Self-contained Bioethics and the Politics of Legal Prohibition

Law and bioethics have traditionally expressed an elective affinity. Bioethics has often spoken “in the language of the law,” or at least in a pidgin that the law can easily understand, and bioethicists have conceptualized their principles and arguments in ways that make them amenable to legal translation. However, there has always been a tradition of bioethical reflection, what I describe as “self-contained bioethics,” that is deeply suspicious of its own readability to legal forms of interpretation; a tradition for which proximity to the law and a consideration of the actual circumstances of legal action compromises the purity of ethical inquiry.

The article examines the work of President Bush's Council on Bioethics on human cloning as an example of this type of bioethical inquiry. In its 2002 report “Human Cloning and Human Dignity: An Ethical Inquiry” the Council professed to keep specific legal and policy options at arm's length to better explore the ethical significance of the issues at stake without being “skewed” by considerations of practical expediency. The article compares the form of bioethical advice produced by the Council with the opinion on human cloning that its predecessor, the National Bioethics Advisory Commission (NBAC), issued in 1997. In NBAC's report the discussion of the paths of legal action was thoroughly and explicitly integrated into the moral analysis.

Ultimately, the President's Council resorted to the law, understood as an instrument of absolute prohibition, to translate its purified moral argument into social reality in the form of a ban or a moratorium. Yet, by not using legal considerations to focus and refine its bioethical inquiry, and instead resorting to the law merely as a tool of proscription, the Council guarantees that its advice remains as controversial in the short term as ineffective in the long run.