Category Archives: 2001 Conference

Cochlear Implants, The Deaf Culture, And Ethics

A Study Of Disability, Informed – Surrogate Consent, And Ethnocide

Glenn Hladek,†University of Montana

The ethical debate regarding life-saving organ transplants no longer embodies the emotional content generated by the first successful transplant in 1955. The decision of life – no life, and the success of medical intervention has certainly muted that debate. The current ethical debate is directed at biomedicine’s involvement in quality of life issues such as gene therapies, surgery in utero, and the implantation of a device to stimulate the 8th nerve of born-deaf infants. These interventions are specifically directed to alter, eliminate, or correct non-life threatening conditions. This paper specifically addresses Cochlear Implants (CI) in born-deaf children, with emphasis on trait vs. disability, informed-surrogate consent and the possible demise of the deaf culture (ethnocide). An introduction to Deaf culture and Cochlear Implants (CI) provide a framework for later discussion of disability, proxy consent, and ethnocide.

DEAF CULTURE

Culture is defined as the ideas, customs, skills, and arts of a given people in a given period. A common language is generally accepted as necessary to share these aspects of the culture. The Deaf culture is a group of individuals, generally born-deaf, and who communicate with American Sign Language (ASL). The Deaf culture is both defined and bound by their deafness and their language. Members of this Deaf community regard themselves, their identity, and their interpretation of the world as the norm. They believe that deafness opens them up to membership in a community with it own rich history, language and value system rather than a disability that condemns them to a world of silence. The Deaf pride movement culminated during the Gallaudet student demonstrations in the 1986 “Deaf President Now” action. This demonstration provided the general public with its first contact with the concept of Deafness as a culture and not as a disability. Ninety percent of born-deaf infants are born into families of hearing individuals. The primary means of communication, education, affection, and the transfer of cultural information in hearing families is auditory-verbal.. The acculturation of deaf children into the Deaf culture does not occur at the knee of their hearing Grandparents, or around the dinner table of their hearing siblings and parents. The acculturation of these deaf children, instead, occurs at residential schools for the deaf, or later at post secondary programs for the deaf, at deaf churches, and deaf civic or social organizations. The hearing community defines the Deaf culture by its loss of a species-typical trait, hearing (a disability), while the Deaf culture defines itself by its unique visual language (heterogeneous trait) . This different perspective focuses the dilemma. It is not an ethical dilemma when adults make decisions regarding themselves about whether to have a CI or not. However proxy decisions, for infants, that effect their communication mode and their inclusion in a specific culture does have serious ethical implications.

COCHLEAR IMPLANTS

Cochlear implants are a surgically implanted devices that provides electrical stimulation to the 8th Nerve. In hearing people, the 8th Nerve is stimulated by signals that are processed through the hair cells of the cochlea. In most profound hearing loss the hair cells of the cochlea have been destroyed, resulting in a loss of sensitivity, and a loss of frequency resolution. A CI produces tiny electrical currents that directly stimulate the auditory nerve fibers, bypassing defective or absent hair cells. Frequency resolution occurs for a CI patient because the implant filters sound into different frequency bands and these bands are transmitted to different electrode positions which then stimulate “high pitch” producing nerve fibers and “low pitch” nerve fibers. A born-deaf infant experiences auditory stimulation, that is different from normal hearing infants. Cochlear implant stimulated infants create their own catalog of auditory experiences.. It is the task of parents, siblings, teachers, speech-language pathologists, and audiologist to make this audible signal, presented to an infant with the neural plasticity to organize this novel sensory input, into meaningful language. The neural plasticity of the brain is significant and related to age. The primary language-learning years are 0-3 years of age. To implant a prelingually deaf child at a later age is doomed to failure. Members of the audiologic community have argued that it is in fact unethical to implant a prelingually deaf child at a later age because of the poor prognosis for the successful development of oral language (Rose). CI at a later age will not change or provide options; the child is and will remain a functionally deaf individual, even if some auditory stimulation is provided. A decision to wait to implant at a later age narrows dramatically the options to the child.

TRAIT VS DISABILITY

There is a long history of viewing deafness as a deficit condition. Aristotle said that those born deaf “become senseless and incapable of reasoning” (Carver). St. Augustine taught that the deaf were excluded from salvation on the grounds that they could not hear the world of God (Carver).. The Deaf community has struggled to remove the medicalization of deafness. They have protested the deficit concept of deafness and have worked to develop a healthy self-concept of deafness. Members of the Deaf culture celebrate their deafness, and many, if given the opportunity to hear, would choose to remain deaf because they do not see deafness as a disease or a disability, only as a difference. Padden and Humphries describe the Deaf culture’s perception as having a “different center” (Ramsey, pg. 81). Whereas hearing people work from the perspective that their hearing status is the norm, deaf people assume their deaf status is the norm. Each group is working precisely as members of a specific culture is expected. These different centers impact the way that each culture views the cochlear implant. Members of the Deaf culture view an attempt to make them into hearing individuals as discriminatory, and as some members of the Deaf culture have indicated, as an assault on their personhood. The hearing community, on the other hand encourages any attempt to move closer to their concept of center, which reflects their enthusiasm and general support for cochlear implants. The ethical conflict considered here arises when an attempt is made to change the center of an incompetent infant from one cultural group to another cultural group. The Deaf culture views the implantation of an infant as an attempt to assimilate the infant into a culture different from its birthright. Harlan Lane has argued that children born deaf to hearing parents are biologically members of the deaf community at birth, even if they are denied the opportunity to acculturate. They view it analogous to the removal of young Indian children from their homes and placed in Government sponsored boarding schools. Just as you can’t remove a child’s Indianess by changing his culture, Dr. Lane contends that you can not remove a child’s deafness, his birthright to the culture of silence. (Ramsey, pg. 82) Larry Stewart, a leader in the Deaf community has argued against the concept of a deaf culture. He notes that Deaf culture was not discovered, it was created out of political necessity. He believes the meaning of culture is so powerful and complex, that it can not be applied so narrowly to a group of highly diverse deaf American citizens. He finds the comparison of Deaf culture to racial or tribal minorities to be inappropriate. Acculturation is a process; one is not culturally Polish by virtue of his birth to Polish parents in the United States, but becomes culturally Polish by inclusion and participation in those things Polish. He states that deaf individuals lack one of the five critical senses. They are unable to talk on the phone, can’t go to the movies unless subtitles are provided, can’t hear music, can’t hear their children or grandchildren laugh or cry, and can’t get any job without having to consider how their deafness will interfere with the job duties. They find the creation a a culture based upon these deficits to be clearly nonsensical (Tucker, pg. 7). The Deaf communities concern regarding CIs is not unlike the disability-rights movement concern regarding the technologies of genetic testing. In both cases, activists argue that both technologies advance a form of discrimination by having a single trait stand in for the whole person. Rather than accept the person in his or her entirety, a single trait identifies the individual as needing intervention so that the person can be more “normal”, or can be labeled as too flawed to exist and not worthy of being born. In both cases the individuals that presently exist with these diseases or traits receive a message that disparages and demeans their lives. Additionally both groups are concerned that if genetic testing or CI were to become public policy, then funding for education, rehabilitation and public support for affirmative action for these disabilities will become problematic.

DECISION MAKING ON BEHALF OF MINORS

Consent is a powerful moral warrant. Informed consent, however requires cognitive capacities, such as the ability to be conscious of oneself as existing over time, the ability to appreciate reasons for or against acting, and the ability to engage in purposive action (Buchanan, pg. 78). Clearly infants don’t have the competency to provide informed consent. The absence of the capacity to make an informed consent must be provided by another. The decisions about the medical care of minors traditionally has involved the child’s parents and the state, with the primary responsibility being the parents’. These types of judgments rely upon “best interest” judgments, since substitutive judgments require a previous state of competency. The Deaf community contends that since the parents of most deaf-born infants are hearing they have no perspective upon which to base their decision regarding cochlear implants, that without intimate knowledge of the Deaf culture, hearing parents can’t make a “best interest” judgment. They maintain that hearing parents’ decision to implant deaf children without consulting the Deaf community renders the decision “ill-informed, ill-prepared, ill-advised, ill-founded, and ill-fated. They recommend that a member of the Deaf community join the parents and the state as interested parties to protect the decision from parental bias and ensure consideration of all possible alternatives. The warrant of proxy consent regarding the implantation of a CI is a serious one. The decision may pit two principle-based ethics, autonomy (concern for the parent’s right to decide about matters of their children) and beneficence (concern for the child’s quality of life). Dena Davis suggest a more appropriate construct of this conflict; parental autonomy versus the child’s future autonomy, or what Joel Feinberg has called “the child’s right to an open future” (Davis, pg. 9). Any decision that jeopardizes or narrows the scope of the child’s choices when she reaches adulthood would violate her autonomy, and thus violate her right to an open future. Lipson agrees when he says that while infants are clearly worthy of moral consideration, their moral status is one of potential autonomy. Any interference with the development of this potential autonomy is impermissible, and some would say we have a duty to aide in that development. Davis and Feinberg maintain that “best interest” decisions must have the child’s interest as an end. They would assert that it violates the Kantian principle of treating each person as an end and never as a means only, when a child is forced into either the parents’ notion, or the Deaf culture’s notion of the good life, without consideration for the child’s open future. To do so would deny that the child will someday exist for her own sake. The “best interest” decision is the one which provides the child with an open future, with important rights that need to be protected now, so that the child can exercise them later as an adult.

ANALYSIS

This section of the paper addresses three distinct areas for ethical analysis in the cochlear implantation of born-deaf children: 1) disability, 2)proxy consent, and 3) ethnocide of a culture. DISABILITY The basis for an auditory – verbal language system is auditory input. The development of an oral language system without auditory stimulation is an arduous task. The ability to hear adequately to develop an oral language system is shared by 99.9965% of the citizens of the United States. There are approximately 700,000 deaf individuals who do not hear adequately to develop this oral language system without assistance. Hearing is the necessary conduit for auditory stimulation that allows the development of the oral language system that unites a majority of the human community. Some members of the disability-rights community and the Deaf community advocate that we “choose who will be disabled”, that disability is a social construct. Most members of these two groups do not deny, however, that departures from species-typical functioning, foreclose some options. A lack of strength, or agility, or loss of vision , or a loss of hearing are “real” and not an artifact of any interaction with the environment. It is Adriene Asch who writes, “The inability to move without mechanical aid, to see, to hear, or to learn is not inherently neutral. Disability itself limits some options”(Parens, pg. S11). Society certainly does not view these inabilities as neutral. The promotion of a healthy life style for pregnant women, the support of public and private research for disabilities, and the inaction of legislation (ADA) demonstrate a commitment by society to moral equality. The individual with the disability is viewed as so valuable to our society that significant resources are expended to provide equal opportunity. It is not the person who is devalued, nor their contribution to society, for surely society would not commit resources of time if that were the case. It is the disability that is devalued, not the individual.

PROXY CONSENT

At birth, infants become members of the moral community, but are not yet moral agents. Until the infant does become a moral agent, others must make decisions for her, decisions made from the standard of the child’s “best interest”. The Deaf community has advocated that they be included in the decision – making process to balance the parental hearing bias. There is legal precedent for third party intervention in proxy consent, and courts have intervened with a third-party disinterested person to help make decisions for non-competent individuals. However, the inclusion of a deaf adult, advocating for the deaf culture does not prima facie reflect an unbiased, “disinterested” third party. Certainly information regarding the Deaf culture should be made available to the family, including the ramifications of inclusion into the Deaf culture. It is difficult, however, to imagine the Deaf cultures’ interest should supplant or be given equal weight to the parent’s decision regarding their child. It is generally recognized that parental autonomy to make decisions for and to care for their child should be free from outside interference. This freedom satisfies the child and the parental need for family integrity, continuity, and physical well being. The inclusion of contrary philosophical position that would jeopardize these family needs is not generally prescribed in family decision making and should not be a mandatory obligation.

COMMUNITY

The Deaf community proudly identifies their communities as cohesive. These communities develop because human beings group with other individuals who are “like” them. The Deaf community is exclusive as there are only 700,000 potential members. The Deaf community readily admits that many deaf individuals do not intimately know their biologic parents or other members of their families because of the communication difficulties. They rightly claim that their needs, interests, and cultural heritage are not known or necessarily shared by their genetic families. As Harmon Smith says, we are deceiving ourselves if we think we can educate and inculcate a child into another culture (deaf), and ever expect for that child to return to her biologic parents (hearing) without serious consequences to the family bond (Smith, pg. 54). It is a decision at infancy to select a finite community that doesn’t contain the child’s biologic family. And since enclaves of deaf individuals are generally not present in small rural communities, participation in a deaf community necessitates moving to or being close to some urban environment. The inclusion and participation in a community of “like” individuals narrows the community options. Hearing people, even thought they may never be accepted as members of the Deaf community can learn sign language and communicate over cultural lines. Members of the Deaf community do not have the same cross-over option.

EMPLOYMENT

Employment opportunities have been expanded for deaf individuals due to federal legislation and the advent of computers. The range of potential vocations, however, will always be inherently limited. It is difficult, regardless of the accommodations, to imagine a deaf individual being part of a surgical team, or functioning as an air traffic controller. It is unknown at this time if a pre-lingual CI will allow an individual to participate in these and other professions that emphasis auditory-verbal skills. It is known, however, that not to implant will certainly exclude them and limit their employment opportunities from jobs and professions that require auditory-verbal skills.

MARRIAGE

Marriages or long term romantic relationships generally develop with persons from our communities. The ability to communicate effectively is considered an essential in the marriage relationship, and it is understandable that a culturally Deaf individual would select a partner competent in ASL. Additionally there is the question of offspring. Most genetic deafness is carried on a recessive gene. This means to increase the likelihood of delivering a born-deaf infant is to marry another deaf individual with the same recessive gene trait. Potential marriage or relationship partners are often selected because of a communication system and the desire for deaf children. Both seem to further narrow the child’s right to an open future.

HARMS OF CI

The Deaf community has voiced concerns regarding the destruction of the cochlea during the implantation procedure, prohibiting the use of technology developed in the future. The cochlea is not destroyed for further CI developed along the current paradigm. Furthermore, the FDA allows for implantation of only one ear at the present time. The contralateral ear is available when new surgical techniques or new technology evolve and require an intact cochlea. The incongruity of the Deaf culture’s concern regarding the destruction of the cochlea is apparent to many. If their concern is that CI will be so successful as to eliminate a culture, then the destruction of the cochlea is irrelevant. If their concern is that improved surgical techniques will be developed needing an intact cochlea, they deny their argument that Deafness does not need a “fix”.

ETHNOCIDE

The Deaf culture’s concern regarding ethnocide appears particularly morally problematic; each deaf child is considered a means to the culture’s ends, the survival of the culture, and not the child’s own end. Thus, the deaf child exists to fulfill the culture’s hopes and dreams, not necessarily the child’s hopes and dreams. If all deaf-born infants are implanted and choose the hearing world, then it will be the demise of a culture. However, the autonomy of the individual ethically trumps the autonomy of the group. If the group or the culture radically infringes on the choices available to the child as she grows up, then respect for the individual requires support for the child, even if the choice will eventually result in the death of a group or culture. Parenthood is a balancing act of parental dreams and hopes for children and the realization that children will someday exist for their own sake. The child will have her own talents, interests, strengths, and weaknesses. Regardless of the complex reasons for being a parent, a primary responsibility is to recognize the child as an end in herself. Parents best fulfill this responsibility by providing the child with the support, skill, and knowledge necessary to avail herself of many open opportunities and thus maximize her chances for self-fulfillment. Any parental decision that closes the child’s right to an open future is not regarding the child as an end in herself. The selection of a community, a marriage or life partner, or a vocation strictly or primarily because of a single trait is inherently limiting because the trait is used to substitute for the individual. Cochlear implants or any other medical, genetic, or surgical techniques that provide for a more open future are not only morally permissible, but are morally encouraged.

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Jack and the Gene Stalk and other perilous tales of genetic exploits?

An exploration into the ethical implications of human genetic testing

Katherine Duthie, University of Victoria, Victoria BC, Canada

Abstract: Although scientists have developed tests which enable individuals to determine characteristics of their genetic make-up, no one has yet determined how this technology and the resulting information may be handled ethically. This paper addresses problems that arise when dealing with the exchange of the results of genetic tests within families and also those which occur when the information is in demand outside the family – particularly when it is of interest to employers and insurance companies. Individual autonomy, beneficence on the part of researchers, employers, insurers, and proxy decision makers, informed consent, and privacy are all issues that are frequently discussed. Aside from the lack of ethical protocols, there are currently no laws or infrastructure in place to protect the individual from the consequences of elucidating medical details of their genome. Until the ethics can be derived upon which enforceable rules can be set to regulate the use of personal genetic information, we must be careful in considering whether or not to maker our genetic status known.

Introduction: As technology becomes available, we are more and more able to learn about ourselves through knowledge of our genetic make-up. The information determined can be useful in correlating the occurrence of disease and disorders to specific genes or gene mutations. Individuals with a family history of disease with a known genetic correlation (e.g., Huntington’s chorea) may choose to determine whether they carry the allele for this illness in order to make life choices. Others may wish to determine if they are a carrier of an illness to see if, in combination with a heterozyogtic partner, they are likely to pass the disease to a child (as is possible with Cystic Fibrosis).

The question is, who should have access to the genetic information of others? When, if at all is this ethically appropriate or necessary? Through the analysis of case studies, this paper will address the ethics of the three following scenarios in the pursuit of the human genetic load: 1) accessing the genetic information of parents; 2) determining genetic make-up of offspring; 3) the occurrence and consequence of access to an individual’s genetic information by employers and insurance companies. Genetic testing and resulting information is fundamentally embedded in the context of health care and therefore will be discussed in terms of medical ethics.

Selecting a meta-ethical theory: Before we may engage in an ethically meaningful discussion we must first select an appropriate meta-ethical theory. There are three main theories from which to choose:

Ethical non-cognitivism: This theory is founded on the notion that we are all emotionally based beings who cannot come to an agreement or disagreement because differing opinions cannot be described as right or wrong (Kluge 1999a). Even when our logic is lacking, we may insist on our opinions because they ‘feel right’. This cannot account for situations where our emotional reactions are at odds with what is ethically correct. This stance is impossible to use because ethical decisions are not simply emotional assertions.

Ethical Relativism: This theory states that while ethical statements are cognitively meaningful, they do not hold in any objective state because they depend on our point of view (Kluge 1999a). Since all our judgments would be relative, we would never be able to have a disagreement with people of different perspectives Discussions would simply result in circuitous crossed-monologues. Our goal in discussing ethics is to develop solid foundations for ethical decision making applicable to all people, not simply those from one perspective.

Ethic objectivism: According to this theory, right and wrong are objective phenomena (Kluge 1999a). This allows us to make ethical judgments within the parameters of the situation regardless of the perspectives and emotions involved. We will adopt this ethical theory in our discussion of the ethics of access to genetic information.

Selecting an ethical approach: Within the realm of ethical objectivism, there are several ethical approaches which can be used. These include: Feminist ethics, Virtue ethics, Religiously oriented ethics, Agapistic ethics, Teleological ethics, and Deontological ethics. While there are arguments for all of these approaches, there are fundamental flaws in the context of healthcare and genetics in all but one. The two most common of this list are Teleological and Deontological ethics.

Teleological Approach: This approach focuses on outcomes rather than means to these outcomes. Utilitarianism falls into this category. This is based on the principle of utility which promotes actions resulting in the greatest amount of good for the greatest number of people (Kluge 1999a). There are two fundamental drawbacks to this method: 1) it does not define the nature of the good we are striving for and the bad we are trying to avoid; 2) it does not address the needs of the individual. The very nature of the subject at hand relates directly to individuals and consequences to them. To discuss this using the principle of utility is to deny these individuals ethical consideration which is the complete opposite of what we are trying to achieve.

Pluralistic Deontological Approach: This approach is based on the contention that there are several basic principles from which all judgments and rules of right and wrong must ultimately be derived (Kluge 1999). The following principles are widely accepted among pluralistic deontologists:

  1. Principle of Autonomy and Respect for Persons: Everyone has a fundamental right to self-determination. This right is only limited by unjust infringement on the rights of others.

  2. Principle of Impossibility: A right that cannot be fulfilled is ineffective as a right, and an obligation that cannot be met under the circumstances ceases to be effective as an obligation.

  3. Principle of Fidelity or Best Action: Whoever has an obligation also has a duty to discharge that obligation in the best manner possible.

  4. Principle of Equality and Justice: A right is effective to the degree that it preserves or promotes justice.

  5. Principle of Beneficence: Everyone has a duty to maximize the good of others where the nature of the good is defined by the other persons themselves.

  6. Principle of Non-Malfeasance: Everyone has a duty to minimize harm where the nature of the harm is defined by other persons themselves.

This ethical approach has proven to be most useful and effective when discussing issues relating to personal health. Using these principles, we will come to ethical decisions regarding the access to an individual’s genetic information.

Genetic access within a family – seeking parental information: Case #1: Mr. X, a forty-five year old man with a family history of colon cancer, participated in a colon cancer research study at Y University. This phase of study was aimed at determining whether there was a possible link between Z gene and an aggressive form of colon cancer. The preliminary results suggested that the Z gene was associated with a 10% increased risk of colon cancer. Mr. X did not learn whether he carried the gene and passed away from an untimely yet unrelated illness.

Shortly after Mr. X’s death, his son, Mr. W. approached Y University and asked to learn whether his father carried the Z gene. The son was engaged to be married and wanted to find out all of the information he could before making a commitment to his fianc?e. The University stated that the studies were preliminary and even if his father did have the gene, the risk factor would be even less for him because there was no guarantee he had inherited the gene from his father.

Though the son claimed to understand the relative significance of his father’s test results, he persisted and became increasingly stressed and irate at the University for refusing to provide the results to him.

This case brings up several ethical issues. The first deserving our attention is the issue of informed consent. Informed consent refers to the complete and appropriate disclosure to a subject or patient by the medical professional of the details and outcomes of a medical procedure or decision. To give informed consent allows the individual to decide what happens to their body thus maintaining their autonomy. When Mr. X volunteered to participate in this study, there was no indication that he assumed that anyone else would find out if he possessed the gene linked to colon cancer. Article 8.1 of the Draft Code of Ethical Conduct for Research Involving Humans states that in human genetic research, the genetics researcher must report the results to that individual. Article 8.2 goes on to say that the researchers and the Research Ethics Board (REB) presiding over the study must ensure that the results and records are protected from access by third parties unless consent is given by the participant. If we assume that the researchers at Y University adhered to this code, the onus was on Mr. X to divulge or consent to the release of any information to a third party. Mr. X did neither of these things. To disclose personal information about Mr. X to anyone (including family members) would be violating his autonomy and thus is unethical.

One may argue that Mr. X has no autonomy because he is deceased. It is true that when someone has participated in research and dies after, there are no legal obstacles to disclosing personal information because the deceased a) have no legal rights, and b) are not considered ‘research subjects’ under existing federal regulations (NHGRI).

Ethically, a dead being is no longer a person therefore we have no duty to them. However, individuals volunteer to participate in clinical studies with the assumption that their confidentiality does not come with an expiry date. If we allow for information to be released post-mortem, this may discourage participation in future research projects particularly those which involve potentially socially stigmatized subjects.

The Principle of Beneficence on behalf of the researcher is also brought into question by this case. This principle states that everyone has a duty to maximize the good as defined by the individual receiving said good. In healthcare this may translate into an obligation on the part of the genetic researcher to disclose genetic information about a subject to his family so that they may take appropriate actions to prevent harm to themselves. It would seem that this principle is in violation of the Principle of Autonomy. According to the President’s Commission for the study of Ethical Problems in Medicine and Biomedical and Behavioural Research, confidentiality could be overridden in certain cases where blood relatives were at risk of serious harm. In this case, the increased risk to Mr. X, if he did in fact carry the gene, was stated at approximately 10%. Because Mr. W only carries half of his father’s genome which itself, may or may not carry the cancer-causing gene, the actual increased risk for Mr. W is marginal to non-existent. Because there is no significant medical threat to Mr. W in either case, the researchers were not violating the Principle of Beneficence and thus Mr. X’s autonomy and confidentiality remain.

The Principle of Non-Malfeasance can be discussed similarly with the same result. In this case, the maximum possible risk to Mr. W is not such that inevitable harm will result if he is not made aware of his condition (or lack thereof). Again, Y University has no obligation do disclose the information to Mr. W.

Genetic access within a family – seeking information about our offspring: Genetic tests for offspring refer to prenatal screening, newborn genetic testing, and childhood genetic testing. Do we have the right to know our child’s genetic status? For the purposes of this essay we consider both screening and diagnostic tests as methods of accessing information.

Prenatal screening: Governing aims are to reduce the incidence of congenital abnormalities for which no treatment is available, and to produce information of use in the pre- and post-natal treatment or management of disorders (Robinson 1998). Methods of determining a diagnosis included amniocentesis, chorionic villus sampling, and fetal blood sampling. Currently pre-natal treatment prevails via therapeutic abortion. There are a number of issues to consider when looking at the ethics of pre-natal screening.

The autonomy of both the mother and the foetus both need addressing. A pregnant mother or couple ought not to be given carte blanche to make decisions where the principle beneficiary or victim is an unconsulted foetus. The Canadian Medical Association recommends that a human foetus becomes a person when “the foetal nervous system has developed to the point where it has the basic capacity for sapient cognitive awareness”(CMA 1991). This is reached at approximately twenty weeks gestation (Kluge 1999a). From this point on, the foetus is considered an incompetent individual. Its parents would naturally take on the proxy role in which case they are obligated to do what is best for their unborn child. Prior to twenty weeks, although the status of the foetus is a serious ethical consideration, as a non-person, its rights are not equal to those of the mother. Her right to autonomy and self determination take precedent.

The mother’s autonomy apart from the foetus must also be considered. Pre-natal screening conveys a recommendation to pregnant women that accepting the test is the responsible course of action and that a foetus identified as seriously affected should be aborted. Failure to comply with the standard screening program may be seen as irresponsible. Parents who have an affected child may be blamed for something they could have prevented (Clarke 1998). This sort of pressure could lead to informed consent under duress denying the mother an environment where a carefully weighed and considered decision could be made. This is a violation of her autonomy.

Prenatal screening tests also present issues of equality and justice. Cases have been documented where insurance companies have refused to pay for children with illnesses that could have been ‘prevented’ (through abortion) with prenatal screening (Billings et. al. 1992). There may also be a negative impact on individuals of society who have a condition that prenatal screening is designed to prevent. Overall, refusing to terminate the development of a seriously genetically affected child puts that child and her family at a disadvantage beyond the usual limitations of the illness. Ultimately, more questions than answers arise when addressing these concerns. Do parents then have a duty to a) undergo prenatal screening and b) abort a child who displays serious abnormalities?

A third consideration brings us down to the nitty-gritty reality when dealing with issues surround health care delivery – allocation of resources. The cost of avoiding a birth with Down’s syndrome through serum screening and termination is $56 000 (1992). The same study reports that the average cost of lifetime care for a Down’s sufferer is $280 000 (1992) (Robinson 1998). From a utilitarian point of view, we have an obligation to terminate pregnancies where aborting the infants with serious congenital abnormalities is cheaper than the cost of treating the illness after the child is born. This is regardless of whether or not their lives might be seen as worthwhile and whether or not they would entail physical suffering.

From the deontological perspective, approaching patient treatment from a purely financial perspective denies their personhood. This brings us back to the status of the foetus. Using the twenty week gestation mark of personhood, we could simply state that all abnormal pregnancies prior to twenty weeks should be aborted, yet all those detected after should be brought to term. This of course denies the gradient of severity seen in many abnormalities and also the consideration of quality of life for the infant after birth. Clearly we need to derive a more sophisticated ethical method in order to confidently and rationally come to an ethical decision making mechanism in this situation.

Newborn genetic testing: Currently in Canada, two compulsory screening programs are at work in our hospitals: The Guthrie test for phenylketonuria (PKU) and that for congenital hypothyroidism. In both of these illnesses, early diagnosis permits effective treatment of the condition. Because the benefits of screening infants for these disorders are so great, many such programs have been implemented without an explanation or information given to the parents. Parents are often unaware for what conditions their infants are being screened.

It may be argued that the obvious benefits of the test to the infant override any need for parental consent. Although parents would be irresponsible not to have the tests completed, to allow the hospital to decide in which instances parents had a choice and when they did not would set a dangerous precedent. This sort of attitude violates the fiduciary agreement necessary between doctor and patient. The paternalistic doctor patient relationship assumes that doctor always knows best thus denying the patient’s autonomy in the decision making process. Hospitals that screen newborns without seeking consent from the child’s proxy (the parents) are not only acting unethically, but also illegally in that nonconsensual physical interference is assault and battery.

Whether or not genetic screening is to the advantage of the child, consent is always necessary either from the parent or proxy except under emergency conditions. This raises the question, what do we do when parents refuse to allow this screening? In such a situation, the physician should proceed on the assumption that the child’s sensible experience and qualitative perceptions are like those of an adult. It is then appropriate for the physician to take into account the child’s subjective expressions and balance them against the objective standard of what a reasonable person would decide when considering the proxy decision. If the physician finds that the proxy decision maker has introduced his/her non-standard values in making the decision, the physician must challenge the decision. The courts may ultimately decide the course of action (Kluge 1999b).

In the case of newborn screening, the benefits are so great at so little cost that it is extremely likely that if a parent refused consent, the courts would order it regardless. The point of informed consent remains important however, because to pick and choose which situations the fiduciary agreement applies and when it does not, may lead to unethical decision making in the future.

Childhood genetic testing: There are many issues that arise when considering childhood genetic testing depending on the nature of the test being discussed. We must first ask ourselves, do parents have a right to access the results of their child’s genetic tests or even to have them tested in the first place?

Some parents have the “my child, my business!” attitude with respect to this question. This is not the case. A parent does not have complete access to their child’s genetic information simply by virtue that they are the child’s parent. In some cases, this would be in violation of the child’s autonomy. However, there are circumstances where parents do have this right. As proxy decision makers for an incompetent child, it is in the best interests of the child that her parents have access to the results of diagnostic tests/screenings to ensure that properly informed medical decisions are made.

This brings us to the issue of competency of the child. In the past, children were assumed to be incompetent simply because they were children. This is in violation of section 15 of the Charter of Rights and Freedoms which prohibits discrimination on the basis of age. If a child is deemed competent, they are under no obligation to reveal their medical status to their parents and their physicians have a duty to preserve the child’s autonomy through keeping all medical information confidential. There are two other sorts of genetic tests which lie outside the immediate medical context where this may be relevant: late onset diseases with possibilities for treatment and late onset where no presymptomatic treatment is available.

If a child is at risk of developing a late onset disorder and immediate treatment is available, the ethical role of parents is the same as when immediate medical diagnostic tests are being completed. To test an incompetent child for a late-onset disease where no presymptomatic treatment is available removes the child’s future right as an autonomous adult to make their own testing decisions. Also, the confidentiality that would be automatic for an adult undergoing testing would be removed. Both of these things are in violation of the child’s autonomy and are therefore unethical. If a competent child takes the lead in requesting this sort of genetic test, loss of the child’s future autonomy is not an issue and testing can proceed as normal.

Genetic access by employers or insurance companies: Case study #2: The ABC Genetics Testing Corporation (ABC) has developed a test to identify two gene mutations associated with breast cancer. They are BRCA1 and BRCA2 found on the long end of chromosome 17 and chromosome 13 respectively (Stanford 1998). Although the figures are in some dispute, it appears that the possibility of contracting breast cancer before the age of sixty increases by 70-85% in women carrying both of these mutations.

ABC already markets the gene test to the public. MicroHard, a leading computer software manufacturer employs nationwide over 10 000 women between the ages of 25 and 60. MicroHard proposes to have every female employee take the ABC gene test at its expense. MicroHard hopes that the use of the test will enable its female employees to have a better understanding of breast cancer and to take appropriate responses, including more frequent physical examinations and more aggressive treatment of any indications of potential cancer. MicroHard also believes that if environment contributes to the onset of cancer, female employees can modify their behaviour to reduce environmental risks such as modifying diet and avoiding sources of radon. While MicroHard is concerned about the physical well-being of its employees, if frankly admits that if it could lower the incidence of breast cancer, it would lower its medical costs. MicroHard is a self-insurer meaning that it pays its employees’ medical expenses and does not use a third party insurer.

The first ethical question that springs to mind is how the autonomy of the employees would be preserved if these tests were to take place. The answer is, it would not. To seek this sort of information from an individual without her competent informed consent would be a direct violation of her privacy and confidentiality. In this situation, the competency of the employee may be compromised due to fears of being ostracized by management or even losing her job if she does not consent to the test.

Before we discuss further ethical implications here, it would be helpful to determine MicroHard’s true motive behind this venture. It could be argued that MicroHard truly wants the best for their female employees and is just looking out for their health and well-being irrespective of financial issues. If the tests will serve only to ‘inform’ the employee and allow her to use the information to make lifestyle changes so as to minimize the risk of developing breast cancer, to ensure their employee’s autonomy MicroHard could do two things.

  1. Pay for the tests but maintain the confidentiality of the employees by never seeking the results themselves. This would allow the women to use the information if they so chose.

  2. Forget the test altogether and spend the money informing all employees (men and women) of cancer-preventing lifestyle choices, the importance of self examination and frequent check-ups. This route would avoid the ethical issues of consenting to the test and those of the company having access to this type of knowledge.

MicroHard did not select either of these routes which leads us to believe that Micro Hard’s true motive is to minimize cost. Certainly helping their at-risk employees avoid cancer would achieve this goal. But wouldn’t they save even more money if they reduced their number of at-risk employees? To fire someone simply based simply on their genotype is genetic discrimination and is certainly a violation of the Principle of Equality and Justice.

Genetic discrimination refers to discrimination directed against an individual or family based solely on an apparent or perceived genetic variation from the ‘normal’ human genotype. If MicroHard decided to use the genetic information of its employees when making hiring/promoting/firing decisions it would be guilty of this ethical infraction. If this did occur, Micro Hard would certainly not be the first company/institution to do so.

In such a case, a man was denied a job with the government (U.S.) because he was a carrier of Gaucher Disease (Billings et. al. 1992). Insurance companies in the US are also guilty of this discrimination (see Appendix A for reported cases of genetic discrimination). In many of these cases, decisions regarding allocations of health, life, and automobile insurance were based solely on a diagnostic label without regard to the severity of the condition for each individual. In these and other cases, having a particular genotype is equated with the presence of a severe illness and the lack of effective treatments. This demonstrates a lack of understanding of the concepts of incomplete genetic penetrance, variable expressivity, and genetic heterogeneity. In many cases, the worst possible scenario seems to be the standard used for policy decisions regarding at risk individuals. An individual may suffer severe consequences as a result of this inaccurate and unfair simplification of genetic conditions (Billings et. al. 1992).

Because MicroHard is in effect, both an employer and an insurer, they have twice the interest in the genetic health of their employees. While both companies and private insurers focus on increased production at lower cost, to attain these goals at the cost of the basic rights of their employees is ethically questionable and could lead to yet another stratification in our social structure: a class of individuals unable to obtain employment or insurance.

Access to Genetic information – Conclusions: There is no doubt that the new technologies in medical genetics offer many advantages and improvements to the way we address our present and future health. As individuals, we have the ability to gain knowledge about our genetic health and the power to act with this information in any way we choose. Our case studies have shown that we do not, as individuals or companies, ethically have free access to such information of others. Even as parents, our only power over our children’s genetic information lies where we must act as we assume they would in medical decision making situations.

Although individually we may do what we please with the knowledge of our own genetic status, legally we still have no power over who else has access to our information. Currently in Canada, there are no laws regulating the use of genetic information, and there are no enforceable mechanisms regulating who may see these results. We may assume that our records are confidential, and ethically they should be, however, we must accept that this cannot be guaranteed. In the US this is a particular concern where insurance companies and some employers routinely access medical records where this information would lie. Ethics aside, until laws and infrastructure are in place, we must be careful in considering whether or not to make our genetic status known, even to ourselves.

References:

1. Billings, P.R., Kohn, M.A., Cuevas, M., Beckwith, J., Alper, J., Natowicz, M. 1992. Discrimination as a Consequence of Genetic Testing. American Journal of Human Genetics. 50:476-482

2. Clarke, A. 1998 ‘Genetic Screening and Counseling’ pp.215-228. A Companion to Bioethics. Editors: Kuhse, H., Singer, P. Blackwell Publishers. UK

3. Canadian Medical Association, Committee on Ethics. 1991 ‘The Status of the Human Foetus’ pp. 288-300. Readings in Biomedical Ethics: A Canadian Perspective. Editor: Kluge, E.H.W. Prentice-Hall Canada Inc. Ontario

4. Draft Code of Ethical Conduct for Research Involving Humans 1999 pp.244-251. Readings in Biomedical Ethics: A Canadian Perspective. Editor: Kluge, E.H.W. Prentice-Hall Canada Inc. Ontario

5. ELSI – Human Genome Project. 2000. http://www.lbl.gov/Education/ELSI/Frames/privacy-prying-f.html

6. Kluge, E.H.W. (A) 1999. Readings in Biomedical Ethics: A Canadian Perspective. Prentice-Hall Canada Inc. Ontario

7. Kluge, E.H.W. (B) 1999 ‘After “Eve”: Whither Proxy Decision Making?’ pp.187-195. Reading in Biomedical Ethics: A Canadian Perspective. Editor: Kluge, E.H.W. Prentice-Hall Canada Inc. Ontario

8. National Human Genome Research Insititute. 2000. GenEthics Consortium Case Literature: http://www.nhgri.nih.gov:80/About_NHGRI/Dir/Ethics/who.html

9. Robinson, P. 1998 ‘Prenatal screening, sex selection, and cloning’ pp.173-189. A Companion to Bioethics. Editors: Kuhse, H., Singer, P. Blackwell Publishers. UK

10. Stanford University Program in Genomics, Ethics and Society. 1998. Report of the Working Group on Genetic Testing for Breast Cancer Susceptibility. http://www.stanford.edu/dept/scbe/brcaexec.htm#Part1

Appendix A: Cases of Genetic Discrimination by Employers and Insurers

1. A physician reported: “‘an individual was found to have Gaucher Disease. His brother was screened and the results were consistent with unaffected carrier status (heterozygote). The brother applied for a governmental job and included the history of testing in the application. He was denied the job because of his being a ‘carrier, like sickle cell’ ” (Billings et. al.1992)

2. A mother tells of her daughter: “My daughter was denied employment by a company

because she has CMT even though the case is not really noticeable. She had indicated

on her form that she had CMT and the examiner ask her what it stood for; then, he looked it up in a medical book and denied her a job which had been offered to her

by the recruiter.” (Billings et. al 1992.)

3. Man from a family with hereditary hemochromatosis wrote: ‘In 1973, at age 27 and 1/2, I was diagnosed as having excessive iron storage and was put on a regime of

phlebotomies… After several years I have never had the slightest symptom in part

because early detection (and appropriate treatment) of iron overload in my case

avoided damage…. After failing to get insurance because of my hemochromatosis I have

supplied doctor’s testimonies to no avail. I might as well have AIDS. Event though

I have proven that I prevented health problems by early detection and prophylaxis,

they condemn me to the same category as lost causes. I run 10 Km races etc.

I am not a basket case and will not be one, ever, because of iron overload (Billings et. al. 1992).

4. An 8 year old girl was diagnosed as having PKU at 14 days of age through the newborn screening program…. A low phenylalanine diet was instituted at that time.. Growth and development have been completely normal. Height, weight, and head circumferences all follow the 25th percentile . Routine developmental assessments done at 26 weeks, 53 weeks, 54 months revealed skills solidly appropriate for her age, and in many instances, skills were above age-expected levels. The child continues to be developmentally normal and be healthy. The circumstances of the discrimination that this child has experienced

involve rejection for medical insurance. She was covered by the company that provided group insurance for her father’s previous employer. However, when he changed jobs recently, he was told that his daughter was considered to be a high risk patient because of he diagnosis, and therefore ineligible for insurance coverage under their group plan. She is currently being covered at the expense of her family (Billings et. al. 1992).

5. A women with Charcot-Marie-Tooth (CMT), a nonfatal, clinically variable, and genetically heterogeneous neuromuscular condition wrote:’ I have been rejected for life insurance many times, but only once was CMT cited explicitly as the reason. I appealed, informing the insurance company that people do not die from CMT and that they had declared me automatically eligible for accidental death insurance – the one risk that can be assumed might be greater for people with CMT. The insurance company’s reply repeated the statement that CMT is the reason for rejecting my application (Billings et. al. 1992).

6. Another woman wrote: ‘my husband has CMT. We have just been turned down for automobile insurance because of his disease. I have just recently sent them a letter from my husband’s doctor. I have also explained that my husband is a far better driver than anyone I know … My husband has had NO accidents, or traffic violations since he has been driving since the age of seventeen (20 yrs) (Billings et. al. 1992).


The Ethics of Embryonic Stem Cell Research: Finding Common Ground

Russell T. Daley, Graduate Student, California State University, Long Beach
December 13, 2000

presented to: Institute for Applied and Professional Ethics
Ohio University
April 28, 2001

“This research is of such fundamental importance that all responsible citizens should be aware of its implications.
óDr. Shirley J. Wright, Ph.D., Assistant Professor of Biology, University of Dayton:

INTRODUCTION

Biomedical sciences are progressing at staggering rate. This fact is no more evident than in the burgeoning field of stem cell research where therapeutic applications such as tissue and organ transplantation are being developed. These therapies have the potential to save millions of lives and greatly reduce human suffering. The ethical dilemma lies in the fact that much of the research requires the destruction of human embryos. Unfortunately, when faced with such choices, our standard ethical frameworks seem to demand opposing and intractable positions. The goal of this paper is to find a common ground from which we as a society may reasonably and faithfully deliberate about embryonic stem (ES) cell research. In the paper I will (1) identify and evaluate the main arguments both for and against this research, (2) explore the central question of moral status, (3) consider the application of Mary Anne Warren’s “multi-criterial” approach to the moral status of the embryo, and (4) offer some initial policy recommendations.

In order to arrive at any conclusions which hold the hope of widespread support, the nature of this discussion requires a careful accounting of disparate views and a respectful handling of the sometimes emotionally charged responses. Sadly the current public debate on this topic has become more of a political process than a philosophical one. Notwithstanding the valiant efforts of some of the best minds in our country and abroad, as represented in the National Institute of Health (NIH), the President’s National Bioethics Advisory Commission (NBAC), and the Senate Appropriations Committee (SAC) Hearings, the ethical divide seems unbridgeable. While the NBAC’s reportto President Clinton is complex in its recommendations and subtle in its reasoning, I believe the NBAC stops short of providing clear direction for the future. Not only does the NBAC offer an incomplete defense of its position, but in some respects it seems to have fallen prey to the political process and not offered recommendations which are true to the hearts and minds of the participants. This deficiency reflects the difficulty suggested by Kevin Wildes, “…of creating ethically sensitive public policy in a society that is secular and morally pluralistic.” Based on this challenge, it must be accepted that no matter what decision is made some persons will not agree. We should recognize in this process that not all religious or philosophical values will be realized in a pluralistic society. Rawls says, “There is no social world without loss: that is, no social world that does not exclude some ways of life that realize in special ways certain fundamental values.

BREAKING THE STALEMATE

It should be recognized that much of the recent debate over ES cell research has focused on the use of ES cells collected from cadaveric fetal tissue and unused IVF embryos. Attempts by philosophers, lawyers, and scientists alike to justify ES cell research have centered on issues such as lack of complicity with abortion or the best use of unwanted materials. However, these attempts have not answered the critics of ES cell research and have left us in an ethical stalemate. John Robertson and the NBAC stop their arguments at the point of “non-complicity” because they believe that they have justified the immediate concerns of this research and answered the critics. They choose to address only the “less problematic”sources for ES cell research, however, in doing so they avoid the deeper debate and fail to set a direction for the future. How can we bridge the divide? First, we must seek to reduce some of the distorting power of the fears and prejudices that surround this debate. This can be done by gaining a common understanding and usage of such terms as “human being,” “person,” “right to life,” and even “embryo.” I contend that these terms can be sorted out within the context of a framework for moral status and our answers to the ethical dilemma presented by ES cell research will turn on the question of how we ought to understand the moral status of the embryo. Thus, I intend to focus my attention on the deeper problem: What is the moral status of the embryo, and how is it to be weighed against other relevant concerns?

THE STANDARD ARGUMENTS ON BOTH SIDES

The main argument for ES cell research is that it will reduce human suffering and promote human well being, or the common good, by curing or eliminating many illnesses. The debilitating effects of such diseases as diabetes, Parkinson’s, and Alzheimers (to mention only a few) may potentially be eradicated through the therapeutic applications offered by ES cell research. ES cell research is touted by many to be the most probable and quickest way to attain these therapies due to the undifferentiated nature of the stem cells as well as the ability of ES cells to overcome immunological concerns. Thus, it is research with ES cells versus adult cells which should be pursued. Any harms caused by the destruction of human embryos will be outweighed by the goods attained in the relief of human suffering. However, social utility is not always a sufficient grounding to justify actions. Except for hard-line, classical utilitarians, most agree that there are some moral constraints on the promotion of the common good. Issues such as justice, human rights, or respect for persons often mitigate social utility.

The main argument against ES cell research is that embryos should never be destroyed based on the principle of respect for life. Upon conception embryos are alive and have the unequivocal right to maintain that life. Whether one is using “left-over” IVF embryos ready to be discarded or the fetal tissue remains from elective abortions, any intentional destruction of an embryo cannot be justified. In effect, those arguing against ES cell research are saying that embryos have the moral status of persons and so should not be killed regardless of the extent of human benefit. As Richard Salzman says, “some diseases are better than the cure.” There is some truth in that statement. But even for objectors to ES cell research it does seem that closely held values are at times over-ridden in the name of other closely held values. As regards valuing life, we certainly risk life in the pursuit of ending human rights atrocities. So the question is how much truth is there in Salzman’s statement and how does this notion relate to the question of the limits on ES cell research.

An additional question which must be addressed in evaluating the argument against ES cell research is what is meant by “Respect for life.” This principle is best understood as one which values life among other values. This is, however, not the vein in which the opponents of ES cell research are using this principle. When they invoke “respect for life” in their argument, they are really meaning “sanctity of life” which is a principle holding life as the highest value, in fact, as a sacred and non-violable value. The pitfalls of this type of move will become more evident in the next section as we look closer at approaches to moral status.

Arguing against ES cell research, some suggest that it is incomprehensible to be able to offer the embryo “profound respect or dignity” and then be prepared to kill it. This question of respect for the embryo is an important one to address if we hope to find common ground in this debate. How much respect is due the embryo? If the embryo is due respect, how can we most appropriately demonstrate this? I believe a clear understanding of the embryo’s moral status will help us answer these questions and help us face the dilemma of offering the embryo respect while still being willing to destroy it.

IS THE EMBRYO PERSON, PROPERTY, OR SOMETHING ELSE?

The notion of moral status represents an approach of specifying those things towards which we believe we have moral obligations and identifying some of what we believe those obligations to be. Any theory of moral status cannot be expected to answer all relevant questions about obligations since many of our obligations are based on contributing factors which are situational or contextual. However, a theory of moral status that can be accepted and agreed upon by a diverse audience will take us a long way towards practical decision making.

Relative to the moral status of the human embryo there three positions of which two are commonly held and one is somewhat revisionist:

  1. Embryo as property

  • It has no moral status, so allow any type of stem cell research

  1. Embryo as person

  • It has full moral status, so allow no stem cell research

  1. Embryo as transient

  • It has some moral status, so allow stem cell research under certain conditions

The embryo as property view, can only be held if no moral status is attributed to the embryo. The most obvious avenue to reaching this view is one that Singer or Hare might take within a preference satisfaction utilitarian framework. Here the claim would be that since the embryo has no preferences or interests, it has no claim to moral status. However, our common-sense tells us that there is something about the embryo which instills it with value. This is not to say we must resort to speciesism (following Singer, i.e., it is not the specifically human quality of the embryo that makes it worthy of some degree of protection), but that there seems some incongruity in dealing with human beings purely as if their rights were dependent upon a scientific account of their developmental stage (e.g., passing the eight cell stage, developing the primitive streak, etc.). In fact opponents of ES cell research draw our attention to our disposition to protect the vulnerable who may not yet have developed. The embryo seems both developing and vulnerable. Singer says it is not vulnerable because no harm can be done to it. But the harms many are concerned with are the harms to justice and human rights which a strict utilitarianism seems unable to account for. One of the greatest advantages of the account of moral status I plan to offer is its ability to take a fundamental preference satisfying ethical framework and still compensate for fundamental human rights.

This type of approach, using a single criterion as the basis for establishing moral status, is called “uni-criterial” by Mary Anne Warren in her book Moral Status: Obligations to Persons and Other Living Things. The embryo as person view can also be classified in this manner as it likewise relies on a strict adherence to a uni-criterial notion of moral status. The approach taken in the embryo as person view is that since the embryo is alive, and life is the singular necessary and sufficient condition for the attribution of moral status, then the embryo has full moral status. Warren skillfully maps out the standard “uni-criterial” approaches to moral status and the pitfalls of each. Warren discusses three uni-criterial approaches, each of which focuses on a certain intrinsic property: (1) life, (2) sentience, and (3) personhood. Many philosophers have argued for one or another of these properties to be necessary and sufficient for the attribution of full moral status. Warren argues that each represents a notion which is sufficient for some moral status, but will fail as a sole criterion for full moral status. She argues persuasively that taken individually each, “?leads to consequences that are intuitively implausible and pragmatically unacceptable.” I will briefly examine some of these consequences and illustrate the problem of a uni-criterial approach as I examine a recent statement against ES cell research by a prominent advocacy group.

AN ARGUMENT AGAINST ES CELL RESEARCH

The Concerned Women for America (CWA) make a standard argument against embryonic stem cell research:

“Human embryos are humans – and therefore, persons – and when an embryo is destroyed, a human life is extinguished? The underlying utilitarian belief that some humans need to be sacrificed for the betterment of others is morally and ethically wrong. The rationale used to justify the destruction of embryos for the advancements in medical research and development is the same used to justify the syphilis experiments conducted on African-Americans in Tuskeegee, Alabama? (and in the) medical research Nazi doctors performed in Dachau and Auschwitz.? We do not have the license to engage in lethal experimentation, just as we may not experiment on death row prisoners or harvest their organs without their consent.”

As Peter Singer points out,

“The syllogism goes like this:

Every human being has a right to life.

A human embryo is a human being.

Therefore, the human embryo has a right to life.”

The inadequacy of the standard argument is brought to light in a comparison of the nature of the term “human being” and its use in each of the two premises of the standard argument against ES cell research. To make the argument hold, the sense of “human being” as used in the first premise is not the same as the sense of “human being” as used in the second premise. Singer calls this an equivocation of the argument’s primary term. The use of the term “human being” in the second premise is biological in nature (it has human DNA, it is of Homo Sapiens), the use of the term “human being” in the first premise (to claim a “right to life”) is strictly relative to the moral qualities and is, thus, normative in nature. Therefore, the standard argument fails due to the equivocation of the term “human being.” In getting clear about our use of the terms “human being” and “person” we can create clarity amid unwitting attempts at obfuscation.

Many philosophers, as far back as Locke, would claim that a human being has rights, but that being human is not a necessary and sufficient condition for having personhood. Being human is a biological condition, being a human being or, more to use more exacting language, having personhood is a normative condition. The questions then becomes: What are the necessary and sufficient conditions for moral status and how do they apply to the human embryo? I will address these questions in the subsequent sections of this paper.

BIOLOGY NOT UNIMPORTANT

Within this debate on ES cell research, a great deal of time and energy is spent among scientists and philosophers debating the biological issues of the embryo such as numerical continutiy and many arguments are made both for and against designating the embryo as a person in the name of science. While I suggest that the issues which will aid our progression to consensus on this topic do not lie in biology, science can aid our normative attribution of moral status for the embryo. Some ES cell research proponents, including myself, use scientific information to suggest that it is appropriate to wait until at least fourteen days after conception to claim numerical continuity, since it is only then that totipotency has been lost. Additionally, it is only sometime after fourteen days from conception that the development of the primitive streak (which marks the development of neural receptors) signals the development of any potential for sentience. It is at this point of establishing identity and sentience (qualities we believe to be important on a developmental view of the embryo) that I suggest we should become more concerned with the embryo’s interests and rights. This is a position which I believe is tenable, but we should acknowledge that it is a normative decision we are making and not a scientific decision. Furthermore, if we are to hold such a position, we must be clear as to how sentience and its attainment effect our attributions of moral status. I will address these issues in the next section.

“MULTI-CRITERIAL” APPROACH

If the embryo is not property and the embryo is not a person, then it must be something else. What this “something else” is can be reflected in the position of the embryo as transient (Position #3 above). The validity of this position will be born out in a review and application of Warren’s multi-criterial approach to moral status. To understand this approach, we must understand how she establishes each level of her criteria for moral status and why any one of the three standard intrinsic properties fail as the singular criterion for establishing moral status. It is important to note that Warren acknowledges that this approach is a common-sense morality. While not all of these principles are used consciously by everyone, she contends that “thoughtful people”will make reasoned arguments that are supported by these principles. She admits that, “None of these principles is deducible from empirical facts, or from analytic truths about moral terms or concepts; yet each is defensible in common-sense ways.”

To begin with, Warren recognizes that we do value life and she acknowledges the merits of the “Sanctity of Life” principle. The notion of “reverence for life” or “Sanctity of Life” (as the principle is more often called) as the sole conferring principle of moral status was purported by Albert Schweitzer. While he was recognized as a great humanitarian, the legacy he left behind in the dogmatic appeal to “reverence for life” represents much of the intractability found within the stem cell debate. The key to the “reverence for life” notion is that all living organisms have moral status and have it in exactly the same amount. This is because life is the ultimate, absolute value which all organisms share equally. However, application of this strict and absolute principle quickly wanes to absurdity when we realize that many of our normal daily functions cannot occur without some destruction of life; e.g., cleaning the kitchen floor results in the wrongful killing of micro-organisms, our daily diets (even if vegetarian) result in the morally unacceptable death of plants.

While some (including the Concerned Women for America) have tried to re-shape the Sanctity of Life principle by saying it is only relevant to human life, those seeking to hold this general principle of life as ultimate and absolute have some vicious obstacles to overcome. In order to be true to the sanctity of life principle, one may be forced to accept that any attempt to make such qualifications as only human life matters could result in the untenable outcome of allowing other qualifications. Thus, one objection to such a qualifier is that to allow only human life to be absolute causes us to allow the principle to be denigrated such that some life is not worth living. Though this is just the point of the CWA and others, the problem is that this could be the case whether the living creature is an animal, a child, an elderly person, or a disabled person. Such denigration of the value of life is unacceptable even to the proponents of the Sanctity of Life principle. As Schweitzer claims, there can be no qualifiers to the type of life we are talking about. Another problem with this is the charge, made by Singer, of speciesism (referenced above). Fundamentally, the objection is that it seems problematic as humans to claim our humanness as the qualifier to attain full moral status. It is common for people hold that animals have some rights and those rights are defined by the nature of our obligations which are based on some level of moral status. Thus, the sanctity of human life as a uni-criterial principle is not a sufficient ground for establishing either partial or full moral status.

In Schweitzer’s view any actions that harm living things are wrong. Warren recognizes the value in this notion and converts the Sanctity of Life principle to her first of seven principles which she calls “Respect for Life.” “Life” is a sufficient condition for some moral status, but is not a sufficient condition for full moral status. Thus, all living entities are given some moral status, but not full moral status. This principle treats all harms done to living things as undesirable, other things being equal, and imputes no wrongdoing to those who harm living things when there are morally sound reasons for doing so. However, Warren recognizes, as do some Sanctity of Life proponents, that no right is absolute and that the right to life can be overridden with sufficient justification. This notion re-iterates problem with the uni-criterial Sanctity of Life position in that such justifications (i.e., when to override a right to life) cannot be determined solely on the attribution of life, since all life is valued equally. Such determinations, Warren claims, can only be achieved within the context of the full compliment of the “multi-criterial” principles.

Next, Warren analyzes the principle of sentience as a uni-criterial approach to moral status. To do this, Warren launches an attack on one of her own mentors, Peter Singer, himself a preference utilitarian. Singer’s ethics rely upon the sole criterion of sentience for gaining full moral status. However, Warren effectively demonstrates how this notion of sentience is unacceptable as the singular criterion in the establishment of moral status. Of the four objections to this approach that Warren explicates, the most compelling to me is what she calls the “Human Rights Objection.” Fundamentally, this objection is that the sentience view on moral status provides no basis for ascribing strong moral rights to individual human beings, or even animals. “The charge,” says Warren, “is that utilitarianism regards individual beings as mere ‘receptacles’ for utility; if a greater quantity of utility can be produced by sacrificing some individuals for the benefit of others, then there is no utilitarian objection to doing this.” However, rights are considered by many to override utilitarian considerations. Warren quotes Ronald Dworkin, “If someone has the right to something, then it is wrong?to deny him even though it would be in the general interest to do so.” Singer doubts that this is a problem for his preference satisfying notion of utilitarianism. He contends that, “?the only right his theory attributes to (humans and) animals is the right to equal consideration of comparable interests.”

Warren converts Singer’s principle of sentience into the second of her interrelated concepts and calls it the “Anti-Cruelty Principle.” Sentience becomes sufficient for some moral status, but not sufficient for full moral status. She states that, “Sentient beings are not to be killed or subjected to pain or suffering, unless there is no other feasible way of furthering goals that are consistent (with all the other principles) and important to human beings or other entities that have a stronger moral status than can be based on sentience alone.” This principle supports our instinctive capacity for empathy. If we view our own pain as objectively bad, then logical consistency requires that we apply this principle to others.

“Personhood” is the third uni-criterial, intrinsic principle debunked by Warren. She makes the distinction between, “(1) the ‘maximalist’ definitions of personhood which makes moral agency(or at least potential for it) a necessary condition for being a person; and (2) the ‘minimalist’ definitions which do not require moral agency, but only some capacity for thought and self-awareness.” Kant’s view of personhood is that of the “maximalist.” The obvious objection to this is that we have already established that the mere existence of sentience makes one worthy of some moral status. Even John Rawls, who attempts to defend Kant’s “maximalist” definition, rejects personhood as a necessary condition for having moral rights and holds only that it is sufficient. Kant’s notion of personhood restricts the moral community to eliminate sentient beings without moral agency; an action many animal rights and disability rights activists are sure question. Warren, however, rescues the principle of “personhood” with her third and fourth principles: the “Agent’s Rights Principle” and the “Human Rights Principle.” The former holds that moral agents have full and equal basic moral rights, including the rights to life and liberty. The latter holds that within the limits of their own capacities, human beings who are capable of sentience but not of moral agency have the same moral rights as do moral agents.

I believe these last moves by Warren offer a methodology with which a utilitarian framework can be created. Since I take utilitarianism to be a most understandable, practical, and defensible position, I encountered Warren’s work with great pleasure. The greatest objection I have always had towards utilitarianism has been its inability to account for human rights. But how, you may ask, can a utilitarian model account for moral rights such as liberty, justice, and equality when practical necessity dictates otherwise or the expected gain in the greatest happiness is sacrificed? Warren’s answer is that this is done based on a utilitarian argument that the “Agent’s Rights” principle has long-term social value and good. Thus, there are utilitarian reasons for adopting a non-classical utilitarian principle.

It must be remembered that moral rights are not absolute in that they may be overridden at times. Take self-defense or war as examples. We may adamantly support a “reverence for life,” but allow an action which causes the death of another. Most holders of the Sanctity of Life principle will hold that killing an intruder to save one’s husband, daughter, or one’s self is somehow morally permissible. Whatever the justification is, it is still a justification to override the principle. Likewise, I have rarely heard the “right to life” contingent standing up against military involvement to end such atrocities as ethnic cleansing. Interestingly, proponents of “reverence for life” (or “Sanctity of Life”) as a uni-criterial principle, are resistant to the generalizing of these applications to a formal theory. Thankfully, Warren is not so resistant. She says the key is that, “the precise content of any moral right can only be delineated through discussion and deliberation, in which all legitimate interests receive equitable consideration.”

Building upon her theory, Warren borrows from such figures as the environmental ethicist, J. Baird Callicott and feminist ethicist, Nel Noddings, to introduce two relational rather than intrinsic properties: (1) membership within the social or biotic community, and (2) emotional connectedness. Warren then captures these two relational properties which she believes are important to moral status in her three remaining principles.

“5. The Ecological Principle: Living things that are not moral agents, but that are important to the ecosystems of which they are a part have?a stronger moral status than could be based upon their intrinsic properties alone”(e.g., species and habitats).

“6. The Interspecific Principle: ?non-human members of mixed social communities have a stronger moral status than could be based upon their intrinsic properties alone.”

“7. The Transitivity of Respect Principle: ?to the extent that it is feasible and morally permissible, moral agents should respect one another’s attributions of moral status.

She notes that none of these relational principles can diminish the moral status gained through the employment of any of the preceding, intrinsic principles, but that they can enhance moral status. She holds that neither of these two relational properties represent a necessary and sufficient basis for moral status, but that the theories which value these properties contain insights that need to be incorporated into an adequate account of moral status. This adequate account, therefore, will be “multi-criterial.”

“MULTI-CRITERIAL” APPLICATION

In the application of this “multi-criterial” approach to moral status, Warren cautions us that the first four principles represent only moral floors, not ceilings on moral status. Furthermore, a complete and accurate understanding of moral status cannot be gained until a complete review of all the interrelated principles are balanced against one another and the practical implications of each are considered. In applying this model to our topic of ES cell research and the proposed destruction of early embryos (this is the name I will use for embryos prior to the fourteenth day after conception), a full accounting of each of Warren’s principles is enlightening and empowering.

Clearly early embryos are endowed with life and, therefore, deserve respect and some level of moral status. Nevertheless, these early embryos do not have either the capacity for sentience or moral agency. So they cannot be considered to have full moral status. The failure by many in this debate, including Singer, is the failure to ascribe some moral status or moral value to the early embryo. Even if the early embryo does not have full moral status, it certainly should have some moral status based on its attribute of being alive. This status, however, is not for “itself” in the Kantian sense, nor merely for instrumental value, but for the intrinsic value of the abstract notion of “life.” John Robertson calls this value the “symbolic” value of life. This missing distinction, Robertson says, between the “intrinsic and the symbolic valuation of the embryo is at the heart of the debate over abortion and embryo research.” While Steinbock calls this missing distinction one between “moral status” and “moral value”, Warren has done justice to both perspectives and perhaps has employed a more broadly appealing language.

The “Respect for Life” principle calls us to value and sustain all life, other things being equal. However, in the case of ES cell research and its potential therapeutic applications, other things are not equal. The symbolic cost associated to allowing the destruction of human embryos in ES cell research is primarily the undesirable capacity to diffuse or obscure the value we hold in this intrinsic property of life. The intrinsic costs associated to not allowing the destruction of early embryos in ES cell research at minimum are that millions of persons with full moral status will die and even more will suffer significant physical and psychological pain. This expansive claim can be made because o other means currently exists, or will exist, in the foreseeable future which can alleviate the suffering and death that ES cell therapies have the proven capacity to do. Thus, the benefits of ES cell research far outweigh the symbolic costs incurred from the destruction of life that is without full moral status. The key here is that this “symbolic value” and the interests of those with this “lower moral status” should not take precedence over the interests of those with full moral status, i.e., those gaining higher levels of moral status based on the principles of Anti-Cruelty and Agent’s Rights or Human Rights.

Within the Interspecific Principle, embryos may gain a higher level of moral status based on their social relationship to human beings, but only if such relationships exist. If research embryos are created through IVF or somatic cell nuclear transfer (SCNT) techniques using donated gametes or cells, then such relationships would not exist. Thus, the basis for creation of research embryos for use in ES cell research is established. For embryos with such social relationships, their enhanced status cannot override the interests of parents who can claim full moral status. Yet the questions of how to show the proper respect to specific embryos should be addressed. If parents or donors take offense at such destruction based on the symbolic value of life, it would be morally objectionable to force such destruction. By observing the Transitivity of Respect principle in this manner we do not lose the opportunity for ES cell research. One reason is that since other embryos will be available for use in ES cell research, the potential benefits of ES cell therapies are not necessarily foregone. Therefore, ES cell research may continue even though the symbolic value of life in some embryos will be protected by allowing for the respectful disposal of such embryos. Thus, the Interspecific Principle may, but does not always, enhance the embryo’s moral status to a point where it is morally objectionable to destroy the embryo.

Within the Transitivity of Respect Principle, policy makers and philosophers alike should take into consideration the religious and traditionally held viewpoints of others towards these early embryos, but only where it is feasible or morally permissible to do so. In this case, I argue that it is morally impermissible to forgo the potential benefits to hundreds of millions of sentient, moral agents to whom we are obligated to seek the relief of pain and suffering. The relative costs and benefits of such decisions were briefly outlined above. However, one may ask, based on the Transitivity of Respect Principle, why it is not feasible to not take certain actions supporting ES cell research. I believe there are numerous valid responses.

First, we must recognizing that since ES cell research is not illegal in this country, it will continue in the private sector without significant legal or moral consequence. Thus, from a practical perspective, reaching common ground on embryonic moral status is a central component to answering the question of whether to allow federal funding for ES cell research. The lack of such federal funds will (1) slow research advances by keeping universities and key research teams out of the process, (2) eliminate government (NIH) oversight which would provide regulation and monitoring ensuring that embryos, donors, and patients are given the respect they deserve, and (3) will slow the development of many clinical applications since private companies will only pursue those activities or products which will quickly produce products and profits. If we were to either allow the private sector to conduct this research without the support of federal funding or to wait for the unlikely development of some other less objectionable means to cure such diseases such as Parkinson’s, diabetes, and Alzheimer’s, millions more people will experience much more death and suffering than if we were to allow federal funding. Thus, accepting the application of the other multi-criterial principles as articulated above, this faster road to cure is necessarily more ethical based on our ability (1) to alleviate the death and suffering of more persons and (2) to more adequately protect the interests of those with full moral status.

SOME LIKELY OBJECTIONS

Instrumental Use: Opponents of ES cell research (and particularly opponents of the creation of embryos for this research) who take a deontological position, will likely suggest that it is wrong to use embryos as a mere means to our ends rather than as ends in themselves. The argument claims that since in destroying the embryo we are using this “life” or this “human being” as a means towards some other’s end, then it is wrong to destroy the embryo. The response by advocates of ES cell research is that the embryo is not a sentient, rational, autonomous, or moral agent so it does not have full moral status, and, thus, cannot be considered as being “used.” In other words, it is impossible to “instrumentalize” (i.e., being inappropriately used as a means to another’s end) something which does not have full moral status. For example, using the multi-criterial approach, bricks may be used to build a house or a horse used to plow a field, but neither the bricks or the horse are instrumentalized. Likewise, using the full application of the multi-criterial principles, early embryos may be used to advance ES cell research, but the early embryos are not instrumentalized.

Potentiality: The Kantian objector, though, may seek some common ground and respond that it is the “potential” or “viability” of the embryo which must be respected. While I do not have sufficient space to address this concern completely, I will briefly mention a few responses. If we accept this potentiality distinction, we will have returned to the ill-fated debate of the evolving biological standards of potential which can be taken to extremes. For instance, is the oocyte a potential person warranting full moral status? If so, then we must do everything we can to ensure its fertilization, development, and birth. In fact, any missed opportunity to have sexual relations is a wrongful act since, in the eyes of the Kantian objector, we are not honoring our highest value of life. So at what point is a potential person established? Maintaining my earlier position, I suggest that this is a normative decision aided by science and such decision could be some point around 14 days from conception. More to the point, if the IVF embryo is a potential person, then it is morally impermissible to discard unwanted or unneeded IVF embryos. Enactment of such a requirement to bring to fruition all IVF embryos is not only impractical and implausible, but, I suspect, would not be supported by even the staunchest Kantian objectors.

Inherent disrespect to life / Slippery Slope: This objection is simply that once we start down the path of the creation of life only to destroy it for other’s purposes or benefits, then we will never be able to set an end to the dangers imposed on our “right to life.” It is suggested here that since the proponents of ES cell research justify early embryo destruction and disregard the embryo’s inherent moral status, the inevitable result will be diminished respect for persons generally. What follows, for this objector, is that such justification of early embryo destruction will result in a rationale which could justify harmful experiments on other human subjects. While some slippery slope arguments I suspect are valid due to the logical nature of the move from one situation to another, the current argument is clearly more psychological in nature. It is an argument essentially that in taking current actions our emotions and moral sensibilities will become desensitized to the wrongfulness of certain future and unforeseen actions which are clearly wrong. The practical answer to such psychological slippery slope arguments is cooperative deliberation geared towards establishing legislative boundaries against those future, feared actions. However, the most forceful response to the slippery slope objector is that no such justification for the harming or destroying of human subjects can occur within the application of the full compliment of the multi-criterial principles. The Agent’s Rights and Human Rights principles will protect the human subjects with which the objector is concerned. Such human subjects have full moral status which cannot be diminished. Therefore, any harm to a human subject which may be justified will require an entirely different rationale than was used for the destruction of the early embryo. Such justification will have to meet a much higher standard and does not follow logically or psychologically from the decision to conduct ES cell research. Thus, the slippery slope objector’s concern seems to be unwarranted in this instance. Nevertheless, the objector may still contend that I have not answered the question of specifically how to balance all of the interests and rights of those concerned. However, as I suggested above, no theory of moral status will give such answers outside of the context of the specific situation. The nature of the common ground I am seeking is one upon which we can collectively engage in such deliberations and the multi-criterial approach offers just such a ground. Thus, shortly I will offer some initial recommendations meant to be used as a start to our dialogue on how to balance interests and show respect.

Means Matter: While the common ground provided by a multi-criterial account of moral status may have helped us get to the point of gaining a reasonable consensus as to the use of some embryos in ES cell research, some objectors may still be uncomfortable with the creation of embryos either by IVF or somactic cell (SCNT) techniques. The objection is that the means of obtaining the embryos matters. Notwithstanding the fact that the promotion of creating embryos for research purposes (i.e., “therapeutic cloning”) is not a new idea nor has it even usually met with condemnation from review boards, the reasons for allowing such techniques should be articulated. One reason for allowing therapeutic human cloning is the issue of histocompatibility. The problem is that stem cells from donors may lack immunological compatibility with the recipients. Thus, a practical way around such difficulties is to clone the recipient’s own DNA, culture the resulting stem cells, and obtain completely compatible tissue for transplantation. Turning to therapeutic chimera cloning (see Appendix for definition), there is an underlying objection and intuitive objection to hybrid embryo creation based on the concern for mixing genes across species and the uncertainty of risks involved. One reason to allow such means as therapeutic chimera cloning is the reduction of potentially coercive forces on women to donate gametes. Since obtaining oocytes from women is a difficult and somewhat painful procedure, the availability of these gametes will relieve any potential feelings of pressure by women to donate their eggs. On a more practical note, Advanced Cell Technologies work has shown that the use of cow ova results in only a minimal and inconsequential DNA mixing. Using the nuclear DNA from a human and the mitochondrial DNA from the cow results in less than one millionth of the DNA of the resultant hybrid embryo being bovine. Such presence is of no consquence in the acquisition of the stem cells which will, in fact, have no bovine DNA. Furthermore, the use of animal proteins to create drugs such as insulin and the use of animal genes or cells to create transplantable organs or tissue (e.g., man in Albany, New York injected with fetal pig cells to repair spinal cord as reported in Associated Press on April 24, 2001) are widely accepted practices. It is hard to see a significant difference from these practices when compared to the creation of hybrid embryos for the derivation of human stem cells.

INDICATIONS OF COMMON GROUND

While there are those on the anti-abortion front who oppose any embryo destruction for any purposes, there are many other anti-abortion activists who hold that it is ethical to destroy the embryo or fetus under certain circumstances. Examples include when the life of the mother is at stake or the conception of the fetus is a result of rape or incest. Clearly, here, there are other ideals which are highly valued which trump the “right to life” of the fetus. In these examples, moral deliberations are over “rights to life” for mothers as well as the dignity and respect of women. Holding dear either of these values does not logically entail the diminishment of the embryo’s or fetus’ moral status, but it does reflect a willingness to balance whatever status it does have against other competing values. This would represent a recognition that the embryo’s “right to life”, if it exists, is not absolute. If the majority of those engaged in this moral deliberation can agree on this point, then the foundations of the common ground I am seeking have already been laid.

DEMONSTRATING RESPECT

If we can agree that the embryo does not hold exactly the same moral status as an adult human, but that the embryo has some status and deserves respect, then the question is what actions and restrictions will most effectively demonstrate sufficient respect for human embryos. No ethical system will give us the answer to this question. The obligations of moral duty cannot pinpoint the specifics that are needed here nor can a strict utilitarian calculus do the work. The answers will only come from collaborative deliberation seeking to balance reasonable and supportable views. The reference points for these answers will be diverse and include personal preferences, religious perspectives, emotional paradigms (e.g., the level of passion one holds for the symbolic value of embryos), and medical beliefs (e.g., how beneficial and/or necessary this stem cell research will be). Some will want more respect for embryos, others will want less. Our goal is to find a common enough ground which the majority of us can accept.

HOW TO SHOW RESPECT

My recommendations for ways to demonstrate appropriate respect for the embryo based on its moral status are as follows:

  1. Place a limit on the time frame in which destruction of embryos for research purposes is allowed. I suggest 14 days after conception which is before the primitive streak begins developing and, thus, well before any possibility of sentience begins. This is also the point which is believed to be the last opportunity for twinning and, thus, before distinct individuation.

  2. Place limits on the type of research allowed to include only such work that can show substantial benefit to the health of others and that can claim that human embryos are essential to the research.

  3. Ensure informed consent for donors whether of gametes, frozen embryos, or fetal tissue. This regulation reflects the concern for individual autonomy and concern for the emotional well-being of those persons involved.

  4. Ensure the decisions to abort fetuses or discard IVF embryos is separate and distinct from decision to donate to ES cell research. This policy reflects a shared goal to ensure that abortion or destruction will not be increased solely as a result of the opportunity to do some good with the donation of fetal tissue or IVF embryos. It aims at not legitimizing the acts solely through such subsequent actions. Any decision to abort a viable fetus should be neither induced or coerced by the possibility of benefit in donation.

  5. Require the review by a national oversight body of research protocols whether the research is publicly or privately funded. This body should also be given the flexibility to adapt to future findings so as to avoid the bureaucratic delays that come in constantly refining legislation through the Congress.

  6. Disallow the commercialization of spare IVF embryos, fetal tissue, or created embryos. This action will not only protect the status of our respect for life in general, but it will, importantly, guard against the exploitation of poor women who see donation of ova, embryos, or fetal tissue as a means to financial reward.

  7. Prohibition of donation of fetal tissue to a specified recipient while allowing the donation of IVF embryos to a specified recipient. Such a measure further demonstrates the enhanced moral status of the developing fetus to that of the pre-14 day old embryo.

  8. Clearly, both the Respect for Life and Transitivity of Respect Principles can further be heeded by assuring objectors that cloning of either human or hybrid embryos will not be used for “reproductive cloning” (bringing the embryo to personhood), but only for “therapeutic cloning.”

CONCLUSION

A clear and common understanding of the language we use and of our attributions of moral status will be of the highest importance to the success of our search for a common ground in this ES cell research debate. While I believe the moral imperative of compassion drives ES cell research, there are multiple values and goals which I recommend we appeal to in our deliberations. Mary Anne Warren’s multi-criterial approach enables us, through common-sense justifications, to embrace and honor these various and important values. If it is true that ES cell therapies have the potential to alleviate ill-health and to protect the lives of more than half of the world’s populationwhile not wrongfully impinging upon the interests or rights of others, then it is our duty to pursue this research in a vigorous, yet disciplined, manner. To unnecessarily prevent or delay such a valuable line of research is to act unethically.

ENDNOTES

Wright, Shirley J., “Human Embryonic Stem-Cell Research: Science and Ethics”, American Scientist, Vol. 87, July-August, 1999, pg. 352

For those unfamiliar with the terms and nature of this field, a “Stem Cell Primer” is placed in the Appendix I

As an example, note General Counsel to the NIH, Harriet Raab’s, decision to circumvent the current legislative ban on embryo research (See Timeline in Appendix II). Even the NBAC suggests that the derivation and use of embryonic stem cells are not “distinct ethical activities.”

NBAC, “Ethical Issues in Stem Cell Research, Executive Summary”, September, 1999, www.bioethics.gov

Wildes, Kevin WM, S.J., “The Stem Cell Report”, America, Vol. 181, Issue 11, October 16, 1999, pg. 12

Rawls, John, Political Liberalism (New York: Columbia University Press, 1993), pg. 197

Generally, these arguments attempt to establish the ethical permissibility of such measures based on the lack of complicity in the destruction of the fetus or embryo. See: Robertson, John, “Ethics and Policy in Embryonic Stem Cell Research”, Journal of the Kennedy Institute of Ethics, June, 1999, pg. 112-116. While John Robertson makes sound arguments for the weakness of this complicity in the destruction of embryos when using fetal tissue or spare IVF embryos, the fundamental question remains as to the moral status of the embryo.

NBAC, “Ethical Issues in Stem Cell Research, Executive Summary”, May, 1999, Draft Report, Chapter 5, Pg. 6

I will not address in the issue of adult stem cells and cord blood stem cells as alternatives to ES cells. The reason is that these sources have not been shown to offer commensurate potentiality with ES cells. Nevertheless, there are still scientists working with adult stem cells who are reporting a greater ability for the cells to differentiate than was once thought possible. (See: Lewis, Ricki, “Human Mesenchymal Stem Cells Differentiate in the Lab”, The Scientist Vol. 13, No. 8, April 12, 1999.) Adult stem cells have demonstrated the ability to become several cell types. Though some scientists have predicted that “the need for fetal cells as a source of stem cells for medical research may soon be eclipsed by the more readily available and less controversial adult stem cells,” (See: Josephson, Deborah, “Adult Stem Cells may be Redefinable”, British Medical Journal 1999, 318:282) opponents of ES cell research cling to and overextend such claims by suggesting that there is no practical need to continue research with the ethically more questionable sources. Unfortunately, there is no scientific agreement on the potential of adult stem cells and most evidence suggests that diverse clinical applications using adult stem cells will not only take much longer to develop, but are also much less likely to ever occur at all. Even the NBAC, after extensive testimony from scientists, has concluded that adult stem cells represent an approach that will be “scientifically and technically limited, and in some cases, the anatomic source of the cells might preclude easy or safe access.” (See: NBAC, “Ethical Issues in Human Stem Cell Research”, May, 1999, Draft Report, Chapter 5, pg. 5.) The bottom line is that it is too early to make any definitive claims on this issue.

Congressional Testimony, Committee on Appropriations, Stem Cell Research, April 26, 2000, FDCH Congressional Testimony, Richard Salzman, Item No. 131243019310 from eMediaWorks, Inc.

Here, I am leaving aside the argument from potential, i.e., that the embryo has the potential for preferences and interests and so should be considered to have them in fact. There is not sufficient room in this paper to fully address this objection, though I will return to it briefly near the conclusion.

Warren, Mary Anne, “Moral Status: Obligations to Persons and Other Living Things” (Clarendon Press – Oxford, 1997)

Ibid. pg. 17

Vick, Hannah, “Embryonic Stem Cell Research: Ethically Wrong Treatment of the Tiniest of Humans”, Concerned Women for America, May, 2000, www.cwfa.org/library/life/2000-05_pp_stem-cell.shtml, pg. 3

Singer, Peter and Kuhse, Helga, “Individuals, humans and persons: The Issue of Moral Status”, Embryo Experimentation, Legal Ethical and Social Issues (Cambridge University Press, 1993) pg. 69

Ibid. pg. 70

Ibid. pg. 71

Ibid, pg. 149

Ibid. pg. 149

Ibid. pg. 149

Preference utilitarianism is a modification on classical utilitarianism which attempts to answer the objection that utilitarianism that attainment of pleasure and freedom from pain are the only things that people value. Preference utilitarians define utility as the satisfaction of individual preferences. Further, Singer claims that all valid moral claims can be derived from a single principle; the principle of equal consideration of comparable interests of all sentient beings. See Warren pg. 65

Warren, pg. 77

Ibid, pg. 77

Ibid. pg. 77

Ibid. pg. 78

Ibid. pg. 152

Moral agents are defined by Rawls as, “Rational beings with their own ends, capable of a sense of justice.” See A Theory of Justice. (Cambridge, Mass.: Harvard University Press, 1971)

Warren, pg. 90

Ibid. pg. 105

Ibid. pg. 160

Ibid. pg. 166

Ibid. pg. 168

Ibid. pg. 170

Robertson, John, “Ethics and Policy in Embryonic Stem Cell Research”, Journal of the Kennedy Institute of Ethics, June, 1999, pg. 117

See Endnote #7

The US Ethics Advisory Board (1973), The British Human Fertilization Authority (1993), the Canadian Royal Commision on New Reproductive Technology (1993), the World Health Organization (1995), and the Austrailian Academy of Science (1997), the Clinton Administration (1998), and the British Parliament (2001) have all approved “therapeutic cloning” of embryos for research. (Some references from Erik Paren’s commisioned paper for the NBAC, “What has the President asked of the NBAC? On the Ethics and Politics of Embryonic Stem Cell Research.” 05/03/99, pg. 12)

Congressional Testimony, Committee on Appropriations, Stem Cell Research, December 2, 1998, S. Hrg. 105-939, pg. 22

These recommendations are the result of my reflections on recommendations made by various review boards and committees, including the NBAC, coupled with the multi-criterial account of the embryo’s moral status.

McGee, Glenn and Caplan, Arthur, “The Ethics of Politics and Small Sacrifices in Stem Cell Research”, Kennedy Institute of Ethics Journal, June, 1999, pg. 153

Appendix I

STEM CELL PRIMER

There are many types of stem cells and exponentially more uses. Essentially, stem cells are a unique and essential cell type found in the body. Generally, all have the ability to divide, renew, and commit to more specialized functions. Stem cells found in the early stages of embryonic development (up to the 8 cell stage) are considered “totipotent.” This means the cells have the ability to form all cells in the body and, in theory, to develop into a complete human being. Stem cells found at later stages of embryonic development are considered “pluripotent.” This means the cells are more “committed” or “differentiated” and can become any one of the 210 tissue types in the body, but cannot become a complete individual. These embryonic stem cells also have the ability to renew indefinitely and are considered by many “immortal.” Stem cells are also found in adults. These cells are highly differentiated, but maintain some ability to renew. Examples are stem cells which allow new skin growth and the renewal of blood cells.

Before discussing the specific types and sources of stem cells, I believe it is important to attempt to grasp the broad spectrum of implications which stem cell research can have in clinical applications. In general it is believed that potential applications for stem cells will include:

  • Better understanding of the human development process (embryology) and cellular decision making (genetic therapy) towards the treating and curing of both deadly diseases and developmental disabilities

  • Enhanced pharmaceutical development towards better testing of drugs for safety and efficacy

  • “Cell therapies”: Including the generation of both cells and tissue for transplantation into humans to repair or replace damaged or diseased cells or organs

Dr. Harold Varmus suggests that, “There is almost no area of medicine that might not be touched by this innovation.” In fact, he estimates than more than half the population of the world will benefit in a significant way from the future applications of this research. Below is just a partial listing of the conditions for which scientists believe there is evidence to suggest that therapeutic stem cell treatments will have a major impact:

-Cancer -AIDS-Parkinson’s-Alzheimer’s-Spinal Cord Injury-Stroke-Burns-Heart Disease-Arthritis-Down’s Syndrome-Sickle Cell-Diabetes-Huntington’s-Retinal Disease-Mental Retardation-Neurological Diseases like: Multiple Sclerosis

Human stem cells have several actual or potential sources:

  1. Cord Blood – Stem cells are extracted from the blood that remains in the umbilical cord following birth.

  2. Post-Natal Placentas – Stem cells are extracted from the placenta waste following birth

  3. Cadaveric Fetal Tissue – Embryonic Germ (EG) Cells are derived from the human fetal tissue which remains after spontaneous or elective abortion. (Usually 6-16 weeks gestation.)

  4. IVF Embryos – Embryonic Stem (ES) Cells are derived from the inner cell mass of the embryo at the blastocyst stage. Here the embryo is usually around 4- 7 days old and comprises between 16 and 140 cells. These are embryos which are created in the in vitro fertilization (IVF) process which are no longer needed by persons being treated for infertility. Generally, these “left-over” cells are either donated to other persons or discarded.

  5. Research IVF Embryos – Here, embryos are created through IVF for the sole purpose of obtaining the ESCs for research. Gametes are donated from males and females with the understanding that the embryos will be used for research purposes solely.

  6. Cloned Human Embryos – In this instance, somatic cell nuclear transfer (SCNT) is used to create an embryo for research purposes. Denucleated egg is fused with somatic cell (not egg or sperm – and ideally would come from proposed ESC recipient to avoid histocompatibility concerns) to produce embryo from which ESC’s are derived at blastocyst stage.

  7. Cloned Chimera Embryos – SCNT is also used here, but the somatic cell of a human is introduced into an enucleated animal ovum (e.g. a cow) creating a hybrid embryo which takes on the human DNA.

  8. Adult Cells – Stem cells are obtained from such areas as bone marrow, skin, blood, or even fat of live adult donors

APPENDIX II

Fetal Tissue and Embryo Research Funding / Ethics Timeline

DATEBODY / PERSONACTION1974U.S. Federal GovernmentBans the use of federal funds for human fetal research and seeks ethical review 1978National Commission for the Protection of Human Subjects – Dept. of Health, Education, and Welfare (HEW)Condones non-therapeutic research on cadaveric fetal tissue if less than 20 weeks old1979Ethics Advisory Board (EAB) – established by HEWIn reviewing embryo research it does not confer full moral status to embryo1981Indiana University ScientistsDerivation of mouse stem cells / Precursor to human stem cell research and application1984Warnock Committee – U.K.Establishes similar limited moral status for embryo as the EAB1985U.S. CongressBans federally funded fetal tissue research / Sets up Ethical Advisory Commission (EAC), however, no funds allocated so EAC never actualizes1988NIH – Advisory CommissionRecommends lifting the moratorium on fetal tissue from elective abortion1989Bush AdministrationAnnounces extension to the ban on federal financing of fetal tissue transplantation and research1994NIH – Human Embryo Research Panel (HERP)Recommends federal funding of stem cell research using left-over IVF embryos, Cadaveric fetal tissue, and the creation of IVF embryos solely for research1994Clinton AdministrationClinton bans the creation of IVF embryos for research1996U.S. CongressBroadens the current ban on federally funded embryo research via Dickey-Wicker Amendment to include any research which destroys or discards human embryos

(Note: No legislation prohibits privately funded stem cell research initiatives.)Nov. 1998Geron Corporation,

Menlo Park, CaliforniaOffers first reports of derived human pluripotent stem cells / Geron funded the University of Wisconsin and John Hopkins University studiesNov. 1998Advanced Cell Technology,

Worcester, MassachusettsReports creation of human pluripotent stem cells from human-cow chimera using somatic cell nuclear transferNov. 1998President Clinton Asks National Bioethics Advisory Commission (NBAC) to review stem cell research balancing medical and ethical considerationsDec. 1998Senate Appropriations Committee (SAC), Subcommittee on the Dept. of Labor, Health, and Human Services (LHHS)Begins hearings on Embryonic Stem Cell ResearchJan. 1999General Counsel to LHHS, Harriet RaabAnnounces decision to permit federal funding in human stem cell research so long as no federal funds pay for the derivation of the stem cells. Her ruling states that the statutory ban does not apply to stem cells since the cells are not themselves embryosJuly 1999President ClintonAnnounces support for soon to be released NBAC recommendations (Draft report submitted May, 1999)Sept. 1999NBACSubmits report and recommends federal funding for stem cell research using left over IVF embryos and cadaveric fetal tissue, but does not recommend creation of embryos for research either via IVF or cloning (Note: The NBAC does, however, suggest that a return to the consideration of the latter research is warranted as scientific advances progress.)Nov. 1999SACContinues hearingsDec. 1999NIHAnnounces preliminary guidelines for allowing stem cell research (Based on Raab decision)Feb. 2000Senators Arlen Specter and Tom HarkinSubmit S.2015: “Stem Cell Research Act 2000″ which allows both the derivation and use of stem cells. Additionally, the Act supports the “therapeutic cloning” of embryos for the purposes of research (In line with HERP’s 1994 recommendations)Aug. 2000NIHAnnounces final guidelines for federal funding to support stem cell research so long as no federal monies are spent in the derivation of stem cells and the stem cells only come from left over IVF embryos or cadaveric fetal tissue

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The Moral Dimensions of Properly Evaluating and Defining Suicide

By Edward S. Harris,†Chowan College

Abstract

For years our understanding of suicide has been commonly defined, as simply, “the taking of ones own life.” Furthermore the word “suicide” in the western tradition has held a negative connotation; most believe that the use of suicide as a solution to a problem is a cowardly act or the action of someone who is not mentally stable. However, over the last century with the groundbreaking research of Emile Durkeim the definition of suicide has proven insufficient. Tom L. Beauchamp has suggested that in order to fully understand suicide properly, we require a morally neutral definition since many different types of action must be noted as suicide and not all actions in which one takes his/her life are morally reprehensible. Along these lines, I propose that we speak of three kinds of “self-killing”: self-sacrifice, accidental self-destruction, and suicide. Each form of self-killing has different implications for ethics. This will assist us in recognizing what situations amount to suicide and assessing their moral implications.

Introduction

There are a variety of reasons as to why people part in the behavior of suicide. Some people kill themselves in desperation or in a state of depravity while others end up taking their lives in an act of self-sacrifice. Nonetheless, there is much to be learned when provoking consideration of the question of what exactly is meant by and constitutes as suicide. If you were to ask the average Joe on the streets to define suicide for you, he would probably say, “suicide is when a person takes their own life.” Little do they know, just how inclusive such a definition of suicide really is or the historical developments prescribed within the word. What’s more, the word contains within society certain feelings or connotations that strictly inhibit how we are able to perceive suicide. For example, when looking at the end of the movie Armageddon a question arises, do we really want to associate the act of suicide with the act of self-sacrifice. Bruce Willis’s Character at the end of the movie choose to take his life in an explosion on a meteorite in order to knock the meteor off its earth bound path in order to preserve life on earth. The majority of people do not consider such an act suicide and thus show that even though they may see what Bruce Willis character did as self-killing they are hesitant to label it as “suicide.”

A Historical Analysis

Suicide has always been a term that has caused problems in moral understanding. The moral implications and confounded justice of the act has left language frustrated in expression. In the English language, the word “suicide” was developed somewhere around the time of 1651. English society itself has perceived suicide as a wrong against society and oneself. This is reflected in two distinct ways. First, the word suicide itself is a negatively set term. All the prior English terms up to that point also viewed suicide negatively. “Prior to the seventeenth century the English terms for suicide included self-homicide, self-destruction, and self-murder” (Velasquez 1987). In the articulation of the word suicide one can see the continued development of this view. The English word Suicide is derived from the Latin term suicidium, which simply means self-killing. When the term is broken down into its roots Sui- which means self, and -Cide which means to kill, one finds the basic structure. In carefully emphasizing the root -cide in suicidium English culture has taken a relatively neutral word with negative overtones and turned it into an act injustice. We commonly associate the word suicide with similar word constructs such as: homicide, fratricide, and genocide which all have negative definitions. Thus, Indo-European culture describes suicide as a mode of killing rather than a mode of dying which was how it was perceived in Roman culture.

Roman Culture perceived suicide with more of a grayness. Suicide to Romans had both heroic and immoral associations. Suicide was a means of avoiding disgrace for Romans. It was greater to embrace death than to surrender or be punished. This conception of suicide is not a purely Roman Idea; rather, it is a direct result of their embracing of Greek Culture. The ancient Greeks perceived suicide in terms such as: “to grasp death,” “to die voluntarily,” and “To die by one’s own hand.” (Velasquez, 1987) Such phases show a lack of moral consequence to the modern dilemma of understanding suicide. It is much easier to define and holds little or no need for ethical understanding. Suicide was perceived as a positive mode of dying because it spared its participants of disgrace, and in some cases was associated with acts of courage and bravery. Yet, like the modern explanation the Greek understanding still struggles in that the language used to glorify suicide does not address in detail all the many moral questions that the issue of suicide presents. Though, it is a reflection of ancient Greek culture, do we want such thoughts being pervasive in today’s society?

In full light of the opposite perceptions of suicide found in the modern definition and the ancient Greek, one must ask two questions. First, when and where in history did suicide change its meaning? The change in meaning and feeling toward suicide can be associated with the birth of Christianity. The Indo-European understanding of selfkilling stems directly from the development of Judeo-Christian Ethic and its sweeping influence on both culture and the language. No one truly knows exactly where the idea that suicide is an unforgivable sin originated but St. Augustine is considered the most prominent and influential opponent of suicide from the early Church. Later during medieval times so strong was the opposition towards suicide that proper Christian burial was denied to those who committed suicide (Kennedy 1987). Thus, the Judeo-Christian Ethic is responsible for traditional definition reflects this view applying a negativity to the action.

Secondly, If suicide has been viewed as both moral and immoral then whose understanding is right for something cannot be both moral and immoral at the same time. It just such a question that forces modern scholars to sit down and very closely evaluate the term and seek a concise and decisive understanding for the term suicide in order that moral standing can be easily distinguished.

Understanding the Definition and the Possibilities constructs for Suicide

How do we know what acts are to qualify as suicide? As indicated above social attitudes are commonly reflected in a culture’s conception of the term. Such attitudes also seem to be reflected in just how clearly the word is defined. In cultures where suicide has approval there is a strong understanding of suicide. In Japanese culture, for example, there are basically two types of suicide: honorable and dishonorable suicide. Honorable suicide is a means of protecting the reputation of one’s family after a member has been found guilty a of dishonorable deed such as embezzlement or flunking out of college, or to save the nation as in the case of the kamikaze pilots in World War II. Dishonorable suicide is when one takes his or her life for personal reasons in order to escape some turmoil. This is thought of as a cowardly way out of life and a coward can only bring dishonor to his family. Thus, the definition of suicide in Japanese culture is positive and for the most part concisely defined.

In American culture on the other hand suicide typically defined as a person taking his or her own life. Americans consider suicide as a negative action and take it very seriously to the point of making such acts against the law. Americans attitudes towards suicide take on paternalistic philosophy in seeking to prevent suicide. The philosophy assumes that people, who are found in contemplation of or in the act of attempting suicide are in need of help or not in their right mind. It is thus the responsibility of every person to intercede and stop them from committing the act because it is believed that more often than not individuals who attempt such an action are not taking their own wishes into true consideration. Rather, they are trying to relieve themselves of a problem that can be fixed, only at the present they cannot conceive an end to their problem. As a result they need help to survive the trauma. This view is further supported in the fact that fewer than five percent of persons in the US who attempt suicide actually kill themselves within five years of their original attempt, and only about ten percent of those who attempt suicide ever take their lives (Beauchamp, & Veatch, 1996). Therefore in America there is a very negative association attached to suicide as well as, a very broad black and white understanding of suicide.

Putting the Japanese and American views in perspective, a definition of suicide can either be broad or narrow in arrangement. Both types of definitions have good and bad qualities. A broad definition acts as a sponge in that it meets minimal requirements for understanding ambiguously what constitutes as suicide and shows no bias to any cases. As a result, such definitions are all encompassing in nature and easy to understand. For example, if one defined suicide as, “the act of killing oneself,” then as you can see the definition is very easy to understand and observe. On the other hand, such definition is not broken down in a way to examine the uniqueness of certain aspects of the situation or to differentiate between variables such as accidental death and purposive death. Lastly, vague definitions do not help us understand the situation that is being presented before us. It only devolves into the realm of general knowledge (Velasquez 1987).

A narrow definition allows for a stricter interpretation of a term and forces people to closely examine situations which involve the term. Though, on the onset a narrow definition seem more confusing and complex in nature. However, narrow accomplishes much more than a broad definition by focusing directly in on the many variables offered and making stricter criterion for our individual understanding. Whereas, a broad definition, due to its all out exclusiveness can never be focused. For example, when we look at the American culture we have a broad scope of what it means to be an American. On the other hand within America itself we have many sub-cultures such as the Northern, New England, Southern, Southwestern, Californian, Mid-western, Alaskan, and Western cultures that make up as a whole the American culture but if they are not examined independently to meet several restrictions that reflect that group we will never truly understand American culture. Narrow definitions are thus needed to break down and understand concisely what a term needs to reflect. An example of a narrow definition of suicide would be,

“the purposeful act of seeking death and acting upon that purpose provided that such a death is brought about by one’s own act, that those acts are carried out as premeditated, the motives are selfish in nature, an external object is used, and death is actually brought about” (This definition stated above is not meant be actually used but rather is a half truth used to view what a narrow definition looks like).

As can be seen, such a definition is severely limiting in nature and designed to focus in on and clearly give structure to the language. The problem with narrow definitions is that, in being decisive, they leave a void for understanding other types of situations that may be close to the matter but not applicable; thereby, forcing us to create new terms for comprehensive understanding. Both types of definitions, broad and narrow are needed for full understanding and categorization. A broad definition will encompass a larger set of terms and cases, and a narrow definition will help discriminate between conditions such as reason, behavior and situations to give a stronger definition.

The Defining of Suicide in Philosophical Debate.

The traditional or legal definition of suicide was first given serious clarity by Emile Durkeim. Durkeim defines suicide as. “a death resulting directly or indirectly from a positive or negative act of the victim himself, which he knows will produce that result” (Durkheim, 1966). Though this definition is good in many matters; however, there are distinct problems and issues that are not addressed suicide. Paul Beauchamp addresses some of these issues. First, Beauchamp notes that if a person is coerced into taking his life it should not be considered as suicide. If a person is handed a cyanide pill and told that they have a choice to either kill yourself or we will kill your family then it should not be considered suicide if the individual takes the pill. The reason is that person is not an autonomous individual in that case (Beauchamp 1996). The pressure being applied to that individual has limited their ability to choose and only brought the possibility of person self-killing into existence as a result of an external pressure from some other source (furthermore, he is partaking in a selfless act of sacrifice for the sake of his families lives). It is not the will of the individual to with the pill to die; rather, he or she is being coerced to end his or her existence. In another instance a man is blindfolded and taken to the dock where cement shoes are placed on his feet and his hands are tied behind his back. The individual is then told to jump. If he jumps, is he committing suicide, or is he just facing the reality of his situation in that he is going to die in the next couple of minutes anyway? So then, why not jump? In jumping, the person is not committing suicide since his captors will kill him anyway. Rather, the coercion of his situation has him marked as dead and thus murdered. He is not at any point able to escape his execution and might as well be in control of his end than be pushed. His death is immanent and thus, nonautonomous.

Another problem Beauchamp addresses, is when death results from a condition, such as disease. The best example of this is in cases where a person refuses treatment for disease. The individual did not arrange the disease as a means of death but uses it to aide in death, should then the individual’s action be considered suicide? If a person refuses treatment for a curable disease with the intent of bring about death and thus does die, then his or her death may be labeled as suicide. On the contrary, if an individual has been diagnosed with a terminal decease and rather than lengthening his or her life through medicine, seeks to live qualitatively for the remainder of that life then, such action cannot be considered suicide (Beauchamp, 1996). Furthermore, if someone who is diagnosed with a terminal disease recognizes a lack of quality in life due to the disease and seeks to die at home rather than with pipes and hoses in their mouth and thus refuses treatment then refusal of treatment cannot be contended as suicide. Refusal of treatment because of a lack of cure in pursuit of quality or peace is not suicide but rather a way of leaving respectably and allowing a conscious and honorable way in which to saying goodbye.

Another point made against Durkeim’s definition is that of Germain Grisez and Joseph Boyle Jr. They suggest that when a person is in a non-rational state and death is brought about then it should not be considered suicide. This question however does not really disagree with Durkeim. It is fully compatible with all the measures of reasonability within Durkeim’s solution. However, a case can be made to this point that no one is really rational if they attempt or succeed at suicide. The only rationality that should be excluded from suicide are cases were mental inhibitions or lack of knowledge result in the death of one. Such as in cases where a toddler’s ball rolls out into the middle of the road and the toddler chases it and is hit by an oncoming car. The toddler’s intent was first only to get the ball but the child due to lack of knowledge did kill him or herself. Children though are not really autonomous beings in many cases, and due to lack of cognitive or special development can comprehend nor intentionally commit suicide. In another case if a person who is suffering from a mental illness such as schizophrenia commits suicide because they the voices in their head told them to, then such an act of death cannot be considered suicide. The mentally ill individual who took his or her life was not in a rational state of mind when said action took place. Rather, they were merely responding to internal stimuli that was beyond their control. The underlying cause in both cases is, “the idea that self-destructive acts should be counted as suicide only if they are morally blameworthy and since the acts of a non-rational person are not morally blameworthy they should not be counted as suicide” (Velasquez, 1987).

One last critique of Durkeim’s definition of suicide deals with the question of whether acts of self-sacrifice should be considered as suicide. If a person dies during an altruistic act, is it really suicide? For example, if a soldier is out in the middle of a battle and a grenade drops in his vicinity, and he jumps on the grenade to save the lives of his compatriots, is he committing suicide? NO. The main reason being, is that he did not throw the grenade himself. Rather, it was an outside force with the purpose of inflicting death that is responsible. The soldier merely saw the greater good that would be achieved if he or she altruistically gave up his or her life for the preservation of others. The rationale was virtuous and should not be grouped together with acts where death was brought about as a result of selfishness. In looking at another case where an underground spy during World War II has been captured by the Nazi’s and to prevent himself from giving out vital information during torture he takes a cyanide pill and kills himself. This individual’s action differs from suicide in that he has made a self-sacrifice but death has been brought about by his own measures. Again the answer is no for he is only a victim of his plight and knows that his death will prevent the capture of others and forward the cause. Therefore, he died because of his cause and not because of himself. Even though he knowingly ended his own life purposely and consciously he is only killing himself in a rational manner that is perceived as a betterment of good..

A New Definition of Suicide.

Beauchamp’s definition of suicide is one of the first corrective attempts to formulate a more narrow and solid definition of suicide. Beauchamp states that,

“an act or omission is a suicide if a person intentionally brings about his or her own death, unless the death (a) is coerced or (b) is caused by conditions that are not specifically arranged by the agent for the purpose of bringing about death” (Beauchamp, 1996).

There are several advantages to Beauchamp’s definition. First, the definition is consistent with a long legal tradition of determining when persons are or are not suicides by reference to the definition. Secondly the definition does not prejudge the morality of suicide; rather, the definition is morally neutral Finally, the definition takes into account our reluctance to categorize certain forms of coercion and treatment refusal as suicide.

All of these points are positive except for the idea of suicide being a morally neutral word in modern societies. I do not know of any tombstones where a person died as a result of an act of altruism as saying that here lies _____ ______ who died as a result of suicide. No. Usually such tombstones honor the individual with a word of self-sacrifice other such epitaphs. Most people would reject heroic acts as suicide, for suicide is considered to be an act of internal despair. Suicide is a negative word, and because of its negative orientation it cannot be viewed in a neutral or positive light. Therefore, the socially accepted orientation of the word should be incorporated into our definition of suicide. It is the everyday understanding of suicide that makes it definable.

Velasquez, on the other hand, agrees with Beauchamp on defending suicide as needing to be conceived as a morally neutral term. Velasquez surmises that being by points out several features that are common to all the objections against Durkeim’s definition. Each objection refer to a type of self-killing that is morally blameworthy. Velasquez identifies three reasons why one should not assume that suicide is by definition immoral. First of all, such a definition would preclude discussion of the question whether suicide is ever morally permissible, when in fact; discussion on moral permissibility will always exist. Even if you classify suicide as having negative moral value, it can still invoke discussion as to the ethics of the situation or to the actions themselves. For example, stealing is considered a morally negative word but we can still consider the possibility that stealing may be justified in certain situations. For example, a man who is hungry and has no money or way of getting money may not be blamed for stealing. Similar situations can be said to exist with respect to suicide. One can argue that certain acts of self-destruction are clearly acts of suicide, yet it can also be argued that they are not morally blameworthy (Such as in altruistic and irrational cases). In refutation, altruism and irrational cases are not suicide at all and are not conceived as suicide; rather, are intrinsically different cases all of their own that require their own definition. Cases of altruism, and irrationalism should be excluded from the category suicide because of the kind of agency or mental state that each case involves. In each type of case the agency and mental state are most always different. Altruistic cases differ totally from suicide cases in motivation, and intention. The only commonality between the two is that self-death occurs. Take the case of the person who killed himself to save his family compared to a case where a person has just been dumped by his girlfriend and can’t stand the pain any longer so he ends his life by shooting himself in the head. The motivation of the man dying in self-sacrifice is his love for his family. On the other hand, the motivation of the individual who lost his girlfriend is the not being able to deal with the pain of rejection, betrayal, and the depravity of life without her. One is motivated by love; the other is motivated by selfishness. As far as intentions are concerned, the man saving his family does not want to die but is willing to do so for the safety of his family. While in the case of the man who lost his girlfriend, he intends to die in order to alleviate the pain inside of him.

A New Understanding

First of all, to fully understand the issues that have been presented above there must be an all encompassing and inclusive word besides suicide that can accommodate the variety of different acts associated with the term suicide. One such term, Selfkilling, fits both in language and in context. It is a term that is practically self-explanatory in nature, vague in descriptions, and yet strong enough in language for evaluation. Selfkilling can be defined as: A death resulting directly or indirectly from a positive or negative act of the victim him or herself, which will produce that result (Derivation of Durkeim’s definition of suicide). This definition makes selfkilling a morally neutral word that is all-inclusive of any type of death, which is brought about by ones own self. It is morally neutral in that it leaves the question of morality and perception up to much more narrow definitions of which divide and separate the different types of selfkilling into positive, neutral, and negative. Positive selfkilling is called self-sacrifice, neutral selfkilling can be called self-irrationicide, and negative selfkilling can be called suicide.

Selfkilling

_______________|_______________

| | |

Self- Sacrifice Self-Irrationicide Suicide

In defining these three terms there are three different elements of understanding that must be incorporated into the definition in order to segment and differentiate the definitions and stay in step with the traditional legal definition of the term. First of all, there is the element of motivation. What has or is motivating an individual to commit an act of selfkilling? The logic or situations that have lead to the point of participating in selfkilling. The second element is intention. What are the intentions of the individual who is willing to partake in selfkilling? Persons who intend to commit an act of selfkilling have both a motive and intent behind their action or in other words a cause and reason for their course of action. The final element is that of causation or the effect of the motive and intent, which in all cases of selfkilling is death. These set of element, thus; align themselves with the theory of cause and effect which states: For every positive, neutral, or negative action (Motivation) there is (Intention) a positive equal or negative reaction (Causation).

Self-Sacrifice

The act of an individual that brings about the individual’s own death due to compassionate and/or belief orientated motivation, which is the result of either extrinsic or intrinsic circumstances.

  • To save someone’s life at the cost of one own

  • To die in order to protect the lives of others

  • To go into a situation that will knowingly cause ones death in order to stand up for what one believes (Kamikaze Pilots of WWII good example).

Self-Irrationicide

The act of an individual that brings about the individual’s own death due to inexperience, ignorance, or lack of cognitive understanding of a situation, which is the result of extrinsic circumstances.

  • A infant who hit by an oncoming car while chasing a ball

  • To get alcohol poisoning (smoking and chance of cancer)

  • To die not realize how fast one was going while coming off an ramp and smashing into a stoplight

Suicide

The act of an individual that brings about the individual’s own death due to selfish motivations, which are a result of intrinsic circumstances.

  • Depravity of life

  • Temporary Extreme Mental and Emotional Dissonance

  • Extreme Persistent Physical Pain (usually as a result of terminal illness)

  • End of life Depression.

Bibliography

  1. Beauchamp, Tom L. “The Problem of Defining Suicide” Ethical Issues in Death and Dying. Prentice Hall Inc. Upper Saddler River, New Jersey. 1996, Pg. 113-118

  2. Beauchamp, Tom L. & Veatch, Robert M. “Suicide” Ethical Issues in Death and Dying. Prentice Hall Inc. Upper Saddler River, New Jersey. 1996, Pg. 101- 105

  3. Durkhiem, Emile. Suicide: A Study in Sociology. Translation: John A Spaulding and George Simpson. New York: Free Press 1966

  4. Kennedy, Thomas .D. “Suicide and the Silence of Scripture” Christianity Today. March 20, 1987

  5. Velasquez, Manuel, “Defining Suicide.” Issues of Law and Medicine 3. 1987. Pg. 48-49

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Practical Ethics in the First Person

Deni Elliot,†Director, Practicial Ethics Center, University of Montana

Read at the 2001 Ohio University student conference on applied ethics
April 28, 2001

The problem with practical ethics is that it is all about them.

Books, case studies, and even ethics classes themselves generally focus on people outside the classroom. Often the focus is on people who we don’t know, aren’t likely to run into, and who we have no desire to meet in a dark alley.

Think about it.

The they of ethical analysis include scientists who fabricate data in labs to make experiments come out just so. They include journalists who break promises to their sources.

They are the engineers and managers who decide that the it is okay to release a toxic amount of arsenic and lead into the city’s water supply because the city doesn’t use a test sensitive enough to pick up what the company is doing. They are the engineers and managers who decide that the number of lawsuits resulting from avoidable fatal car crashes costs the company less than replacing a problematic part or issuing a recall. And, they are the CEOs who avoid knowing about the fate of workers in their factories overseas.

They are the elected officials who intentionally serve special interest over the public interest. They are the pedophiles and the Web Masters who target doctors who perform abortions and they are they con men who bilk older citizens out of retirement funds.

Basically, they are the villains. And, of course, the OTHER they who we get to know in practical ethics case scenarios are those who fall victims to these predators.

It’s a wonder that good people want to muck around in this field. Unlike law enforcement, those of us who study and teach and research in practical ethics have no power to curb individual or institutional behavior.

We can talk all we want about justice, but, as moral philosophers or ethicists, we lack the power to take from those who have stolen and make things right again in that Aristotlian sense of proportional justice.

We can talk to rooms full of students and citizens and pre- and mid-career professionals, but we all know that the wolves are out there, in the audience, silently sneering at our arguments for why one should be moral.

So, what’s the point? What’s the goal for the field of practical ethics (and I include in that overall umbrella term, applied and professional ethics as well)?

About 40 years ago, the pioneers in this latest renaissance of the field decided that the point of practical ethics was NOT purely intellectual study. That’s what separated the work that we do from those philosophers who do meta-ethics or history of ethics.

But, my argument today is that as long as our focus is on recognizing the bad guys, the field’s not worth a whole lot. As long as the case studies we use for instruction and illumination are morality of villains and victims, there really is little to recommend the study of practical ethics.

Here are some of my starting assumptions:

  1. Practical ethics needs a change in focus from fraud and fabrication to fluency and facilitation.
  2. The most interesting ethical problems are those that occur when good people are trying hard to do the right thing.
  3. Decision making in the moral sphere is part of everyone’s everyday life, whether we choose to recognize it or not.
  4. The most important opportunity for moral growth and development is the time after one recognizes that she has made a moral mistake.

And, as I am going to do ethics in the first person here today, I’ll talk a great deal about teaching ethics in higher education. That’s what I do.

So, as an attempt to get my starting assumptions clear, here are what I think are defensible teaching goals for courses and programs in practical ethics:

  1. Help students recognize opportunities for their own moral decision making;
  2. Design activities that help them learn and practice the language that articulates their values and beliefs;
  3. Introduce them to other thinkers, classical and contemporary, who can become internal mentors for the students’ own moral decision making process;
  4. Open students eyes to inconsistencies between what they say and what they do;
  5. Provide the loving support necessary for them to take the risk to consider how they might act differently next time.

The only way that it is possible to accomplish these goals is to work every day to make the classroom itself an ethical learning environment. In short, the start of helping people learn to do practical ethics in the first person is to make the teaching and learning of ethics a first person endeavor.

Here’s my last list: five points that are implicit in what I will be talking about today:

  1. Other people’s conduct and motivations can be understood only from the perspective of each of our own moral development.
  2. Ethical analysis and behavior can be learned only within the context of one’s own sense of moral agency.
  3. Ethical analysis and behavior can be authentically taught only within the context of the teacher’s own sense of moral agency.
  4. Practical ethics takes the study of moral philosophy back to its Aristotelian roots: the primary reason for studying the nature of goodness is so that each of us can become better people, so that we can do our best to reach our individual teleos.
  5. Practical ethics teaching and learning makes sense only if it is about us rather than them.

I will use higher education as the primary source for my examples as that is a world that we all share. And, I will be talking specifically about the nature of cheating.

I got interested in cheating a few years ago because The University of Montana was chosen to be part of national survey on academic integrity. I was eager to get UM involved because we have a general education requirement in ethics. All undergraduate students take at least one ethics course to graduate; most of them take two. I recently did a little checking and found that between 15 and 20% of the undergraduate students were taking an ethics course. A full 75% of our fulltime faculty identify ethics as a primary teaching or research area. I was interested in knowing how well this strong curricular focus on ethics translated into faculty and student behavior. We talk a lot about ethics at UM; I wondered how ethical we were in our classrooms.

From the start, it was clear to me that I had different goals from the people creating the survey. They were interested in whether schools with an honors code had less of a problem with cheating than schools without honors codes. They were interested in law enforcement; I was interested in ethics.

The survey folks were interested in whether good enforcement results in less cheating; I am interested in how we all (faculty, students and administrators) can create a learning environment in which students no longer want to cheat.

Focus on enforcement seems an odd way for Universities and colleges to prevent cheating. It is odd for two reasons: first, honor code enforcement is the equivalent of providing a topical “cure” for a systemic illness. The way to prevent cheating is to remove the impetus for cheating. Next, focus on enforcement reinforces the notion that higher education operates in the basement of moral development levels. If we want to raise up morally sophisticated students, we need to appeal to their sense of principle, not their fear of punishment.

Recently, while I was preparing a talk on the nature of cheating, I came across a website called ethicspapers.com. That’s a site that, for $9.85 per page, sells students term papers in ethics. Ethicspapers.com does not explicitly tell students to cheat. In fact, the home page includes the following disclaimer: “Students who use our service are responsible not only for writing their own papers, but also for citing The Paper Store as a source when doing so.”

Yeah, right.

I got curious about whether ethicspapers.com had term papers on cheating. What wonderful irony: a student turns in as hers a paper on cheating that she bought from ethicspapers.com. Or even better irony, a student WRITES a paper discussing cheating as an ethical problem and THEN turns the paper over to ethicspapers.com so that other students can use it to cheat.

My search of ethicspapers.com turned up three papers that sounded relevant to my work on cheating, but I certainly wasn’t going to spend $9.85 per page to get those papers. Then, I noticed that the site had this helpful but grammatically uncertain advice: “If you find yourself experiencing a difficult time deciding between more than one ethics paper, email us with the file names of those papers you’re interested in?and we will send you back a free, one page excerpt from each one!”

I considered the implications of my intended actions for a few minutes and then made a sound moral decision. I sent ethicspapers.com an email that read as follows: I am finding myself experiencing a difficult time deciding between more than one ethics paper. I look forward to receiving my free, one page excerpt from each of these three:

  • Academic Dishonesty and MacIntyre’s View of Nature;
  • Academic Integrity;
  • Personal Ethics and The Good Life.

I will also admit that I neglected to include my usual ‘signature’ that identified me as University Professor of Ethics and Director, Practical Ethics Center.

While I waited to hear back from ethicspapers.com, I spent some time wondering if I was cheating. I wasn’t going to buy an ethics paper. In fact, I had problems with the idea that ANYbody would spend $9.85 per page for a five page paper that had 1 (count em ONE) source in its bibliography.

My plan was to use the irony of their service to make a point in two in my lecture on cheating. So, did I cheat the company in having them send me one page excerpts that I knew I would not use as they were intended to be used?

Well, lets start with a definition of cheating. We cheat when we fail to follow rules that we know everyone is expected to follow. Think of what cheating means when you are playing Monopoly or Scrabble. You are cheating if you move your little Scotty dog further than what the dice says. You are cheating at Scrabble if you quickly exchange a few letters when your opponent is out of the room. Basically, you are making an exception of the rules that you know that everyone is expected to follow in those game situations.

By this common use definition, I was cheating by not following the rules that people are reasonably expected to follow when dealing with ethicspapers.com. And, I will argue that my questionable behavior was justified, not for the reason.

Cheating can sometimes be justified, but not on the grounds that we are cheating the bad guys. Justification for cheating includes making it publicly known that it is morally acceptable for anyone to cheat in relevantly similar circumstances.

Here’s an example. Let’s say that there is a hostage-taking situation going on in town. The terrorist, holding the hostages, demands that a camera crew and reporter from CNN come in and let him have his say for broadcast. Now, we reasonably expect people to be who they present themselves to be. It would be cheating, in this case, for law enforcement officers to go in, undercover pretending to be the camera crew and journalist. And, I would say that it is justified in cases like that for law enforcement officers to cheat the terrorist. What makes this exception justified is NOT that law enforcement is cheating the bad guys.

What makes this exception justified is that it is the kind of exception that could and should be publicly known. I would like, very much, for future terrorists to think that when they ask for journalists to come in to hear their demands, the end result may be that undercover agents come in instead. I am hopeful that such uncertainty may make future terrorists want to change major.

In a similar way, I would say that it is justified for all ethics teachers and all ethics students to download free sample pages from ethicspapers.com because the end result may be that it is not cost effective for the company to offer samples or maybe even offer the service. And, I think that it would be fine for ethicspapers.com to know that we are all engaging in this effort to cheat the company.

So, how does this connect with higher education? I’m offering an opportunity for each of us to make a little online moral statement, but its more than that. The existence of ethicspapers.com helps illustrate some real problems in higher education. Some practices of higher education, like ethicspapers.com, implicitly encourage students to cheat. The behavior that is encouraged is different from that which is requested. Next, some of the rules of the higher education game may seem so arbitrary and disconnected from the goal of higher education that students might well view cheating as a kind of civil disobedience — a way of rebelling against an absurd system, a way of refusing to play what seems to be an unreasonable game.

Higher education has two important primary missions: first, it brings together the resources and talent necessary for the creation of new knowledge. It also exists to transfer knowledge and ways of knowing from one generation of scholars to the next. That second mission, the mission that focuses specifically on teaching, will be the primary consideration here. The job of faculty and administrators is to turn out independent and self-reflective learners who have acquired new knowledge and new ways of learning. Students graduating should look different from students matriculating. Students leaving higher education should have skills and abilities at the end of their college career that they lacked at the beginning. The greater repertoire of skills and abilities means that they should be far less dependent upon others to do their thinking and figuring for them. They should be autonomous, able to notice what they need to know and able to figure out how to gain additional information.

Now, an important question is how students can best get to this point of being autonomous critical thinkers. Aristotle, who quite rightly pointed out that people learn a certain way of being through practice. At the start of Nichomachian Ethics, Aristotle says, “anything that we have to learn to do, we learn by the actual doing of it; people become builders by building and instrumentalists by playing instruments. Similarly, we become just by performing just acts, temperate by performing temperate ones, brave by performing brave ones.”

In 1994, ten years after completing my doctoral work, I decided to re-connect with my students’ experience by learning something entirely foreign to my talents, education and experience. I decided to learn to weave.

A four-foot tall, four-foot wide floor loom, that I had bought years before on a whim, had, until this point, been nothing more than a substantial piece of living room sculpture. But, once I registered for weaving class, I looked at the loom in a whole new way. I saw it as an opportunity to do great things. And, I saw it as an opportunity to fail.

I reflected on my own ambivalence while I waited for the class to begin. I wanted to be successful and I was also scared that my attempts would result in a tangled web of confusion. I realized that I was getting to know something about the psychological state of students who walked into my ethics classes the first day of each semester. They were hopeful; they were scared. And, I routinely did nothing to recognize their ambivalence and anxiety.

When I began my weaving class, I told my own students about my hopes and fears and experiences just to see if I was right in thinking that my experience was something like theirs in higher education. I was right. My students listened closely and with empathy when I told them about a difficult lesson.

As their teacher, I felt embarrassed when I thought about how rarely I, and other professors, provide that much empathy and respect as our students embark on the humbling experience of learning something new. Rather than praise my own students for being willing to take intellectual risk, I was more likely to prod them with statements like, “This is easy.” “Pay attention.” And, “I guess you didn’t do your reading.”

In weaving class, I felt awkward. All of the looms sat in a big open classroom. All student progress was public. Everyone could see how I did.

It turns out that I was much slower than the others. My choices of warp and weft colors and textures seemed different from other students in the class. I’m not sure if I was imagining this or not, but it I thought that the other students averted their eyes from me and my work. I was a tenured full professor, who suddenly felt like a “special” learner.

While I waited for my teacher’s help, I had a lot of time to sit alone in my tangle of embarrassment and thread and ponder what the learning experience was like for students in my own classroom.

I realized that I often put students on the spot, insisting that they respond to some hard question on the spur of the moment. I even purposefully called on students who I thought were NOT ready with an answer, just to make the point that you better be prepared when you come to my class.

I mostly massaged the egos of the students who were the quickest and most accurate at reading my mind and giving me the answer that I anticipated. I got impatient with the contributions of students who were less on MY target. I criticized student comments without concern about how that criticism might affect their learning. I was not patient with students who were less than perfect.

The good news is that my weaving teacher was not like me. No matter how concerned I was about my progress relative to the others, the teacher convinced me that weaving was not a competitive sport. Thank goodness that we didn’t get grades!

As I wove, it became obvious to me that I could not learn without making mistakes, lots of them. And, once I saw a mistake, I had to set my ego aside and really get intimate with the problem. I had to embrace and dissect my mistakes so that I could understand just went wrong and before I could get things consistently right.

But, what was I doing in my own classroom? Like every other teacher I know, from the beginning of the semester to the end, I assigned grades to my students’ attempts. If my weaving teacher had given me the series of “F”s that my weaving PRODUCTIONS rightly deserved, I would have quit.

Yet, I was learning. But, the content of my learning was more often evident in my mistakes than it was in my finished products.

My weaving class also taught me that I was the only person who could really know when I learned something. Sometimes, when my weaving teacher praised for doing something right, both of us were surprised by my unexpected success. In those instances, my success was an accident and not likely to be repeated. When I had really learned something, I knew it. I felt it. I could apply the learning at home, on a loom of my own.

That’s when I saw the lack of connection between my own students’ learning and their grades. How often I had heard a student shout, “Yes!” with surprise and delight upon receiving back a graded paper or test? The “A” in that case was more equivalent to the student winning the lottery than an affirmation of what the student already knew that she knew. Rather than demonstrating their true learning, my students were gambling in their attempts to produce what they thought I wanted to see.

I had been fooling myself when I thought that, as a professor, I was evaluating the quality of my students’ learning. I had no idea what they actually learned.

Instead, I had been judging products that were invariably paint-by-number productions of my own making. . Whether multiple choice, short answer, essay, or 20 page paper, I gave students the required structures and materials. I hardly ever let them color outside the lines.

My actions implicitly told students that my idea of what they should produce was more important then them actually demonstrating what they learned. But, I told them that I was interested in their learning. What an incredible inconsistency between what I said and what I did! No wonder students felt driven to cheat or to avoid turning in their work.

Since that life-changing semester, I’ve worked, in collaboration with my students, to make each class I teach a tapestry that stimulates and supports learning. In a few minutes, I will give some examples of how I think that higher education can better promote that mission and how we can all do ethics in the first person as a way of getting there. But, first, I want to expand on my observation of three practices that get in the way of the mission and that encourage students to cheat.

By the way, I don’t think that I was a bad teacher before I learned to weave. I was just a teacher, like most other teachers. I didn’t question the rules of the game that students are asked to play. Now, I question those rules continually, but it doesn’t mean that I have found all of the answers. Doing ethics in the first person means, for me, that I have an obligation to change as much in my little corner of the world as I can. It also means that I have the responsibility to acknowledge to students when I am failing to act in what I consider to be a morally encouraged way. That means, to some extent, I am still guilty of the inconsistencies that I identify here. It also gives me an opportunity to point out that the goal of doing ethics in the first person is NOT to be a moral saint, but rather to be a self-reflective person who struggles hard when presented with an opportunity to do the right thing.

Here are three major inconsistencies between the mission of higher education and what most instructors do in their classrooms.

Inconsistency #1: Teacher-generated assignments.

  • Students need to show that they have mastered certain content. Teachers are in a good position to help students see if they have learned that particular content. But, it doesn’t follow that teachers must generate assignments.
  • Teacher-generated assignments do more than identify the content that students are supposed to learn. Teacher-generated assignments tell students HOW they are supposed to demonstrate their learning.
  • It is a serious inconsistency in higher education if we say that we want to students to become independent thinkers and then give them assembly line assignments. The stack of student products may have some connection with what a particular student has learned in a particular class in a particular semester; but maybe not.
  • Student products show how well students have been able to produce what their teachers think they should produce at a particular moment in time, regardless of what they have learned or not.
  • When teachers evaluate and reward the quality of a product regardless of student learning, students are reasonably concerned with nothing other than the creation of a certain product. To refer back to Aristotle’s notion that people learn by practice, we will not teach students to be self-reflective and independent if we make them dependent on the teacher to tell them how to demonstrate their learning and if we make them dependent on the teacher to say if they got something right.

Inconsistency # 2) Generally, in higher education, we don’t reward mistakes.

  • How can we expect students to learn anything if they are afraid of making mistakes? Higher education fails to promote true learning when it penalizes students for getting something wrong.
  • If students know that getting the right answer is the primary objective, cheating makes sense. It is a reasonable response to what is implicitly being requested.
  • A third problem that relates both to teacher-generated products and punishing students for making mistakes is

3) Surprise tests.

  • I am not talking about quizzes that students don’t expect, although obviously I find those problematic too. No, what I am talking about is a much more mundane part of student experience.
  • The syllabus says that there is an exam March 16. Students study and study and go over their notes and walk into that exam, having NO idea what questions will be asked. (Unless of course the professor’s exam happens to be in the student’s fraternity’s file). The test questions are a surprise and that strikes me as a little absurd.
  • If the teacher’s goals for what students should achieve are clear, then there should be no problem with delivering the exam questions long enough ahead of time for students to think about the questions, review text and class materials and talk to friends about it.

Pointing out these inconsistencies has made me less than popular with some of my colleagues, and with some students as well.

Students come to college, believing that the only test of their learning that matters is one created and judged by the teacher, by an external authority. I try not to play that role, but, it is hard not to when they so badly want me to take that responsibility for them.

And, even when students understand what I am trying to do, some of them will feel angry with me. Basically, I am not playing the same game that they have been led to believe teachers will play. It may seem to them that I am cheating. If they have been successful at playing the conventional college game, they may not be eager to work with someone who changes the rules.

I’ll end by telling you a little about how making students responsible for their own learning looks in my classes, because these are definitely ideas that you can try at home. But, as the four students from UM who are here with me today can attest, I don’t manage to do all of these things in every classroom every term. So, these are goals and activities that I remind myself to do. Some semesters and some classes I succeed better than others.

I like to start the semester by asking students what they already know (or think they know) about the topic of the class. In the Introduction to Ethics class, it is usually in-class essay or a homework assignment that asks them to identify an ethical problem and then explain what makes it an ethical problem.

In the feminist ethics class, I ask students the first day of class to examine a contemporary ethical problem from a feminist perspective and then explain what makes that view feminist.

For graduate students in the teaching ethics Masters Degree program, I am likely to give them a hard case and ask them to do a systematic moral analysis.

I grade these assignments so that students will know that I value their efforts. No matter what I think, I know that my students have had an academic lifetime of equating valuing with grades. However, my criterion for a good grade on this initial assignment is NOT whether the student “got it right”. Rather, I Iook for signs of student struggle and uncertainty. At this point, I want to reward risk taking and student awareness that she has something to learn.

Here’s an example of an in-class first day essay for the intro to ethics class from a few years ago that got a perfect score. The assignment was to write an essay that identified an ethical problem and said why it is a problem.

“Abortion is an ethical problem. It’s a problem because babies get killed. Well, they’re not really babies, but they’re almost babies. But, then when people get pregnant by accident, they shouldn’t have to spend their whole lives paying for it. Abortion is an ethical problem because a lot of people don’t want abortion to be legal and that makes it immoral for them. But abortion is legal and moral for some people, so I guess that it all depends on who you are. What makes abortion an ethical problem? I don’t know. Maybe it’s not a problem depending on what religion you are. If I had more time I’d pick another problem.”

There’s nothing like honest panic for someone to make a good start in my class. Here’s something that the student realized in writing that essay — we don’t learn anything new until we understand that we have something to learn.

This assignment has a natural role in end of the semester evaluation. Students have the option of critiquing that original essay as one of the ways that they can demonstrate their learning. When I am being my most consistent self, I will also find ways to reward students at the end of the term for their realizations of where they haven’t succeeded and for their honest expressions of confusion. If faculty truly want to develop self-reflective autonomous learners in college, what is most important is how students are able to evaluate their learning.

After a week or so of the class, I like to ask my students to develop a couple of learning goals for themselves. By that point, they know what MY learning goals are for them for the term. I am hopeful that they can see how our class activities and evaluation processes really do give them a chance to accomplish the goals that I set out and demonstrate their accomplishment of those goals. But, in addition, I want students to commit to something that they each want to learn. And, they have to think of a way that they can show that they have accomplished their goal. When they can answer the question, “how will you be able to show that you have learned this?” they have written a good learning goal. And, throughout the term, they reflect on how well they are doing in meeting their goals.

Analytic writing assignments are broken down into parts. Students must be successful in accomplishing the first part of an analytic paper — problem statement and literature review — before they can move on to the second part. Now matter how many rewrites they take, they must do a good (B level) or great (A level) job with it before they can move on. They must also include a paragraph with each rewrite that explains how/why this attempt is better than the last. And, I will work with the students over and over again to help them get it right. They must successfully accomplish the second part (case presentation) before they move on to the third and final analysis section.

A paper from ethicspapers.com won’t work to fulfill any assignment in my class. In-class essays, homework, papers are specifically designed to say to students, show me what you know, show me what you know now as compared to before, show me that you recognize what you don’t know.

I still give exams, but now my questions are known by everyone well ahead of the test. As I am clear in my own mind about how I will judge student success, there no need for them to try to read my mind. Providing students the test questions ahead of time also provides the opportunity for students to tell me when questions don’t make sense to them. When students walk in to write an exam, they demonstrate something between short term memory of an answer and true mastery of a concept. I am not in a position to know which. But, neither are professors who give surprise tests.

The whole idea of testing, how we do it in higher education, is fairly odd. Consider the fact that teachers develop their own tests to evaluate their own students’ learning. Here’s what’s odd: teachers, as you know, are also researchers. As researchers, we test for validity and reliability before distributing an instrument to a population to measure anything. We do pilot tests, analyze that data and consider variables that we might not have previously identified. In the end, after finally administering an instrument, we state our research conclusions with the utmost caution and uncertainty. We publish the work and can look forward to everyone who reads the article criticizing the instrument or something about the process. We never expect to get our research quite right.

But, then, we put on our teacher hats and assume that we can (sometimes overnight!) construct a test that will measure our students’ learning of subject material. We don’t pilot test the questions. We don’t worry about how the questions might be misperceived. We don’t think about confounding variables. We don’t even worry about the inevitable bias that results when the same person who teaches the material constructs the instrument to assess what has been learned!

But, that is the topic for another speech. My basic point here is that if faculty construct activities and evaluation processes that truly stimulate and reward student learning, both the opportunities and the desire to cheat disappear. Higher education encourages students to cheat when it rewards PRODUCTS rather than student learning. Faculty and administrators have a moral responsibility to take students LEARNING seriously. We must give students practice in the very values they are expected to exhibit in the end. It must be safe for students to think independently, knowing that they are going to make mistakes. The role of faculty is NOT to punish those mistakes, but to help students improve their understanding, over and over and over again. When students get it right, they know it better than the teacher and will be able to tell teachers why it is that this attempt is right and the others were not. In short, faculty and administrators have the moral obligation to create an environment in which students can LEARN rather than just produce.

The delightful double effect of switching from focus on student products to focus on student learning is that the impetus for cheating disappears one classroom at a time.

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Media Coverage of People with AIDS

Richard Wilson,†John Carroll University

This essay examines the ethical dimensions of AIDS media coverage in the early 1980′s. Through critical analysis and application of Carol Gilligan’s ethic of care (1982), this essay dissects how media coverage in the early 1980′s reflected male-based ethics, which rely heavily upon notions of justice. Since AIDS first struck the male homosexual community, an already marginalized segment of society, coverage was minimal and in theory, the homosexual P.W.A.’s (People With AIDS) were “deserving” of the illness they received because of their non-traditional sexual behavior. The media’s choice to under-cover the AIDS epidemic clearly demonstrated adherence to justice-based ethics. Consequently, the lack of coverage resulted in the widespread proliferation of the AIDS epidemic in the United States that ultimately permeated the heterosexual community. The suggestion and proposition is made for media to operate under Gilligan’s care-based ethics as a solution to remedy past media damage. Furthermore, future application of care-based ethics would help to foster greater understanding, compassion, love and peace for all P.W.A’s, regardless of their race, sexual orientation, national origin, etc.

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Corporate Interests and Their Impact on News Coverage

Julie A. Demorest, John Carroll University

Hypothesis

There is no denying that news media is big business. The complete coverage of stories and investigative reports are certainly at risk with the rise of media as a business, rather than strictly a service to the public. Over the past few years, there have been a number of cases where television stations or news publications have killed news stories or forced reporters to slant stories due to pressure from advertisers or those in power at the news. This paper will attempt to examine the relationship between social responsibility and news editors, and apply ethical theories to explain what should and can be done. Should editors have the power to kill or slant stories, depending on their own interests or those of their advertisers?

Literature Review

A number of books and articles investigated the relationship between corporate and advertising interests and news coverage. In the May/June 2000 issue of Columbia Journalism Review, Lowell Bergman wrote an article entitled, “Network television news: With fear and favor.” Bergman sums up his findings by saying, “Executives of the network news divisions say that they will report any story of public interest and import without fear or favor, without considering its potential commercial consequences. They say that, but they do not believe it” (p. 50).

Karl Idsvoog’s journal article, “TV sitting on stories to improve ratings,” claims that “the decision on when (or if) to run a piece is no longer determined just by asking is the report concise, clear, and well produced; is it fair, thorough and accurate? There are now more critical questions. What’s the lead-in? Where do we place the promotion? Will it deliver better numbers on Monday or Wednesday?” (Idsvoog, p. 38). However, he adds that “in the long run, adhering to a higher standard of ethics delivers a higher standard of performance” (p. 39).

Carol Guensburg examines the ethical dilemmas of news reporting that involve the media agency’s owner in the December 1998 issue of American Journalism Review (p. 10). In “When the story is about the owner,” she determines that it is up to the individual journalists and news operations to continue reporting important stories, regardless of the impact they may have on corporate or advertising interests (Guensburg, p. 11).

American Journalism Review‘s October 1998 article by Jane Kirtley, “Second-guessing news judgment,” looks at the issue of FCC regulations of news coverage (p. 86). She notes that having the governmental agency get involved in news coverage would likely lead to the consequence that “broadcasters will be discouraged from covering controversial issues at all” (Kirtley, p. 86).

In addition to these and many other articles referencing corporate interests in the media, an organization called Project Censored does annual research to “explore and publicize stories of national importance on issues that have been overlooked or under-reported by the mainstream news media” (Jensen, p. 14).

Body

The relationship between social responsibility and news editors must have a very delicate balance. As stated, news is a business that depends on high ratings and advertising dollars for its survival. However, the news media is also a social organization responsible for informing and educating the public. Corporate interests are important, but the guiding principle for news organizations should be the responsibility to inform the public. News editors have the huge task of determining what stories are told on their news programs or in their publications. The interests of upper management, owners, and outside advertisers make the editors’ decisions even more difficult.

In 1969, the Federal Communications Commission said that “rigging or slanting the news is a most heinous act against the public interest” (Kirtley, p. 86). Yet, it happens – all the time. Two particular cases are especially applicable. The first involves Lowell Bergman, former executive producer of CBS’s “60 Minutes.” As executive producer, Bergman was intimately involved in the 1995 Brown & Williamson situation, when “60 Minutes” decided not to air a report on Jeffrey Wigand. Wigand, former vice president of Brown & Williamson, claimed that the company kept the truth about tobacco’s harmful properties hidden from the public (Bergman, p. 50). He claimed that CBS self-censored itself to avoid a potential lawsuit from Brown & Williamson. Bergman also added that while working for ABC news he discovered that it was against “ABC code” to do an enterprise story about a major advertiser or supplier or to do a critical story on the owner of an NFL team (p. 51).

The second example directly showing how corporate interests impact news coverage took place in 1997. Jane Akre and Steve Wilson, award-winning investigative reporters for WTVT-13 in Tampa, Florida, were fired in December 1997 after they refused to broadcast false reports. Akre and Wilson had been working on a series of reports about a controversial growth hormone being injected into dairy cows for months, and the reports were scheduled to air beginning February 24, 1997. On the eve of the first broadcasts, the reports were pulled from the airwaves after Monsanto (maker of the hormone) complained to Fox Television, parent company of WTVT-13. WTVT management reviewed the reports, found no errors, and rescheduled their broadcasts. Monsanto lawyers sent a threatening letter to Fox’s news division head, and the reports were postponed once again. In the nine months that followed, Akre and Wilson were ordered to rewrite the story with false information more than 80 times, none of which were acceptable to Fox executives. Akre and Wilson threatened to tell the FCC “of a false, distorted, or slanted news report which she reasonably believed would violate the prohibition against intentional falsification or distortion of the news on television.” They were ultimately fired in December 1997. (Trigoboff, p. 27).

Instances such as these, where corporate interests override the public’s need to know,” most likely occur quite frequently. “Almost all media owners have friends who are given preferential treatment in news stories – friends whose ranks include advertisers, politicians, relatives, and acquaintances” (Armao, p. 46). Media critic Ben Bagdikian noted in an article that media organizations often pull back stories when they might offend advertisers (Winch, p. 132). He also stated that “no commercial power should dominate the news – just as no state power should” (Goldstein, p. 25).

In Critical Studies in Mass Communication, Matthew Ehrlich explained one of the factors accounting for trivial, superficial, and often inaccurate reporting – the “competitive ethos,” which he defined as a “powerful, taken-for-granted set of norms within the community of television newsworkers” (p. 196). People who work in the news business have an unwritten set of codes, and they tend to base their work on them. One of those “codes” is that news is “whatever the competition is covering” (Krajicek, p. 184). This leads to a homogenization of the news, with all programs taking on a similar shape.

Another problem with news coverage is that media managers often appear to design news “based on what interests the public rather than what is in the best interests of the public” (Winch, p. 131). Sensationalism in news has certainly been a deterrent to credible and accurate reporting. The great news anchor Walter Cronkite has said that “the networks now do news as entertainment” (McCartney, p. 44). The public wants to see the wildest, craziest, and most outlandish news stories – not necessarily the stories that would have the greatest impact on their lives.

The “competitive ethos” factors listed above indicate one of the reasons why the role of the news editor is so crucial. It is up to the news editor and his team of editors to determine what is important to the public on a “need to know” and “right to know” basis, with “want to know” and “don’t necessarily want to know, but need to show it to the public to gain ratings” much less important.

In his book, The Media Monopoly, Ben Bagdikian says that “because the country’s top editors are being integrated into the management imperatives of the corporation, journalists, through their editors, become less responsible for the integrity of the news and more for the profitability of the whole enterprise. That is not journalism. It is advertising and marketing. Combining journalism with advertising and marketing ultimately will destroy the integrity of the news” (Edge, p. 197).

There is no clear-cut answer to the social responsibility and corporate interests conflict. Adopting a communitarian ethic based on the needs of society would probably make editors’ decisions easier. Communitarianism insists that “mass-media structures make a decisive break with individualistic capitalism” (Christians, p. 14). Deni Elliott’s three nonnegotiable principles of journalism should apply to news editors and management as well, and are especially applicable to determining content of television news (Christians, p. 55). Her first principle is that “news reports should be accurate, balanced, relevant, and complete” (Christians, p. 55). Truth is the most important factor in news, so if a story is not honest, it should not be news. The second principle is that “journalists share the principle that reporting should avoid harm” (Christians, p. 55). While journalists should only report stories that avoid harm (and not cause it), they should also be careful to report stories that would possibly cause, or allow, harm to occur if not reported. Elliott’s third principle for journalists is “to report information that viewers and readers need to know” (Christians, p. 56). As stated previously, it is essential that the news media provide vital information to the American public. The media has a social responsibility to share its wealth of information, especially when the news would have a direct impact on lives.

The pragmatic thought of John Dewey could be applied to this ethical dilemma as well. In his book, Democracy and Education, Dewey identifies four Theories of Morals: the inner and the outer, the opposition of duty and interest, intelligence and character, and the social and the moral (Dewey, 1916). The opposition of duty and interest is directly applicable to the corporate interests/news media dilemma. The opposition of duty and interest is defined as distinguishing the difference between acting on principle and acting on interest. Dewey explains acting on principle as acting “disinterestedly, according to a general law, which is above all personal considerations (1916). Acting on interest is “to act selfishly, with one’s own personal profit in view” (Dewey, 1916). A news organization choosing to run a story that negatively impacts an important advertiser would be seen as acting on principle. The news organization would be acting without interest and above their personal considerations of how their jobs and profits might be impacted. Choosing not to run the story would be acting on interest, with personal and professional profits in clear view.

Summary

This paper attempted to explain that corporate interests are having a large impact on what the news media report to the American public, and theorized about how the situation could be changed. Adopting a communitarian ethic would allow the news media to more accurately and completely report the news that is important to the daily lives of Americans.

Conclusion

Corporate interests are important, but the guiding principle for news organizations should be the responsibility to inform the public. In The Messenger’s Motives, John L. Hulteng stated that “the central, ruling ethic of journalism is to report the news of the world dependably and honestly” (p. 171). Given that corporate interests do play a role in what appears on television news and in newspapers, what should be done? The news giants and advertisers aren’t going to go away, so the public and news media need to share the social responsibility. The American public needs to realize that the news media aren’t always giving the complete story. They should not rely solely on television and print news media for information, but should look elsewhere for alternative sources of news. The news media have considerable impact on what we know, and they need to realize the impact that their work has on the lives of the American public, and report the news as accurately, completely, and objectively as they can, for the good of the people. A communitarian ethic based on Deni Elliott’s principles and John Dewey’s theory of the opposition of duty and interest would be a good start.

Works Cited

  • Armao, R. (2000). The history of investigative reporting. In M. Greenwald & J. Bernt (Eds.), The big chill: Investigative reporting in the current media environment (pp. 35-49). Ames, Iowa: Iowa State University Press.
  • Bergman, L. (2000). Network television news: With fear and favor. Columbia Journalism Review, 1, 50-51.
  • Christians, C.G., Ferr?, J.P., & Fackler, P.M. (1993). Good news: Social ethics & the press. New York: Oxford University Press.
  • Dewey, J. (1916). Democracy and Education. New York: The Macmillan Company.
  • Edge, M. (2000). And “the wall” came tumbling down. In M. Greenwald & J. Bernt (Eds.), The big chill: Investigative reporting in the current media environment (pp. 197-210). Ames, Iowa: Iowa State University Press.
  • Ehrlich, M.C. (1995). The competitive ethos in television newswork. Critical Studies in Mass Communication, 12, 196.
  • Goldstein, T. (1999). Does big mean bad? In B. Levy & D.M. Bonilla (Eds.), The power of the press (pp. 24-27). New York: The H.W. Wilson Company.
  • Guensburg, C. (1998). When the story is about the owner. American Journalism Review, 10, 10-11.
  • Hulteng, J.L. (1985). The messenger’s motives. Englewood Cliffs, NJ: Prentice-Hall, Inc.
  • Idsvoog, K. (1994). TV sitting on stories to improve ratings. Nieman Reports, 1, 38.
  • Jensen, C. (1996). Censored: The news that didn’t make the news and why. New York: Seven Stories Press.
  • Kirtley, J. (1998). Second-guessing news judgment. American Journalism Review, 20, 86.
  • Krajicek, D.J. (1998). Scooped! Media miss real story on crime while chasing sex, sleaze, and celebrities. New York: Columbia University Press.
  • McCartney, J. (1997). News lite. In B. Levy & D.M. Bonilla (Eds.), The power of the press (pp. 44-54). New York: The H.W. Wilson Company.
  • Trigoboff, D. (2000, August 28). Reporter wins in milk suit. Broadcasting & Cable, 130, 27.
  • Winch, S.P. (2000). Ethical challenges for investigative journalism. In M. Greenwald & J. Bernt (Eds.), The big chill: Investigative reporting in the current media environment (pp. 121-136). Ames, Iowa: Iowa State University Press.
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The Ethical Implications of Monopoly Media Ownership

Accessing the Media, Freedom of Expression and Participating in Society

Patricia Lancia, Wilfred Laurier University

At the end of World War II, 80 percent of daily newspapers in the United States were independently owned,1 yet even then The Commission on Freedom of the Press, also known as the Hutchins Commission, perceived the significant threats to freedom of expression posed by the scope and power of “the great agency of mass communication.”2 Over 50 years later, the North American communications environment is characterized by near monopolistic control of every facet of the media by only six firms3 – down from just 50 corporations in the early 1980s when Ben Bagdikian wrote his groundbreaking book The Media Monopoly. With their intertwining boards of directors and uncountable synergistic partnerships, these six media behemoths exercise significant control over the dominant, public modes of communication in society and the communication agenda in general. They also represent quite possibly the greatest challenge to individual free expression in contemporary times. It seems that not much has changed since the Hutchins Commission formed in 1943.

Insofar as newspapers, magazines, television, radio, movies, music and the Internet constitute the dominant, public modes of communication in society, access to the media as tools of communication has significant ethical implications. If only some people are given the opportunity to express themselves in society, if some people are denied access to tools for self-expression and, therefore, denied the ability to actually exercise their rights as citizens and as human beings, then the groups that allow that to happen are acting unethically. It is the intention of this paper to show that the current media monopoly environment interferes with the right to free expression of the vast majority of people in society – by eliminating viable alternative sites of communication, by limiting direct access to media outlets as tools of communication, and by preventing the creation of independent media outlets – and is, therefore, unethical.

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Freedom of expression goes beyond merely having the right to say what you want to your friends or to stand on a street corner and yell in the hopes that people will listen. Personal expression is an essential part of what it means to be human and it is a crucial part of any social or democratic process. The central importance of this right is reflected in the fact that both the Bill of Rights in the United States and the Canadian Charter of Rights and Freedoms guarantee the rights to free association, assembly and expression and the right to publish and disseminate opinion. On the international level, the United Nations recognizes these rights in Article 19 of the Universal Declaration of Human Rights.4

Expressing oneself is worth nothing, however, if one is not heard. Several authors and governing bodies, including members of the United States Supreme Court, have recognized that freedom of speech means nothing without the possibility that people will hear you. U.S. Supreme Court justice Brennan, best summed up this position in 1973 when he wrote:

[F]reedom of speech does not exist in the abstract. On the contrary, the right to speak can flourish only if it is allowed to operate in an effective forum … For in the absence of an effective means of communications, the right to speak would ring hollow indeed. And, in recognition of these principles, we have consistently held that the First Amendment embodies, not only the abstract right to be free from censorship, but also the right of an individual to utilize an appropriate and effective medium for the expression of his views.5

Stephen Holmes also touches on this point in an article on liberal constraints on private power. Holmes uses the example of broadcast-industry regulation to show that just as property rights require government enforcement of trespass laws, free speech and free press rights require state action aimed at securing the preconditions for effective freedom of expression.6 He goes on to say, “the First Amendment does not merely have the negative purpose of liberating individuals from government censorship. It also has the positive purpose of creating an informed public capable of self-government.”7 Owen supports the need for regulation of private concentrations of power when they interfere with the ability of individuals to exercise their rights. He writes: “the spirit of the First Amendment will be taken to mean not merely a negative constraint on the power of government, but a positive obligation to intervene in various carefully defined ways when freedom of expression is threatened by private agglomerations of power.”8 According to Herbert Schiller, it is the shift from government to private corporate power as the main threat to free expression that distinguishes our era.9 So, even though freedom of expression laws are often thought to prevent government suppression of individual rights, they can just as easily be interpreted to prevent suppression by private groups, in this case by media conglomerates and the people and corporations associated with them.

The point is, expression rights must be weighed against other rights in determining which acts need to be regulated. In the case of media ownership, the expression rights of the vast majority of people in society must be weighed against the property rights of the few people and corporations that control the media. A similar argument is made for the existence of regulations against hate speech, in which case the expression rights of some are limited in the interest of securing the rights of many to live in a safe, nonviolent environment.

On this point, John Stuart Mill argues that society has an obligation to interfere in the rights of individuals when their actions threaten injury to others, when freedom of expression will do more harm than good. In “On Liberty” he writes:

the fact of living in society renders it indispensable that each [person] should be bound to observe a certain line of conduct towards the rest. This conduct consists first, in not injuring the interests of one another; or rather certain interests, which, either by express legal provision or by tacit understanding, ought to be considered as rights.10

In her work “Burning Crosses, Political Expression, and the First Amendment,” Amy Ihlan also argues in favor of limiting hate speech by arguing against the protection of burning crosses as a political act. She bases her argument on the fact that “a burning cross is not so much the expression of a political ‘idea,’ or a set of ideas collected into a ‘viewpoint’ as it is a blunt, brutal act of power and dominance, an act of hatred and violence, a potent threat of more violence to come.”11 Such acts threaten to destroy the kind of open and democratic participation the First Amendment ought to protect,12 so they should be limited in the interest of the public good and personal freedom.

Weighing free expression rights against property rights is much more problematic, however. Holmes reaches back to Lockean theory to show that a person’s right to deny access to their property is rescinded in case of dire necessity of that property by others.13 Since few other viable options exist for or are available to the vast majority of people to express themselves in, access to media outlets in the current communication environment can be deemed a “dire necessity” (this point will be elaborated on in more detail in the third section of this paper). Judith Lichtenberg also argues for the superiority of free expression rights over property rights, citing the qualified nature of property rights. Lichtenberg points out that in cases where no comparable alternative exists for the exercise of free expression rights, property rights are overruled. On this point, Lichtenberg cites the case of Marsh v. Alabama (1948) in which the right of a Jehovah’s Witness to distribute religious literature on the sidewalk of a company-owned town was upheld because no public alternatives existed for the exercise of free speech.14How these issues apply to the current media environment will be explored in more detail later in this essay.

The important idea to note in these cases is that the right to free expression must be weighed against the rights of others to live in a safe environment and to determine how their property is used. In the first case, the rights of people to live in a safe environment outweigh free expression rights. Even though censorship in these cases hinders free expression, it is justified on the basis of minimizing harms against others and because hate speech contributes little, if anything, to public discourse. In the second case, property rights are valued less than the right to free expression and will be overruled when they interfere with or hinder expression and public discourse.

Both of these cases speak to the purpose of free expression laws. Not only do they guarantee an individual’s right to self-determination, they are also designed to encourage a wider variety of ideas in the public sphere. Many authors talk about “the marketplace of ideas” and about ensuring diversity in the information that is available for discussion,15 but free expression is about more than having a variety of ideas to listen to. Free expression is about more than passively taking in what other people have to say. Free expression is about active participation. Free expression is about being able to participate in social discourse, so we can learn and grow as individuals and so we can help shape and direct the community we live in. However, our community is no longer simply the local neighborhood or even the city we live in. Given the fact that laws and policies are created and instituted on national levels, and given the realities of globalization, the public sphere in which social discourse occurs is broader than ever before.

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Jurgen Habermas defines the public sphere as “a realm of our social life in which something approaching public opinion can be formed.”16 All people are guaranteed access to it, and it is participation in the public sphere that defines people as citizens.17 All people are guaranteed the right to participate, but they become citizens when they exercise their right. Every conversation in which private individuals assemble to form a public body, every act of participation in public discourse, constitutes part of the public sphere. The public sphere is founded on the idea of citizens as participants, as members of a public body, not just as people who assemble to form a group.

One’s public sphere can no longer be limited to the neighborhood or town that one lives in, it can no longer be limited to the people that can be communicated with face-to-face, since life as we now experience it can and must take into account people around the globe.18 Free expression is a necessary part of being able to participate in the discourse on these kinds of issues, and it is these kinds of transnational issues that force us to expand the idea of the public sphere to the global level.

Given the global scale of many social issues, people must conceive of themselves as transnational citizens. To accommodate this, Mark Kingwell, in The World We Want: Virtue, Vice and the Good Citizen, argues for a conception of citizenship based on global participation. In our developing transnational world, ideas of citizenship that are based on blood (the tribe you are born into), belief (the adherence to a body of ideologies) or law (groups formed through constitutional procedures and access to a body of rights) no longer apply. Instead, Kingwell argues that we need a new model of citizenship “based on the act of participation itself, not on some quality or thought or right enjoyed by its possessor. This participatory citizenship doesn’t simply demand action from existing citizens; it makes action at once the condition and the task of citizenship.”19

The expansion in our conception of the public sphere and the participatory nature of transnational citizenship has several implications for the media. First, as the distance between people grows and the number of people in one’s community increases, the media are needed as tools to disseminate information and opinion. Second, as society grows and becomes more complex, it is the broader, institutionalized discourse found in the media, not small-scale communication such as face-to-face conversations, that shapes society and affects social, political and economic policy. Third, in the current media environment, entirely “public” spaces are dwindling in number and size and are no longer viable alternative sites of communication. The media have supplanted “public” sites of discourse and, therefore, play a more central role in participation in the public sphere. Issues of free expression in the public sphere, then, are intimately linked with access to the media.

As far as participation in the public sphere is concerned, face-to-face interaction is the most accessible method of communication. However, as societies grow, face-to-face communication with everyone in the public sphere is no longer feasible. The media must be used as tools of communication in the public sphere and Habermas explicitly recognizes this fact. He writes, “in a large public body, this kind of communication requires specific means for transmitting information and influencing those who receive it. Today, newspapers and magazines, radio and television are the media of the public sphere.”20 They facilitate participation in the public sphere – which at the very least means the communication of basic information – by carrying human expression across greater distances to a greater number of people. At the most basic level then, media outlets are conduits of information and opinion – be it news, entertainment, opinion, sports coverage or any other category.

As part of their responsibility to disseminate information about the world, the media also have a responsibility to publicize information and views from as wide a variety of sources as possible. This means recognizing that objectivity, while it is an admirable news value, is impossible. No reporter or information gatherer is entirely objective and they should not assume that the information they collect and provide is the only interpretation. A more appropriate news value would be balance – providing information from several sides of the same story while acknowledging that the story can never be written or produced in a completely detached manner. In a way, the issue of diversity of information sources is related to access to the media. If access to the media is limited to a select group of newsmakers or officials, then it is only those people who will be the sources of information.

Access to the media is also important because it is in the media that the vast majority of public debate occurs. This is not to say that town hall meetings and debates among friends do not shape opinion in some sense, but the discourse that influences the majority of society and that shapes policy occurs in the media. The debate happens in opposing newspaper editorials, opposing letters to the editor, opposing books on the same subject, opposing magazine articles in opposing publications. Public discourse occurs in a story on television that contradicts or expands on a story in a newspaper. Public discourse is, for the most part, what is disseminated in the media. University professors, for example, are required to publish their research because debates happen between academic publications and much less through face-to-face conversation. Federal elections and political debates are waged through competing advertisements and news stories, not so much through face-to-face debates.21 And while the Internet is touted as a tool that makes one-to-one conversation possible no matter what the distance, media coverage of the protests outside the World Trade Organization meetings in Seattle in 1999 probably did more to get the counter-corporate, leftist, world governance message out there than protestors speaking to one person at a time ever could.

This is not to say that small-scale, grassroots communication isn’t valuable in smaller environments. Grassroots movements are still politically important in the sense that they prepare people for debate on the larger stage. But grassroots activists often do not affect policy until they are allowed to voice their views in the larger public sphere (i.e. through some form of media). Without access to the media as a tool of communication, then, the vast majority of citizens are denied the opportunity to participate in discussions that affect the policies of the environment in which the larger public sphere exists and in which they live. The current media monopoly environment reduces access in a number of ways, all of which will be addressed in the third section of this paper.

The reason access to the media is needed is not just a matter of the size of the public sphere or the location of the debate, however. For the most part, viable alternatives to the media are no longer available. This is true in terms of the availability of non-commercialized space as well as the ability of people to create their own alternatives to the established media. In No Logo, Naomi Klein discusses at length the trend of attaching brands to anything and everything. Advertising has become so pervasive that “nearly every major city has seen some variation of the 3-D ad takeover, if not on entire buildings, then on buses, streetcars or taxis.”22 Fully-privatized, branded towns and neighborhoods now exist23 and public spaces in which to discuss community issues have been replaced with privately-owned spaces that appear to be public. Lichtenberg uses the example of the downtown core being replaced by the shopping mall to illustrate how small, independent media are no longer viable alternative forums for public discussion. She writes:

There are obvious analogies between the modern American shopping center and the mass media. Both mass media organizations and shopping centers consist of large private organizations that serve (one as an essential part of its role, the other accidentally) as forums for discussion and debate; both have largely driven out smaller competitors. Each has assumed an essentially different function from those of the institutions out of which it has evolved. The shopping center is more than a collection of private stores; it includes the spaces between and around them, and so replicates not just the businesses of Main Street but the municipality as well. Analogously, the mass news organization is not simply a larger version of its predecessor … it has become not only an actor but the stage as well. Alternative channels of communication to the mass media are not comparable to it, and so not satisfactory.24

Since completely public, advertising-free spaces are dwindling to the point of non-existence, or have been for the most part replaced by privately-owned spaces like shopping malls, and since the number of people with direct access to the media has been reduced by the monopoly-ownership environment, the alternative to using existing media as tools of communication is for people to create their own newspapers and magazines, Internet sites and recording studios, radio programs, television shows and movies. Given the current media environment, these alternatives are not always possible.

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The existence of a media monopoly, or at least an intricately connected media oligopoly, is well documented. Apart from Bagdikian’s work, Edward Herman and Robert McChesney have documented the global corporate media consolidation trend in The Global Media: The New Missionaries of Corporate Capitalism. It is not so much the existence of a media monopoly as the ethical implications of such a monopoly that is of interest here, however.

Monopolistic media ownership interferes with or restricts the exercise of free expression in a number of ways, mostly through restricting access to media outlets. In the most concrete terms, as media outlets are consolidated and ownership is concentrated, staff are cut and the real number of people working on or contributing to a given media outlet is reduced. More indirectly, the cost of using the media prevents or discourages people outside the media industry from accessing the media as tools of communication. Finally, the current media environment stifles freedom of expression by making it extremely difficult for new, independent media outlets to be created and to survive. The end result is a situation in which public discourse is dominated by the voices of corporations and those individuals who have the resources to access a profit-motivated media system.

The whole point of monopolistic media ownership is to increase profit. As Bagdikian points out, “short-term profits are now imperative in the major media almost without regard for the future of media institutions.”25 Maximizing profit can be done in a few ways: by vertically integrating companies to control input costs and reduce expenses, by increasing revenue through increasing the cost and amount of advertising, and by taking advantage of economies of scale (in both advertising and distribution). Regardless of how it’s done, Bagdikian writes:

Newspapers and other media bought by large corporations as investments come under new pressure for maximizing profits. The parent firm competing in world markets must attract shareholders with high dividends and gross revenues, and distant owners remain insulated from local objections to changes made in order to extract maximum profits.26

Vertically integrating a company and cutting costs is the main thrust behind consolidating media ownership. By controlling everything from content production to marketing and distribution, media companies can control what they pay for each service and can cut costs by eliminating duplicate staff.27 As Herman and McChesney point out, “the profit whole for the vertically integrated firm can be significantly greater than the profit potential of the individual parts in isolation. Firms without this cross-selling and cross-promotional potential are at a serious disadvantage in competing in the global marketplace.”28 Take the case of BCE Inc.’s purchase of CTV and The Globe and Mail this year. Jean Monty, chairman and chief executive of BCE Inc., stressed that “cross-pollination will take place between the new enterprise’s different parts and that content created on one platform will be refitted and used again on another.”29 Media corporations benefit from the cost savings of combining overlapping services, but reducing the number of staff at a given newspaper or television station also reduces the number of reporters and content providers who have direct access to the media. This is turn reduces the number of different voices and opinions that are or can be heard. Currently, a person’s best chance at being heard in the media comes from working at a media outlet. As the number of employment positions dwindle, so too do the opportunities to work there.

Making the media inaccessible can also include reducing the amount of space dedicated to reader-supplied opinion and setting the price for print space or air time out of reach for the vast majority of people. This is done through increases in advertising prices, increases in the amount of time and space dedicated to advertising and a reduction in the amount of time and space dedicated to factual information and discourse. Since media outlets are staffed by professional content providers, the most likely options for regular citizens to guarantee their view will be heard is by submitting opinion pieces or purchasing advertising time. But submitting an opinion piece may be difficult since the amount of space or time dedicated to non-advertising content has been consistently decreasing over the last 60 years. Take the newspaper industry, for example. In 1940, daily newspapers in the United States averaged 31 pages with 40 percent dedicated to advertising. By 1980, daily newspapers averaged 66 pages with 65 percent advertising.30 Since submitting an opinion piece does not guarantee that it will be printed or broadcast, purchasing advertising is the only guarantee people really have that they will be heard. And the cost of purchasing advertising can be prohibitive for many people. The reality of this situation is apparent to anyone who studies the media industry. As Schiller points out, “what American voices, other than corporate ones, can afford to pay half a million dollars or more for a thirty-second commercial on national television?”31 Not all media advertising costs as much as Schiller suggests, but the fact that media time needs to be purchased at all means that many, if not most, people are denied access to the media.

The cost of advertising is part and parcel of the desire by media conglomerates to take advantage of economies of scale. In terms of advertising, media chains have an advantage in attracting advertisers because they can offer a wider circulation or audience reach through multiple media outlets. A business advertising on the CTV network, for instance, won’t get only one television station – it can get 18 stations across Canada.32 Such advertising strategies often cost less to the advertiser than it would to advertise with multiple, independent media outlets. Owen notes two other types of economies of scale – economies in transmission and economies in competitive advantage – and both are closely related. Economies of scale in transmission are derived from reducing the average copy cost. The first copy of a newspaper may cost tens of thousands of dollars, but every copy after the first costs less because the “first copy” cost is divided among the distribution size.33 By merging two newspapers in nearby markets, for example, the overall cost of the combined distribution can be reduced by having only one newspaper and eliminating the other “first copy” costs. Economies of scale are also found in the competitive advantage created by wider distribution. The larger the scale of the operation, the wider the profit margin, the more competitive a media outlet can be when it comes to undercutting or outperforming other media outlets. This affects the ability of a media outlet to attract advertisers, as has already been noted, and it often determines which media outlets are able to survive. Owen writes:

The larger the audience, the greater the competitive advantage. Large newspapers will tend to drive out smaller ones; two smaller newspapers can both gain by merger; a new motion picture distributor must have great difficulty obtaining a viable foothold in the industry; a UHF station that can only reach some of the homes in its market will do poorly compared to a VHF station that can reach all homes.34

The competitive advantage created by economies of scale contributes to the third way in which the current media environment infringes on the rights of individuals to free expression – it creates an environment in which it is extremely difficult for people to create and distribute their own alternative, independent media. If people do not have access to the established media as tools of communication and purchasing advertising space or time is too prohibitive, then the other option is for them to produce their own media communication tools. A person can start their own magazine, create a website, distribute leaflets or publish a community newspaper. With the advent of digital cameras and the availability of rental equipment, it’s even possible for a person to make their own short film. And in principle there is nothing preventing anyone from exercising their right to publish their views outside of existing media, which makes those who take a negative liberty approach to freedom of expression quite happy. In principle there are no barriers. In practice it costs money to have flyers or small magazines copied and distributed. In practice it takes a computer to create a website and, even if a person uses a public library computer to get free internet access and gets free space on the web, it takes resources to draw any sort of attention to one website in a sea of millions of web pages. In practice most people need to rely on some form of advertising revenue to produce a community newspaper or magazine, at least in the start-up phase when readers may not be willing to pay full subscription prices. The reality of independent media outlets having to compete with outlets owned by large media corporations is that the corporate-owned outlets can afford to charge less for advertising, they can afford to undercut independents in order to put them out of business, and they can also offer a wider range of services because of the economies of scale and competitive advantages associated with being part of a media conglomerate.

Radio and television have not been included in the do-it-yourself category because both generally require licenses from national regulatory agencies, such as the Canadian Radio-television and Telecommunications Commission. Apart from the cost of applying for CRTC approval for a radio or television station, independent media competitors can also expect opposition to their applications from existing media conglomerates. In the case of Jan Pachul’s application for a low-powered television (LPTV) station in the Toronto area, the Canadian Association of Broadcasters, CTV, CHUM, the Canadian Television Association and Rogers Cable appeared before CRTC hearings to speak against his Star Ray TV proposal.35 Granted, they spoke up because the CRTC does not currently have a policy on urban LPTV stations, which broadcast in very localized regions using UHF or VHF bands. Still, the opposition to Pachul’s proposal seems excessive considering the mission of Star Ray TV is to “fill a current gap in broadcastings’ efforts” by “providing a platform for the local community to express, on an ongoing basis, local civic issues, and to portray the narratives of local residents.”36 More than 40 groups and private individuals made submissions to the CRTC on Pachul’s behalf, but his application was denied by a vote of 3-2.37 While Pachul intended to provide a media outlet that the public in the Riverdale and Beaches neighborhoods of Toronto could easily access, corporations with media outlets in the Toronto area used their entrenched power to speak against the project. As of October, Pachul was still illegally broadcasting for the sake of “diversity in programming” and “giving the average person a voice.”38

Jan Pachul isn’t the first person to break the law for the sake of personal expression. Graffiti art, and its equally illegal culture-jamming cousins, are often-cited examples of communication that occurs outside conventional channels. If anything, such acts are a testament to how difficult it is to communicate, to be HEARD, in the current media environment. They are also evidence of the fact that to be heard in one’s community, to communicate in the public sphere, one must use more than face-to-face, one-to-one communication – one must access the media. Whether it’s using a billboard, a community newspaper, a record label, a city radio station, a local magazine, a public-access cable channel or an alternative film movie theatre, people have a need to communicate and they need to be heard by more than just themselves. While not everyone wants to communicate on the regional, national or international level, the opportunity does not even exist for the vast majority of people to take advantage of. By denying access to the tools of communication – through the prohibitive costs of inserting content, through the hostile environment in which independent media outlets must operate, through limiting the number of people who work in the media – the current monopolized media environment infringes on the rights of individuals to express themselves freely. It is for that reason that such a monopoly is unethical.

NOTES AND REFERENCES

  1. Ben Bagdikian, The Media Monopoly, page 4.
  2. The Commission on Freedom of the Press, A Free and Responsible Press: A General Report on Mass Communication: Newspapers, Radio, Motion Pictures, Magazines, and Books, page 3.
  3. Bagdikian, page viii.The International Declaration of Human Rights, page 7, states: “Everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to see, receive and impart information and ideas through any media and regardless of frontiers.”
  4. This quote is taken from Bruce Owen’s book Economics and Freedom of Expression: Media Structure and the First Amendment, page 1.
  5. Steven Holmes, “Liberal constraints on private power?: reflections on the origins and rationale of access regulation,” page 44.
  6. Ibid, page 47.
  7. Owen, page 2.
  8. Herbert Schiller, “Information Deprivation in an Information-Rich Society,” page 16.
  9. John Stuart Mill, “On Liberty,” page 253.
  10. Amy Ihlan, “Burning Crosses, Political Expression, and the First Amendment,” page 270.
  11. Ibid, page 264.
  12. Holmes, page 24.
  13. Judith Licthenberg, “Foundations and limits of freedom of the press,” page 117-118. In this case, Gulf Shipbuilding owned the streets and sidewalks of Chickasaw, Alabama. The company also provided police protection, sewerage and other services normally undertaken by municipalities. The court found that insofar as the private corporation adopted the functions of a municipality, it assumed the obligations of a municipality with respect to free speech.
  14. In its non-economic form, “the marketplace of ideas” can be attributed to Milton and suggests that ideas compete for intellectual domination, with the presumption that truth will eventually win out. Owen takes the marketplace metaphor more literally, discussing the market in which ideas are bought and sold. The marketplace metaphor is a common one, however. For instance, the report of the Hutchins Commission (A Free and Responsible Press) uses as one of its founding principles the idea that civilized society is a working system of ideas that lives and changes by their consumption. Free speech is often defended insofar as it contributes to a wider variety of ideas in the marketplace. People are given the opportunity to shop among the ideas that most appeal to them or are supported the best. As Lichtenberg puts it, “much of the value of a person’s contribution to the ‘marketplace of ideas’ is its role in stimulating others to defend or reformulate or refute” (page 111).
  15. Jurgen Habermas, “The Public Sphere: An Encyclopedia Article,” page 136.
  16. In this context, citizenship is not limited to a person’s country or nationality. Citizenship is based on participation in a public body, and that public body can be as small as a person’s local neighborhood or as big as the planet (as in the idea of global citizenship). As such, membership in a public body is not predetermined by birth or where one lives, it is determined by the act of participating in public discourse.
  17. Naomi Klein’s No Logo: Taking Aim at the Brand Bullies provides an excellent account of many of the most prevalent and high-profile international issues being confronted right now. The book includes many stories of people acting as global citizens, taking into account how their actions in North America and Europe affect the rest of the planet. While Klein focuses on the backlash against the perceived corporatization of everything from elementary schools to public spaces, her work shows how people have become aware of what goes on around the world and how they are responding to it. Whether it is a city council passing a resolution not to do business with companies operating in countries that violate human rights (see page 410-411. Klein says the move by Berkeley set off a domino effect across the United States and that at last count “twenty-two cities, one county and two states had selective purchasing agreements relating to companies in Burma, and a handful of cities had disqualified purchases from companies with investments in Nigeria.”) or university students refusing to have their school clothing manufactured in sweatshops.
  18. Mark Kingwell, The World We Want: Virtue, Vice, and the Good Citizen, page 12.
  19. Habermas, page 136.
  20. Even when political debates rarely do occur (maybe once or twice in a federal election), they are highly orchestrated and structured media events that allow for little real discussion between candidates.
  21. Klein, page 37.
  22. Ibid, page 154-156. Celebration, Florida is a town completely owned by Disney. The planned development arrives complete with picket fences, a Disney-appointed homeowners’ association and a phony water tower. It is “an idealized re-ation of the livable America that existed before malls, big-box sprawl, freeways, amusement parks and mass commercialization.”
  23. Lichtenberg, page 124.
  24. Bagdikian, page 201.
  25. Ibid, page 199.
  26. Owen, page 16.
  27. Edward Herman and Robert McChesney, The Global Media: The New Missionaries of Corporate Capitalism, page 54.
  28. Katherine Macklem, “The Media Colossus,” page 34.
  29. Bagdikian, page 135.
  30. Schiller, page 17.
  31. Macklem, page 36.
  32. Owen, page 16.
  33. Ibid, page 17.
  34. Scott Simmie, “Do-it-yourself TV,” page D10.
  35. Star Ray TV Mission Statement, http://www.srtv.on.ca/msst.html
  36. Simmie, page D10.
  37. Simmie, page D1.

    BIBLIOGRAPHY

  • Bagdikian, Ben H. The Media Monopoly, Sixth Edition. Boston: Beacon Press, 2000.
  • “The Canadian Charter of Rights and Freedoms” from Law and Morality: Readings in Legal Philosophy. Eds. David Dyzenhaus and Arthur Ripstein. Toronto: University of Toronto Press, 1996.
  • Commission on Freedom of the Press, The. A Free and Responsible Press: A General Report on Mass Communication: Newspapers, Radio, Motion Pictures, Magazines, and Books. Chicago: University of Chicago Press, 1947.
  • Habermas, Jurgen. “The Public Sphere: An Encyclopedia Article” from Critical Theory and Society: A Reader. Eds. D. Kellner and S. Bonner. Routledge, 1989.
  • Herman, Edward and Robert McChesney. The Global Media: The New Missionaries of Corporate Capitalism. London: Cassell, 1997.
  • Holmes, Stephen. “Liberal constraints on private power?: reflections on the origins and rationale of access regulation” from Democracy and the mass media: A collection of essays. Judith Lichtenberg, Editor. New York: Cambridge University Press, 1990.
  • Hoyt, Mike. “With ‘Strategic Alliances,’ the Map Gets Messy” from Columbia Journalism Review (January/February 2000). wysiwyg://43/http://www.cjr.org/year/00/1/hoyt.asp
  • Ihlan, Amy. “Burning Crosses, Political Expression, and the First Amendment: The Case of R.A.V. v. City of St. Paul” from Philosophical Perspectives on Power and Domination. Eds. L.D. Kaplan and L.F. Bove. Amsterdam: Rodopi, 1997.
  • Kingwell, Mark. The World We Want: Virtue, Vice, and the Good Citizen. Toronto: Penguin Books Canada Ltd., 2000.
  • Klein, Naomi. No Logo: Taking Aim at the Brand Bullies. Toronto: Knopf Canada, 2000.
  • Lichtenberg, Judith. “Foundations and limits of freedom of the press,” from Democracy and the mass media: A collection of essays. Judith Lichtenberg, Editor. New York: Cambridge University Press, 1990.
  • Macklem, Katherine. “A Media Colossus” in Maclean’s. September 25, 2000: 34-37.
  • Mill, John Stuart. “On Liberty (1859)” from Law and Morality: Readings in Legal Philosophy. Eds. David Dyzenhaus and Arthur Ripstein. Toronto: University of Toronto Press, 1996.
  • Owen, Bruce. Economics and Freedom of Expression: Media Structure and the First Amendment. Cambridge: Ballinger Publishing Company, 1975.
  • Schiller, Herbert I. “Information Deprivation in an Information-Rich Society” from Invisible Crises:
  • What Conglomerate Control of Media Means for America and the World. Eds. George Gerbner, Hamid Mowlana and Herbert I. Schiller. Boulder: Westview Press, 1996.
  • Simmie, Scott. “Do-it-yourself TV” in The Toronto Star. Sunday, October 8, 2000: D1 and D10.
  • Star Ray TV Mission Statement. http://www.srtv.on.ca/msst.html.
  • Taras, David. Power & Betrayal in the Canadian Media. Orchard Park: Broadview Press, 1999.
  • Taylor, Charles. “What’s Wrong with Negative Liberty” from Law and Morality: Readings in Legal Philosophy. Eds. David Dyzenhaus and Arthur Ripstein. Toronto: University of Toronto Press, 1996.
  • The International Bill of Human Rights. New York: United Nations, 1978.
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Media Ethics with a Life at Stake: The Sam Sheppard Murder Trial

Marah Eakin,†Ohio University

In 1966, the United States Supreme Court ruled “The massive, pervasive and prejudicial publicity attending petitioner’s prosecution prevented him from receiving a fair trial,”freeing Dr. Sam Sheppard from prison and condemning the media for their handling of a trial 12 years previous.

The 1954 murder of Marilyn Sheppard (see Appendix 1 for summary of case information) has achieved tremendous amounts of notoriety since the decision was handed down. It’s been called a “Roman Holiday” for the media. The case, with all its intriguing details, made a very sellable story for newspapers, and eventually turned into a veritable “feeding frenzy” of information.

The real question is “did the media go too far?” Did their treatment of the case infringe Sheppard’s right to a free trial? Did their desire to get scoops and sales outweigh their journalistic ethics? To this writer, the members of the media covering the trial checked their ethical knowledge at the door, yielding to public outcry and possibly ruining a man’s life.

The Sheppard trial is a prime example of media mishandling of a criminal investigation. Paul Holmes, author of “The Sheppard Murder Case,” said the manhunt and trial were “the gaudiest, most publicized, and most controversial murder trial in the United States in modern times.”

  1. Criteria for a media-friendly criminal investigation

  2. A murder in an idyllic upper middle class suburb. A prominent family. A beautiful socialite wife, who just happens to be barely pregnant. Potential police botchery. Illicit love.

To some journalists, the above combine for a coherent and captivating story. Scandal sells newspapers.

The Sheppard trial was one of the earliest trials that the entire nation followed – both in the papers and on the rapidly evolving television set. Networks and big name reporters covered the story. What could be better than a gruesome murder in a small town?

However, we must question the ethical background that these decisions are based on. Is it better for the American people to have their appetites for gossip quenched or to have a fair criminal justice system? By basing their stories on gossip, hearsay and editorializing, the Cleveland media dropped the Rawls veil of ignorance in lieu of condemnation before conviction.

The media in the Sheppard case profited from the misfortune of others, known commonly as a “Roman Holiday.” By making assumptions for the sake of moving a story along and making new headlines destroys the credibility and objectivity of the press.

  1. Editorializing the Headlines

When The Cleveland Press, one of the largest Cleveland newspapers, ran front-page banner headlines screaming “Quit Stalling – Bring him in,”the journalists declared their bias – clearly against Sam Sheppard.

In fact, The Cleveland Press was clearly the most opinionated and unfair newspaper involved in the entire trial. Running articles with unusually large headlines and enormous photos drew attention to the trial. In fact, they ran some of the most scandalous and scathing editorials – some of which had direct influence on the outcome of the trial. At what point does a front page editorial lose its status as opinion and become seen by readers as fact, based on placement alone?

The day the “Quit Stalling” editorial ran, Sheppard was arrested and placed in jail. Such editorials created such a public frenzy that a murderer could be free in their midst that the pressure on law enforcement agents would be so great that, regardless of evidence, it is possible that police would feel obligated to seize Sheppard.

When the trial would later commence, jurors weren’t sequestered, nor was the trial moved to a more neutral location where the publicity wouldn’t have been so dynamic. In fact, the possibility of a completely objective jury pool is almost laughable. It can almost be assumed that the popular media coverage, including some of these editorials had to have been at least viewed, if not absorbed, by jurors.

At the same time, it’s obvious that the media was not entirely at fault. The independence of the legal system must be taken into account, including the assumption that the jurors were not swayed by the press or by public sentiment.

  1. Jury fashion and Cameras in the Courtroom

As evidenced by the June 6, 1966, Supreme Court Sheppard v. Maxwell decision, Sam Sheppard was not given a fair trial.

The jurors were thrust into the spotlight even before the trial began. In fact, The Cleveland Press published names of all the people in the jury pool. Later they would do an article on the dapper fashions of the female jurors, “bringing color to the courtroom,” including pictures of the ladies.

According to Supreme Court Justice Tom Clark, “Despite his awareness of the excessive pretrial publicity, the trial judge failed to take effective measures against the massive publicity which continued throughout the trial or to take adequate steps to control the conduct of the trial.”For example, one end of the press table was less than three feet from the jury box. The proximity of the journalists to the trial’s participants eliminated privacy between Sheppard and his lawyers, as well.

In today’s age of immediate news coverage, spurred on by America’s fascination with the O.J. Simpson trial, it’s hard to imagine a case with such a carnival atmosphere. Still, it can be argued that perhaps the legal system has learned from its’ mistakes – In the Simpson trial, the accidental glimpse of a juror by a TV camera was practically grounds for a mistrial. In contrast, in 1954, the Sheppard jurors ate daily at the same restaurant with almost all principal participants in the case.

Following the realization that Sheppard had an affair with Susan Hayes, a fact he admitted, the media began to let their imaginations run rampant. The Cleveland Press began fabricating stories and speculating about Sheppard’s other extra-marital activities.

“As the trial progressed, the newspapers summarized and interpreted the evidence, devoting particular attention to the material that incriminated Sheppard, and often drew unwarranted inferences from testimony such as he had sexual relations with numerous women; that his slain wife had characterized him as a ‘Jekyll-Hyde;’?and that a woman convict claimed Sheppard to be the father of her illegitimate child. At one point, a front-page picture of Mrs. Sheppard’s blood-stained pillow was published after being ‘doctored’ to show more clearly an alleged imprint of a surgical instrument.”

It is unquestionably wrong, however, for the press to become active participants in a court case, regardless of public demand for up-to-date and “close to the action” coverage. When the media interferes with the legal system, it does harm to every American who may go to court, as well as itself. It’s unconstitutional, and it’s unethical. When the media crosses lines and decides innocence or guilt, it becomes not simply a purveyor of information, but rather a jury instead.

  1. Gripping the Nation

  2. Coverage of the Sheppard trial was front-page news across most of America for the six months following the murder.

  3. Despite all the ethical dilemmas surrounding the Sheppard trial, many members of the media still believe they were doing nothing but their job. Editor of The Cleveland Press at the time, Louis Seltzer wrote in his memoirs “The question confronting The Press as a newspaper? was? Shall we permit a protective wall to shield a solution to this murder, by saying and doing nothing, or ? Shall we move in with all of our editorial artillery in an effort to bring the wall down, and make it possible for law enforcement authorities to act in their normal and accustomed way?? As Editor of the Press, I would do the same thing over again under the same circumstances.”

Unquestionably, newspaper circulation increased during the time of the trial, and news wasn’t hard to come by. But the real question lies in the ethics of such comprehensive coverage. Not only were the papers covering the facts, but the Cleveland papers also ran features about not only juror fashion, but romance between the defense attorney’s son and a reporter for a Chicago newspaper, visiting reporters at the trial, and various other famous murder cases in relation to the Sheppard trial. Criminal trials are, in fact, interesting, but at what point must the line be drawn between news and drivel?

  1. Conclusion

The immersion style reporting that the media did, namely the Cleveland media, clearly compromised the rights of Sam Sheppard. Whether he was guilty or not is irrelevant, really. The fact remains that fault lies both on the media’s drive for sensational stories and the legal system’s reluctance to impose restraints.

In a twenty-nine-page ruling written by Justice Tom Clark, the Supreme Court ruled that Sheppard had been deprived of a fair trial “because of the trial judge’s failure to protect Sheppard sufficiently from the massive, pervasive, and prejudicial publicity that attended his prosecution.” The Supreme Court’s landmark ruling was the first decision to recognize that the press could prevent a defendant from receiving a fair trial consistent with the due process clause of the Fourteenth Amendment.

By the 1990s the opinion had been cited nearly two thousand times by other courts. “It became a precedent for such famous cases as those of O.J. Simpson, William Kennedy Smith and the officers accused of beating Rodney King, and it came up whenever prejudicial publicity threatened to taint the right to a fair trial.”

As journalists, we must question whether what we report is fair. The entire newspaper is responsible – for the life of a person, for the reputation of a reporter, for the vitality of a business, and for public perception of a profession. Even if news is factual, to what extent must we report it?

While coverage of a trial, acceptably extensive if the trial is important, is acceptable, responsible journalists cannot allow themselves to be driven by their gut reaction and popular hunger for gossip – they must think through their decisions and report only what is ethical and just. Cases like the Sheppard trial allow journalists to learn from past mistakes to create a better reputation for the future.

Sheppard v. Maxwell, 384 US 333, 335

Holmes, Paul. (1961) The Sheppard Murder Case. New York. David McKay Company, Incorporated.

Sanders, Keith Page (1964). The Cleveland Press Coverage of the Sheppard Murder Case in Relation to Sensational News Treatment. Unpublished masters thesis.

Sam Sheppard: The Supreme Court Speaks. (1998). Retrieved March 11, 2001 from the World Wide Web: www.crimelibrary.com/sheppard/shepcourt.htm

McKnight, Keith. (1996, July 2). Sheppard goes to trial during a different legal era. Akron Beacon Journal.

Thomas Clark, “Sheppard v. Maxwell, 384 U.S. 333 (1966),” <http://caselaw.findlaw.com/scripts/getcase.pl?court=US&vol=384&invol=333>. 1994-1999.

Seltzer, Louis B. (1956). The Years Were Good. Cleveland: The World Publishing Company.

F. Lee Bailey with Harvey Anderson, The Defense Never Rests, (New York: Stein and Day Publishers, 1971), 81.

Janice Shuetz and Kathryn Holmes Snedaker, Communication and Litigation: Case Studies of Famous Trials, (Illinois: Southern Illinois University Press, 1988), 177.

Cynthia L. Cooper and Sam Reese Sheppard, Mockery of Justice, (New York: Penguin Books Inc., 1997), 157-158.

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Scheffler's Agent-Centered Prerogative – a Viable Solution to the Problem of Autonomy in Utilitarianism

Matthew Foust,†John Carroll University

Utilitarian moral theories purport to be in favor of maximizing the well-being of all concerned. In accordance with this principle, several of an agent’s values must receive protection while practicing any form of utilitarianism, considering protection of human rights to be conducive to human well-being. Autonomy would seem to be one such value. In utilitarian theory, however, autonomy appears to have its value only in its existence as a means to the greater end of well-being. This observance raises the question of whether or not a utilitarian agent could be robbed of all remnants of his or her autonomy, this removal considered to be in the interest of the agent’s well-being. It is my claim that a viable solution to this problem can be found in a component of one philosopher’s consequentialist theory of morality. I contend that Samuel Scheffler’s agent-centered prerogative is able to provide utilitarianism with a way to value autonomy such that the conflict between the well-being of an agent and the agent’s autonomy would be rendered impossible.

Many philosophers have written on utilitarianism, directly or indirectly addressing this issue. Bernard Williams and J.L. Mackie consider autonomy to be fatally wounded by utilitarianism. Peter Singer and John Stuart Mill, however, consider autonomy to be merely infringed upon by the justifiable demands of the moral theory. The views of these four philosophers are presented in this paper in order to outline the particular nature of the problem that I claim finds its solution in the conciliatory writing of Scheffler.

Arguing in Utilitarianism: For and Against, that the moral theory presents a significant threat to agent autonomy, Bernard Williams asks the following question, with apparent reservations concerning utilitarianism’s ramifications:

How can a man, as a utilitarian agent, come to regard as one satisfaction among others, and a dispensable one, a project or attitude round which he has built his life, just because someone else’s projects have so structured the causal scene that that is how the utilitarian sum comes out? (116)

It is ridiculous, Williams believes, for any agent to be required to abandon his or her projects simply because utilitarian calculus dictates that maximization of well-being could best be met by doing so. This requirement, Williams continues, is an attack on the agent’s integrity. Williams makes this claim, reasoning that by following utilitarian guidelines of action, the agent actually gives up his or her sense of agency, forcing him or her to be “a channel between the input of everyone’s projects, including his [or her] own”(116). It seems that for Williams, this surrendering of agency that utilitarianism is responsible for renders the utilitarian agent a kind of slave to his or her system of morality, the agent’s personal convictions and agendas deemed worthless in the eyes of the subjugating utilitarian theory. It is clear that for Williams, utilitarianism makes far too large of an infringement on personal values. By undermining the importance of one’s personal ideals, utilitarianism forces agents to dismiss that which is important to them. A system admitting of such a feature, Williams assures, simply cannot be the best one for any agent.

Holding an entirely different opinion of the alleged autonomy-shunning nature of utilitarianism is Peter Singer. In his Practical Ethics, he argues that utilitarianism entails an “obligation to assist” such that “if it is in our power to prevent something very bad happening, without thereby sacrificing anything of comparable moral significance, we ought to do it” (168). Singer illustrates his claim with the hypothetical situation of his noticing a child drowning in a pond, on the way to his lecture. No one, Singer insists, would deny that he morally ought to save the child’s life, regardless of the potentiality of unfavorable outcomes resulting from doing so, such as his clothes being ruined or his being late for the lecture. If complete agreement to this occurs, then no one should disagree that we morally ought to take steps to prevent other harmful conditions, if we are similarly able to do so without sacrificing anything of comparable moral significance. Singer notes that the case of the drowning child is rare, but the case of poverty, to name one example, is not; it is an ongoing problem in the world everyday. If we recognize poverty as a bad thing, and are able to contribute to the minimization of it without sacrificing anything of comparable moral significance, Singer contends that we should. He displays this argument for the obligation to assist in premise form:

  1. If we can prevent something bad without sacrificing anything of

comparable significance, we ought to do it.

  1. Absolute poverty is bad.

  2. There is some absolute poverty we can prevent without sacrificing

anything of comparable moral significance.

So, C: We ought to prevent some absolute poverty.

Singer does not stop there, conveying a commentary on the act of helping:

We have an obligation to help those in absolute poverty which is no less strong than our obligation to rescue a drowning child from a pond. Not to help would be wrong?Helping is not, as conventionally thought, a charitable act which it is praiseworthy to do, but not wrong to omit; it is something that everyone ought to do. (169)

This statement of Singer’s is a concession to the notion that agents are to be held morally culpable for not preventing bad actions, even if those actions are not those of their own doing. What Williams perceives as an erasing of autonomy is, for Singer, a real obligation to do good (or prevent bad) for others. This requirement, Singer holds, is not at all unreasonable, as it serves as a conclusion to simple, uncontroversial premises that neither consequentialists nor non-consequentialists would have difficulty endorsing.

It seems, however, that John Stuart Mill, a pioneer of utilitarian morality, would contest Singer’s brand of the theory. In speaking of actions done out of utilitarian duty, Mill, in his famous “Utilitarianism,” makes the following statement:

It is a misapprehension of the utilitarian mode of thought, to conceive it as implying that people should fix their minds upon so wide a generality as the world, or society at large. The great majority of good actions are intended, not for the benefit of the world, but for that of individuals, of which the good of the world is made up. (118)

The ethically good person, Mill explains, is not required to worry about the projects of those outside his particular concern, “except so far as is necessary to assure himself that in benefiting them he is not violating the rights of any one else,” where “rights” are “legitimate and authorized expectations” (118). Although Mill has included an obligation to not violate the rights of other agents, autonomy seems to thrive in his utilitarianism. The requirement of concern for the other is not a strenuous one, as its nature of yielding to those concerns of the individual makes it appear incapable of performing the kind of suffocation that Williams anticipates. Williams, Mill would state, wrongly interprets the motive of utilitarian action as the rule of it. Mill’s allowance for emphasis of the utilitarian agent’s concerns makes Singer’s position appear to be overdemanding, a form of utilitarianism that could best find its appropriateness in a society of saints. Human morality is meant to be a practicable guideline of behavior for humans, and having allayed Williams’ fears about practicality, and humanized Singer’s take on utilitarianism, it seems as if Mill has constructed a system that suits humans well.

Despite the seeming strength of Mill’s theory, J.L. Mackie expresses serious doubt about its ability to function with universalizability in a social setting, the setting in which the vast majority of individuals, especially those concerned about morality, are situated. In his Ethics: Inventing Right and Wrong, Mackie criticizes Mill’s utilitarianism as largely impractical, maintaining that the fitness test of a proposed act being its ability to maximize the happiness of all, by first considering the rights of all, is grossly overdemanding and unrealistic. Mackie considers the difficulty of the expectation that all members of a community be directed toward the promotion of the well-being of all, pointing out that “?such total cooperation is out of the question?where the ‘all’ are to be the whole human race, including its future or possible future members, and perhaps all other sentient beings as well” (130). Mackie appears to think that Mill’s system could work, if the world were comprised of just Mill and perhaps a handful of others. The world, however, is comprised of many more human moral agents than that, and as the sample size increases, so does the difficulty of upholding Mill’s utilitarianism. It is impossible, Mackie argues, for an individual to have concern for the well-being of all members of a society, as the sheer volume of “all” is too great to have the capacity to be concerned for.

Elaborating on the nature of human society, Mackie provides another obstacle that he contends that Mill’s utilitarianism must face:

All real societies, and all those which it is of direct practical use to consider, are ones whose members have to a great extent divergent and conflicting purposes, and consequently will not only not be motivated by a desire for the general happiness but also will commonly fail the proposed test of being such as to maximize the general happiness. (130)

Holding that Mill’s utilitarianism is inapplicable to “real” societies, Mackie terms it “the ethics of fantasy” (129). Its principles, Mackie asserts, are not guides to action, but are equivalent to “a fantasy which accompanies actions with which [they are] quite incompatible” (131-32). He explains that Mill’s requirement poses a direct conflict to those agents on which it is imposed, as a vested concern for one’s self is a permanent fixture in the makeup of human nature. With this impetus looming constantly over every human agent, the expectation of human motivation tending toward the general happiness is one that could only be thought to be reasonable in a state of fantasy.

Acknowledging that beneficence does exist, Mackie makes clear that it has nothing to do with a universal concern, but instead with others whom the agent has a particularly special connection with, such as friends or family. Mackie also acknowledges affections of a wider scope, considering those of religious or political nature, for instance, maintaining that these, too, are void of claims about the welfare of “all.” While an agent may express concerns about the welfare of others, as others participate in these categories, this unselfishness is not equivalent to an unflinching concern for “all.” It is, rather, a natural sentiment felt by a human with altruistic regard to those closely tied to him or her.

Upon inspection, Mackie’s claims run into a large problem, namely that their foundation rests upon a gross misconstruing of Mill’s utilitarianism. Mackie’s protests seem to be oriented toward act utilitarianism, though Mill clearly subscribes to rule utilitarianism. The views that Mackie argues against that he has ascribed to Mill are, in fact, opposite to those actually held by Mill. Mill explicitly states that agents are not expected to “fix their minds upon?the world,” and distinctly denies that they must carry motivation for the general happiness, citing preference instead for motivation marked by a desire for the good of “individuals, of which the world is made up” (118).

Despite the error in his attack, Mackie’s observation that societies are comprised of members with divergent and conflicting purposes presents a problem for Mill’s theory. Consider the separate cases of two expedition leaders on journeys with groups of explorers. Both leaders find themselves, along with their groups, five feet from what they recognize to be the most lethal snake in the world. Knowing that the snake is startled and eager to attack, the leaders halt and order their groups to do the same, all the while knowing that it is too late, as whoever is closest to the snake five seconds from now will unavoidably perish. Leader A adopts Mill’s utilitarianism, considering the greatest good for all to be the preservation of the several younger members in his group, rather than his one older life. He orders the group to back away as he steps toward the snake. Leader B adopts Mill’s utilitarianism, considering the greatest good for all to be for the weakest member to become the snake’s next victim. She concludes that if one person must die, it ought to be a particular member of the group who is injured severely, whose depletion of the group’s medicine has proven costly and fruitless. Adhering to Mill’s utilitarianism, she reasons that her potential action would be in accordance with the member’s wishes, and would give the greatest general benefit to the concerned “all,” so she pushes him toward the snake.

The difference in conceived purpose with regard to the sudden and difficult decision the leaders must make gives Mackie’s argument against Mill some substance. Mill’s system is constructed as such that two agents adopting it, while in identical situations, may commit acts of entirely different natures, one agent (Leader A) appearing to be morally better than the other (Leader B), under the microscope of moral conventions. This inconsistency, Mackie would attest, can only be accounted for by Mill’s overly strict demand for a concern of “all.”

The commentaries of Williams and Mackie portray utilitarianism as a harsh system, its requirements stealing from agents the very basic and highly valued commodity of autonomy. Possessing a strikingly different point-of-view, the commentaries of Singer and Mill portray utilitarianism as a soundly practicable system, with the concern for “all” a realistic and unobtrusive demand. These polar positions on the acceptability of utilitarianism on the basis of its treatment of autonomy appear to warrant some sort of compromise, making both pairs of writers able to agree to a notion of acceptability with reference to a utilitarian moral structure. Not purporting to advocate utilitarianism, but rather, consequentialism, a broad category of moral theory of which utilitarianism belongs as a specific type, Samuel Scheffler appears to create this middle ground in his Human Morality.

Scheffler grapples with the issue of demand, holding that accusations of an overly demanding nature pose a significant threat to a proposed normative moral theory’s acceptability. Such conflicts between agent and theory suggest that what a moral theory prescribes as and what an agent feels to be the morally right action can often be at odds with one another. In order to alleviate this problem, Scheffler introduces his notion of an “agent-centered prerogative.” It is my claim that in doing so, Scheffler unveils a viable solution to the problem of autonomy in utilitarianism.

Scheffler’s agent-centered prerogative is conceived as a cure for the conflict between morality and agent interest, a problem that finds its root in the problem of autonomy. Scheffler points out that the accusation that a moral theory is too demanding is made for one of two reasons. The first reason is that the theory allows for a minimal number of options of morally right behavior. For example, a Kantian agent who has a gun pointed to his head and another placed in his hand is coerced to take the life of a third party – or he will be the one to incur an abrupt demise. There are many possible courses of action he could take, but under his moral theory of choice, no option seems to be void of moral violation. If the agent complies, he commits a moral wrong by killing. If he refuses, he commits a moral wrong by endangering his own life. The second reason that a theory may be accused of being too demanding is that its requirements result in too much cost to the agent. For example, a consequentialist theory that strictly requires each agent to perform only those acts which will bring the greatest good to the greatest number would demand that an agent forgo his desire to pay rent to his landlord at the deadline of 5:00 P.M., so as to avoid his family’s eviction, if presented with the chance to distribute food to hundreds of starving people at exactly the same time. Scheffler realizes that, in cases such as these, morality’s demands seem overbearing. He does believe that morality is deserving of its impersonal aspect, but feels that the most appropriate moral point-of-view is one that is agent-centered, at the heart of which should rest the agent-centered prerogative.

Revealing the nature of the agent-centered prerogative, Scheffler explains that it permits each agent “to devote a certain proportionately greater weight to his or her own projects than would be licensed by an exclusive appeal to an impersonal calculus” (104). By granting more weight to the agent’s own personal outcomes, the agent-centered prerogative lightens the obligation to the “all” that is called for in utilitarian theory. Adding this component to the theory makes it far more readily abided by, as without this adjustment, an agent’s own concerns could quite often “lose out,” under circumstances the likes of which Williams and Mackie describe.

Careful to not discard the notion that moral principles should apply to everyone, Scheffler points out that the agent-centered prerogative does not “apply to me or any other individual in particular; [it] quantif[ies] over everyone and [it] therefore appl[ies] to everyone” (103). Anticipating a possible attack of his idea of a reasonable consequentialist theory as being tantamount to egoism, Scheffler explains that granting more weight to an agent’s own interests than is allowed in common consequentialist theory is not equivalent to granting exclusive emphasis on the agent as the object of morality. Endorsement of the agent-centered prerogative is not a “claim that people are of unequal value or importance in impersonal terms,” nor a “challenge [to the] coherence or validity of impersonal assessments of value” (Scheffler, 107). It merely affirms one’s position that an impersonal code of moral qualification, such as that characterized by utilitarianism, ought not erase the significance of the agent’s personal projects. Support for the agent-centered prerogative is support for a decrease in the (extreme) degree of impersonality that consequentialist theories typically embody, as attested to by Williams and Mackie.

The remarks of Singer and Mill, however, cannot go forgotten. It is, to them, an uncontestable fact that situations arise in which agents are morally obligated to abandon their own projects in order to benefit others. Scheffler insists that acceptance of the agent-centered prerogative does not present an incompatibility with this obligation, explaining that those who would adopt it would “believe that there are indeed circumstances in which one must forgo one’s own projects in order to prevent harm or provide benefit of others” (108). Continuing, he says that they would “not regard moral assessments as simply coinciding with assessments of the agent’s own interests” (108). The extra weight given to the agent’s projects, then, is not so much that the morally right decision in Singer’s example would be for him to ignore the drowning child. No matter how lofty Singer’s ambition might be to keep his clothes from being ruined or be on time for his lecture, the child’s probable ambition to live simply carries more weight, agent-centered prerogative considered. By explaining that agents who adopt the agent-centered prerogative are indeed morally required to maintain an observance for the interests of others, Scheffler dispels the charge of selfishness that Singer or Mill would likely leap to level against his agent-centered prerogative.

Just how much weight does the agent-centered prerogative give to personal projects? In answering this question, Scheffler appears to create a problem for himself, as the weight allotted to the agent’s interests is hazy at best, his most clear description assigning it “a certain proportionately greater weight?than would be licensed by an exclusive appeal to an impersonal calculus” (104). Even if Scheffler could furnish a fixed “amount” of weight to the agent-centered prerogative, he would have the dubious task on his hands of explaining how he arrived at such a determination.

This apparent flaw in Scheffler’s case is, in actuality, a strength that bolsters the fortitude of his argument. Scheffler makes clear that a consequentialist theory ascribing the agent-centered prerogative allows for a level of autonomy somewhere between the smothered, minimal amount that Williams and Mackie identify in utilitarianism, and the exclusively self-concerned free-reigning amount highlighting egoistic theories. For Scheffler to be more specific by placing a precise value to the amount of weight the agent-centered prerogative should carry for all agents, he would have to perform a job marked by arbitrariness and despotism.

Human morality is a complex subject, as it is a divergence of two exceptionally complex topics, humans and morality. Unless Scheffler knows all there is to know about humans and all there is to know about morality, it is impossible for him to declare a specific “amount” of autonomy the official, appropriate amount. If he were so bold to do so, he would perform a groundless, arbitrary act. Another reason that Scheffler is justified in not assigning a specific weight to autonomy in human morality is that if he were to do so, he would be guilty of the despotism that Singer and Mill’s critics view them as embodying in their respective theories. The requirement that the agent-centered prerogative carry “X” weight would establish a uniformity that every moral agent would have to accept. This intrusion on personal interest entirely defeats the notion of an “agent-centered” prerogative. To diminish the haze surrounding the allotment of weight afforded to the agent-centered prerogative is to diminish the very autonomy that the agent-centered prerogative provides. Autonomy dwells in the haze. It survives in the agent’s ability to prescribe the weight of his own prerogative.

The agent-centered prerogative functions as a tool in the hands of each moral agent, used at his or her discretion, when the situation seems to call for it. A carpenter makes a judgment of when a saw is the best tool for his or her task, followed by judgments about what type of saw is best, where to apply the saw, in what manner, and for how long. If mistakes are made about any of these judgments, including the appropriateness of using a saw, the carpenter learns from them, and attempts to ameliorate his or her performance with respect to the saw. The assumption is that the carpenter wishes to be the best carpenter he or she can be, and make the best creation or repair he or she can make. Similarly, the agent-centered prerogative is a tool that the agent can use when he or she sees fit, making judgments about the amount of weight it carries in what situations, at what times, and with what other agents. The moral agent will learn from mistakes made with regard to use of the agent-centered prerogative, and attempt to ameliorate performance with regard to it, as the moral agent wishes to be the most morally good agent possible.

With his agent-centered prerogative, Scheffler has established a positive aspect of a normative moral theory of consequentialism that proves to be beneficial to all agents who observe it. It is the centerpiece to a moderate moral system, including permissions for individuals to pursue their interests, while simultaneously including rules that individuals are obligated to follow. This moral structure, resting in between the most rigid and lax of moralities, commanding moral demands and allowing freedoms both at once, would be of good use imbedded within the utilitarian framework discussed by Williams, Singer, Mill, and Mackie. A utilitarian system requiring the course of action producing the greatest outcome for all, when combined with the preservation of autonomy, as could be supplied by the agent-centered prerogative, would be a largely acceptable moral theory, that would manage to be agent-friendly while exacting observance to moral obligation from its followers. It is apparent that Scheffler’s agent-centered prerogative is indeed a viable solution to the problem of autonomy in utilitarianism.

Works Cited

Mackie, J.L. Ethics: Inventing Right and Wrong. New York: Penguin Books,

1977.

Mill, John Stuart. “In Defense of Utilitarianism.” Conduct & Character: Readings

in Moral Theory. 3rd ed. Ed. Mark Timmons. California: Wadsworth

Publishing, 1999.

Scheffler, Samuel. Human Morality. Oxford: Oxford University Press, 1992.

Singer, Peter. Practical Ethics. Cambridge, England: Cambridge University

Press, 1979.

Smart, J.J.C. and Bernard Williams. Utilitarianism: For and Against. Cambridge,

England: Cambridge University Press, 1973.

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