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Pulling a Newborn's Strings Pulling A Newborn's Strings The Dignity-Based Legal Theory Behind the European Biomedicine Convention's Prohibition on Prenatal Genetic Enhancement By Nir Harrel A thesis submitted in conformity with the requirements for the degree of Master of Laws Graduate Department of Law The University of Toronto © Copyright by Nir Harrel 2012 ii Pulling A Newborn's Strings The Dignity-Based Legal Theory Behind the European Biomedicine Convention's Prohibition on Prenatal Genetic Enhancement by Nir Harrel Abstract The emerging technologies of prenatal human genetic enhancement give to third parties the unprecedented power to design newborn genetic traits such as eye and skin color, intelligence, and emotional profile. The literature has not provided any answers to the question as to why these genetic enhancement technologies are prohibited by the European Biomedicine Convention. This thesis will demonstrate, by way of legal theory, that the prohibition on prenatal genetic enhancement is thoroughly justified on grounds that it violates the human right to dignity, as expressed in Kantian philosophy. In light of Kant’s Philosophy, genetic interventions for designing identity-related characteristics treat human beings instrumentally, to satisfy the desires of others, as mere means and not as ends in themselves. This thesis offers a deeper understanding of the law and policy regarding the prohibition on human genetic enhancement in order to safeguard future generations in the wake of a brave new world. iii Acknowledgments Professor Trudo Lemmens, for his insightful comments, dedicated support, and caring supervision, which were exceptionally helpful for my academic maturation. Professor Aharon Barak who have inspired me both in class, court , and through his writing to further research dignity as a core value for humanistic legal theory and practice. The University of Toronto, Faculty of Law, for the generous financial support and for providing me with a stimulating intellectual hub. The CIHR training program in Health law, Policy & Ethics, for the training, networking opportunities, and for creating a wonderful forum for presenting original studential research. To all of my friends and family members, for all their compassionate love and guidance. iv Table of Contents Abstract ……………………………………………………………….……….…………….......i Acknowledgments ………………………………………….………………………...ii Part 1 u Thesis Structure and Research Plan 1) Introduction ………………………………………………………………….…..…...1 I) Thesis….……………………………………………………..…......3 6 II) Significance ……………………………………………………..…3 III) Thesis Roadmap …………………………………………….…..…4 2) Identification of the Gaps in the Literature………….……………….……..7 3) The Legal Theoretical Framework ………………………………………...10 I) The Theoretical Superstructure …………………………………...10 II) The Vertical Dimension: The Three Levels of Impact of Genetic Enhancement on the Dignity of Human Populations …………………………………….....…10 III) The Horizontal Dimension: The Kantian Philosophy of Dignity …13 4) Methodology……………………………………………………………...….15 I) Research Procedure …………………………………………….....15 II) Scope and Focus ………………………………………………......16 Part 2 u Background 1) An Overview of the Candidate Technologies for Genetic Enhancement and their Applications………………………………………………………….…..18 I) The Use of Pre-implementation Genetic Diagnosis for Genetic Enhancement ……………………………………………………..18 II) The Use of Germ-line Modification for Genetic Enhancement …...19 III) Genetic Traits that can be Enhanced ……………………………...20 v IV) 2) The Therapy/Enhancement Distinction…………………………………..23 I) The Therapy/Enhancement Distinction as a Core Aspect of the Prohibition …………………………………………………………...23 II) The Therapy/Enhancement Distinction in the Bioethical Literature …..25 III) The Subjectivist Approach to Therapy/Enhancement Distinction 26 IV) The Objectivist Approach to the Therapy/Enhancement Distinction..…28 V) Conclusions ………………………………………………………29 3) The Background, Features, and the Key Principles of the Biomedicine Convention......................................................................................................................................31 I) Background to the Council of Europe and the Biomedicine Convention ……………………………………………………….31 II) The Legally Binding Nature of the Biomedicine Convention ……...32 III) The Centrality of Human Rights in the Biomedicine Convention….33 IV) Protected Groups under the Right to Dignity ………………….….35 4) Kant’s Philosophy of Dignity as an Underlying System of Thinking Behind the Biomedicine Convention………………………………………………………...38 I) Introduction ……………………………………………………...38 II) The Misconception of Dignity as an Obscure and Meaningless Value…..39 III) Background to Kant’s Philosophy of Dignity …….……………….39 IV) Human Dignity as Intrinsic and Incommensurable .………………41 V) The Kantian Duty to not Instrumentalise ….……………………...44 VI) Kant’s Notions of Autonomy and Self-Determination ……………46 VII) Dignity as an Inviolable Right under Kantian Deontology ……….49 VIII) A Contending View to Kantianism: Attributed Dignity Theory …...52 IX) Conclusion ………………………………………………………..55 Part 3 u The Legal Theory Regarding the Threats from Prenatal Genetic Interventions to Human Dignity 1) Prevention of Commodification of Human Newborns……………….…….56 I) Introduction …………………………………………………....…57 vi II) The Counter-Commodification Rationale ………………………...60 III) The Definition and Theory of Commodification …………………60 IV) Evaluation of Designer Babies’ Worth According to Consumer Needs and Demand ………………………………………………63 V) Instrumentalization of the Designed Children …………………….66 VI) Denial of Self-Determination from Designed People……………...68 VII) Conclusion ………………………………………………………...72 2) Objections to the Use of Germline Genetic Engineering for Eugenic Practices…73 I) Introduction ……………………………………………………....73 II) The Counter-Eugenic Rationale of the Legal Prohibition on Germline Modification …………………………………………………….. 74 III) The Aims of the Eugenic Movement ……………………………..76 IV) Eugenics as a Population Level Endeavour …………………….....78 V) Evaluation of Future Members of Society According to Eugenic Views....81 VI) Instrumentalisation of Future Members of Society for Eugenic Purposes ………………………………………………………......83 VII) Denial of Self-Determination from Future Members of Society …..85 VIII) Summary ……………………………………………………..…...86 3) Preserving the Genetic Integrity of the Human Species……………………… 88 I) Introduction ……………………………………………………....89 II) Species Integrity Based Rationale ………………………….…….....90 III) The Human Right to Non-Modified Heritage ……………………..91 IV) The Common Heritage Property Doctrine ………………………...93 V) Breaching Species Integrity as a Violation of Human Dignity……...94 VI) Breaching Species Boundaries by Creating a Human-Animal Interspecies .......87 VII) Evaluation of the Future Generations According to Views on Species Perfection ………………………………………………………....97 vii VIII) Instrumentalization of Future Generations for the Cause of Species Perfection …………………………………………....………..…….99 IX) Denial of Self-Determination of Future Generations ……………101 X) Conclusion ………………………………………………………102 Part 4 u Recommendations and Summary 1) Recommendations………...……………………………………………….……........104 I) Prenatal Human Genetic Enhancement Justifies a Legal Prohibition ...104 II) Promoting better Understanding the Legal Theory Behind the Prohibition on Human Prenatal Genetic Enhancement in the Legal Community… 108 III) Legal Indications for Estimating the Severity of Violation for the Prohibition on Prenatal Genetic Enhancement ………………….109 IV) Deterring from Prenatal Genetic Enhancement Through Adequate Penal Sanctions……..…………………………..………………...112 V) The Need for Further Harmonisation of Genetic Interventions Law....113 VI) Using the Biomedicine Convention as a Platform for Promoting Further Harmonisation of Genetic Interventions Law…………...115 VII) Development of a Broader International Consensus by an Alternative Legal Theory Based on Equality of Opportunity …………………..116 2) Summary ……………………………………………………………...…..120 3) Tables…………………………………………………………………….126 I) Table A - List of Countries that Ratified the Biomedicine Convnetion...…126 4) Appendices………………………………………………………….……126 I) Appendix A – The Genetically Engineered “Schwarzenegger Mouse”...127 II) Appendix B – A Genetically Modified Human Embryo with Green Florescent Protein(GFP) Genes ………….……...........128 III) Appendix C – A Genetically Modified Newborn Monkey with Green Florescent Protein(GFP) Genes…………………...….129 5) Bibliography………………………………………………………...……130 1 Chapter One Introduction Breakthroughs in the genetic sciences are now opening the previously locked door to the control room of human life. The novel prospects of intervening on the human genome not only entail the curing of complex diseases, but also the non-therapeutic enhancement of a newborn’s capacities. The emerging genetic enhancement technologies will, in the current decade, enable would-be users to select for and against a vast array of genetic traits, including eye and skin colour, athletic ability, intelligence level, and emotional profile. Evidence from experiments on animals offers a glimpse into the sheer potencies of genetic enhancement technologies to alter living organisms. Scientists, for example, have recently enhanced mice by doubling their intelligence and their muscle mass.1 Since 2007, tens of genetically engineered human embryos were created by combining human genome and animal genome.2 An academic and civil movement, known as Transhumanism, avidly encourages the use of genetic technologies on human newborns for
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