself draws the line of personhood very early at the developmental moment that the twinning of the embryo is no longer possible. She argues that the possibility of identical twins from what was initially one embryo shows that a fully individuated being was not yet present.

Since neither of us is expert in embryology, let me offer a counter-interpretation from someone who is. According to Stanford biologist and Council member William Hurlbut, monozygotic twinning results from a disruption of normal development that provokes a restoration of integrity within two distinct trajectories. Hurlbut states that "twinning is not evidence of the absence of an individual, but of an extraordinary power of compensatory repair that reflects more fully the potency of the individual drive to fullness of form."² Twinning is a profound testament to the presence and the resilience of the organizing principle of life. The human being can double only because a human being was present from the beginning.

Whereas Nussbaum sarcastically dismisses "the putative dignity of a non-sentient clump of cells," Shell is clear that the early embryo "is not a mere 'collection of cells' that we can injure or dispose of trivially." Nonetheless, she wants to find some narrow window ("the first ten days or so after conception") during which these entities "purposively directed toward fuller human development" might be put to good use, might be treated as a means rather than an end, might be, so to speak, non-trivially disposed of. In a way, I find Shell's position harder to comprehend than Nussbaum's. What does it mean "to respect the human potential of the blastocyst.without granting it the status of a moral person"? For Shell, it seems to mean using early human embryos only for noble purposes like curing cancer.

Despite marked differences, both Nussbaum and Shell in the end agree that humanity is an acquired not an inherited quality-a matter of becoming not being. Those who haven't become enough may be judged unworthy of continued existence. In fairness to Shell, it should be noted that Nussbaum, despite her evident concern for the severely disabled, puts many more folks in this category than does Shell. While Nussbaum wants legal guardians to cast votes on behalf of the profoundly retarded (it's not hard to predict that they will vote for the party of entitlements), she declares that "we would not accord equal human dignity to a person in a persistent vegetative state, or an anencephalic child, since it would appear that there is no striving there, no reaching out for functioning."

While I understand the impulse to define humanity in exclusionary terms, it also seems to me that the case for the embryo-the case for the embryo's human standing-has never been easier to make, and that it is science itself, the science of embryology, that best makes the case. Both Nussbaum and Shell suggest that it could only be religion that would lead one to regard the early human embryo as human in the respect-worthy sense. And yet, it is undeniable that each and every post-natal human being has passed through the identical stages of embryonic and fetal development. We were all blastocysts once. That clump of cells is us at that stage of our life. The embryo is not just potentially a member of the human kind. It is human. From conception (or to use more technical language, from the moment of syngamy), the human zygote has 46 chromosomes and can be distinguished from embryos of other species. It is recognizably one of us- recognizable not to the naked eye, but to the scientifically trained eye. Moreover, the embryo is not like other cells or tissues. In the words again of Stanford biologist William Hurlbut, "it possesses an inherent organismal unity and potency that such other cells lack."³ Because of this "unified organismal principle of growth," nothing external is added to its biological essence over time. Our unique being unfolds continuously from within. Along the way we develop and manifest various capacities, sensory and cognitive, but there isn't one of those capacities whose acquisition suddenly makes us human. There are many phases and stages of a human life, but the being-the unique human being-is there from beginning to end, from conception to death. Of course, certain externals need to be present for this human life-in-process to continue its self-directed growth, but that is true of every phase of human life. We are self-directed, but not self-sufficient. Knowledge of our earliest beginnings, and of the dynamic developmental process of the human organism as it matures, can awaken a sense of awe and respect. Knowledge of our origins does not destroy wonder; it deepens it.

In a letter written by Thomas Jefferson just 10 days before his death, he expressed the conviction that it is "the unbounded exercise of reason" and "the general spread of the light of science" that will open men's eyes to the truth that all men are created equal and endowed with inalienable rights. I hope he is right. I hope that the knowledge supplied by the science of embryology will lead us to question the moral legitimacy of embryo-destroying research. Perhaps we will realize that we are not at liberty to divest our posterity of their right to life, liberty, and the pursuit of happiness.

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EndNOTES

1. Leon R. Kass, "Defending Human Dignity," p. 313 above.

2. The President's Council on Bioethics, Human Cloning and Human Dignity: An Ethical Inquiry (Washington, D.C.: Government Printing Office, 2002), p. 313.

3. Ibid., p. 310.

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