Human Dignity in Bioethics and Law

Charles Foster

• Publisher: Hart Publishing
• Year: 2011
• ISBN:
  9781847318602
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho médico

Dignity is often denounced as hopelessly amorphous or incurably theological: as feel-good philosophical window-dressing, or as the name given to whatever principles give you the answer that you think is right. This is wrong, says Charles Foster: dignity is not only an essential principle in bioethics and law; it is really the only principle. In this ambitious, paradigm-shattering but highly readable book, he argues that dignity is the only sustainable Theory of Everything in bioethics. For most problems in contemporary bioethics, existing principles such as autonomy, beneficence, non-maleficence, justice and professional probity can do a reasonably workmanlike job if they are all allowed to contribute appropriately. But these are second order principles, each of which traces its origins back to dignity. And when one gets to the frontiers of bioethics (such as human enhancement), dignity is the only conceivable language with which to describe and analyse the strange conceptual creatures found there. Drawing on clinical, anthropological, philosophical and legal insights, Foster provides a new lexicon and grammar of that language which is essential reading for anyone wanting to travel in the outlandish territories of bioethics, and strongly recommended for anyone wanting to travel comfortably anywhere in bioethics or medical law.

1

Beginnings

This book has several contentions. Together they form an argument.

The argument goes like this:

1. There are some situations in medical ethics and bioethics with which existing analytical tools are wholly unable to deal.

2. The notion of human dignity is sometimes the only concept that is any use.

3. The role of dignity in the really hard cases suggests that it might be useful in the easier cases too, if we only knew how to use it properly.

4. Using it properly entails:

(a) giving dignity a substantive meaning; and

(b) proposing a practical model for its deployment.

The substantive meaning of dignity can be derived from a look through an anthropological lens at what makes humans thrive.

I propose a transactional model. One should ask of every proposed solution to every problem in bioethics or medical ethics (every ‘transaction’): ‘Is that the solution that maximises the amount of dignity in the world?’ That will involve considering the dignity not only of the patient, but also the clinician or researcher, and the wider community.

5. A thorough survey bears out the suggestion in point 3, and indicates that dignity is the key that, properly wielded, unlocks all problems in medical ethics and bioethics. It is the bioethical Theory of Everything.

6. Looking back at the road we have travelled, we are surprised that we are surprised at this result. The result accords very neatly with our intuitions. We have outlawed the use of those intuitions during the journey (if indeed they needed to be outlawed: they have probably been systematically suppressed or perverted by our academic training), but it is reassuring that they were nudging us in the right direction all along.

I enlarge a little on each of these steps below.

Steps 1 and 2: Sometimes Existing Tools Won’t Do, and Dignity has to Step In

A teenage girl with profound learning disabilities is admitted to hospital. She is undressed ready for a surgical procedure, but is left naked on a hospital trolley for several hours in full view of some male youths. They do nothing but look at her and lust. She enjoys the attention.

What has happened here is wrong. But it is not condemned by any of the usual canons of medical ethics or law. Think, for instance, about Beauchamp and Childress’s four principles:

(a) Autonomy can hardly object. If the girl is capable of autonomous thought or action at all (so making autonomy relevant), she autonomously wishes to be an object of desire.

(b) Non-maleficence: do no harm. What harm has been done here? The girl herself sees her exposure as a good. So, no doubt, do the ogling boys. And what, other than dignity, can say that they are wrong? If we suppose, as is likely, that neither the girl nor the boys have been corrupted by the experience in such a way as is likely to cause subsequent harm to themselves or others, it is hard to see any harm here other than harm that has to be described using the language of dignity.

One can see dignity at work here in a slightly different but related way. The rule ‘first do no harm’ is generally thought of as being the primary rule in medical ethics—eclipsed though it often is in rhetoric by autonomy. But, as Neuhaus has pointed out, it begs a question. It is an enjoinder to protect and maintain something that is recognised as good.¹ But what might that thing be? In the contexts in which the principle is wielded, it is plainly not always bodily or psychiatric integrity. Only dignity can describe adequately all the ‘goods’ that healthcare professionals are pledged to protect.

(c) Beneficence? Most would agree that this is not relevant here. But if it is, it too, like non-maleficence, has nothing substantive to say unless and until dignity feeds it its lines.

(d) Justice? Again, not engaged here.

Some might invite other notions to contribute. But on examination they all prove to be parasitic on the big four, or on dignity. Privacy, and ‘respect for persons’, for instance, turn out to be special ways of framing autonomy claims. Professionalism is important, but its concern for the well-being of the patient is classic Beauchamp and Childress and/or dignity territory, and its concern for the integrity of the healthcare professional herself fits more neatly into dignity than it does into anywhere else.

All this will convince many that their misgivings about dignity are justified. Here, they will say, is a classic case of dignity being used as a name for whatever principles are necessary to produce the answer that one thinks is right. It is only capable of being used that way because it is hopelessly amorphous. Why not just say: ‘The girl should be covered up’, and admit frankly that we can’t give a very rigorous philosophical justification for it? At least that has the virtue of honesty. Dignity, here, is just a fig leaf to cover our philosophical embarrassment.

These are powerful criticisms. Indeed they are criticisms justly levelled at many of the sloppy usages of dignity in the academic, legal and lay literature. In order to contend that dignity is not only useful but essential, I have to be harder on those usages than are most of dignity’s traditional opponents. And that is hard indeed. But I will be. For the moment I will simply assert, without arguing the point, that it is possible to give dignity a meaning that makes it effective at the bioethical and medico-legal coalface, and that that meaning can be empirically derived from a broadly anthropological look at what makes human beings thrive. I am aware that in deriving normative conclusions from empirical observations, some philosophers will think that I have fallen naively for the naturalistic fallacy. I will defend myself against that charge in due course.

Step 3: Usefulness in Hard Cases Suggests Usefulness in Easier Cases

This is a matter of demonstration. And that demonstration will come. In an earlier book² I contended that autonomy alone (all too often the only principle brought into the discussion) was manifestly inadequate to deal satisfactorily with even the most trivial of problems in medical ethics. It needs help. The modest and even banal suggestion was that you could only get ethically good results if you listened to the voices of all of Beauchamp and Childress’s principles. I was happy to place autonomy at the head of the table, and even to give it the casting vote in the event of deadlock. But I have now listened more critically to the chorus of those voices. The sound of a good choir is greater than, and different in quality from, the sum of its parts. And my suggestion here is that the sound of a well-tuned Beauchamp and Childress choir is the voice of dignity. Often, in practice, it will be impossible to step back far enough from the choir to hear the harmony as it is meant to be heard. One part will tend to drown out the others. But there is a way of broadcasting the harmony directly into our ethical earphones. It is by pressing the button called ‘dignity’. Dignity is the direct route to the right answer in most of the cases commonly surveyed in bioethics. Its utility is all the more obvious when we come to the outlandish frontiers of bioethics.

To be perfectly honest, in most of the common, ward-round problems in medical ethics, we don’t need a solution as sophisticated as that given by dignity. Properly deployed, the other principles, slightly distorted though our apprehension of them might be, will give perfectly workmanlike solutions. The real necessity of dignity is best appreciated in the wild places—and particularly in the realm of human enhancement and reproductive cloning. But that doesn’t mean that we shouldn’t use dignity to give the more satisfactory, more nuanced, and downright easier answers to everyday problems too. It does mean that it is worthwhile learning how to use dignity (at first in intellectually less strenuous places, such as consent to treatment and clinical confidentiality), before we are forced to use it in the places to which the other principles clearly won’t reach.

Step 4: (a) Dignity’s Substantive Meaning, and (b) a Transactional Model of Deployment

(a) What is Dignity?

Lawyers and ethicists need to be anthropologists, and anthropologists need to be neuroscientists, archaeologists, sociologists, Shakespeare scholars and classicists. It would also help if they had a nodding acquaintance with the Torah, Talmud, New Testament, Koran, Upanishads, the myths of Old Iceland, and the Walmart catalogue. From these texts, as well as from their own experience of testy judges, departmental bickering, broken marriages, sick children, red wine, mountains, and celebration, they would get some idea about what humans are; what makes humans tick, and what makes them tick well: what makes them thrive.

I contend that thriving is connected to human dignity. But the connection is not immediately obvious. It is one thing to say that dignity-enhancing laws will tend to be laws that help humans to thrive (a proposition with which I agree): it is quite another to equate human dignity with human thriving in the simple and obvious sense.

Dignity is a slippery notion. In trying to grasp it, it is best to start with the concrete and then work to the philosophical. To try it the other way round is disastrous.

Some aspects of dignity are like the proverbial elephant: we know them when we see them, but they are difficult to describe. Let’s try describing some obvious examples and see where that takes us.

A woman is dying of cancer. She is fearful of dying, and is in intense pain. Nonetheless she shows great fortitude. She is far more concerned about the welfare of her carers than she is about her own needs. She greets pain, fear and death with a smile. Whatever dignity is, she has it and displays it.

A political prisoner is daily raped and tortured by his captors. He refuses to give the names of his dissenting friends, and prays daily for those who persecute him, expressly forgiving them after each act of violation. Whatever dignity is, he has it and displays it.

What do these examples tell us? They suggest that dignity is not necessarily connected with bodily integrity. One can be physically compromised or brutally violated, and still have dignity. Indeed the compromise or the violation may be the soil in which dignity (whatever it is) flourishes most gloriously, or the background against which it is seen most clearly. They might also suggest that dignity consists in, or at least may be manifested in, these individuals’ responses to the hand that life has dealt them. The patient and the prisoner refuse to abandon something that they are—something that they stand for—in the face of vicissitudes. In their cases, their dignity begins to look like an attitude of mind.

But what about people who don’t have minds, or who have minds that are incapable of forming these admirable attitudes? What about the patient in PVS whose cerebral cortex has been wiped out by anoxia? Does she not have dignity in any sense? Surely she does. Would it be acceptable to invite medical students to practise their vaginal and rectal examinations on her? Surely not: and surely the reason why consists, in some way, in some residual dignity.

Or consider the profoundly mentally disabled girl lying naked on the trolley, enjoying the lustful attention of other patients. Is it acceptable for her to be there undraped? No: and again dignity—her dignity—has something to do with this. The dignity of the lusters also falls into the balance.

Or consider a patient who has given his body to be dissected by medical students. One of the medical students cuts off the patient’s ear and takes it home to be used as an ashtray. Why not? Dignity again, most would say. But how?

If we are right to say that dignity is engaged in the case of these three patients, does this mean that we are talking about something different from the dignity of the cancer patient and the torture victim? Many have thought so. The difficulty of seeing that we might be meaning the same thing has propelled many dignity-sympathisers into the belief that dignity is just one useful principle amongst many, or to distinguish between dignity as an inalienable status (often seen as suspiciously theological) and dignity as a quality that is evinced by people who are dignified. On this latter analysis, the ‘mind-less cases’ would have status-dignity but no quality-dignity, and the prisoner and the cancer victim would have both.

This distinction is wrong. The error arises because the attributes associated with dignity (fortitude, patience, consideration for others, and so on) are wrongly seen as akin to chattels that we might possess and then lose; as something separate from us; as instruments that we use in order to do life. In fact they are a corollary of the status possessed by the ‘mind-less’ cases. They are a way of being, not of doing life. The ‘mind-less’ cases are human (if they’re alive) or were human (if they’re dead). The dead human is still alive in the minds of many people, whose views matter. Why should the PVS patient not be subjected to unnecessary rectal examinations? One important reason is (and I come to another in a moment), because being human in the sense splendidly demonstrated by the prisoner and the cancer victim means that one should not be treated that way. The italics are significant. All the patients I have discussed are going about the same enterprise: that of being human. They are participating in the human adventure.

Being human doesn’t necessarily entail doing anything, or having done anything, or even (although this will be more controversial, having the potential to do anything).³ It follows from the human ear ashtray example that it need not even involve breathing or having a beating heart. So: doing the right thing ethically in each of these examples entails facilitating the full humanness of each person: of encouraging flourishing. The fact that someone doesn’t have the neuronal hardware necessary to appreciate that their own flourishing is being maximised is neither here nor there. Flourishing is primarily about being, and only secondarily (although often more spectacularly) about doing. The cancer victim is flourishing, although her body is crumbling, because it is of the essence of human beings to use their status of existence to laugh at the void. It’s what humans do, and therefore in doing it, she is being human, which is a high calling.

Catherine Dupre invites us to consider that ‘dignity is not only about being, but also, very importantly, about the process of becoming. An understanding of human dignity as time-inclusive would acknowledge the fact that an individual’s personality is never finished and keeps evolving throughout their life’.⁴

I am sympathetic to the core of this idea, but reject it in the form in which she presents it. If the evolution of personality is a crucial ingredient of dignity, then the patient in PVS has no dignity. His personality will never evolve. And yet his story goes on; there is a continued unfolding; his being continues.

At the end of his life, Peer Gynt hadn’t been good enough to go to heaven, and hadn’t been bad enough to go to hell. He begged to go to one or the other, rather than being melted down in a spoon with other men who were too insubstantial for either. He was too light for the super-dense reality of heaven, and he didn’t taste of enough for a demon’s meal. He was asked to point out one time in ...