Biolaw, Economics and Sustainable Governance

Addressing the Challenges of a Post-Pandemic World

Erick Valdés, Jacob Dahl Rendtorff

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000474190
• Edition: 1
• Topic: Law
• Subtopic: Ethics & Professional Responsibility in Law
• Index: Law

This book offers an accurate and updated approach to the main contributions of cosmopolitan biolaw in relation to sustainability, global governance, organizational health care economics and COVID-19.

Bringing together different robust and dense biojuridical epistemologies to analyze key bioethical problems as well as the health care, management, economics and sustainability issues of our time, it constitutes a paradigmatic text in its field. In addition to exploring different epistemologies and jurisdictional scopes of biolaw, including the relationships between this new field and the challenges which have arisen in the current globalized and technologized world, the book addresses controversial issues straight from today's headlines: for example, the basics for health care, finance and organizational economics, global biojuridical principles for governance, globalization, bioscientific empowerment, global and existential risk and sustainability challenges for a post-pandemic world.

The book encourages readers to think impartially in order to know and understand the bioethical and biojuridical dilemmas that stem from current economics and sustainability issues. Accordingly, it will be a valuable resource for courses in the fields of biolaw, law, bioethics, global sustainability, organizational health care economics and global governance at different professional levels.

Part I History, scopes and epistemologies of biolaw

1 From bioethics to biolaw

DOI: 10.4324/9781003147848-1

1.1 The idea of a global bioethics

There exists a connection between bioethics and biolaw. Even though that relationship has been rather epistemologically promiscuous, it is difficult to deny the fact that bioethics eventually impacted the development of biolaw in Europe, especially regarding the deliberative model that this new field adopted to address a whole new constellation of juridical problems arisen from biomedical settings. As bioethics colonized Europe, incipient biolaw was acquiring a principlist configuration aimed at understanding and governing disturbing bioscientific practices able to challenge juridical atmospheres as never before.

Principles of American bioethics represented a sort of theoretical and procedural horizon for European biolaw to gain more density and effectivity to analyze new biojuridical problems and seek to provide original and compelling solutions for them. The need for creating new frameworks to respond to harsh questions and rule complex scenarios adeptly encompassed new interpellations for law. New life sciences law, which emerged in the arena of international law, started to work with a cluster of principles as guidelines to deliberate on and rule biosciences and new technologies in general.

European biolaw’s principlism took from American bioethics various relevant conceptual and procedural categories. This justifies dedicating some pages to explore important features of bioethics. However, bioethics also evolved throughout the twentieth century because it was not always based upon a principlist structure. In fact, its first conception was a global one, meaning an ethics of life as a whole. As this primigenial intellection contributed to epistemologically nourish American bioethics, we think it deserves some attention now.

1.1.1 Fritz Jahr

The term “bioethics” was not ushered in with Van Rensselaer Potter’s 1970 paper, “Bioethics: The Science of Survival,” as many bioethics experts used to think. In 1927, Fritz Jahr, a German protestant pastor, philosopher and educator published an editorial entitled “Bio-Ethik. Eine Umschau über die ethischen Beziehungen des Menschen zu Tier und Pflanze” (“Bio-Ethics. Reviewing the Ethical Relations of Humans toward Animals and Plants”) in the leading German natural science journal Kosmos. The origin of the term and concept “bioethics” occurred 43 years before Potter published his famous work. This means that we should consider Potter’s ideas a continuation of Jahr’s seminal contribution.

It is true that Jahr’s ideas are rather naive. However, his thought encompasses a rare sensitivity regarding the main ontological categories of contemporaneity, especially to its overwhelming technological development. Jahr coined the term “bioethics,” but he also proposed an incipient epistemological content to it long before the Nuremberg Trials. His conceptual configuration was not dense enough, but it undoubtedly represented an inspiring intellection destined to become a fundamental disciplinary atmosphere to understand ethical scopes of biotechnological empowerment that hatched in the 1980s.

As Potter’s bioethics is quite similar to Jahr’s original conception, we will synoptically expose the main intuitions, concepts and categories that both Jahr and Potter contributed to the disciplinary configuration of bioethics. It is not clear if the National Commission took these ideas into consideration to elaborate the Belmont Report; however, both Jahr’s and Potter’s pivotal notions are, at least, tacitly present in whole bioethics developed in the 1970s.

Between 1927 and 1938, Jahr published an impressive array of papers on bioethics and other related topics, such as animal ethics, ecology, public health and education, so as this book is devoted to analyze several aspects of corporative ethics, governance, sustainability and organizational economics in health care, it seems not to be trivial to address the most remarkable facets of Jahr’s thoughts. Even though his work did not enjoy popularity, he displayed an interesting constellation of acute intuitions on what bioethics should be as well as the environments this new field must conquer at that moment. He characterizes bioethics as a fundamental attitude, meaning an êthos or way of living. In this sense, bioethics should be part of human character, an ethical virtue turning into a unique discipline. Hence, Jahr’s bioethics points to an independent field of knowledge endowed with specific epistemological features and exclusive procedural scopes.

Jahr also redefines traditional moral obligations by extending them to animals and nature, so in his thought, the concept of human responsibility abandons classical anthropocentrism of all previous ethics, which entails a radical reconfiguration of conventional criteria of moral correction known until then. This sort of premonitory trait in his understanding of bioethics work constituted a theoretical precedent for remarkable ideas developed long after, such as Jonas’ imperative of responsibility and Singer’s animal ethics, among others.

Moreover, Jahr implicitly defines bioethics as a secular and pluralistic field as it requires a new form of deliberation to address new moral problems that scientific and technological power encompasses. In this fashion, bioethics is, according to the German thinker, a new normative universe to govern the use of technoscientific advances through democratic and public participation and oversight. He imagines global bioethics aimed at engendering sufficient and necessary conditions for human beings to respect life as a whole, based upon a bioethical imperative stating, “Respect every living being, in principle, as an end in itself, and treat it, if possible, as such!” (Jahr, 1934). This formulation implies a post-metaphysical extension of Kantian one as Jahr’s imperative includes animals and nature as subjects of moral consideration. Thus, the overriding criterion to determine which entities ought to be respected as ends in themselves is not rationality but life.

The scope of Jahr’s ideas is not trivial because it represents the starting point of an applied ethics concerned about life, health care and environment. This new ethics is focused on the idea that scientific and technological development needs new keys for moral deliberation, new rules and procedures as well as a new terminology to get over traditional semantic anachronism and deal with harsh moral controversies with more accuracy and objectivity.

Therefore, Jahr’s imperative entails one of the first modern formulations of the principle of nonmaleficence, encompassing the duty to self-preservation and not to harm others under any circumstance. According to him, we have a key duty: To respect all living beings as ends in themselves and treat them as such. However, carrying out this task is something complex.

The potential realization of such moral duties toward all living beings may seem to be utopian. But we cannot ignore that moral obligations toward a living being refer to its needs and, respectively, to its destiny. Therefore, Jahr’s bioethics represents a combination of deontology and teleology, as the achievement of ends is mediated by the observance of certain categorical duties. In this way, he proposes neither a tyranny of unshakable principles nor an abuse of casuistry in moral deliberation.

Moreover, Jahr introduces a concept of responsibility as a criterion of deliberation for any ethics. According to him, bioethics is a moral attitude that implies respect and responsibility toward all living entities. Thus, he thinks that it is no longer possible to understand existence, if people ignore the possible and unpredictable consequences of human action, modified by new science and technologies. Therefore, he introduces the concept of responsibility into the ethical discussion long before Hans Jonas. Furthermore, he prophetically advises precaution with regard to scientific progress, especially in experimental physiology and psychology, as well as he identifies the need to ethically regulate technoscientific power in order to avoid human tyranny over other living entities (Jahr, 1927).

Jahr’s bioethics is not the same as we know today. However, his ideas point to the first categories that would make up current bioethics. Indeed, Jahr tacitly includes in his conception of bioethics important insights about autonomy, social justice and nonmaleficence. Therefore, beyond being the creator of the term and concept “bioethics,” he engendered the intellectual and theoretical bases for its epistemological and disciplinary development. Also, his seminal ideas tuned with crucial concepts we address in this book, such as global governance, health care ethics, organizational ethics and sustainability, among others. For all these reasons, Jahr certainly deserves a prominent place in the history of bioethics.

1.1.2 Van Rensselaer Potter

In 1970, Van Rensselaer Potter published his article “Bioethics: A Science of Survival.” In this work, the American oncologist proposed the term “bioethics” to define a new epistemological field, through which human beings could be able to acquire “the knowledge of how to use knowledge” (Potter, 1971). This new wisdom could also be called “the science of survival” as one of the primary objectives of Potter’s bioethics was to improve quality of life, conceived as a whole, by promoting, at the same time, a convergence between science and humanities. For this reason, the American physician used to say that the term “bioethics” emphasized “the two most important ingredients to achieve a new wisdom: Biological knowledge and human values.”

As Potter understood bioethics as a bridge between sciences and humanities, the task of this new discipline was shown to be vast and, therefore, vague. However, and despite the fact that his conception indicated a complementation between ethics and biology, Potter’s bioethics should not be understood as a mere conjunction or methodological meeting of both disciplines.

According to this understanding, Potter (1971) did not suggest abandoning traditional science or irrationally embracing a new idea or conception of it. Rather, he proposed to cross the borders between scientific and humanistic disciplines to obtain a broader vision of proper human problems emerging as a result of technological empowerment and, thus, to reach an objective consensus in terms of a future survival of mankind by improving the future generations’ quality of life. In other words, Potter was looking for better ways to re-examine traditional scientific premises in order to establish adequate conditions of existence (and survival, in particular), including individual, social and environmental categories.

Later on, in 1971, Potter published his famous book Bioethics. Bridge to the Future, in which he insisted on his idea of bioethics as a new interdisciplinary knowledge. However, the book is essentially a compilation of articles already published in academic journals. Most of them do not refer directly to bioethics and do not even mention the name of the emerging discipline. Only two of them address the topic directly: The first article, “Bioethics: A Science of Survival,” and the last one, “Survival as a Goal for Wisdom,” in which Potter proposes his bioethical creed.

Despite the fact that Potter never epistemologically or methodologically defined what bioethics was or should be, it is possible to find in his work some interesting concepts that were important for the subsequent development of the discipline: (1) The concept of danger attached to the development of science (or knowledge); (2) progress and survival; (3) a moral obligation toward the future; (4) the control of technology; and (5) the need for an interdisciplinary effort to address new moral controversies arisen in medical, biomedical and scientific settings.

In this way, for Potter, bioethics assumes a global dimension that goes beyond the introspective gaze of science and, specifically, of traditional biology, whose reductionist knowledge comes fundamentally from the laboratory. Bioethics, then, should examine the nature of human knowledge in order to achieve a realistic understanding of our limitations to foresee and assume moral responsibility for the eventual consequences of our actions. On this specific point, Potter agrees with Jahr in that bioethics should detach itself from a purely immediatist, anthropocentric and reductionist intellection, by pointing out grounding paths to generate a true public policy to govern biotechnological research.

However, and beyond its original global and biocentric conception, over the years, bioethics, especially that of the United States, would take other directions, shedding its claims of universality and focusing its interest on clinical and biomedical issues, although both in Europe and in Latin America, scholars and practitioners would insist on extending its scope to other disciplinary areas related with it, both methodologically and epistemologically.

1.2 From biomedical ethics to European biolaw

As it has been stated before (Valdés, 2021), the birth of biolaw responds to a multidimensional history. While its first relevant epistemology was developed in Europe (Rendtorff & Kemp, 2000), the conceptual roots of what we could call “European biolaw,” even having antecedents in Europe, originally grew up in the United States. Along with the historical circumstances that triggered the origin of this new field, its epistemological antecedent is certainly American bioethics, although as we already saw, its original expression was quite at variance with its current epistemological aspect. However, the first global dimension of bioethics could have inherited certain categories to biolaw. Therefore, its first echoes were a coefficient that turned out to be the factor of a true polynomial of historical and epistemological facts worth revisiting.

The Nuremberg Trials can be considered an epistemological antecedent of American bioethics, as well as of the extensive cast of instruments of UNESCO, the Council of Europe and the European Court of Human Rights, created to regulate biomedical practices, which originated the so-called international biolaw and European bioethics and biolaw (Rendtorff & Kemp, 2000). In fact, the Nuremberg Code of Medical Ethics was the first document that identified principles and procedures to rule experimentation with human beings, a controversial atmosphere that, upon later, the Belmont Report explored paradigmatically. Therefore, and as the epistemology of American bioethics deepened and extended the theoretical and methodological scope of the Nuremberg Code of Medical Ethics, by encouraging the emergence of essential categories for the conceptual configuration of international biolaw, we can affirm that the prehistory of biolaw begins in the 1930s. In fact, the original archetype of the Nuremberg Code emerged in German politics before World War II, specifically, between 1930 and 1940, a time when the German Medical Association was considered a democratic organization focused on public health. However, the final version of the Nuremberg Code, which established that explicit voluntary consent of patients is required for human experimentation, was drawn up on 9 August 1947, including principles such as informed consent, absence of coercion, proper formulation of scientific experimentation and beneficence, among others.

The Code is considered for many the most important document in the history of clinical research ethics, and it had a massive influence on global human rights. In fact, the Nuremberg Code and the Declaration of Helsinki represent the basis of the Code of Federal Regulations, issued by the United States Department of Health and Human Services for the ethical treatment of humans and biological material, and are currently used in the Institutional Review Boards. Furthermore, the idea of informed consent has been universally accepted and now constitutes Article 7 of the United Nations International Covenant on Civil and Political Rights. It also served as the basis for the drafting of the international ethical guidelines for biomedical research in humans, proposed by the World Health Organization.

However, the Nuremberg Code did not acquire conceptual density enough to give rise to bioethics or any other relevant epistemology. Something else had to happen for bioethics and biolaw to hatch in the international scenario.

In 1974, and already known the abuses that scientists inflicted on their eventual human subjects of experimentation both in Tuskegee and Willowbrook, the United States Congress ordered the creation of the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, whose purposes were to discuss and reflect on the limits of biomedical research, as well as to evaluate the equation between risks and benefits of human experimentation. In addition, the National Commission was aimed at providing guidelines and criteria for fair and equitable selection of experimental subjects as well as reflecting on the nature, scope and meaning of informed consent when applied in biomedical settings.

After four years, the National Commission published the results of its work in a document that quickly became a key reference for the development of bioethics’ epistemology, increased the precision of reasoning in decision-making processes and contributed to the optimization and creation of public policies to regulate experimentation with human subjects. The document, known worldwide as The Belmont Report (The Belmont Report: Ethical Principles for Research with Human Subjects), was intended to provide criteria to protect human beings faced with biomedical experimentation. The Report identified and defined a cluster of “basic ethical principles” whose value and epistemological and methodological scope became very useful quickly to analyze, understand and solve moral controversies arisen in biomedical and clinical environments.

As an important part of the conceptual grounds, principles, rules and procedures that the Report provides for bioscientific research were replicated, years later, by the Council of Europe and the European Court of Human Rights, originating international biolaw; it may be useful to expose the most relevant elements of the document synoptically.

The Belmont Report’s main goals (National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, 2009) were to identify basic ethical principles to guide and rule biomedical research in human beings and develop procedural guidelines to ensure that any study is carried out in accordance with tho...