Human Reproduction and Human Dignity as a Constitutional Concept
Miguel Nogueira de Brito
A philosophical dependent concept?
Even if the concept of human dignity is contained in the Constitution, in truth at the very beginning and as the foundation of almost every Constitution following the Second World War,1 its content is not comprehensible without the help of philosophical traditions. The most immediately perceptible of those traditions are inherent in what we can call the deontologist and the consequentialist approaches to human dignity. It is even possible to say that ‘all conflicts of interpretation at last gravitate around the content construction of a dignity violation and its categorical or open to consideration character’.2 No doubt, the ‘categorical’ refers to the deontologist, and the ‘open to consideration’ to the consequentialist approach.
In this article, I argue, having in mind the uses of human dignity in the field of genetics, that beyond the opposition between a deontologist and a consequentialist conception of human dignity lays a more profound connection: both conceptions are instruments of the ‘governmental reason’ of the liberal state, a well known concept developed by Michel Foucault. Furthermore, I argue, also following Foucault, that the consequentialist approach tends to expand over the deontologist one, especially if one considers the legal articulation of both approaches. I illustrate these aspects by means of recent decisions of the Portuguese Constitutional Court as well as of the Brazilian Supreme Federal Court on the issue of scientific research on human embryos. In the following pages, I begin by explaining how biopolitics arises in the same historical moment in which human dignity assumes a central role in legal and moral discourses. After that I expose two radically different conceptions of human dignity and their alignment with the consequentialist and deontologist approaches. Subsequently I argue that liberal political theory, in either its libertarian or more egalitarian varieties, tends to adopt the consequentialist approach on human dignity. I then turn to the legal articulation of the two previously exposed conceptions of human dignity, before analyzing two recent judicial decisions on the issue of artificial procreation.
The strains on the concept of human dignity have their immediate source in the advances of biotechnology and of genetics in particular.3 More remotely but also more structurally one can explain the strains on the concept of human dignity as a result of the emergence of biopolitics as a new form of governmentality from the eighteenth century on, as pointed out by Michel Foucault.
The new challenges made by genetics to the concept of human dignity are to be understood in the context of new forms of biopolitics, the political managing of human life itself.4 But in fact the encounter between politics and the law, on the one hand, and genetics, on the other hand, is not one in which politics and law undertake a mere passive role in the face of scientific developments; on the contrary, this encounter is also a consequence of the internal development of political power. Biopolitics simply means that the human body goes through being an object of political power, that phenomena peculiar to life itself finally enter the reach of political calculation.5
Since at least the end of the eighteenth century onwards it has been shown that political power is acted upon the population at large, understood not merely as a large human group but as an assembly of living beings ruled by biological processes and laws. A population has a birth-rate and a death-rate, an age pyramid, a health condition and so on. The political discovery of population is, according to Foucault, the great technological axis around which all political procedures of the Occident were transformed. As Foucault says:
life enters the domain of power: capital mutation, one of the most important ones, without doubt, in the history of human societies; and it can clearly be seen that sex has become from that moment on, that is, from the eighteenth century on, a capital part since sex is most correctly put on the intersection between the individual disciplining of the body and the regulations of the population.6
It is easy to understand how this conception of governmentality provides the ideal frame for eugenics, a word of Greek origin that means ‘well born’ and was regained in 1833 by Sir Francis Dalton, a cousin of Charles Darwin, who applied statistical methods to the study of heredity. The dictionaries tell us that eugenics corresponds to the applied biological science whose purpose is the improvement of human genetic qualities, but also the study and practice of selective breeding applied to humans with the aim of improving the human species, including the medical intervention on human reproduction.7 This rather consensual definition conceals a fundamental distinction between an old and a new eugenics.
Old eugenics was the one in which the government would actively restrain the reproduction of people with ‘bad genes’, through the forced sterilization of disabled persons or persons belonging to degenerate social groups, such as convicts and vagrants. In the first years of the twentieth century ‘old eugenics’ has lead to the forced sterilization of thousands of people in Nazi Germany, but also in the United States and in social-democrat Sweden.
In face of the old stands the new genetics: the distinction between the two turns around the line that separates a eugenics envisaged as state coercive interfering in the lives of individuals in the name of public health and well-being, as a public policy, and a clinic genetics, considered as a service provided to individuals. New eugenics claims itself to be a liberal eugenics, which provides uncoercive genetic improvements and does not go against the autonomy of the children it helps to give birth to.8
It is important to underline at this stage the fitting not only of the old but also of the new eugenics to biopolitics as a specific conception of governmentality. In fact when Foucault refers to biopolitics he is careful to note that biopolitics governmentality is a special case of liberal governmentality. The liberal state is not quite opposed to absolutist reason of state, but rather modifies it without questioning its foundations.9 Hence, according to Foucault liberalism does not amount to the setting aside of reason of state but only to the acknowledgment of the ‘reason of less government as the very organizing principle of the reason of state’.10 Liberal eugenics means the recognition of the reason of less government in the realm of genetic improvement of the population. Less government means precisely the rejection of a coercive intervention of the public powers towards the goal of genetic improvement, but not the relinquishment of an efficient pursuit of the same goal.
An example of this is the policy developed by the government of Singapore which included the offering of $4.000 as down payment on a low cost apartment to low income and low educated women provided they were willing to be sterilized. At the same time, the same policy included several measures to encourage college graduates to marry and have children, from a state-run computer dating service, to courtship classes in the undergraduate curriculum and free ‘love boat’ cruises for single college graduates.11 These rather bad taste measures show that the rejection of state imposition does not stop social pressure, through the establishment of social habits.
The modern concept of dignity shows up at exactly the same time as biopolitics emerges as an art of government. Peter Berger points out the central importance the concept of dignity acquires with modernity. Whilst the concept of honor is associated with a hierarchical order of society, the concept of dignity presupposes the discovery of the individual man and it is precisely this solitary self that modern consciousness has perceived as the bearer of human dignity and of inalienable human rights. According to Berger, the modern discovery of dignity took place precisely amid the wreckage of debunked conceptions of honor. What is modern, however, is not the discovery that there is humanity behind the roles and norms imposed by society, but the assumption that intrinsic humanity makes irrelevant all social differentiations among men. This is particularly clear, according to Peter Berger, in all classic formulations of human rights, from the Preamble to the Declaration of Independence to the Universal Declaration of Human Rights of the United Nations from 1948. Human rights are individual rights, independent of any social status.12 At the same time the bearer of human rights is the individual which is also, considered as a member of a population, the subject of biopolitics.
So biopolitics and human dignity are connatural concepts. This is acutely described by Hannah Arendt when she says that ‘man had hardly appeared as a completely emancipated, completely isolated being who carried his dignity within himself without reference to some larger encompassing order, when he disappeared again into a member of a people’.13 Arendt primarily views the fact that the question of human rights was inextricably blended from the beginning with the question of national emancipation. Only human beings who had their own government had human rights, even if these had been solemnly defined as inalienable and independent of all governments. But with the appurtenance to a people came inextricably blended the appurtenance to a population. And as history has tragically demonstrated, even when the individual is not considered as member of a people who respects the rights of man their appurtenance to a population to be coped with by the political power is never denied. In the same vein, Habermas asks why human dignity appears so late in constitutional and international law, at least when compared with human rights. To Habermas the answer is simple: the inclusion of human dignity in the Universal Declaration of Human Rights and in almost all Constitutions subsequent to the Second World War was a response to mass murder and genocide,14 in sum, to the most radical forms of biopolitics.15
There is however a missing element in the above sketched picture: science and technology are also essential parts of the overall scheme in which biopolitics and human dignity take part. In fact, one can even say that science and technology are manifestations of human dignity, at least in its specific modern interpretation. According to this interpretation the three fundamental components of human dignity are rationality, perfectibility and autonomy. Reason is the most characteristic feature of the human race, sure no longer in the sense of knowledge about the goal and purpose of human existence, as in the Ancient Times and the Middle Ages, but in the sense, devoid of any teleology, of control over nature. This also means that the human being has no fixed place in God’s plan of creation but its essence is permanent self-alteration and self-perfection. With this comes autonomy, in the sense developed by Kant: the human being is capable of shaping not only its environment but also of creating its own norms and values.16 In this context science and technology are without doubt a strong expression of reason, perfectibility and autonomy. But the relation of science and technology to human dignity is not without ambivalence: if nature is degraded to mere matter, what about human nature?17
Two extreme positions on human dignity
As responses to the advances of biotechnology it is possible to identify two extreme and opposite positions in what regards human dignity. In one of such extremes we can locate the content of the document from 13 May 2006 of the Pontifical Council for the Family, with the title Family and Human Procreation. On the subject of human dignity one can read in that document the following:
The assertion of human dignity is, undoubtedly, one of the most rich and important realities of modern civilization. Kant states the difference between thing and person; the first is a means; the second is always an end. A thing as a price and can be exchanged; persons have infinite value and admit no exchange. Christian thought not only assumes this aspect, but also shows its ground: the human person has infinite value because she is the image of God; even more, because she is loved by God.
The consequences from this are many and of great importance. Let us recall one of them, directly connected to our theme: the human being claims – as stated in the instruction Donum Vitae – to be treated as such since her conception.18 Starting with this principle the Instruction denounces genetic manipulation in what concerns the use of embryos or in vitro fertilization.19 As a person endowed with dignity the human being is to be begotten, not produced, is to come to life not as a consequence of an artificial process but in virtue of a human act in its proper sense: a union between a man and a woman deemed by its very nature to be inspired by love.20
The presuppositions of this conception of dignity are clear: the person as an end in itself and never as a means to an end; the person as an image of God; the person as the object of the love of God. The consequences of the same conception are also clear, according to the document Family and Human Procreation and, above all, the instruction Donum Vitae:
• Prenatal diagnosis is permissible if the methods employed safeguard the life and integrity of the embryo and the human fetus and is directed towards its safeguarding or healing as an individual (Donum Vitae, I, 2);
• It is immoral to produce human embryos destined to be exploited as disposable ‘biological material’ (Donum Vitae, I, 5);
• Attempts or hypotheses for obtaining a human being without any connection with sexuality through ‘twin fission’, cloning or parthenogenesis are to be considered contrary to the moral law, since they are in opposition to the dignity both of human procreation and of the conjugal union (Donum Vitae, I, 6);
• The corpses of human embryos and fetuses, whether they have been deliberately aborted or not, must be respected just as the remains of other human beings (Donum Vitae, I, 4);
• The freezing of embryos, even when carried out in order to preserve the life of an embryo – cryopreservation – constitutes an offence against the respect due to human beings by exposing them to grave risks of death or harm to their physical integrity and depriving them, at least temporarily, of maternal shelter and gestation, thus placing them in a situation in which further offences and manipulation are possible (Donum Vitae, I, 6);
• Attempts to influence chromosomic or genetic inheritance aimed at producing human beings selected according to sex or other predetermined qualities are contrary to the personal dignity of the human being and his or her integrity and identity (Donum Vitae, I, 6);
• Heterologous artificial fertilization is contrary to the unity of marriage, to the dignity of the spouses, to the vocation proper to parents, and to the child’s right to be conceived and brought into the world in marriage and from marriage (Donum Vitae, II, 2);
• Homologous artificial insemination within marriage cannot be admitted except for those cases in which the technical means is not a substitute for the conjugal act but serves to facilitate and to help so that the act attains its natural purpose (Donum Vitae, II, 6).
Let us now go to the opposite extreme. This is represented by B.F. Skinner’s utopia in Walden Two, the utopia of a society ruled by science alone. In this society, as a consequence of experiments in selective breeding, ‘the hereditary connection will be minimized to the point of being forgotten. Long before that, it will be possible to breed through artificial insemination without altering the personal relation of husband and wife. […] people will marry as they wish, but have children according to a genetic plan’.21
Without going that far in the goal of structuring society along the lines of science, Richard Dawkins claims, in a text with the suggestive title ‘What’s Wrong with Cloning?’, that cloning provides a case study in the power of scientific thinking to change our minds. Dawkins says that if asked a positive argument in favour of human cloning his immediate response is to question where the burden of proof lies. According to him, ‘there are general arguments based on individual liberty against prohibiting anything that people want to do, unless there is good reason why they should not’. For Dawkins, ‘assuming that some people want to be cloned, the onus is on objectors to produce arguments to the effect that cloning would harm somebody, or some sentient being, or society or the planet at large’.
Dawkins rules out those arguments in an expedite way. If the harmed one is the clone herself, because perhaps she feels embarrassed or overburdened by expectations, that amounts to attributing to the clone the sentiment ‘I wish I had never been born because …’. Such statements can be made, but they are hard to maintain, says Dawkins, and he further notes that those most likely to oppose to cloning are the very ones that would reject this style of argument when used in the abortion debate. As for arguments considering the harm that cloning might do to third parties, or to society at large, Dawkins says they must be strong enough to counter the general ‘freedom of the individual’ presumption in favour of cloning. Mere prejudice, including prejudice based upon religion, is not enough to counter such presumption. It is unjustified that religious opinions, just because they are religious, should be given any weight in public discussions on cloning.22 Dawkins, whose position would surely apply to all techniques of artificial reproduction, appears to be defending not only individual freedom but also the freedom of scientific research.
Close to Dawkins’ is the argument developed by John Harris. According to this author a fundamental principle of the morality of all democratic countries is that human liberty should not be abridged without good cause being shown. Where the liberty in question is trivial, morally dubious or morally neutral, it is plausible to accept its limitation by the popular will. But if that is not the case, then the limitation of the freedom in question is a serious matter. Admitting that decisions to reproduce in particular ways or even to use particular technologies constitute decisions of moral value then, arguably, the freedom to make them is guaranteed by the constitution of any democratic society, unless the state has a compelling reason for denying its citizens that freedom, that is, to deny them what Ronald Dworkin calls their ‘procreative autonomy’. According to John Harris, no remotely plausible arguments exist as to how human cloning might pose significant dangers or threats or that it may compromise important human values. As a consequence there is a prima facie case for regarding human cloning as a dimension of procreative autonomy that should not be lightly restricted.23
John Harris claims in particular that the following cloning cases should be admitted:
• A couple in which the male partner is infertile want a child genetically related to them both and so they prefer to clone the male partner rather than opting for donated sperm;
• A couple in which neither partner has usable gametes, although the woman could gestate, want a child related to both and so they opt to use an egg cloned with the DNA of one of them;
• A single woman who wants a child prefers the idea of using all her own DNA to the idea of accepting 50 per cent from a stranger;
• A couple whose only child is dying want to de-nucleate one of her cells so that they can have another child of their own;
• A partner which has a severe genetic disease wants to use the other partner’s genome so that the couple can have their own child;
• Researchers want to create multiple cloned embryos of an adult who seems to have genetic immunity to AIDS in order to isolate the gene and see if it can be created artificially to permit a gene therapy for AIDS.
John Harris not only considers that these cases of cloning would not be unethical or contrary to human rights or dignity; he also claims that human dignity could be compromised by the rejection of cloning in such cases.24
What should we think of these radically opposed conceptions?
First of all, the conception of human dignity that presents itself as the expression of the idea that the human being is to be respected and treated as a person from the moment of conception can be questioned as the basis for a constitutional concept. And this is so because this conception, being based in a metaphysical or religious conception of the person, cannot generate consensus in our plural societies. As a consequence, this person-centered conception of human dignity cannot be directly adopted as the basis for a legal principle of human dignity. Constitutional law norms and principles cannot, in fact, be the direct outcomes of a disputed moral conception since in our plural societies the state would act contrary to the human rights if it intended to enforce in a general way a particular ethics.25