Bioethics in a

Liberal Society
MAX CHARLESWORTH

Emeritus Professor of Philosophy,

Deakin University

CAMBRIDGE
UNIVERSITY PRESS

-iii-

Published by the Press Syndicate of the University of Cambridge.

The Pitt Building, Trumpington Street, Cambridge CB2 1RP, UK
40 West 20th Street, New York, NY 10011-4211, USA
10 Stamford Road, Oakleigh, Melbourne 3166, Australia

© Cambridge University Press 1993

First published 1993

Printed in Hong Kong by Colorcraft

National Library of Australia cataloguing in publication data

Charlesworth, Max, 1925-

Bioethics in a liberal society.
Includes index.
ISBN 0 521 44503 5.
ISBN 0 521 44932 9 (pbk.).
1. Bioethics. 2. Medical ethics. 3. Biotechnology -- Moral and
ethical aspects. I. Title.
174.9574

Library of Congress cataloguing in publication data

Charlesworth, M. J. ( Maxwell John), 1925-

Bioethics in a liberal society/ Max Charlesworth.
Includes bibliographical references and index.
ISBN 0-521-44503-5 (hardback). -- ISBN 0-521-44952-9 (pbk.)
1. Medical ethics. I. Title.
[DNLM: 1. Bioethics. 2. Ethics, Medical. W 50 C477d 1993]
R724.C455 1993
174′.2-dc20
DNLM/DLC
for Library of Congress 93-18160
CIP

A catalogue record for this book is available from the British

Library.
ISBN 0 521 44503 5 hardback
ISBN 0 521 44952 9 paperback

-iv-

'Over himself, over his own body and mind, the individual is
sovereign'.

John Stuart Mill

'No one outside of him can really touch him, can touch his soul, his
immortality; he must live with himself forever. He has a depth within
him
unfathomable, an infinite abyss of existence'.

John Henry Newman

-v-

Contents
1. INTRODUCTION 1
2. AUTONOMY AND THE LIBERAL IDEAL 10
The idea of autonomy 10
The liberal society 15
Critics of the liberal ideal 20
3. ENDING LIFE 30
The ethics of suicide 30
A moral right to die? 36
Decriminalising suicide 39
Multicultural attitudes to death and dying 41
Choosing for those who cannot choose for
themselves 45
The quality of life 48
The liberal society and the right to die 52
Death and the hospital 55
 4. BEGINNING LIFE 63
New ways of birth and family formation 63
Bearing a child for another 69
Questions about surrogacy 73

-vii-

Consequences of surrogacy 81
Feminist views on reproductive technology 88
'Third wave' feminist views 96
Social and legal implications 102
5. DISTRIBUTING HEALTH-CARE RESOURCES 107
The problem of scarce resources 107
Utilitarian approaches 111
A health system in a liberal society 117
Patient and physician 120
Health-care resource allocations: four
examples 123
Reaching community consensus 142
Two forms of community consultation 145
The limits to planning 153
6. CONSENSUS IN A LIBERAL SOCIETY 160
The liberal ideal and bioethical realities 160
Ethical agreement in a multicultural society 162
Conclusion 167
INDEX 169

-viii-

1
Introduction
Issues in health ethics or medical ethics or so-called bioethics are
very often considered in abstraction from the social and political
context in which they arise. But it is obvious that making
decisions about those issues will differ quite radically in a liberal
democratic society as compared with any kind of non-liberal
society, whether it be theocratic or authoritarian (the term is
used in a neutral sense) or paternalistic or 'traditional'. In a
liberal society personal autonomy, the right to choose one's own
way of life for oneself, is the supreme value. Certain conse-
quences follow from the primacy given to personal autonomy in
the liberal society. First, there is in such a society a sharp dis-
junction between the sphere of personal morality and the sphere
of the law. The law is not concerned with matters of personal
morality and the 'enforcement of morals'. Second, the liberal
society is characterised by ethical pluralism, which allows a wide
variety of ethical and religious (and non-religious) positions to
be held by its members. Third, apart from the commitment to
the primacy of personal autonomy, there is no determinate
social consensus about a set of 'core values' or a 'public morality'
which it is the law's business to safeguard and promote.

One might expect that in a liberal society the value of personal

autonomy would be central in ethical discussions about new

-1-

procreative technologies and modes of family formation; the

limits of medical treatment and whether or not there is a 'right
to die'; genetic intervention in human life; and so on. One might
expect also that a clear distinction would be made between the
morality of such issues and their legality: that is, whether or not
the law should intervene to forbid them or control them. Again,
one would think that ethical pluralism, particularly in the field of
reproductive technology, would be not merely tolerated but
positively welcomed and encouraged. However, what we find
in fact is that many ethical positions proposed in this area are
often in conflict with the values that are the heart of the liberal
society.

Over many years I have served on a number of committees

concerned with medical ethics and bioethical issues, and I have
often been astonished by the way some committee members on
occasion adopt quite authoritarian and paternalistic positions
wholly at odds with the values of the liberal society of which they
are a part. Under the guise of ensuring the 'common good' or
defending 'public policy' or a set of 'core values' without which,
it is claimed, civilised society will collapse, they are quite pre-
pared, in the most authoritarian way, to tell people what is good
for them and to lay down prohibitions about what they may and
may not do with their lives. When one remonstrates with them
that we are supposed to be living in a liberal society where indi-
vidual autonomy and personal liberty are the central values,
these people usually reply that liberty is one thing but licence is
another and that 'libertarianism' should not be confused with
true liberalism!

St Augustine remarks in his Confessions that in his unregenerate

youth he prayed to God, 'Give me chastity, but not yet'. In much
the same way many people in our society say in effect: 'Give me
liberty, but not too much'. They acknowledge the values of the
liberal society but they are unwilling to pursue them seriously
and consistently, and to press them to their logical conclusions.
As a nineteenth century thinker once said: such people think

-2-

that moral principles can be summoned up and dismissed very

much as we summon up and dismiss a hansom cab.

This is, alas, especially the case with some Christians who
seem to think that they have a right to use the law to enforce
Christian morality on divorce, abortion, contraception, assisted
procreation, suicide and so on. I am myself a Christian and I have
always thought that, while upholding their own moral values,
Christians should also be especially concerned to uphold the
value of personal autonomy. There has been a long tradition of
Christian theological thought (more honoured, perhaps, in the
breach than in the observance) which emphasises the primacy
of the individual 'conscience'. St Thomas Aquinas says, for
example, that it is a sin to go against the dictates of one's
conscience. Again, it has always been a tenet of traditional
Christianity that it is a sin to coerce non-Christians into the
Christian Church, and one may legitimately infer that it is simi-
larly against Christian faith to use the law to coerce non-believers
in respect of moral matters.

The Catholic Church, of course, claims that its opposition to

abortion, contraception, assisted procreation and the like is
based not on specifically religious grounds but on the 'natural
law' which is accessible to everyone regardless of his or her
religion. But the natural law theory of ethics is one theory
among a number of competing philosophical theories of ethics
and it must take its chance, so to speak, among them. It rep-
resents one ethical position among the plurality of ethical
positions that characterises the liberal society and it cannot
claim any special or privileged place or status. In any case, there
are widely differing interpretations, even among supporters of
the theory, as to what the natural law recommends or forbids.

Whilst the view of the supremacy of conscience and personal

liberty just mentioned has always been implicit in Christian
moral theology, the tragedy has been that until very recently it
has not been fully exploited by Christian thinkers. Nietzsche says
somewhere that if Christians are redeemed they ought to look

-3-

rather more as though they were redeemed! In much the same

way, if, as Christians claim, the truth has really made them free,
they ought to start behaving as though they were lovers of
freedom.

Some think, mistakenly, that liberalism involves some kind of

ethical relativism or scepticism, which would mean that no one
ethical or moral position was better than any other. But liber-
alism is not based on ethical relativism or scepticism and it does
not deny that people may espouse positions which are, objec-
tively speaking, morally right. What is of the essence of liberal-
ism is the moral conviction that, because they are autonomous
moral agents or persons, people must as far as possible be free to
choose for themselves, even if their choices are, objectively
speaking, mistaken; and further that the state may not impose
one moral or religious position on the whole community but, so
long as they do not violate or harm the personal autonomy of
others, must treat all such positions equally. As one of the con-
temporary champions of the liberal ideal, Ronald Dworkin, says:
liberalism 'cannot be based on scepticism. Its constitutive
morality provides that human beings must be treated as equals
by their government, not because there is no right or wrong in
political morality, but because that is what is right'. 1

Christians then, or anyone else for that matter, may quite

properly maintain and promote their own moral position on the
issues to be discussed here, but if they are citizens of a liberal
society they will not merely tolerate but respect the conscien-
tious right of their fellow citizens to hold contrary moral
positions, and they will not seek to have their own views im-
posed by the state. The same point has been nicely made by an
eminent American moral theologian, Richard A. McCormick SJ.
A Christian ethicist working in the area of public policy, he says,
'should bring his/her convictions to the public table -- even
those nourished by religious faith -- but also his/her sense of
realism. For me, that realism means that my moral convictions
are inherently intelligible. But it also means the willingness to
acknowledge at some point that others may not think so'. 2 The

-4-

notion of the liberal society proposed in this book is, it goes

without saying, controversial in that, first, there are different
and competing versions of the liberal ideal and, second, there
have been radical criticisms of it by some contemporary think-
ers. However, while I cannot enter into a detailed defence of my
3
version of the liberal ideal, I believe that a defence can be given.
My version is, as will be apparent, an 'ideal type' and I do not
claim that any particular society actually exemplifies or em-
bodies that ideal. At the same time I believe that my view of the
liberal society represents the essential features of that new con-
ception of society that began in the eighteenth century with
Kant and others, was later developed by Mill and other nine-
teenth century thinkers, and was further elaborated by contem-
porary liberal thinkers such as John Rawls, Isaiah Berlin, Ronald
Dworkin and Joseph Raz.

In parenthesis, I might mention that the idea of the liberal

society put forward in this book is not necessarily linked with the
idea of limited or minimal government intervention (a night-
watchman state) nor with economic laissez faire. In my view the
government in a liberal society has an obligation not merely to
prevent, in a negative way, restrictions on the exercise of per-
sonal autonomy, but actively and positively to promote the
socio-economic conditions within which personal freedom and
autonomy can flourish. People cannot act in an authentically
free and autonomous way if they live in dire poverty or in con-
ditions of social anarchy, or if they do not have basic education
and do not enjoy basic health. Equally, they cannot be auton-
omous agents if they do not have the opportunity to make real
choices.

To forestall a possible objection: this does not mean that the

state is involved in playing a moral role in the sense that it is
promoting, and enforcing, one specific kind of morality. For the
state to promote conditions of personal autonomy, so that
people are able to choose freely their own styles of life, is not the
same as coercing people to be moral in a specific way.

I am principally concerned here with the set of ethical issues

-5-

that have come up in the sphere of health generally, medicine

more specifically and biotechnology even more particularly,
within a liberal democratic (and ethically pluralistic) society,
and with the ways in which the community in such a society can
face up to those issues. In order to keep the discussion within
manageable bounds I have focussed on a relatively limited set of
medical-ethical and bioethical issues. First, I discuss questions
about the ending or termination of human life (usually placed
under the misleading rubric of 'euthanasia'). Second, I consider
the issues concerned with the new and alternative ways of
assisted reproduction and family formation, and finally with the
complex set of ethical questions involved in the distribution of
health-care resources. Each of those areas involves a number
of other subsidiary issues, from the meaning of 'the quality of
human life' to the right of women to control their reproductive
capacities, to the adequacy of utilitarian approaches in health-
care resource allocation.

The idea of personal autonomy, with all its connotations,

plays a central part in the analysis of those issues and I hope to
show how important and how powerful that concept is in
bioethical discussion. No doubt a complete ethics cannot be
generated from the idea of autonomy: nonetheless a great deal
of ethical capital can be extracted from it. In recent US medical
ethics the concept of autonomy has, to some extent, fallen out of
favour and been subjected to sharp criticism because it has been
linked with an excessively individualistic and self-regarding pos-
ition. However, I argue that an emphasis on personal autonomy
can go together with an altruistic concern for others and with a
recognition of community values. A person may very well make
a conscientious and autonomous moral decision about her or his
responsibilities and obligations towards others. Of course, the
concept of autonomy may be used by some people in the
service of an ideology of atomistic individualism, but there is no
necessary connection between the two.
A further point: although Mill and some other supporters of
the liberal ideal purport to justify it in utilitarian terms -- the

-6-

principle of individual liberty leads to the most beneficial social

consequences -- there is no essential link between the liberal
ideal and the theory of utilitarianism. In fact, personal auton-
omy is an 'absolute' value or intrinsic good regardless of any
consequences it may have, and it is for that reason that a
utilitarian justification is inadequate.

After an introductory chapter, in chapter 2 the ethical values

presupposed by a liberal society are discussed. The primacy of
personal autonomy is analysed, as are its consequences -- anti-
paternalism, the distinction between the sphere of law and the
sphere of personal morality, ethical pluralism and what a moral
'consensus' means in a society of autonomous agents. Recent
criticisms of the liberal ideal are considered and a reply in
defence of liberal values is given. Finally, the relevance of those
values for contemporary bioethical issues is discussed.

In chapter 3 the following questions are posed. Can we

choose, in the name of autonomy, to die when we judge that our
continued survival is humanly pointless or that the quality of our
future life is likely to be zero? Can we refuse medical treatment
to, or withdraw treatment from, patients when their future
quality of life is likely to be minimal? This involves a discussion
of whether we can impute 'consent' to incompetent patients
(disabled newborn children, the comatose, those in persistent
vegetative states and so on) who are incapable of giving consent
to withdrawal of treatment. Again, the notion of quality of life is
an ambiguous one. Some speak as though a person's quality of
life can be measured objectively and even quantified. As against
this I argue that quality of life can be defined only by reference
to the notion of personal autonomy. The question we have to
ask is: will the person in question be able to exercise some
minimal degree of autonomous control over his or her life if
treatment is successful?

In the following chapter the different modes of birth and

family formation made possible by new reproductive tech-
nologies are considered, as is the 'right to procreative liberty'.
By way of example, an extensive analysis and discussion of
 -7-

surrogacy arrangements is provided. Once again, if the principle

of autonomy is to be employed consistently, women should be
allowed, in certain circumstances, to be surrogate mothers if
they freely choose to do so. The various criticisms of these tech-
nologies are discussed and particular attention is given to certain
feminist thinkers (for example Corea and Rowland) who claim
that the new forms of assisted procreation do not enhance
women's autonomy but lead to their oppression. I argue that the
feminist principle that women have the right to control their
own bodies (a form of the principle of autonomy) applies here in
the same way that it applies with regard to abortifacient and
contraceptive technologies. One cannot logically use the prin-
ciple with regard to the latter technologies and then reject it with
regard to reproductive technologies.

In chapter 5 I discuss the ethical dimensions of the present

debate over the distribution of scarce health-care resources. The
debate has been dominated by utilitarian approaches and I
attempt to show how inadequate they are with respect to the
justice or fairness of health-care resource allocation. Again, utili-
tarian, economic rationalist and cost-benefit oriented models
tend to be dirigiste and paternalistic, and neglect both patient
autonomy and the professional autonomy of physicians and
health-care workers. So called 'community consultation' (as in
the Oregon scheme described in chapter 5) is limited to estab-
lishing and ranking health-care priorities on a cost-benefit basis.
Patient choices are not enhanced or enlarged but are in fact
severely restricted in the name of cost-benefit efficiency. I argue
that in a liberal society the enhancement of patient choice and
control of medical resources, and of professional autonomy,
should be major goals of any allocation or distribution scheme.
This approach sets severe limits to 'rational' planning in this area
and indicates the need for a 'piecemeal social engineering' strat-
egy which will respect the values associated with autonomy.

In a final chapter I consider the liberal ideal as against the

realities of current medical-ethical and bioethical discussion
and practice, and also whether any kind of consensus about

-8-
bioethical and medical-ethical questions is possible in a liberal,
ethically pluralistic, multicultural society of autonomous indi-
viduals.

NOTES
1. Ronald Dworkin, Law's Empire, Cambridge, Mass., Harvard Univer-
sity Press, 1986, p.441.

2. Richard A. McCormick, The Critical Calling: Reflections on Moral

Dilemmas since Vatican II, Washington, Georgetown University
Press,
1989.

3. See, for example, Joseph Raz, The Morality of Freedom, Oxford,

Clarendon Press, 1980.

-9-

2
Autonomy and the
Liberal Ideal
The idea of autonomy
The idea of autonomy is a blindingly obvious one. It simply
means that if I am to act in an ethical or moral way I must choose
for myself what I am going to do. I may of course take advice
from others and I may be subject to persuasion and pressure
from external sources, but when the chips are down I must
decide and choose for myself. Only then is what I have done
imputable to me so that it is my act, and only then am I respon-
sible for it and praiseworthy or blameworthy for it. 1 As a
contemporary thinker has put it:

While we may be mistaken in our beliefs about value, it doesn't

follow that someone else, who has reason to believe a mistake has
been made, can come along and improve my life by leading it for
me, in accordance with the correct account of value. On the con-
trary, no life goes better by being led from the outside according to
values the person doesn't endorse. My life only goes better if I'm
leading it from the inside, according to my beliefs about value.
Praying to God may be a valuable activity, but you have to believe
that it's a worthwhile thing to do -- that it has some worthwhile
point and purpose. You can coerce someone into going to church
and making the right physical movements, but you won't make
someone's life better that way. It won't work, even if the coerced

-10-

person is mistaken in her belief that praying to God is a waste of

time. It won't work because a valuable life has to be a life led from
the inside. 2

The idea of moral autonomy has had a long history in West-

ern thought. The germs of the idea are present in Aristotle's
discussion of 'voluntary action' in the Nicomachean Ethics: a moral
act is one that is deliberated upon and freely chosen by the
agent. 3 It received further elaboration in a discussion of
'conscience' by medieval philosophers from Peter Lombard
through Philip the Chancellor and St Bonaventure to St Thomas
Aquinas. 4 For these philosophers the central question was
whether a judgment of conscience could be binding or obliga-
tory on a person. Aquinas, drawing on this tradition of thought,
gave the surprising answer that if one sincerely believed and
decided, after serious reflection, that a given line of action was
objectively right, even though in fact it was objectively wrong,
then one was bound to follow that decision. 5 Aquinas qualified
this position by saying that there are some matters which every-
one is presumed, even bound, to know to be wrong, so that if
one believed them not to be wrong one would be culpably
ignorant 'since the error arises from ignorance of the Divine Law
which he is bound to know'. But on other matters my conscience
binds or obliges me. 6 As one commentator has explained
Aquinas' position:

The ruling principle is clear; a man who acts against his conscience is
always in the wrong, even if his conscience is mistaken. If he acts
according to his conscience and his conscience is right, well and
good; if his conscience is mistaken but through no fault of his own,
then his action is not morally bad. 7
In the nineteenth century, Cardinal Newman also drew upon
this tradition of thought. In the English controversy over
whether Catholics' allegiance to the Pope conflicted with their
allegiance to the Queen, Newman affirms the right of personal
conscience. Thus in the Letter to the Duke of Norfolk Newman says

-11-

that as a Catholic and an Englishman he owes allegiance both to

the Queen and the Pope and it may happen, though it will be a
rare occurrence, that the two allegiances conflict with each
other. In such an event, Newman says, 'I should decide accord-
ing to the particular case which is beyond all rules, and must be
decided on its merits'. I may get advice from others, but 'if, after
all, I could not take their view of the matter, then I must rule
myself by my own judgment and my conscience'. Newman con-
cludes with the flamboyant statement: 'Certainly, if I am obliged
to bring religion into after-dinner toasts (which indeed does not
seem quite the thing) I shall drink -- to the Pope, if you please --
still to Conscience first and the Pope afterwards'. 8 Behind this
view of conscience lies a philosophical view of the human person
which Newman expresses in a magnificent passage in Parochial
and Plain Sermons. 'No one', he says, 'outside of him can really
touch him, can touch his soul, his immortality; he must live with
himself forever. He has a depth within him unfathomable, an
infinite abyss of existence'. 9

The idea of personal autonomy is, perhaps, most famously

linked with the name of Immanuel Kant. In a sense the whole of
Kant's moral philosophy revolves around the idea that the moral
agent is her or his own law-giver. By my reason I discern the
'categorical imperatives' or absolute obligations or duties of the
moral law and I impose them on myself. If I act because of any
non-rational motive -- my feelings or inclinations or the coer-
cive force of others -- then I am no longer acting ethically or
morally. For Kant, the autonomous moral agent is not just the
source of moral value but is intrinsically valuable in herself and
must be respected as such by others. She is an end-in-itself and
can never be used solely as an instrumental means for achieving
the ends or purposes of another. To treat another person as a
means to one's own ends is in effect to treat her as a thing. With
Kant we witness a development of the idea of autonomy from
being a fundamental condition of ethical action to being an
ethical value in its own right and as such deserving of moral
respect. 10

-12-

It has been argued that the idea of personal autonomy is dis-

tinct from Kant's idea that we are both the authors and the
subjects of self-enacted moral principles. For Kant, this critic
says, the moral subject's 'authorship [of his life] reduced itself to
a vanishing point as it allowed only one set of principles which
people can rationally legislate, and they are the same for all'. 11
But Kant also defines the moral subject/agent or person as an
'end in itself' that can never be treated merely as a means to
some further end. There is, no doubt, an unresolved tension in
Kant's thought between the idea that there is a set of 'categorical
imperatives' (absolute and universal moral principles) imposed
on me by my reason (where the authorship of my life is indeed
reduced to vanishing point), and his idea that I am, as a moral
agent, an autonomous 'end in itself' who alone has the responsi-
bility of determining the direction and shape of my moral life
(where the authorship of my moral life is given full recognition).
As we shall see later, this tension is particularly evident in Kant's
discussion of suicide.

Of course, the freedom to choose, which is of the essence of

personal autonomy, is freedom to choose some concrete line of
action which we believe to be morally good. Autonomy does not
mean choosing simply for choosing's sake. But that does not
imply, as some have argued, that freedom to choose has no
ethical value in itself but only becomes valuable in the light of
the concrete actions chosen: in other words, it is because those
actions are good, or believed to be good, that freedom to choose
and autonomy are good. However, autonomy, the capacity for
self-determination, is also valuable in itself in the sense that, even
though what I choose (the content of my act) is objectively bad,
my choosing it is still good in that it is a free and autonomous act
as opposed to one that is coerced. If we contrast two acts: (a) one
that is freely chosen but objectively wrong, and (b) one that is
coerced and not freely chosen, but which is also objectively
good, the liberal will say that the first act is more morally valu-
able than the second.

One might also mention that freedom of expression or 'free

 -13-

speech' is based upon the recognition that members of a liberal

society have a right to be treated as autonomous moral agents
who must be allowed to decide for themselves the worth of views
expressed to them. There are of course cases (defamatory state-
ments, racial vilification and the like) where the expression of
certain views may cause direct injury or harm to other people
and violate their personal autonomy. In such cases the state may
intervene. But if a government intervenes to curb free speech on
the grounds that people may be morally depraved or corrupted
by the views that are expressed, or led into politically question-
able behaviour, or persuaded to believe false (religious or other)
ideas, it is in effect treating its citizens as children lacking full
autonomy who are not capable of considering those views for
themselves and making their own judgments on them.

No doubt, as Mill was to argue, freedom of expression may

also be justified on the ground that it leads to beneficial conse-
quences overall. Thus we are more likely to discover the truth,
whether in religion, politics or any other sphere, through free
and untrammelled debate where a variety of views are able to be
expressed. But this consequentialist justification is much weaker
than that which sees freedom of expression as a corollary of the
recognition of the value of personal autonomy. The best that the
consequentialist justification of free speech can allow is that in
most circumstances it is likely to be the case that free speech will
bring about more good social effects than bad. It is incapable of
according an absolute value to freedom of expression.

Much later on, philosophers such as Jean-Paul Sartre

attempted to construct a whole ethical theory around the idea of
autonomy. Thus for Sartre the conscious subject has no pre-
determined 'essence' or make-up or 'nature' but is wholly self-
determining. I make myself through my choices and I am totally
responsible for myself. The realisation of this is the basis of the
first Sartrean ethical commandment: always act as one who is
self-determining and responsible for what one does. This is what
Sartre calls the attitude of 'authenticity'. The negative corollary
of this is that I must not try to evade my freedom of self-

-14-
determination, and my responsibility for making myself
through my acts, by practising 'self deception' or 'bad faith'
(mauvaise foi). The attempt to escape the 'burden' of freedom
and self-determination or autonomy is paradoxical, since any
attempt to abdicate from having to choose freely and respon-
sibly for myself presupposes that I am free. I am in effect saying:
'I freely choose no longer to freely choose what I am going to
do', or 'As a conscious self-determining subject I choose to be a
predetermined thing'. Just as for Descartes I cannot doubt that I
am a conscious being since I have to presuppose that I am con-
scious in order to doubt, so also for Sartre the attempt to
abandon one's moral autonomy presupposes that I am free, self-
determining and autonomous. Nevertheless, as Sartre shows in
his brilliant delineations of the pathological strategies of 'bad
faith' and 'self-deception' in all areas of human life, we can cer-
tainly succeed in deceiving ourselves and in forsaking our auton-
omy and evading responsibility for ourselves. In fact, for Sartre
the life of 'authenticity' based upon autonomy is arduous and
only rarely successful. In a sense Sartre deromanticises the idea
of autonomy in that, while emphasising that it is the central
good, he also emphasises that it is a burden which most people
would prefer to avoid and that it is very difficult to escape from
the lures of 'bad faith' and to achieve authenticity. We all say
that we want to be free and autonomous ('Give me liberty or
death'!) but in fact we spend most of our time trying to escape
from freedom and autonomy. 12

The liberal society

The relevance of the idea of autonomy for liberal democracy is
obvious. The idea is of course at the basis of the ideas of political
'liberty' and 'the rights of man' in eighteenth century political
thought. However, it was not until nineteenth century thinkers
such as John Stuart Mill that a political theory based on moral
autonomy was formally developed. Put briefly, the ideal of a
liberal society is based upon the principle of personal liberty,

-15-

namely that, to the greatest degree possible, people should be

free to make their own life-choices and decisions for themselves
and that, as a corollary, the state, acting through the law, should
as far as possible opt out of the province of personal morality. In
other words, it is not the business of the state, or the law, to
make us virtuous, or to enforce personal morality, or to establish
a common morality. The liberal society is one in which to the
maximum degree people are at liberty to exercise their personal
autonomy. By way of contrast, in quasi-authoritarian or theo-
cratic or traditional societies personal autonomy is subordinated
to 'objective' moral values as declared by 'the authorities'. In this
view, the important thing is to do what is objectively good, not to
choose for oneself, and the emphasis is on one's duties or obli-
gations and not on one's rights which are deemed to be 'indi-
vidualistic' and potentially anti-social. If one autonomously
chooses to do what one ought to do, that is a bonus. Most people
do not know what is good for them and they must be told, and
led, to do what is good. Paternalism is therefore an inescapable
and necessary feature of the social and political process.

The ideal of the liberal society was given its classic formula-
tion in John Stuart Mill's essay On Liberty. The principle which
enables us to demarcate the sphere of individual liberty from
that of the state and the law, and to set limits to the latter is
this:

The only purpose for which power can be rightfully exercised over
any member of a civilised community, against his will, is to prevent
harm to others. His own good, either physical or moral, is not a
sufficient warrant. He cannot rightfully be compelled to do or for-
bear because it will be better for him to do so, because it will make
him happier, because, in the opinions of others to do so would be
wise, or even right. These are good reasons for remonstrating with
him, or reasoning with him, or persuading him, or entreating him,
but not for compelling him, or visiting him with any evil in case he
do otherwise. . . . The only part of the conduct of any one, for which
he is amenable to society, is that which concerns others. In the part
which merely concerns himself, his independence is, of right,

-16-

absolute. Over himself, over his own body and mind, the individual
is sovereign. 13

Only if a person's acts directly harm other people and prevent or

inhibit the exercise of their personal liberty may the state,
through the law, intervene.
Mill admits, of course, that there may be occasions when the
state, through the law, might legitimately override the auton-
omy of individuals for their own good. However, in a liberal
democratic society that kind of paternalism should be limited to
situations where it is clearly justified, and the onus is always on
the state to show that it is in the long-term interests of those
whose autonomy is being overridden in the short term. Put in
another way, the sphere of personal liberty should be maxi-
mised and the sphere of paternalistic action by the state should
be progressively minimised. (As we saw before, that maximis-
ation of personal liberty and autonomy may very well involve
intervention by the state to promote socio-economic conditions
within which personal autonomy can flourish.)

A consequence of this is that there is a strict disjunction

between the two spheres of personal morality and state inter-
vention. Certain kinds of behaviour may be immoral, sinful or
ethically undesirable, but the state should prohibit them only
if they involve harm being done to others. Prostitution, for
example, would generally be thought to be morally undesirable
but that by itself is no reason for legally prohibiting it. As the
UK Wolfenden Committee (full of Millian milk) put it in 1957,
apropos of the decriminalisation of prostitution and homo-
sexual acts between consenting adults, it is not 'the function of
the law to intervene in the private lives of citizens, or to seek to
enforce any particular pattern of behaviour'. And again, 'unless
a deliberate attempt be made by society, acting through the
agency of the law, to equate the sphere of crime with that of sin,
there must remain a realm of private morality and immorality
which is, in brief and crude terms, not the law's business'. By

-17-

decriminalising certain acts such as prostitution or abortion the

state is not thereby approving them: it is simply declaring that
these acts fall within the area of private morality and that this is
out of bounds for state intervention and the criminal law. 14

A further consequence of the Millian view of the liberal

society is that it is possible to have a society without any sub-
stantive agreement or consensus on basic moral and religious
values. Traditional or religiously based societies have usually
exacted agreement on a set of 'core values' -- belonging to a
particular religion, adhering to certain sexual taboos, accepting
a certain form of marital and family life and so on -- to which all
the members of these societies are supposed to give assent and
allegiance. However the liberal society claims that, at least
ideally, members of society are required only to agree that per-
sonal liberty or autonomy is the supreme value. In a sense this is
an agreement to disagree, in other words for each to tolerate the
personal worldview and value system of the other so long as they
do not infringe upon one's own or others' freedom to follow out
their own way of life. In such a society, social diversity and cul-
tural pluralism are not seen as threats to the ethical 'consensus'
that is supposed to underlie the social fabric; rather they are
positively welcomed and encouraged, and seen as an index of
social vitality. On the other hand, religiously based and
traditional societies are, ideally at least, monocultural, and so-
called multiculturalism is seen a a threat to social unity. Indeed,
it is argued that a multicultural society is a contradiction in
terms.

It was noted before that liberalism does not involve any kind
of ethical relativism or scepticism, as though there were no
objective values and it was in some way improper for members
of a liberal society to espouse and propagate their own ethical or
moral positions. In On Liberty Mill expressly rejects any kind of
scepticism about ethical values and contemporary defenders of
the liberal ideal do the same. 15 Liberalism in fact depends upon a
recognition of the unequivocally objective value of personal
autonomy and the other values -- equality, justice and so on --

-18-

associated with it. Again, it recognises the right of individuals to

maintain and actively propagate their own ethical positions. In
fact, the freedom to choose can be seen as a necessary condition
for overcoming subjectivism and attaining 'objectivity' in moral
decision-making, in that it provides the opportunity for gather-
ing relevant information and for the critical assessment of
alternatives. Far from being motivated by a view that ethical
decisions are subjective or arbitrary, it is motivated by the desire
to overcome subjectivism and arbitrariness in the making of
ethical decisions. 16

At the same time, as we have seen, the liberal society, by virtue

of its commitment to the value of autonomy, draws a sharp dis-
tinction between the sphere of personal moral views and the
sphere of state intervention and the law. And that means that no
members of a liberal society may invoke the law to impose their
particular moral views on others.

In On Liberty John Stuart Mill talks a good deal about what he

calls 'individuality'. In one sense this is identical with the idea of
autonomy, the capacity of each person to pursue her or his life in
an original and spontaneous way as an independent and self-
determining moral agent. Defined in this way, individuality is
something intrinsically good and society is best where this is
promoted to the highest degree: that is, where the maxi-
mum number of people make their own free and responsible
decisions. What does it profit a society in which everyone is
coerced to do what is objectively right, if they do not choose to
do it for themselves? Although, as we said before, some degree
of paternalism may be justified in a society (for example, ensur-
ing that children receive basic education whatever their wishes
or choices) the ideal state of affairs would be one in which people
freely choose to do what they ought to do. From this point of
view, the state should always view its interventions in matters of
personal morality as a necessary evil and something to be pro-
gressively diminished. In Mill's society the function of the law,
one might say, is to create the conditions which will lead to its
becoming less and less concerned with the enforcement of per-

-19-

sonal morality and so allow more and more scope to 'individu-

ality'. As a contemporary Millian has said: 'The government has
an obligation to create an environment providing individuals
with an adequate range of options and the opportunities to
choose them'. 17

The liberty to decide and choose for oneself is, however, only
part of what Mill means by 'individuality'. He also means the
right to be different. Though this might be superficially inter-
preted as a plea for bohemianism or mere eccentricity, Mill is
getting at something important here, namely that each person
has his or her own moral style of life or 'vocation'. Morality is not
just a matter of conforming to universal rules or following a
maxim which, as Kant puts it, can apply to everyone alike. There
is a saying that the saints are admirable but not imitable. But in a
certain sense this is true of every moral agent. Each person has
an inimitable moral style and vocation, and all his or her acts
bear a distinctive personal impress.

As was said before, with Kant autonomy is no longer just a

condition of moral action, as it was with Aristotle and medieval
thinkers such as Aquinas, but becomes a value in itself. The same
is true of Mill; for him individuality is an intrinsic good that
should be respected and pursued for its own sake. Speaking of
the recognition of individuality as a genuine development in
moral consciousness, Isaiah Berlin has said:

It may be that the ideal of freedom to live as one wishes -- and the
pluralism of values connected with it -- is only the late fruit of our
declining capitalist civilisation: an ideal which remote ages and
primitive societies have not known, and which posterity will regard
with curiosity, even sympathy, but little comprehension. This may
be so, but no sceptical conclusion seems to me to follow. Principles
are no less sacred because their duration cannot be guaranteed. 18

Critics of the liberal ideal

This vision of a society of autonomous moral agents choosing
freely for themselves, and willingly tolerating a situation of

-20-

moral or ethical pluralism on the basis of their commitment to

the value of liberty or moral autonomy, has been subjected, over
the last thirty years, to a sustained critique from various quar-
ters. There have been, first, attacks on the notion of autonomy
itself: for example that it grossly overestimates the capacity of
people to make decisions for themselves and neglects the degree
to which every human decision is influenced by both external
and internal (psychological) factors. Thus it has been said that
we are inescapably part of a particular community and that
communal values and practices largely set our ethical goals for
us. We discover them and do not deliberately choose them. This
is especially the case in so-called 'traditional' societies where the
whole idea of autonomous individuals choosing their life pro-
jects and engaging in what Mill calls their own 'experiments in
living' is, so it is claimed, absurd. 19 In this view autonomy is a
philosopher's myth with no meaning in practical life. Further,
Mill's emphasis on autonomy is said to be individualistic and
a-social in that it abstracts the individual from the social and
cultural context which gives human actions meaning and sig-
nificance. Once again, this kind of atomistic individualism is said
to be a philosopher's fiction. No one lives like that. There is no
pre-social or a-social self because the self is always 'situated'
within a concrete set of social and cultural circumstances within
which in turn it has certain roles (I am a female or a male, a
father or a mother, a parent or a child, a worker or a pro-
fessional, a Christian or a Muslim) and in terms of which it is
'defined'. In this sense the self is always a 'social construction'.
Allied with this objection, there is the charge that emphasis on
autonomy leads to a self-regarding ethical approach where the
rights of the individual against the state and other individuals
become central and the other-regarding responsibilities and
obligations of the individual are no longer important.

These criticisms are, however, misconceived. All that they

show is that the concept of autonomy, like all concepts, has a
'grey area' of application in practice. We know that on occasion
people, whatever their cultural situation and whatever external

-21-

forces influence them, are able to make considered and con-

scientious decisions for themselves and we can point to para-
digm cases of such decisions. We can also point to paradigm
cases of decisions that were so determined by external (social
and cultural) and internal (psychological) factors that they were
not decisions for which the agent could be held responsible or
praised or blamed. In between there are the cases where it may
not be completely clear whether or not an autonomous decision
was made and whether or not responsibility for the decision
should be imputed to the person involved. But the existence of
such cases in the grey area does not mean that the concept of
autonomy is vacuous. As Dr Johnson once remarked: just
because there is a zone of twilight it does not follow that we
cannot distinguish between day and night. Unless one is pre-
pared to argue, on some kind of socio-cultural deterministic
grounds, that it is impossible in traditional societies for people to
make moral or ethical decisions for which they are responsible
and thus deserving of praise or blame, it must be possible to
make autonomous decisions.
While it is true that the self is always 'situated' it does not
follow that it is wholly determined by its situation or roles: it is
what I do with my given situation and roles and what I make
of them by my choices that make me into a self. As a self-
determining agent I may freely choose to stay with and live out
the roles and the situation in which I find myself, or I may freely
choose to break with and change that situation, and take on
radically new roles. In traditional societies, the opportunity or
space for such alternative self-determining choices and 'conver-
sions' is severely limited. The liberal society, however, is one
which promotes and provides space for these self-determining
choices to the greatest possible degree.

As for the criticism that the notion of autonomy is linked to an

individualistic and a-social stance, there is absolutely no reason
why an autonomous act must necessarily be self-regarding in
intent and cannot be other-regarding. People may very well
make conscientious and autonomous moral decisions about

-22-

their responsibilities and obligations towards others and

acknowledge their dependency on others. A society of auton-
omous agents is not necessarily a collection of individualistic,
self-contained and self-regarding atoms or 'islands of self-
conviction and self-direction. 20

Other objections have been made about what is claimed to be

the paradoxical character of the very idea of the liberal society,
namely that it is possible to have a society without any kind of
social consensus or, put in another way, that the 'common good'
of the liberal society is that it has no common good. 21 But in fact
there is no paradox. It is true that in a liberal society there is no
common good of a substantive kind; but there is a common good
centred on the values of liberty, autonomy and moral diversity.
It is worthwhile citing here the words of an American legal
scholar, Judith Shklar, apropos of Lord Justice Devlin's famous
criticism in 1965 of the Wolfenden Committee report on homo-
sexuality and prostitution. 22 Devlin had argued that the law is in
practice inescapably concerned with matters of private morality
and that it ought to be so concerned since agreement on certain
basic and substantive moral values is necessary for there to be a
society at all. By definition a society is a group of people who are
agreed upon a set of fundamental moral values. To the question
'how do we know what these values are?', Devlin had replied
that they are known by the average member of the community,
that is, as the English legal fiction put it, by 'the man on the
Clapham omnibus'. Referring to Devlin's 'contention that
society will fall apart unless an accepted morality is enforced by
the public authorities', Shklar comments ironically:

The tricky question of who really knows what is moral is answered

by referring the doubter to 'the man on the Clapham bus' whose
moral attitudes can be taken as representative of all England, or at
least of all of England that matters. Here one is in the presence of the
mythical 'average man' whose uses have at last been discovered by
conservatives. The unquestioning mind is taken as the best index of
public opinion, morality is then identified with this opinion, and the
survival of society is made to depend upon its being the sole guide

-23-

for public policy . . . That tolerance and freedom might also be

values, that the moral successes of public enforcement remain dubi-
ous, are matters which do not even seem to occur to this type of
mentality.

Shklar concludes by saying:

Freedom and diversity are values too, and individualism and imper-
sonal justice are types of morality as well. To defend them is not to
deny the obvious -- that, whatever 'society' does, it promotes some
set of values. However, the defenders of 'the man on the Clapham
bus' not only are urging upon us a very specific and narrow set of
norms; they are doing it in order to bring conformity into a plural-
istic society, and under the false pretence of defending moral values
against the amoral. 23

The same reply might also be made to the criticism that the
state and the law cannot be neutral with respect to moral values.
Thus a recent critic of the 'liberal political-philosophical project'
argues that there is no neutral vantage point from which legis-
lators, judges and the like can stand and rationally arbitrate the
conflicts between those with different moral stances. 'One can',
he says, 'participate in politics and law . . . only as a partisan of
particular moral/religious convictions about the human'. 24 In
one sense that is true, but it neglects the fact that a commitment
to moral autonomy, and to the ethical pluralism that goes with
it, is not at all like a commitment to a particular and 'partisan'
moral stance. An agreement on the supreme value of autonomy
is precisely an. agreement to disagree about substantive and
partisan moral positions. In that sense it is a meta-partisan
stance.

Difficulties arise of course when a liberal society contains

minority groups which reject the very notion of autonomy and
all that it involves. In effect they bite the hand that tolerates
them by rejecting the basis of the liberty that is extended to
them and that enables them to exist. What we have here is a
situation where two competing and incompatible views of

-24-

society are in conflict and there is no way, in principle, to resolve

that conflict. (A liberal society does not have to be absolutely
neutral with regard to values and absolutely permissive of any
and every group. As we have seen, the liberal society makes a
commitment to the value of autonomy and it does not have to
tolerate groups that contradict that value and all that flows from
it.) Nevertheless, in practice it is often possible to negotiate with
such groups and to secure acceptance of the values of the
liberal society -- autonomy, ethical and religious pluralism,
the distinction between the law and personal morality -- on
pragmatic grounds.

Finally, the critics of the liberal society object that there is no

place in it for genuinely communitarian values. Once again this
relies upon the assumption that such a society is a collection of
atomic self-regarding individuals. But we do not have to choose
between, on the one hand, an acceptance of communitarian
consensus and, on the other hand, rampant individualism where
everyone does her or his own thing and where there is no place
at all for community values. In effect the liberal society provides
a space for a multiplicity of forms of community life: in fact, it
encourages cultural diversity and sees it as an index of social
vitality. What it denies is that community values can be legis-
lated for and sanctioned by the state, and that there should be
one monolithic set of such values which excludes or marginalises
any kind of genuine diversity or pluralism. As Mill nicely puts
it:
It would be a great misunderstanding of this doctrine (of the auton-
omy of the individual) to suppose that it is one of selfish indiffer-
ence, which pretends that human beings have no business with each
other's conduct in life, and that they should not concern themselves
about the well-doing or well-being of one another, unless their own
interest is involved. Instead of any diminution, there is need of
a great increase of disinterested exertion to promote the good of
others. But disinterested benevolence can find other instruments to
persuade people to their good than whips and scourges, either of the
literal or metaphorical sort . . . Human beings owe each other help

-25-

to distinguish the better from the worse, and encouragement to

choose the former and avoid the latter. They should be ever stimu-
lating each other to increased exercise of their higher faculties, and
increased direction of their feelings and aims towards wise instead
of foolish, elevating instead of degrading, objects and contem-
plations. But neither one person, nor any number of persons, is
warranted in saying to another human creature of ripe years, that he
shall not do with his life for his own benefit what he chooses to do
with it. 25

What is true in some of these criticisms of the liberal society is

that it, like every social structure, has its own peculiar costs and
benefits. In other words, the liberal society's emphasis on the
value of personal autonomy and liberty, with all its conse-
quences, is bought at a certain price. The sense of communal
solidarity, so strong in traditional societies, is for example weak-
ened (though not wholly abolished) in the liberal society, and
the individual bears the full 'burden', as Sartre calls it, of ethical
responsibility for his or her actions. The autonomous agents of
the liberal society cannot seek the communal warmth and com-
fort of traditional societies and are bereft of the paternalistic
guidance available in religiously based and authoritarian
societies. (Though, of course, the advantages of such societies
are bought at a considerable human cost: the lack of space for
the exercise of personal liberty and the promotion of what Mill
calls 'individuality', and the inhibition of intellectual, moral and
political diversity and variety. This is something that latter-day
'traditionalists' prefer to forget.)

The liberal ideal, with its focus on individual liberty, social

diversity and cultural pluralism, is difficult to maintain because it
goes against the grain of our human tendency to escape the
burdens of autonomous behaviour and to seek conformity and
refuge in 'the crowd'. Thus we tend to invoke nostalgically the
idea of a moral consensus on a set of core values that are sup-
posed to be at the basis of our society and that are implicitly
known and safeguarded by 'the community'. Of course, it can be
interesting and valuable to know, if we can discover it, what

-26-

members of the community think about policies at any one time.

But in a liberal society, where a pluralism of values is not only
tolerated but actively encouraged, there is no such thing as 'the
community' view which has some kind of special normative
status and which provides a basis for a public morality or for
that nebulous entity which judges are fond of calling 'public
policy'.

This then is the general context within which public ethical

discussion, including medical ethics and bioethics, ought to be
carried on in our society. Unfortunately, a good deal of this dis-
cussion takes place without any reference to this context and as
a result there is constant confusion of the spheres of morality
and the law; misunderstandings about the legitimacy of ethical
pluralism; illusions about a 'public morality', so-called 'public
policy' and the will of 'the community'; gross inconsistencies
about people's rights; and so on. As I have already remarked,
some of the stances adopted, especially in the fields of the ethics
of assisted procreation and reproductive technology, the ethics
of death and dying, and the ethics of health resource allocation
are so authoritarian and paternalistic that one wonders if their
supporters realise that they are supposed to be living in a liberal
democratic society. It is the contention of this book that those
engaged in bioethical discussion must become aware of the fact
that they are living in a liberal society and take account of its
basic values.

NOTES
1. On the concept of autonomy see Joseph Raz, The Morality of
Freedom, Oxford, Clarendon Press, 1986, especially ch. 14, 'Auton-
omy and Pluralism' and ch. 15, "'Freedom and Autonomy'"; Robert
Young
 , Personal Autonomy; Beyond Negative and Positive Liberty, The
Hague, Croom Helm, 1986; G. Dworkin, The Theory and Practice of
Autonomy, Cambridge, Cambridge University Press, 1988; J. Christ
man (ed.) The Inner Citadel: Essays on Individual Autonomy, New
York, Oxford University Press, 1989.

-27-

2. Will Kymlicka, "'Liberalism and communitarianism'", Canadian Jour-

nal of Philosophy, 18, 1988, p. 183.

3. Nicomachean Ethics, Book III, ch.1.

4. See Timothy Potts, Conscience in Medieval Philosophy, Cambridge,

Cambridge University Press, 1980, and Eric D'Arcy, Conscience and
Its Right to Freedom, London, Sheed and Ward, 1961.

5. Summa Theologiae, 1a 2ae, q.19, art. 6.

6. ibid. art. 7

7. Thomas Gilby, Summa Theologiae, 1a 2ae, q. 19, arts. 18-21, vol.

18,
London, Blackfriars/Eyre and Spottiswoode, Appendix 15, p. 182.

8. See Max Charlesworth, "'Newman on church, state and con-

science'", in Church, State and Conscience, St Lucia, Queensland
Uni-
versity Press, 1973, p.3.

9. J. H. Newman, Parochial and Plain Sermons, vol. 4, Sermon VI,

"'The
Individuality of the Soul'", London, Rivingtons, 1863, pp.82-3.

10. Immanuel Kant, Foundation of the Metaphysics of Morals, 1785,

trans.
Carl J. Friedrich, in The Philosophy of Kant, New York, Modern
Library, 1949.

11. Joseph Raz, The Morality of Freedom, op. cit. p.370.

12. See Jean-Paul Sartre, Existentialism and Humanism, trans. P.

Mairet,
Brooklyn, Haskell House, 1977; and the section "'Patterns of bad
faith'" in Being and Nothingness, trans. Hazel Barnes, London,
Methuen, 1969.
13. John Stuart Mill. On Liberty, R. B. McCallum (ed.), Oxford, Black-
well, 1946, pp.8-9.

14. Report of the Committee on Homosexual Offences and Prostitution

(the
Wolfenden Committee), London, HM Stationery Office 1957.

15. Mill, On Liberty, op. cit., pp.67-8. See also Ronald Dworkin, Law's
Empire, Cambridge, Mass., Harvard University Press, 1986.

16. See Will Kymlicka, "'Liberalism and communitarianism'", op. cit.

p. 185.

17. Joseph Raz, The Morality of Freedom, op. cit. pp.417-18.

18. I. Berlin, Two Concepts of Liberty, Oxford, Clarendon Press, 1958,

p.57.

19. See Alasdair MacIntyre, After Virtue. A Study in Moral Theory, 2nd
edn, London, Duckworth, 1986; Michael Sandel, Liberalism and the
Limits of Justice, Cambridge, Cambridge University Press, 1982;
Charles Taylor, Hegel and Modern Society, Cambridge, Cambridge
University Press, 1979; Michael Walzer, Spheres of Justice, Oxford,
Blackwell, 1985. For an excellent counter-critique see Will Kymlicka
, "'Liberalism and communitarianism'". op. cit. See also
C. Kukathas and P. Pettit, Rawls: A Theory of Justice and Its
Critics,

-28-

Cambridge, Polity Press, 1990, ch.6, "'The Communitarian

Critique'".

20. Richard A. McCormick, The Critical Calling. Reflections on Moral

Dilemmas since Vatican II, Washington, Georgetown University
Press, 1989, p.220.

21. For a recent survey of these criticisms see Stephen Macedo, Liberal
Values: Citizenship, Virtue and Community in Liberal
Constitutionalism,
Oxford, Clarendon Press, 1990.

22. Patrick Devlin, The Enforcement of Morals, Oxford, Oxford

University
Press, 1965.

23. Judith Shklar, Legalism, Cambridge, Mass., Harvard University

 Press, 1964, pp.90-1.

24. Michael J. Perry, Morality, Politics and the Law, New York, Oxford
University Press, 1988, p.183.

25. Mill, On Liberty, pp.67-8.

-29-

3
Ending Life
The ethics of suicide
In the Foundation of the Metaphysics of Morals Kant asks himself
whether a person may, in certain circumstances, take his life
when he judges that his continued existence is humanly point-
less. Surprisingly, the great apostle of personal autonomy holds
that such a person would be acting immorally. Kant argues that
one contemplating suicide is caught in a 'contradiction' in that
he is, on the one hand, concerned to promote his self-interest by
seeking to escape further suffering or dying in a situation where
he has lost control over himself and become a 'vegetable'; but on
the other hand he wishes, by taking his life, to abolish his 'self'
and all possibility of securing his future self-interest. Since what
is contradictory is irrational, suicide is irrational. Kant also de-
velops another argument to the effect that a person deciding to
commit suicide sees the taking of his life as a means to an end
(the cessation of suffering, the avoidance of an 'undignified'
death). He no longer sees himself as an autonomous moral agent
(or person) deserving of absolute moral respect, or as an 'end-
in-itself', as Kant puts it, that can never legitimately be used
simply as a means. Instead, he treats himself as a thing that can
be used for other purposes. The would-be suicide is then, for

-30-

Kant, guilty of a lack of self-respect. Kant's conclusion appears to

be that if it is not morally permissible for me to end my life under
any circumstances, I have an absolute obligation to preserve my
life. 1
Kant's arguments, though ingenious, are unconvincing since it
is simply not true that a person wishing to die and being willing
to take her life is caught in a formal contradiction or even, for
that matter, in an inconsistency. Again, it may be that, as Kant
says, in some cases people commit suicide because they lack
respect for themselves as persons and can no longer take re-
sponsibility for themselves. But in other cases people consider
taking their lives precisely because they do have a proper self-
respect and do not wish to die in circumstances where they will
no longer be autonomous selves or persons in control of their
lives. Biologically they will still be in existence, but as auton-
omous moral agents or persons they will no longer be there. It is
not so much that such people wish to 'die with dignity' ('dying
with dignity' is a misleading slogan since many kinds of dying are
'undignified') but rather that they wish to 'die with autonomy'
since what they want is to die as autonomous human beings who
are, to some degree at least, in control of their own lives.

This, in fact, provides us with a criterion for distinguishing

between the cases where suicide is, as Kant argues, motivated by
lack of moral respect for oneself as a person, and cases where
suicide is motivated precisely by respect for oneself as an auton-
omous moral agent. The first is not an exercise of true auton-
omy, the latter is. (Even though it has prejudicial connotations, I
use the term 'suicide', in what follows, in its etymological sense
to refer to both kinds of deliberately ending one's life.)

Kant was, no doubt, reflecting the common Western tradition

of thought which saw suicide as inspired by cowardice and weak-
ness -- a refusal to endure the difficulties and suffering of life --
and also, rather ambivalently, by a kind of hubris which led
people to usurp the role of God as the arbiter of life and death.
The idea that since God gives us life only God can take it away
runs deep in the Judaic and Christian traditions, even though it

-31-

sits rather inconsistently with the status given by both religious

traditions to the martyr who deliberately offers up her life and
dies for God. In the Middle Ages, theologians such as St Thomas
Aquinas used a battery of arguments - theological, philosophi-
cal and utilitarian -- to show that suicide is a sin. Thus Aquinas
claims that the deliberate taking of one's life goes against our
'natural' inclination to preserve ourselves; it is a sin against char-
ity since as a matter of charity everyone should cherish or love
themselves; it is an offence against the community since every
person is a part of the community and what damages each per-
son damages the community; it is an attempt to play God since
life is God's gift and God alone has the authority to decide when
a person should die. 2 With respect to the last point, Aquinas
admits that concerning the rest of his life a person must use his
free will and make his own autonomous decisions; it is only
regarding his death that he must leave the decision to God. 3
Again, Aquinas argues that suicide is not an act of true courage
but rather of the 'softness of spirit' (mollities animi) of a person
not able to bear with life's afflictions.

It must be said that much remains unclear in Aquinas' argu-

ments against suicide. For example, if it is against the natural law
to take one's life does this mean that I have an absolute duty to
preserve my life at all costs and that I have a correlative duty to
shun occasions where my life is endangered? Contemporary fol-
lowers of Aquinas certainly do not hold that we have an absolute
obligation to preserve life at all costs or that we cannot bring
about our death by refusing medical treatment in certain cir-
cumstances. Again, if only God can decide when I should die
how do I know what God's decision is? Say I am afflicted with
some illness which if left untreated will result in my dying;
should I see the illness as God's will for me and forgo any medi-
cal treatment in a spirit of fatalism? If I had medical treatment
would I be defying God's decision that I should die through that
illness? Would having that treatment be tantamount to 'playing
God'? Or does the idea that only God can take my life simply
(and vacuously) mean that when I die from 'natural causes' (and

-32-

not from any deliberate act of my own) this is defined as God

'taking my life'? Certainly it is difficult to see why I cannot con-
trol the manner of my dying by my free will if, as Aquinas
admits, I must control the rest of my life by my free will.

Quite apart from this, Aquinas and other Christian and Jewish
theologians simply do not consider the possibility that I might in
good conscience choose to 'lay down' my life or deliberately
terminate it out of proper self-love, or love for others or for my
country, or even out of love and respect for God.
Traditional ideas about suicide still, of course, retain some
force: in many societies attempted suicide is still seen as a crime
and being an accessory to suicide as equally a criminal offence.
However, there has been a developing recognition, over the last
thirty or forty years, of what has been called a 'right to die'. Like
all such catchy slogans, the 'right to die' slogan can be mislead-
ing, but what it means is that people have the right, as auton-
omous moral agents, to decide in certain circumstances that
their quality of life is so diminished that continued existence is
humanly pointless and may therefore be ended by themselves.
(The term 'euthanasia' is now so hopelessly compromised that it
is better to dispense with it altogether.) Put in another way,
people have the right to determine and control the circum-
stances of their deaths, just as they determine and control the
circumstances of their lives. Dying is, in a sense, the most
important thing a person does and one should as far as possible
be in control of it. I do not exercise my moral autonomy by
allowing my life to be dictated by chance and external forces,
and neither do I exercise my moral autonomy by fatalistically
allowing my death to be dictated by chance and external forces.
It is not 'playing God' to seek freely to control the direction of
my life, and it is not 'playing God' to seek freely to control the
mode of my dying. For a Christian, God is not honoured by a
person (made in the 'image' of God) abdicating her autonomy
and freedom of will and passively submitting herself to 'fate'.

Richard A. McCormick has recently criticised 'physician as-

sisted suicide' on the grounds that it is based on what he calls the

-33-

'absolutization of autonomy'. Exaggerated emphasis on per-

sonal autonomy, he claims, leads to a rejection of dependence
on other people and a refusal of their compassion. I insist on
dying in my way, when I choose and as I choose without being
beholden to anyone else. 4 But, as has already been said, there is
no reason why personal autonomy must be linked with this kind
of isolationist and anti-social individualism. Autonomy does not
mean that I cannot take advice from others about my life and
death, or defer to others' opinions, or entrust myself to their
care and compassion. It means, however, that in the last resort it
is I, the autonomous agent, who has to make such decisions. I
cannot abdicate or de-emphasise my personal autonomy since
that would be tantamount to abdicating or de-emphasising my
status as a moral agent or person. In fact, to complain of the
'absolutisation of autonomy' is rather like complaining of
absolutising personhood. Autonomy is not something that one
can have too much of.

This developing recognition of the right of a person freely to

determine and control, so far as is possible, the mode of his or
her death, has come about in various ways. First, there has been
in various countries the development of medical treatment legis-
lation which enables a competent patient, in certain situations,
to refuse medical treatment and so bring about her or his death.
The same legislation enables people to designate proxies to
make similar decisions to refuse treatment on their behalf when
they are no longer competent to make their own decisions. The
legislation usually stops short of allowing a patient to ask for
active intervention on the part of the physician or nurse to help
bring about death. The standard rationale for this is that while I
may refuse further treatment in the sure knowledge that this will
bring about my death, I may not actively cause the termination
of my life by direct intervention. There is, it is argued, a valid, if
fine, distinction between on the one hand my request to have
medical treatment withdrawn and 'letting' or 'allowing' myself
to die as a consequence, and on the other hand killing myself or

-34-

asking a physician or nurse to kill me. I may bring about my

death by refusing any longer to be connected to a life-support
system, but I may not bring about my death by giving myself a
lethal injection or requesting another to give me such an injec-
tion. The former is characterised as 'letting die' and the latter as
'killing'.

There is, however, a growing scepticism about the use of the

distinction between 'letting die' and 'killing' in many medical
situations. In itself, of course, the distinction is a valid one and
there are many cases where it applies quite legitimately. But
there are also many cases where its application seems to be
completely artificial, as in the cases we have been discussing
here, where a person conscientiously and deliberately decides,
for serious reasons, to bring about his or her death by refusing
medical treatment.
Again, there has been a remarkable, if tentative and incom-
plete, development in recent ethical and legal thinking with
regard to the medical treatment of incompetent patients, includ-
ing gravely disabled newborn infants. In effect, the distinction
just described, and now commonly accepted, in the case of adult
competent patients (their physical or biological survival versus
the point or worth or value or 'quality' of their life) has been
extended to incompetent patients. This involves, as we shall see,
the difficult question of how 'decisions' about life and death can
be imputed to incompetent patients who cannot make those
decisions for themselves.

We are here very far from Kant's (and traditional Christian

and Jewish) views about the taking of one's life and the obli-
gation to preserve one's life at all costs. In my view, as I have
indicated, these developments (tentative though they are) rep-
resent a considerable progress in ethical understanding and I
would like now to discuss them in some detail and to investigate
how far they can be extended. In particular I am interested
to analyse how a liberal society and its legislative and legal
processes can cope with these developments.

-35-

A moral right to die?

A US President's Commission report on life-sustaining treatment
dilates at some length on what it calls 'the disservice done by
empty rhetoric' apropos of death and dying. Discussions in this
area, the report complains, 'have been confused by the use of
slogans and code words such as "right to die", "death with dig-
nity" "quality of life", "euthanasia" etc., whose meanings have
become hopelessly blurred'.

In recent years many have commented on the claim that patients

have a 'right to die with dignity'. Much can and should be done to
ensure that patients are treated with respect and concern through-
out life. Insofar as 'death with dignity' means that the wishes of
dying patents are solicited and respected, it is a concept the Com-
mission endorses. Many who use the phrase seem to go well beyond
this, however, to a vision in which everyone is guaranteed a peaceful
and aesthetically appealing death. This is clearly beyond reach; a fair
proportion of patients are confused, nauseated, vomiting, delirious
or breathless. Avoiding these distressing symptoms is not always
possible; likewise, naturalness may have to be sacrificed since mech-
anical assistance is sometimes required to ensure comfort at the end
of life. Thus, the apparent appeal of the slogan 'dignified death'
often disappears before the reality of patients' needs and desires.
Comparable problems arise with other slogans that are frequently
heard in discussions on life-sustaining treatment. 5

We must, therefore, scrutinise the expression 'a right to die'

very closely and try to be clear about what it really means and
involves. It is best to begin with the simplest and clearest situ-
ation, where a person is fully competent to make decisions about
her or his life. We can then approach the more difficult situ-
ations where a person is involved who is no longer competent,
because of a loss of consciousness or for some other reason, to
make decisions about her or his life and death, and even more
difficult still, where gravely disabled newborn infants, who have
never been conscious in any sense, are concerned.

As has already been argued, we have, as moral agents, the

right to control and determine the course of our own lives and

-36-

to decide how we shall live (subject, of course, to our not

infringing the rights of others to do the same). This is what is
meant by personal autonomy. The right to autonomy or self-
determination is in fact the foundation of all other human rights,
since it would make no sense to speak of 'rights' at all unless we
were able to decide for ourselves and be responsible for our lives.
It is, indeed, so much a part of what we mean by being a human
person that it seems otiose to speak of it as being a 'right' -- as
though it were a distinct right among other rights. ( Kant in fact
defines a person as one who possesses moral autonomy.) This
right to moral autonomy, as we have seen, carries with it a sub-
sidiary right to control the duration of one's life and the manner
of one's dying. A person may expose herself to certain death or
'sacrifice' her life (for example to save or defend another) or
refuse medical treatment in certain circumstances, while know-
ing that she will surely die as a consequence, or she may directly
take her life when she judges that continued existence would be
morally pointless because she would no longer be an auton-
omous agent capable of making her life humanly meaningful in
any sense at all.

If I have a moral right to end my life in such a situation then I

ought not to be penalised by the law for exercising that right,
and I may reasonably ask another to assist me in ending my life
either by not giving me certain medical treatment or by helping
me to bring about my own death. (Clearly, I cannot oblige
another to assist me since in a liberal, ethically pluralist society
others may have contrary ethical views on the matter of suicide.)
For that assistance, the other ought not to be penalised for
acting as my servant. If it is not, in certain cases, morally wrong
to end my life, it cannot be morally wrong for another to assist
me in this act. As the English moral philosopher Philippa Foot
argues:

It does not seem that one would infringe someone's right to life in
killing him with his permission and in fact at his request. Why should
someone not be able to waive his right to life, or rather, as would
be more likely to happen, to cancel some of the duties of non-

-37-

interference that this right entails? (He is more likely to say that he
should be killed by this man at this time, in this manner, than to say
that anyone may kill him at any time and in any way.) . . . An
objection might be made on the ground that only God has the right
to take life but . . . religion apart, there seems to be no case to be
made out for an infringement of rights if a man who wishes to die is
allowed to die or even be killed. 6

My right to control, so far as is possible, the mode of my dying

includes, as we have seen, my right to control the mode of my
medical treatment, and this in turn dictates the nature of the
relationship I have with my physician or other health pro-
fessionals. Apropos the Karen Ann Ouinlan case, where a com-
pletely comatose patient was kept alive by artificial means,
McCormick argues that the problem there arose because it was
assumed by her physicians that they 'had a right to treat the
patient unasked -- indeed opposed'. 7 In fact, he says,

the individual, having the prime obligation for his own health care,
has also thereby the right to the necessary means for such basic
health care -- specifically, the right of self-determination in the
acceptance or rejection of treatment. When an individual puts him-
self into a doctor's hands, he engages the doctor's services; he does
not abdicate his right to decide his own fate.

McCormick cites a statement by Pope Pius XII in 1957 making

the same point:

The rights and duties of the doctor are correlative to those of the
patient. The doctor, in fact, has no separate or independent right
where a patient is concerned. In general, he can take action only if
the patient, explicitly or implicitly, directly or indirectly, gives him
permission. 8

One would, no doubt, need to qualify the idea that the

patient-physician relationship is analogous to the master-
servant relationship (where the patient is master and the phys-
ician servant) since the physician and other health carers have
their own professional autonomy which has to be respected.
Nevertheless, as against the old paternalistic model -- physician
is to patient as parent is to child -- McCormick's view is on the
side of the angels.

-38-

Decriminalising suicide
It follows from what has been said so far that in a liberal society,
based on the principle of the moral autonomy of the individual,
the law should not be concerned with preventing people from
taking their lives in certain circumstances. In other words,
whether suicide may or may not be a sin in some situations, it
should not be a crime. It would have to be shown that suicide
involved direct harm to others and was in some obvious sense an
anti-social act before it could be made a crime. Of course, some
argue on consequentialist grounds that even if suicide is not
morally wrong in itself, its legal toleration would in effect give
state endorsement and support to it and would encourage sui-
cide among mentally disturbed people, the elderly and so on.
Further, it is claimed, legal toleration of suicide would injure
community respect for the 'sanctity of human life' which is cen-
tral to any society and would inevitably lead to 'mercy killing'
and worse. But first, the fact that the state decriminalises suicide
does not imply that it endorses suicide as morally acceptable,
any more than the decriminalisation of prostitution and homo-
sexuality means that the state endorses those sexual practices as
morally acceptable. What the state does, in effect, is to declare
that suicide, like prostitution and homosexuality, falls within the
province of personal morality and is, as such, not the law's
business.

Second, it is not enough simply to argue that the decriminal-

isation of suicide and providing assistance to suicide may possibly
have deleterious consequences for society as a whole. One would
need to show empirically that those anti-social consequences are
significantly probable or likely. The same argument from mere
possibility has of course been used in the past against the decrim-
inalisation of prostitution and homosexuality. But, as we know,
society has not in fact been seriously injured by the law's
toleration of them.

The recent Remmelink Commission's report on euthanasia in

the Netherlands ( 1991) raised some questions about the effects

-39-

of decriminalising assisted suicide and possible abuses of the

present tolerant system in that country. 9 But it is difficult to
ascertain whether the virtual decriminalisation of assisted
suicide in the Netherlands has brought about a significant
increase in the number of doctors and nurses inducing death in
their patients without the latter's consent, since there is no base
data about the situation that prevailed in the Netherlands before
the present legislation. Again, the remedy for any abuses would
appear to be more stringent controls over the determination of
the actual or implied consent of patients, rather than the total
prohibition of assisted suicide at the request of patients.
Certainly some hospitals in the Netherlands take extreme care
to ensure that patients are able to make a genuinely informed
decision about requesting assistance to end their lives. 10

Finally, it is not at all evident that a policy of preserving

human life at all costs, against the wishes of patients and over-
riding their autonomy, testifies to community respect for the
sanctity of human life. As a French theologian, Patrick
Verspieren, has argued: 'What significance does the pro-
longation of biological life have if it is obtained at the cost of a
serious interference with someone's liberty?" 11
It follows from what has been said that if suicide can be moral
and legal then assisting a person to commit suicide should also
be moral and legal. Here, however, the state does have a right to
step in to control such situations in order to ensure that the
patient is capable of initiating and consenting to such an ar-
rangement in an informed way, and is not subject to coercion
either by family members or by medical staff. Thus, under the
present Dutch system the law, at least in theory, controls and
regulates the arrangements made between terminally ill patients
and their physicians in order to ensure that such arrangements
are guided by a concern for the autonomy of the individual
patient. At the same time the Dutch law does not explicitly
decriminalise suicide since the latter, despite efforts to reform
the law, is still held to be a crime, as is assistance to suicide. This
is, no doubt, a relic of older religious and cultural views about

-40-

suicide and is also motivated by the mistaken (and anti-liberal)

idea that if the state decriminalises suicide it thereby endorses it
as being morally acceptable.

However, the Dutch law allows exceptions to the law, for-

mally recognised by the Supreme Court, if certain conditions are
fulfilled. The patient's request must be completely voluntary
and persistent; he or she must be in a 'hopeless situation' or
suffering from a serious illness without any hope of recovery; the
physician's decision-making process must be confirmed with
colleagues. 12 If those conditions are met then the physician
involved will not be held to have committed a criminal offence.
This situation is similar to the legal provisions governing abor-
tion in many societies. Abortion is legally a criminal offence but
under certain specified conditions (if, for example, the woman's
physical or psychological health would be injured by continued
pregnancy) it is not deemed to be a crime. Realistically speaking,
perhaps all that can be expected at present with regard to the
decriminalisation of suicide is something similar to the situation
regarding abortion. In other words, while suicide and assistance
to suicide remain criminal offences, exceptions will be specified
as being allowed, subject to regulation and control.
Multicultural attitudes to
death and dying
By way of parenthesis, it is worthwhile taking account of the
'multicultural' aspects of this question, since a liberal society
tolerates and even encourages widely differing cultural attitudes
and lifestyles within it. So far we have been discussing views of
death and dying in what might be called the mainstream culture.
But other minority groups have very different views. Traditional
cultures, it has been claimed, see death 'as a distinctively social
event and the dying man and those around him as fulfilling
social roles'. 13 As a consequence, 'if there is a right time to die,
and a time when it is not open to one to choose, then one
can have no right to bring about one's death prematurely'. 14
'Our dominant culture' the author goes on, 'lacks any coherent

-41-

concept, and perhaps any concept at all, of a right way to die or a

wrong way to die, of a good death or a bad death'. 15

Since our dominant culture is one based upon the liberal value
of individual autonomy, it is hardly surprising that no one now
recognises or accepts that there is a socially imposed and
traditionally sanctioned 'right way to die' which allows no scope
for choice in the way one dies. Indeed, one might say that it is
not only not surprising but also not regrettable, since it marks
progress in moral consciousness when one has a right to control
and choose the way one dies in the same way that one controls
and chooses the way one lives.

However, in a culturally pluralist society the mainstream cul-

ture must tolerate and be sensitive to minority cultures' views on
death and dying as well as recognising that its own views are
embedded within a complex network of cultural beliefs and atti-
tudes and have a certain degree of cultural relativity. This does
not, however, involve any kind of cultural relativism which
would see the values of liberalism as being culturally deter-
mined. 16

It is worthwhile looking briefly at the views of dying and

ending one's life in the major world religious and cultural
traditions. For example, the standard Jewish position is that
'only the Creator, who bestows the gift of life, may relieve man
of that life, even when it becomes a burden rather than a
blessing'. 17 According to the Halacha,

hastening death in order to relieve pain is not allowed, and the

shortening of a dying patient's life is forbidden even if he suffers
terribly. One may not be released from pain at the cost of one's life
. . . The doctor has no authority to decide on lethal treatment for his
critically ill patient, and he will be regarded as a murderer if he kills
the patient in order to save him from further suffering. Finally, no
one is entitled to ask his neighbour to kill him, as one has no power
to appoint an agent for the fulfilment of something that one is not
authorised to fulfil oneself. 18

Again, according to Islamic law, God is the author of life

-42-

and, as it were, 'owns' us. Since we do not own our our lives
we cannot take them. 19 (In parenthesis, there is a curious ver-
sion of this argument in Plato's Phaedo. 20 Our lives are the
property of the gods and we cannot give away what is not
our property, unless the gods make it clear that we can.) These
views are of course bound up inextricably with Jewish and
Islamic religious beliefs and they are addressed principally to
their own religious believers. It is difficult to see them as
universal ethical prescriptions addressed to Jews and non-
Jews, Muslims and non-Muslims, believers and non-believers
alike. If one is a Jew or a Christian or a Muslim, one's con-
cept of God as a creator, as a providential being with a con-
tinuing interest in his creatures, and as a unitary being, will
play a major part in determining what one may or may not
do with one's life. However, if one is a Hindu, a Buddhist or
an Australian Aborigine, where that concept of God simply
does not apply, one's attitude to taking one's life may be quite
different.

These differences are brought out vividly in a recent dis-

cussion about the care of gravely impaired newborn infants in
Israel, India and Japan. 21 In Israel, an observer reports, basic
Jewish religious beliefs, such as 'to save one life is as if one
saves the whole world', and 'life for a second is worth life for
120 years', prevent physicians from withholding treatment from
newborns. The popular religious atmosphere, this observer
reports, 'precludes physicians from discontinuing respiration
therapy in infants with chronic lung disease: no plugs can be
pulled in this society'. 22 In Indian society, Hindu religious beliefs
about fate on the one hand and rebirth on the other hand have a
direct effect on the treatment of disabled newborn infants.
'Quality of life' considerations play a major part in decisions
about refusing or withdrawing medical treatment from these
infants.

The definition of quality of life is left to the individual physician and

the family. If one dies, it is destined. If a child or infant, especially

-43-

one who is impaired, dies, it is felt that this is predetermined and

that we as mortals cannot do anything about it.

For Hindus, 'quality of life rather than the sanctity of life is a

consideration because of a strong belief in rebirth'. 23 In Japan,
the care of disabled newborn infants is heavily influenced by
social attitudes based upon Buddhist and Confucian teaching,
especially the latter's strong emphasis on law, order, authority
and social status. As a result Japanese physicians play a largely
paternalistic role. A common view is that parents or families,
confronted with the birth of a disabled child, cannot know what
the consequences for the child, or for themselves, really are and
so cannot give informed consent to any decision about either
treatment or the withdrawal of treatment. Again, the value of
the child is seen in relationship to the family or the larger
community. As it has been put by a Japanese ethicist:

Autonomy, an important bioethical principle in the Western social

context, is out of keeping with the Japanese cultural tradition. Our
culture, nurtured in Buddhist and Confucian teaching, has de-
veloped the idea of suppressing the egoistic self. To be autonomous
and independent is sometimes regarded as egocentric. Thus in
Japan each human being is dependent on others in the family, and
the social, economic and political communities. 24

Smaller traditional societies often have views about life and

death that are very different from our own. Thus, for example,
the Akamba people of Kenya take the view that older males
should be saved before younger males because the former
usually have a larger and more complex network of relation-
ships with others in the community and thus their death would
damage more people. 25 Again, even within our own mainstream
community there can be very deep differences about these
matters between, for example, rural and urban people. 26

In a liberal society which has ethnic and religious minorities

within it, these different views about death and dying and
whether or not we have a right to die as we choose have of course

-44-

to be tolerated, and physicians and health carers must be sen-

sitive to them in providing appropriate medical treatment. But
there is no reason why, in a liberal and multicultural society, the
views of certain religious groups should be in opposition to the
liberal view outlined above or why members of those groups
should demand that their particular view should be made into a
law binding everyone. It may offend some orthodox Jews or
Muslims that suicide be decriminalised in our society, just as it
offends some Catholics that divorce and abortion are legally
permitted. But in a liberal ethically pluralist society none of
them has a right to ask the state to intervene in matters within
the sphere of private morality. They may, as Mill says, remon-
strate and argue with each other and the rest of society, and
attempt to persuade them, but they may not invoke the law to
recognise and officially endorse their view as against other
views.

Choosing for those who

cannot choose for themselves
The cases considered so far have been mainly about competent
patients who have been able to make autonomous decisions
about ending their lives or have been able to appoint proxies and
give them clear instructions so that they (the proxies) can make
decisions for them. The moral position in such cases is clear,
though it may be far from clear in actual practice, and the pos-
ition of the state and the law, at least in a liberal society, is also
clear.
But the situation becomes much more complex in those cases
where people are not able to make autonomous decisions for
themselves, nor to designate and appoint proxies, and where
someone else has to make a decision for them or where a de-
cision has to be imputed to them. The principle of autonomy,
which has governed the discussion so far, has also to be found a
place here, but it is not obvious how this might be done.

Since the problem is at its most acute and most difficult with
regard to decisions about disabled newborn infants, we shall

-45-

focus on cases in this area. Recent surveys of paediatricians in

Australia and Canada have shown that more than 95 per cent of
them do not believe that 'every possible effort, including ordi-
nary and extraordinary means, should be employed to sustain
life' in seriously disabled newborn infants. 27 These attitudes are
reflected in paediatric practice and it is well known that in inten-
sive care of impaired newborn infants decisions are made not to
sustain life on the ground that some newborn infants' quality of
life is likely to be so minimal that further treatment is pointless.

On the other hand, until recently, the attitude of the law in

most countries has been that physicians have an obligation to
use all possible means to save the life of such infants. Under
medical treatment legislation the law may allow competent
adult patients to refuse medical treatment even though this
results in the patient's death, but a monstrously disabled child
has no legal right to escape or refuse life-sustaining treatment,
no matter how pointless the prolongation of its life may be.
There is then a notable discrepancy between medical practice in
the case of newborn children and the legal situation regarding
that practice. That discrepancy or gap has been closed in the
case of adult competent patients with the advent of medical
treatment legislation, but it remains with regard to disabled
infants. As a result, the well developed medical practices used in
intensive care units, which involve decisions concerning the
quality of life of infants, are still not formally acknowledged by
the law, and physicians and nurses run the risk of legal action
being taken against them.

Recently, however, there has been a tentative development in

the law which recognises that in some circumstances medical
treatment may be refused or withdrawn on the ground that
continued active treatment would not improve the child's 'qual-
ity of life' even if it did permit its continued physical survival.
Thus, in a series of Court of Appeal cases in the UK the expected
quality of a disabled infant's future life was seen as a relevant
factor in making decisions about medical treatment. In one of
these cases Lord Justice Templeman said that the test was

-46-

'whether the life of the child is demonstrably going to be so

awful that in effect the child must be condemned to die' by
withdrawing active treatment. 28 Some idea of what the Justices
of the Court of Appeal consider to be a 'demonstrably awful life'
is provided in a 1989 judgment affecting a baby born with severe
brain damage, hydrocephalus and paralysis of arms and legs,
and who was blind, deaf and completely unresponsive. In this
case the Court of Appeal said that treatment should be limited to
the alleviation of pain and distress of the child. The purpose of
the treatment, the court said, should be to 'ease the suffering of
the child rather than to achieve a short prolongation of her
life'. 29 In other words, the physicians were not obliged to sustain
the child's life by all possible medical means.

In a case in 1990 the Court of Appeal decided that a severely

disabled pre-term child should not be given active treatment by
using mechanical ventilation. In this case the court also used the
quality of life criterion but in a rather different way. The ques-
tion was, the Justices said, whether the child's life, from its point
of view, was likely to be so intolerable if it were to continue living
that it would choose to die were it in a position to make such a
decision for itself. The court also said that the main consider-
ation was what was in the baby's best interests: 'The parents owe
the child a duty to give or withhold consent (to treatment) in the
best interests of the child and without regard to their own inter-
ests or the interests of the community' (for example, the cost to
the community of medical care). 30

It may be noted that the notion of 'quality of life' has a

number of different connotations in the Court of Appeal judg-
ments. First, it is defined in terms of the suffering and distress to
the child that prolongation of its life by active treatment would
occasion. Second, it is defined in terms of what the child would
choose if it were able to choose, the implication being that some
forms of life are so 'awful' that no one would choose to go on
living. Third, it is defined more generally in terms of the 'best
interests of the child', the implication here being that it might
be in the best interests of the child not to have its existence

-47-

prolonged by active treatment. No doubt these three definitions

overlap in practice; nevertheless they are distinct and should not
be run together.

The quality of life

If then we are to develop the argument that the Court of Appeal
decisions point tentatively towards, we need a clearer definition
of 'quality of life'. Pragmatically it has been used to make a dis-
tinction between physical survival and properly human life. (As
Aristotle remarks, we are concerned not just with living but with
living well.) But it is not easy to provide a conceptual justification
for the quality of life criterion. Some have suggested, rather
paradoxically, that the quality of a person's life can be measured
in quantitative terms -- as though people could have 'more' or
'less' quality of life! Thus a newborn child without a brain, a
person in a persistent vegetative state, a deeply insane person, a
person suffering from a degenerative disease, and a person suf-
fering from a terminal illness could be placed upon a graduated
scale with one person having 'more' or 'less' quality of life than
another.

Of course, in a sense, utilitarianism requires that states of life

must be measurable in some way, that they must be able to
compared with each other according to a common measure and
that they must be able to be summed or aggregated (so that two
people being in a certain state is twice as 'good' or 'bad' as one
person being in that state). Nevertheless, there is clearly some-
thing odd about this attempt to measure the quality of human
life or to do sums about human happiness. No doubt, we do, in a
general way, make comparisons between different states of life
(being well, being ill, being handicapped, being comatose and so
on) and we do estimate that some are 'happier' or 'better' or
more 'worthwhile' or 'satisfying' than others. But, unless we are
utilitarians, we are not engaged in quasi-quantitative compari-
sons here, as though we were weighing 'amounts' of happiness
or human worthiness against each other. If we attempt to com-

-48-

pare positive states of life -- such as being in love, being a

creative artist, being a scientist, being a philanthropist, being a
religious believer, being a political leader -- -we see at once how
futile it is to imagine that there can be a common measure
between them, enabling us to rank one 'better' or 'worse' than
another and do sums about them (as though, for example, the
life of one creative artist were equivalent to the lives of two
politicians!).

The naive utilitarian idea that we can quantify and compare

the 'quality' of human life arises from a confusion between two
distinct senses of 'quality of life'. The first is what one might call
the biological and medical quality of life, and the second is the
moral or personal quality of life. Sometimes they go together,
but often they do not and it is quite possible for someone with a
'low' degree of biological quality of life to enjoy a 'high' quality
of moral or personal life. The first is measured by medical in-
dices in terms of bodily functioning, impairment of functioning
and prospects of physical survival, and we can say of a patient
that her physical condition is 'poor', 'fair' or 'good'. But the
second kind of quality of life cannot be measured in these terms.
Medically speaking, a patient's quality of life may be poor, but
morally or personally speaking the patient's quality of life may
be very rich in terms of the way she has made an autonomous
life for herself despite her physical handicaps. In this sense
people's quality of life or human happiness depends upon what
they make of the often unpromising circumstances in which they
find themselves. In the Nicomachean Ethics 31 Aristotle says, rather
oddly, that King Priam in Homer's Iliad cannot be accounted
'happy' because of the calamities that came upon him in his old
age. In one sense this is true: King Priam is unable to live a full
(eudaimonic) life because of the situation he is in. But in another
sense Priam is morally admirable: he is a good man who bears his
misfortunes with dignity and the quality of his life is much
superior to that of many of his heroic Greek enemies. It is what
he, as an autonomous moral agent, has done with, or how he has
coped with, his misfortunes (his old age, the loss of his family,

-49-
the ruin of his kingdom) that is crucial in determining his 'quality
of life' as a human being. 32

An even more dramatic case is that of Job in the Old Testa-

ment. Deprived of family, friends and possessions, and afflicted
with disease, he is 'objectively' speaking in a state of profound
unhappiness. No one would want to live like that. But the Old
Testament writer presents Job as maintaining his trust in God
and as being happy and as morally admirable nonetheless. It is
job's 'subjective' (using that misleading term for the moment)
perception of his life and of what is important to it that is
essential here.

Some have been afraid of using such a subjective criterion and

have argued that the 'best interests' of the patient offer a more
solidly objective test. But this begs the question since the best
interests of the patient can be defined only by recognising his
status as an autonomous moral agent and imputing decisions to
him in the way discussed above. In a sense the recognition of a
patient's status as an autonomous agent is as 'objective' as any-
thing else though it is not measurably objective in the same sense
as a medical diagnosis of a physical illness.

Of course, we cannot completely separate the two senses

(medical and moral) of 'quality of life' in a hard and fast way,
since in some cases a patient's biological quality of life may be
such that it prevents the development of any moral or personal
quality of life at all, as for example with anencephalic children or
people in a persistent vegetative state. But there are cases where,
as we have seen, the patient's medical condition may be close to
'demonstrably awful' and yet there remains the possibility of
some kind of personal quality of life even though it may be of
brief duration.

In 1971 a UK paediatrician, Dr John Lorber, proposed selec-

tion criteria for spina bifida babies which would restrict active
treatment to those likely to survive without severe handicaps.
Lorber's criteria related to the size and location of the spinal
opening, severe paralysis and spinal deformity, severe hydro-
cephalus, brain damage and the like. 33 Lorber proposed that

-50-
infants with one or more of the specified conditions should not
receive active treatment since such infants were not likely to
survive without severe handicaps. Lorber's criteria have been
challenged on medical grounds but, whatever their prognostic
efficacy may be, it is clear that for him the infants' quality of life
was measured wholly in medical or biological terms.

When, however, we look at the criteria of 'quality of life' ten-

tatively proposed in the UK cases considered before, a much
larger definition emerges. There the crucial test is whether the
continued physical survival of the child will be in its best interests
in that it will allow some kind of normal development: that is,
allow the child to 'make' something of its future life within the
limits imposed by its severe physical handicaps. In other words,
will it allow for the future exercise of moral autonomy, even if it
be to a minimal degree or for a brief period? In the case of the
adult competent patients discussed before, what is crucial is the
perception or judgment of such patients that their lives are not
worth living. In other words, the estimation of a patient's quality
of life is dependent upon the patient's own decision and judg-
ment about the purpose, meaning or value of his or her life. The
worth, value or quality of my life cannot be measured 'objec-
tively' (as my physical condition can) without reference to what
I choose to do, as an autonomous moral agent, with my life. That
is why any utilitarian account must be inadequate, since a per-
son's life cannot be estimated in terms of measurable pain and
suffering, or dissatisfaction outweighing or being outweighed by
measurable benefits or satisfactions, but rather of whether or
not some point or moral significance can possibly be given to, or
made out of, the pain and suffering.

In those cases of adult patients who are no longer competent

it is reasonable to impute such perception, judgment and choice
to them -- the test being, would they have seen any human
meaning, as autonomous moral agents, if they were faced with
the situation they are now in? And in the case of newborn
infants, who are incapable of any perception or judgment about
the human worth of their lives, the only thing we can do is to put

-51-

ourselves in their place and impute such a perception and judg-

ment to them as though they were autonomous moral agents. The
test here must be: would the infant wish to lead such a life if it
had the capacity of choosing for itself? Is there a chance, how-
ever slender, of the child doing something, however minimal
and for however brief a time, with its future life despite its
physical disabilities; or are those physical disabilities so grave
that it could not possibly give any worth or value or human
meaning to its life? Willy nilly we have to make decisions for
such children and impute judgments and decisions to them.
Those who argue that the child's life must be preserved at all
costs, so that in effect the child is denied any right to refuse
treatment (a right that adult competent patients have), are also
making a decision for the child and imputing a judgment about
its future life to it, just as much as the parents and physicians
who decide to forgo active treatment for a gravely disabled
child.

A final decision about whether or not active treatment should

be given to a gravely handicapped infant cannot then be made
solely on medical grounds, as though one could judge or diag-
nose how much specifically human worth, value or 'quality' a
person's life had solely by 'objective' medical observations and
tests, very much in the way that one can medically diagnose
whether or not a person has AIDS or Alzheimer's disease. Such a
judgment, as we have seen, must take into account the child's
future quality of life, defined in the personal and moral terms
suggested. In other words, the right we accord to adult com-
petent patients, as autonomous moral agents, to refuse medical
treatment they judge to be humanly pointless, should be ex-
tended to disabled newborns even though this right can only be
exercised, in their case, through a proxy acting on their behalf
and imputing a decision to them.

The liberal society and the

right to die
Our discussion has shown that individual patients must (by their
own decision, through a designated proxy or by a decision

-52-

imputed to them) make a final decision about the ending of their

own lives, rather than a physician or some other external agent
making a decision on the basis of some supposedly 'objective'
medical evidence about the degree of value or quality of a
patient's life, or on the basis that the prolongation of a patient's
life would be a social and economic burden.

Some have seen the admission of a right to die as the first step
on a slippery slope that will end inevitably in something like the
Nazi euthanasia program in the 1930s, when some 275 000
people were judged on objective 'scientific' grounds to be
'socially useless' and then killed by medically qualified staff in
hospitals and sanatoriums. Medical staff were not expressly
ordered to kill these inmates but were simply given permission
to do so. These centres were the prototypes of the later exter-
mination camps for the Jews and other 'racially inferior'
peoples. 34 But a 'right to die' which is grounded at all levels on
the moral autonomy of the individual is totally at odds with that
position. We are on a slippery slope only when we move away
from seeing the decision to end one's life as a moral decision
belonging to the individual patient, and as being grounded in the
patient's right to moral autonomy, to seeing it as primarily a
medical or scientific matter, or as a social matter (taking into
account, for example, whether the prolonged life of a handi-
capped newborn infant would be a burden upon its parents or
on society at large). In a liberal society then, any legislation giv-
ing expression to a 'right to die' must relate essentially to the
patient's autonomous right to control the ending of her or his
life. Extraneous considerations, for example whether the con-
tinuation of a patient's life is a burden on parents, family or
society in general, should not be taken into account.

Legislation must make it clear that it is the patient, or the

patient's proxies, who make the decision (though of course with
the benefit of medical advice) to terminate his or her life, not
the physicians or the agents of medical institutions. There is a
fine but important line between the patient making his or her
own decision using the advice of physicians and other health
professionals, and the physicians making the decision while

-53-

taking into account the patient's wishes. From this point of view,
the following statement by a group of eminent American phys-
icians places the emphasis in exactly the wrong place: thus, after
acknowledging that 'the patient's role in decision-making is
paramount', the group then goes on to say that 'the patient's
right to accept or refuse treatment notwithstanding, the phys-
ician has a major role in the decision-making process. He or
she has the knowledge, skills and judgment to provide diagnosis
and prognosis, to offer treatment choices and explain their im-
plications, and to assume responsibility for recommending a
decision with respect to treatment'. 35

From this point of view, an American medical ethicist, Robert

Weir, has made some useful suggestions about decision-making
procedures which would help to safeguard and promote the
interests of the patient rather than the interests of the parents,
the family, the physicians, the hospital or the community at
large. 36 Weir is mainly concerned with decisions about handi-
capped newborn children, but what he says also applies to
decision-making apropos of other patients. After detailing cri-
teria which proxy decision-makers should satisfy -- they should
have relevant information and knowledge, be impartial, not be
under severe emotional stress, and be consistent -- he argues
that, although parents of newborns should of course play a
major part in proxy decisions, they have only a prima facie right
to make decisions for their child. As he says: 'All parents simply
do not promote the best interests of the birth-defective children
born to them. In fact, it is a false assumption to think that all
parents in these circumstances have the capacity to be either
altruistic or impartial toward the handicapped newborns in their
families'. 37

The physician has also, according to Weir, a right to play a

part in the decision-making process, but the physician's contrib-
ution, along with the views of the parents and other proxies,
ought to be considered finally by a special committee compris-
ing a physician and a nurse, a patient advocate, a parent advo-
cate, an ethicist, a social worker and a lawyer. 38 If need be, the

-54-

committee could appeal to a court of law, although this should

be a rare occurrence. Weir goes on to specify three safeguards
that should accompany any decision in favour of non-treatment
of a patient: '(a) the proxies in a case should consult with appro-
priate medical specialists and other professionals before making
a decision to deny treatment; (b) the decision should not be
carried out for a set period of time (perhaps a week) to allow for
greater emotional stability by the parents and the possibility of a
custody hearing, should they be warranted; (c) the attending
physician should provide written reasons concerning why the
diagnostic condition was not treated, or why treatment in this
case was judged to be optional'. 39 In effect, in Weir's scheme, the
parents, physicians and committee would constitute a kind of
collective proxy.

Although these provisions may appear to be unduly elaborate

and cumbersome, something like them is necessary if the ending
of a patient's life, whether competent to choose or not, is to be
seen as an expression of the patient's autonomous right to die. In
a liberal society that latter consideration must be paramount.
No doubt, with some ethnic groups the family has a very large
part in making decisions about death and dying (as they do
about marriage and other matters). But the family decision can-
not, finally, overrule the decision of the individual. It would be
unthinkable in a liberal society for medical treatment to be re-
moved because of a family decision when that is against the
express wishes of the patient. Though there may be difficulties
in reconciling liberal values with different cultural approaches to
death and dying, and while a great of sensitivity is needed in
negotiating those difficulties, the liberal society cannot abdicate
its central commitment to the value of personal autonomy.

Death and the hospital

By way of an addendum to the discussion above it is of interest
to look at the institution of the hospital, since many of the
problems we have been considering about death and dying arise

-55-

from the fact that the majority of people now die in hospitals
which are centres of sophisticated medical technology. An
American report notes that something like 80 per cent of deaths
in the US take place in hospitals and long-term care insti-
tutions, 40 and these institutions use medical technology which
enables life to be sustained and prolonged far beyond what 'nat-
ure', would allow in an extra-institutional context. This is par-
ticularly true of pre-term handicapped infants and, at the other
end of the spectrum, elderly people (who are claimed to be the
major consumers of medical technology). This is not to suggest,
in a Luddite way, that medical technology is evil and that we
should return to letting pre-technological nature take its course
with the lives of handicapped children and elderly people
(though it has been suggested that there is a natural span of life
beyond which people should not receive treatment by expensive
medical technology).

All socio-cultural structures have a cost-benefit aspect in that

they disclose certain possibilities and allow certain things to be
done, but at the same time close off other possibilities and pre-
vent other things being done. This is true also of the large,
modern and high-technology hospital. It has immense benefits
but it also exacts considerable costs. It allows a certain style of
medicine to be practised and certain patient-health-carer
relationships to obtain, but it also inhibits other styles of medical
treatment and of patient-health-carer relationships.

It would be interesting to investigate the emergence of the

institution of the hospital as a cultural phenomenon. As we
know, a great many cultures have elaborate systems of health
care but nothing at all like the hospital. 41 In fact, the hospital as
we know it is a recent arrival within our own culture, being no
more than 150 years old. If we looked at the emergence of the
hospital with the eye of an anthropologist we would see it as an
historically contingent phenomenon appearing at a particular
time in Western culture in response to a complex set of socio-
cultural factors: not just as the institutional expression of the

-56-

'scientific medicine' that became established in the nineteenth

century but also as the expression of the movement within
European culture towards what the French thinker Michel
Foucault calls renfermement or 'enclosure'. For Foucault the
emergence of the hospital is linked with the emergence of
the asylum, the factory, the modern prison, the school, even the
modern family -- all forms of institutional 'enclosure' which he
connects with the increase of state 'surveillance' and control
from the eighteenth century onwards. 42
Again, the hospital can be seen as the institutional expression
of the mechanistic spirit that pervaded science and medicine
in the eighteenth and nineteenth centuries. The US medical
sociologist, Elliot Mishler, for example, has claimed that the
introduction of the machine model into medicine, the profes-
sionalisation of medicine and the coming into being of the
hospital all went hand in hand. As he says, 'a machine model of
the body is central to the way the profession of medicine entered
the twentieth century'. 43

Mishler also notes that the Flexner Report ( 1910) redefined

the nature of medicine in terms of technology:

Medical curricula and practice were shaped around what was easily
standardised and defined in technological models. To work appro-
priately and to claim expertise in the late nineteenth and early
twentieth centuries was to work with standardised objects defined in
isolation from their social context. The body became a standardised
object, and the medical curriculum organised around standardisable
skills. 44

As a death was transformed from a human and religious

phenomenon into 'a problem of bodily function'. 'Attention was
directed to the body and -- as with so many aspects of nature --
it became a machine susceptible to repair and intervention'. 45
From this redefinition of health, illness and death, and from the
professionahsation of health carers that it led to, the institution

-57-

of the hospital as we know it developed. At all events, whatever

its historical and socio-cultural origins, the hospital is now in our
society the principal context within which health care is pro-
vided, and within which death takes place, just as in our society
the school is the principal context within which education is
provided.

As an institution the modern, large-scale, high technology

hospital is inevitably 'bureaucratic' (in the non-pejorative
Weberian sense): in other words, it necessarily has formalised,
impersonal procedures and routines to ensure the efficient func-
tioning of the institution; and the spontaneous and personal or
'charismatic' element (once again in the Weberian sense) is cor-
respondingly diminished. One cannot run a large and complex
institution on spontaneous 'charismatic' impulses. Again, with
such a structure a hierarchy of roles is set up with complex
relations of power between the various roles (patient, family of
patient, nurses, doctors, paramedics, administrators, general
staff) so that institutional 'politics' becomes inevitable and im-
portant. In this context there is a strong tendency towards
bureaucratic paternalism and a real danger that the autonomy
of the patient will be devalued.

An analogy might be made here with the institution of the

school and the professionalisation of the teaching role. Thus the
teacher who starts out as an instructor in certain skills and in the
provision of access to a body of knowledge, tends to take over
the role of parent, to become a kind of social worker and psych-
iatrist, even to become a kind of priest or (as Jacques Barzun
once put it) a 'soul carer'. The teacher and the school become
indispensable, since without the certification provided by the
school the student is not officially 'educated'. The rhetoric of
course is that the student is the primary agent in education and
that the teacher and the school have the modest ancillary role of
aiding or enabling the student to achieve autonomy as a learner:
but in reality the teacher and the school, as we know, are given
more and more paternalistic power by society, and other agen-

-58-

cies of education -- the family, the peer group, the community

and subcommunities -- are correspondingly devalued.

Much the same thing happens with the institution of the hos-
pital vis-à-vis heath care. The physician and other health carers
are supposed to be the ancillaries or servants of the patient.
According to the ancient definition of medicine it is an art that
co-operates with nature (in this case the human body) and en-
ables (not causes) the body to restore itself to health. However,
the hospital institution leads health carers gradually to assume
the role of primary agents or causes of the patient's health.

One must, of course, be realistic about what is and is not

possible in the institutional context of the large, high technology
hospital and one must also recognise (as against critics like Ivan
Illich) the enormous gains and benefits in health care for which
such hospitals have been responsible. However, a good deal
could be done to restructure the system to alleviate the bureau-
catic and technological impersonality and paternalism of the
hospital and to make it more responsive to patients' needs and
more respectful of patient autonomy. Again, extra-hospital
health-care contexts should be built up to provide genuine
choices for patients. The hospice movement for the care of the
terminally ill is a good example of what might be done here.

As a US observer has argued:

With health care becoming more bureaucratised, there are limits to

what can be achieved at the doctor-patient level in structure, con-
tent and process. Increasingly medical care is being determined not
by individual physicians but by large institutions that employ or
reimburse them. If physicians are helpless against such agencies,
patients are doubly so. It will take larger changes in state and federal
laws and financing mechanisms governing health care to restructure
the system in ways that will benefit all patients, not just those with
enough money, persistence and savvy to work the system. Without
such reforms, health care will remain inefficient and inequitable,
and patients' efforts to transform the doctor-patient relationship
will have only limited impact. 46

-59-

All this is especially relevant to the question of making the

hospital, and the health-care system generally, sensitive to the
autonomy of the individual patient, particularly in the delicate
but momentous area of patients making decisions about the
manner of their dying. Here, more than in any other sphere of
medicine, physicians must see themselves, while maintaining
their own professional autonomy and recognising their own
professional obligations, as the ancillaries of the patient,
whether the patient is competent or incompetent.

NOTES
1. Immanuel Kant, Foundation of the Metaphysics of Morals, 1785,
trans.
Carl J. Friedrich, in The Philosophy of Kant, New York, Modern
Library, 1949.

2. Summa Theologiae, 2a, 2ac, q.64, art. 5.

3. See 2a, 2ae, q.65, art. 5 ad 3.

4. Richard A. McCormick, "'Physician assisted suicide: flight from
compassion'", Christian Century, 108, 1991, p. 1132.

5. Deciding to Forgo Life-Sustaining Treatment: A Report on the

Ethical,
Medical, and Legal Issues in Treatment Decisions, President's
Commission for the Study of Ethical Problems in Medicine and
Biomedical and Behavioral Research, Washington, US Govern-
ment Printing Office, 1983.

6. Philippa Foot, "'Euthanasia'", in Ernan McMullin ed., Death and

Decision, Washington, American Association for the Advancement
of Science, Selected Symposium 18, 1978, pp.102-3.

7. Richard A. McCormick, "'Legislation and the Living Will'", in the

same author's How Brave a New World?, New York, Doubleday,
1981, p.406.

8. ibid., p.406.

9. For an overview of the report, see Paul J. van der Maas et al.,
"'Euthanasia and other medical decisions concerning the end of
life'", The Lancet, 8338, 1991, 609-74.

10. See Pieter Admiraal, "'Is there a place for euthanasia?'", Bioethics
News, Monash University, 10, 4, 1991, pp.10-22.

11. Patrick Verspieren, Face à celui qui meurt, Paris, Desclée de

Brouwer,
1984, p.23.

-60-

12. See Maurice A. de Wachter, "'Active euthanasia in the

Netherlands'",
Journal of the American Medical Association, 262, 1989, pp.3316-
19.

13. Alasdair McIntyre, "'The right to die garrulously'", in Ernan

McMullin
ed., Death and Decision, op. cit., p. 78.

14. ibid., p.80.

15. ibid.
16. See Philippe Ariès, Western Attitudes Towards Death, Baltimore,
Johns Hopkins Press, 1974, and Robert Herz, "'The collective
representation of death'", in Death and the Right Hand, London,
Cohen and West, 1960. On Australian Aboriginal attitudes to
death see Max Charlesworth, Howard Morphy, Diane Bell,
Kenneth Maddock (eds.), Religion in Aboriginal Australia, St Lucia,
Queensland University Press, 1984, Part 2.

17. Fred Rosner, Modern Medicine and Jewish Ethics, New York,
Yeshiva
University Press, 1986, pp. 142-56

18. A. Carmi, "'Live like a king: die like a king'", in A. Carmi ed.,
Euthan-
asia, Berlin, Springer Verlag, 1984, pp. 11-12.

19. See Fazlur Rahman, Health and Medicine in the Islamic Tradition,
New
York, Crossroads, 1987, p. 126.

20. Phaedo, 61C-62D.

21. Hastings Center Report, August 1986, "'Caring for newborns: three
world views'", pp.18-23.

22. Arthur I. Eidelman, "'In Israel, families look to two messengers of

God'", ibid., p.19.

23. K. N. Siva Subramanian, "'In India, Nepal and Sri Lanka, quality of
life weighs heavily'", ibid., p21.

24. Rihito Kimura, "'In Japan parents participate but doctors decide'",
ibid., pp.22-3.

25. See J. Kilner, Who Lives? Who Dies? Ethical Criteria in Patient
Selection,
New Haven, Yale University Press, 1990.

26. See Nancy S. Jecker and Alfred O. Berg, "'Allocating medical re-
sources in rural America: alternative perceptions of justice'", Soc.
Sci. Med., 24, 1992, pp.467-74.

27. See Peter Singer, Helga Kuhse, Cora Singer, "'The treatment of
newborn infants with major handicaps: a survey of obstetricians'
and paediatricians' attitudes regarding the treatment of defective
newborns'", Bioethics, 5, 1991, pp.139-49.

28. Templeman L. J. in Re B (a minor) (wardship: medical treatment)

 ( 1981)[ 1990] 3 All E.R. 927, at 929. I am indebted to the paper
by
Loane Skene, "'Legal issues in treating critically ill newborn
infants'",
Law Reform Commission of Victoria, 1991, for details of these
cases.

-61-

29. Re C (a minor) (wardship: medical treatment) [ 1989] 2 All E.R.

782.

30. Re J (a minor) (wardship: medical treatment) [ 1990] All E.R. 930.

31. Nicomachean Ethics 1100a5-10.

32. See Max Charlesworth, The Ethics of Happiness, Geelong, Deakin

University Press, 1991, p.80.

33. Cited in "'Selection in Spina Bifida'", Medical Journal of Australia, 2,

1971, pp. 1151-2.

34. See Robert Proctor, Racial Hygiene: Medicine Under the Nazis,
Cambridge, Mass., Harvard University Press, 1989.

35. Sidney H. Wanzeret al., "'The Physician's Responsibility Toward

Hopelessly Ill Patients'", New England Journal of Medicine, 310,
1988,
p.956.

36. Robert Weir, Selective Treatment of Handicapped Newborns, New

York,
Oxford University Press, 1984. See especially chapter 9.

37. ibid., p.259.

38. ibid., p.272.

39. ibid.

40. Deciding to Forgo Life-Sustaining Treatment, op. cit., p.17.

41. See, for example, Arthur Kleinman, Patients and Healers in the
Con-
text of Culture, Berkeley, University of California Press, 1980; see
also Catherine Berndt, "'Sickness and health in Western Arnhem
Land: a traditional perspective'", in Janice Reid (ed.) Body, Land
 and
Spirit, St Lucia, University of Queensland Press, 1983, pp.121-
38.

42. Michel Foucault, Punir et surveiller, Paris, Presses universitaires de

France, 1975.

43. Elliot G. Mishleret al. (eds.) Social Contexts of Health, Illness and
Patient Care, Cambridge, Cambridge University Press, 1981.

44. ibid., p.232.

45. ibid., p.239.

46. Dianna Dutton, "'Patient knows best, a review of Laurence C.

Horowitz, Taking Charge of Your Medical Fate'", in The New York
Times
Book Review, October 16, 1988, p.34.

-62-

4
Beginning Life
New ways of birth and family
formation
Over the last thirty years there has been a profound shift in
attitudes in societies in the Western European tradition towards
marriage and the family, or rather to traditional means of family
formation. This was set in train by 'the change from pre-
arranged marriages being the norm, to the general convention
that the married should choose one another', 1 and this in turn
was seen as a development in personal autonomy in family rela-
tionships. Of course, the great majority of children are born
from, and most families are created by, heterosexual couples in
formally married unions. Again, marriage and traditional family
formation are still given powerful support by the law and by the
public rhetoric of our society. Further, a number of alternative
ways of family formation (for example, artificial insemination
by donor and in vitro fertifisation) are used only by people
who are infertile. In this sense donor insemination and in vitro
fertilisation (IVF) are not preferred choices but choices of last
resort.

Nevertheless, there is at the same time an acceptance --

sometimes passive, sometimes more positive -- in our society of
alternative means of procreation and of family formation, even

-63-

though some of these modes of having a family (for example,

homosexual couples having children by means of artificial
insemination) are still seen as being questionable, and even
though many people adopt quite contradictory attitudes to
them (for example, most people now accept single parent
families and having children through artificial insemination by
donor, but many still reject surrogate motherhood as a means of
family formation).The following is a summary list of possible modes of
family
formation:
• Children born from heterosexual couples in formal married
unions.
• Children born from heterosexual couples in stable de facto
unions.
• Children born from a previous marriage or de facto union but
either (a) now in a single parent situation, or (b) in a reincor-
porated family after divorce and remarriage so that the chil-
dren have 'new' fathers or mothers.
• Children born in a single parent situation.
• Children adopted into another family (a) through 'traditional'
adoption where the relinquishing mother has no contact with
the child given up for adoption and the child has no access to
information about its origins; (b) through 'open' adoption
where the relinquishing mother can maintain contact with the
child and the child can have access to information about its
origins; (c) through a form of adoption where the relinquish-
ing mother plays a part in the selection of the adoptive
parents.
• Children born to heterosexual couples from artificial insemi-
nation by donor.
• Children born to homosexual (lesbian) couples from artificial
insemination by donor.
• Children born from the gametes of a couple through IVF and
embryo transfer.
• Children born from the gametes of donors, or donor embryos,
 through IVF and embryo transfer.

-64-

Children born from surrogacy arrangements either (a) of the

traditional kind where the social and biological mother con-
tributes the ovum but cedes her role as social mother to
another woman on the birth of the child, or (b) where the
eventual social mother and father both contribute the gametes
and the embryo is formed by IVF and then transferred to
another woman who gestates it and then surrenders the child
to its 'genetic' parents.

The social toleration and acceptance of most of these alterna-

tive means of procreation and family formation, and in some
cases their legal endorsement, has led some to speak of a 'right to
procreative liberty'. 2 In an essay engagingly entitled 'Providing
protection for collaborative non-coital reproduction', an
American legal scholar, Lisa C. Ikemoto, has this to say:

Noncoital, collaborative procreation presents a greater set of

choices than reproduction through sexual intercourse giving the
participants the opportunity to determine the source of genetic
material, the method and timing of conception, the individual who
will bear the child and the persons who will raise the child. Avail-
ability of the expanded set of choices invests individuals with greater
control over their genetic, biological and psychosocial destiny and
hence greater autonomy. The [US] Constitution must protect de-
cisional autonomy in procreation because our concept of liberty
requires that the government leave individuals free to determine
issues so core to personhood. 3

Put in rather less radical terms, there is now a growing awareness

that in a liberal society people should as far as possible be free to
choose the way in which they wish to have children and the kind
or style of family they wish to constitute, and they should not be
penalised (for example, by being denied access to public health
care funds and resources) for choosing alternatives to traditional
(heterosexual and monogamous) family formation unless these
latter involve some clear and serious danger to society or to the
children born from such alternative modes of procreation (for
example, from incestuous relationships). It is worth remarking

-65-
of a homosexual 'marriage', but the fact remains that some
homosexual couples do have children and establish families.

In a celebrated surrogacy arrangement in Victoria, Australia, 5

the sister who acted as the surrogate mother was in fact fertile
(she had borne three children of her own) but her husband had
had a vasectomy and she was deemed by the Victorian legal
authorities to be 'socially infertile' and so able to participate in
an IVF program which, under Victorian legislation, is restricted
to infertile women. The authorities thus extended the notion of
infertility to describe the condition of a woman who, though she
was in one sense fertile herself, could not, because of her mar-
ried situation, have a child of her own and create a family.

Again, in a recent Australian report, Access to Reproductive

Technology, by the former National Bioethics Consultative Com-
mittee, the breadth of the concept of 'infertility' is emphasised:

Even the question of who is infertile is a matter of judgment. Is a

fertile woman whose partner has had a vasectomy 'infertile' in the
sense that she is in an infertile situation? Is a couple who have four
children, two each from their previous marriages, who cannot now
conceive a child together, 'infertile'? Is their inability to conceive
another child judged to be the same as that of a woman with no
children who has experienced a decade of unsuccessful treatment
for blocked tubes? Is a fertile woman for whom pregnancy is a risk to
her health, perhaps her life, 'infertile'? 6

But what of the ethics of these various modes of family for-

mation? A Christian will believe that the mode of monogamous,
heterosexual and quasi-permanent marriage and family creation
has potentialities for a special human richness and happiness. In
the Christian scheme such a marriage and family life is a 'sac-
rament': that is, a means of God's grace. (At the same time, it has
to be acknowledged that the concept of Christian marriage and
family life has undergone radical changes throughout its long
history.) But it certainly does not follow from the fact that one
believes that Christian marriage and family formation has a
special character that one has to view other modes of family

-67-

formation as being morally deviant in some way or as subverting

the institution of 'the family'. It may be that there are likely to be
difficulties, both for parents and for children, in some alterna-
tive forms of family life and that they are likely to be less
humanly rewarding. There is, of course, some evidence that
children who have been adopted, and children in single or div-
ided parent families after divorce suffer some untoward effects.
But then some heterosexual and monogamous marriage-based
families also have their own peculiar difficulties both for parents
and for children. So far as contributing to the sum of human
happiness is concerned, the traditional family has (as Freud and
others have reminded us) an ambivalent and dubious record.
We tend to view the traditional family in an idealised way and to
conveniently forget its potentialities for personal and social
harm while dwelling upon the failures, difficulties and poten-
tialities for harm of alternative modes of family life. In general, it
can be said,

There is no simple answer to the question of how artificial means of

reproduction affect our understanding of the family . . . Since there
is no single, univocal concept of the family, it is a matter of moral
and social decision just what determinants of 'family' should be
given priority. 7

Some have also claimed that alternative modes of family for-

mation will necessarily have such bad effects upon the children
brought into being that it would be better were they not brought
into existence at all. As we shall see, this argument has been used
especially against surrogate motherhood. But apart from the
paradoxical nature of this argument -- that the 'best interests of
the child' dictate that the child be not born at all! -- there is no
conclusive empirical evidence that surrogacy or other modes of
family formation would necessarily have such massively del-
eterious effects on the children involved that they should be
legally prohibited. Once again, we all know the effects on chil-
dren of marriage and family breakup, but no one sees this as a

-68-

reason for prohibiting divorce on the ground that it is against the

'best interests of the child'.

We cannot then in a liberal society set up the traditional mode

of family formation as a paragon and see all other alternative
modes of family creation as deviant and subversive. Instead,
while the traditional family will probably continue to be central,
we have to see the concept of 'the family' as a pluralistic one and
to recognise that different forms of the family can co-exist in our
society. At the same time, of course, we can accept that par-
ticular groups -- Christians or others -- may very well think, on
religious or other grounds, that certain specific modes of family
formation are morally superior to others.

Bearing a child for another

In our society the practice of so-called surrogate motherhood,
bearing a child for another woman, is quite unusual and out of
the ordinary; it is concerned with perhaps the most sensitive
area of human life, reproduction, and there have been a number
of well-publicised cases -- for example, Baby M, Baby Cotton --
where both the surrogate mothers and the children born of
surrogacy arrangements appear to have been exploited. As a
consequence the very idea of surrogate motherhood stirs up
powerful emotions in most people. However, ethics is a rational
discipline; that is, it consists in trying to find reasons for what we
think is morally good or bad. Emotional reactions or gut feelings
can be important in ethics but in the last resort it is the reasons
we can adduce to support our moral stances that are conclusive.
Even Christians and other religious believers have to put forward
reasoned arguments if they are to convince other people in the
community: they cannot rest content merely with saying 'The
Church forbids such and such', or 'The Bible says that so and so
is wrong', or 'The Pope has declared that this or that is immoral'.
(This is expressly recognised within the Roman Catholic Church,
where it is claimed that the moral principles governing human
sexuality and reproduction are based on the 'natural law', i.e. a

-69-

body of principles derived from the structure of our human

nature, which are able to be known and recognised by everyone
whether or not they are Catholics or Christian believers.)

When, however, one looks at the reasons put forward by

those who oppose surrogacy it is hard not to find them remark-
ably unconvincing. Some of the arguments claim that surrogate
motherhood offends against certain basic moral principles (for
example, that human beings should not be used as a means to
other people's ends), but they use those principles in a selective
and inconsistent way. For example, a recent statement by the
Australian Catholic bishops (based upon the Vatican's Congre-
gation for the Doctrine of the Faith document Instruction on
Respect for Human Life, 1987) argues that surrogate motherhood
'offends the dignity of the child and is contrary to the child's
right to have been conceived, brought into the world and
brought up by his or her parents'. The bishops here appear to be
invoking a moral principle that a child has a right to expect, and
society has a correlative obligation to ensure, that its social
parents (the parents who are bringing it up) will be the same as
its biological or genetic parents (the parents who provide the
gametes for its conception). But if this is a universal moral prin-
ciple, and if the bishops are to be consistent, then adoption and
artificial insemination should also both be prohibited, as well as
family reconstitution after divorce and remarriage. You cannot
use the principle selectively to reject surrogacy and then refuse
to use it with regard to adoption and artificial insemination.

This kind of selective use of principles is widespread in the

anti-surrogacy arguments. Thus, as we shall see, the principle
that the interests of the child must be considered to be para-
mount is often used against surrogacy, but then it is not used
consistently in other areas. The interests of the child are, for
example, not taken into account in initiating divorce and
marriage break-up: it is only after the break-up that the interests
of the child are considered, when determining which parent will
have custody of the child. If it is a universal moral principle that
the interests of the child must, in appropriate situations, be

-70-

paramount then we ought, if we are to be consistent, prohibit

divorce. Again, some feminists use a 'pro choice' principle (a
woman has a right to use her own body as she chooses) to argue
that women have a right to abortion, but they then claim that
this same principle cannot be used in the case of surrogacy. In
other words, they claim that the surrogate mother cannot argue
that she has a right to use her body as she chooses in choosing to
bear a child for another woman.

We have been referring so far to arguments of principle

against surrogate motherhood. But other arguments are conse-
quentialist in style: in other words they claim that the con-
sequences of the practice of surrogate motherhood make it
immoral -- for example, that surrogate motherhood will involve
the exploitation of economically and socially deprived women,
or will have grave psychological effects on the children born of
surrogacy arrangements, or will subvert the basic institutions
of marriage and the family. However, if you are arguing that
surrogate motherhood is likely in most cases to bring about
large-scale deleterious consequences of this kind then you must
produce actual empirical evidence to show this. You cannot just
say it is possible that the practice of surrogacy might produce
deleterious consequences for all those concerned in surrogacy
arrangements. It is, after all, possible that having children in
ordinary marriage and family situations might produce bad
consequences for both parents and children. (As we know from
the high incidence of marriage and family break-up in our
society, and the consequent trauma for both partners and
children, this is more than a possibility.) But this is, by itself, no
argument against ordinary marriage and family formation.

However, many of the consequentialist arguments against

surrogacy are of this kind: for the most part they rely on
speculations about the possible consequences of surrogacy and
they produce very little hard evidence to show that the practice
of surrogacy actually has those consequences. Anecdotal evi-
dence, on both sides, of course abounds and it has its own value;
but if we are to make social policy decisions about surrogacy, we

-71-

need scientifically controlled evidence. As a recent article in the

American Journal of Obstetrics and Gynecology puts it:

Although surrogate parenting programs have been in existence in

the United States for a decade, published research on maternal-child
health outcomes of this practice has been non-existent. This infor-
mation is necessary for health care professionals and childless
couples to assess the place for surrogate pregnancy in infertility
care, as well as to broaden the spectrum of informed consent for the
potential surrogate mother. Such data are also important for social
policy decisions regarding the nature and degree of medicolegal
regulation or prohibition advisable for the practice of surrogate
patenting. 8
The two styles of argument against surrogacy just described,
the one based upon moral principles and the other based upon
consequences, are very different and they should not be con-
fused. If you appeal to a moral principle you are saying in effect
that, regardless of the consequences, such and such an activity is
right or wrong. If, on the other hand, you are using a conse-
quentialist argument, consequences are of course all important.
However, in much of the case against surrogate motherhood,
the two kinds of argument are mixed up together in a com-
pletely confused way. When one points out that the anti-
surrogacy proponent is using moral principles selectively and
inconsistently, an appeal is then made to the supposed deleteri-
ous consequences of surrogate motherhood. On the other hand,
when one points out that the consequences of surrogacy seem
prima facie to be no worse than the consequences of ordinary
family formation; the anti-surrogacy proponent then refers to
principles of the kind mentioned before.

The moral of all this is that, in considering the morality of

surrogate motherhood where a woman chooses to bear a child
for another, it is no use relying upon gut feelings or emotion, or
appealing to some kind of authority. If you are going to appeal to
principles then you must be consistent in your use of those prin-
ciples; if you are going to appeal to consequences you must be

-72-

prepared to produce hard evidence and not just remain content

with imagining mere possibilities.

Questions about surrogacy

Three main questions about surrogate motherhood need to be
considered. First, is the practice of surrogate motherhood
immoral in itself: in other words, does it offend against some
moral principle so that, regardless of its possible consequences,
it is intrinsically immoral? Most of us would hold that directly
killing an innocent human being is morally wrong in itself
because it offends against the ethical principle that human life
has a special value. In the same way those who argue that the
practice of surrogate motherhood is intrinsically immoral claim
that it offends against the moral principle that one person can-
not be used as a means for the purposes of another person. In
commercial or contractual surrogacy (where one woman con-
tracts for a consideration to bear a child for another), so it is
argued, a woman sells herself (or her gestatory functions) to
another. But even in altruistic surrogacy, it is claimed, the sur-
rogate mother becomes an instrument or a means for the social
mother's end of having a child.

The second question is this: even if it cannot be shown that

surrogate motherhood is intrinsically immoral in that it flouts
some basic moral principle, are the likely consequences of allow-
ing surrogacy so deleterious that it should be prohibited? Many
people in our society hold that, while taking hard drugs is not
immoral in itself, and while it may be possible for some people to
use hard drugs moderately, allowing free access to such drugs
would have such devastating consequences that they should be
banned, and users and suppliers severely punished. (We have to
neglect, for the moment, the blatant inconsistency in people's
attitudes here: it is well known that alcohol and tobacco have
much worse consequences on people's health and on our social
welfare services than hard drugs, but we give public honours to
the makers of alcohol and tobacco, while putting suppliers of

-73-

hard drugs in jail, and in some countries, even executing them!)

In the same way, the issue here is whether allowing the practice
of surrogate motherhood would have such devastating conse-
quences that it should be banned or severely discouraged by
penalising those involved.

The third issue is concerned with the relationship between

personal morality and the law. Some things may be immoral and
yet we do not think that there should be laws forbidding those
things, since (a) it would be impracticable to enforce those laws
effectively, and (b) it would bring about more harm than good
to seek to enforce them. For example, many people think that
adultery is morally wrong but also that it would be futile and
counterproductive to have laws prohibiting adultery since it
would involve a gross invasion of people's privacy to seek to
enforce such laws. Many also take this view of prostitution and
abortion: these practices, it is thought, are morally undesirable
in themselves but any attempt to prohibit them by law would
be ineffective and would probably lead to worse evils. We can-
not assume then that if surrogacy were shown to be morally
undesirable it should therefore be prohibited by law.

The most important consideration, however, is this: in a

liberal democratic and pluralist society where people have very
different moral views and attitudes, and where primary value is
attached to personal freedom and self-determination or 'auton-
omy', there is a presumption that a woman should have the right
to choose whether or not she wishes to bear a child for another.
In a liberal society people should as far as possible be allowed to
make their own moral decisions for themselves and it is not the
business of the law to enforce a common code of morality. The
law should be brought in, so to speak, only when other people
are likely to be harmed in some obvious way. In the past, homo-
sexuality was legally prohibited because many people saw it as
being subversive of the fundamental sexual relationships that
the family and society as a whole depend upon. Now, however,
homosexuality has been decriminalised in many societies on the
ground that it is concerned with an area of personal morality

-74-

which is not the law's business. The issue we are considering here
is, then, whether the practice of surrogacy, and the particular
mode of family formation it makes possible, falls into the area of
personal morality which is not the law's business. Or, put in
another way, in a society where personal liberty is maximised,
and where people have very different views about, and attitudes
towards, sexual morality and also to family formation, why
should surrogacy be prohibited by law? Most people will favour
a stable heterosexual union as the basis for having children and
forming a family, but others may choose to be single parents, or
to use donor insemination (it has been estimated that some
5000-6000 donor inseminations are carried out each year in
Australia), 9 or IVF involving donor gametes (some 12 per cent of
IVF pregnancies in Australia and New Zealand in 1988 used
donor oocytes, donor sperm or donor embryos). Or again,
others may choose to reconstitute a family after divorce and
remarriage. Given these various modes of family formation,
which are accepted in our society, why should we single out
surrogate motherhood for special attention and subject it to
legal prohibition?
Let us then look briefly at the various issues outlined above,
remembering, as I have said, that we are engaged in a rational
analysis and not just an exchange of gut-feelings or a swapping
of anecdotes. First, is surrogate motherhood morally wrong in
itself in that it offends against some kind of moral principle?
Consider the case of a woman who wishes to help another
woman, a sister or a friend who cannot bear a child, by bearing
the child for her. She carefully considers her action and its likely
effect on others and then she freely decides to bear the child for
that other woman. The gametes from which the child is formed
may came from the other woman and her husband and by the
use of in vitro fertilisation an embryo may be formed and then
transferred into her. She is then bearing the 'genetic child' of the
other woman for her. Or she may contribute her own oocyte
while the husband of the other woman contributes the sperm
and the embryo may be formed by IVF and then transferred into

-75-

her. What is morally wrong, intrinsically immoral, with what the

woman is doing? What moral principle is she flouting? In the
example I have cited the surrogate mother sees herself as engag-
ing in a purely altruistic act, bringing a child into existence for
her sister or friend or some other needy person. In a very real
sense she is animated by a 'pro-life' attitude since she is creating
a child and so allowing a family to be formed. If it is noble to put
one's life at risk for a friend, why is it not noble to use one's
womb for a friend? Is the surrogate mother wrong about this, or
misguided?

In the past, of course, surrogacy involved actual sexual inter-

course with the husband of the infertile woman and one might
perhaps see this as a form of fornication or adultery, although of
course neither party had the intention of violating the marriage
bond nor of engaging in sexual intercourse outside marriage in
the usual sense. One could hardly call the surrogate mother or
the husband of the infertile woman 'unfaithful'. (It is worth
remarking that in the Old Testament surrogacy is not seen as a
form either of fornication or of adultery.) Now, however, sur-
rogacy usually involves artificial insemination, or the use of IVF
where the ovum and sperm of the infertile couple can be used to
create an embryo in vitro which is then transferred to the
surrogate mother.
Whatever one may think about artificial insemination, it can
hardly be seen as either an act of fornication or an act of adultery
involving of itself a disruption to or alienation of the relationship
between husband and wife on both sides of the arrangement.
And in the case of IVF assisted surrogacy, where the embryo may
be formed from the ovum and sperm of the infertile couple
themselves and then implanted in the surrogate mother, it can
hardly be argued that this of itself involves some kind of violent
interference in the relationship between husband and wife. (In
the Vatican Instruction on Respect for Human Life ( 1987) Cardinal
Ratzinger speaks as though the medical practitioners of assisted
reproduction physically come between the partners in their
reproductive acts and in some way violate the 'unitive' body-

-76-

to-body intimacy of the sexual embrace.) Rather, they are using

the IVF technology to help them achieve their own purposes as a
married couple. In fact the whole purpose and intention of the
surrogacy arrangement is to help and foster the relationship
between the infertile husband and wife by allowing them to
overcome their infertility and so to form a family. In a very real
sense the intention of the couple and of the surrogate mother is
'pro life'. Discussing artificial insemination, the French moral
theologian Patrick Verspieren SJ argues that donor insemination
does not involve 'adultery':

It is true that in both cases if the woman becomes pregnant it is due

to germ cells from a man who is not her partner. But in adultery
there is a sexual encounter between the woman and the other man
and a conjunction of their bodies expressing and symbolising their
mutual (albeit transitory) desire; or, at the least, a relation between
the two is created, no matter how ephemeral it might be. Recourse
to artificial insemination, on the other hand, is the expression of an
intention of conjugal fidelity. The couple could have separated and
they have not done so; the woman could have sought to become
pregnant in the course of an 'adventure' and the man could have
accepted her infidelity more or less willingly, but both refused
this.

The same author notes that in France the incidence of divorce

among couples who employ artificial insemination is much less
than that in the general population. 10
These objections to surrogacy -- that it involves fornication
or adultery -- do not then have very much force, especially for
those who do not have a specifically Christian view of sexuality
and marriage. The principal objection is, of course, the one
mentioned before, namely that surrogacy involves one person
(the infertile mother) using another person (the surrogate
mother) as a means to her ends. In effect, it is claimed the sur-
rogate mother is treated as a thing, an instrument, and not as a
person. The Warnock Committee in its celebrated report used
this argument against surrogacy, and others have argued that

-77-

surrogacy is 'akin to slavery', meaning presumably that the

surrogate mother is being used as a 'slave' for the infertile
mother.

Kant was of course one of the first to formulate the principle

behind this argument: one must never treat another person
merely as a means to one's own ends but rather as an end in
himself or herself. But, it is not easy to formulate the principle
appropriately since there are clearly occasions where it is quite
moral to employ another person to perform some service for
reward. For example, I can employ someone to carry bricks for
me or dig trenches for me -- a 'surrogate' brick carrier or trench
digger -- so long as he freely consents and so long as I pay him
appropriately. Again, I can accept services offered altruistically
to me (for example, a friend might offer to look after my chil-
dren for me) without necessarily using or exploiting that person
as a means to my ends or using him or her as a thing or instru-
ment. Exploitation arises only if the one whom I employ or who
offers services to me is coerced in some way, either by direct
force or situationally through, for example, poverty, unequal
power, psychological or social or familial blackmail, so that he or
she does not really consent freely to work for me or render
services to me.

Slavery is precisely the situation where a person is made to

serve another by force or coercion and where no kind of free and
informed consent has been possible. Some ordinary marriages
are exploitative in this way, in that the woman is forced into the
marriage either directly or situationally, or through family press-
ures, and is used by the husband as a means to his ends, as a piece
of property, as a domestic slave, as a sexual object. In the same
way, some surrogacy arrangements may also be exploitative in
that the surrogate mother is coerced, either directly or in-
directly, to bear a child for another. But it is difficult to see that
all marriages and all surrogacy arrangements must necessarily
be like this. In order to use Kant's principle against surrogacy
one would have to show that surrogacy necessarily and of itself
involves the coercion of one woman by another, directly or

-78-

indirectly, so that the surrogate could not really make a free

decision to bear a child for another. It is obvious, however, that
many women do make such free decisions to act as surrogate
mothers and that one cannot simply assume that they are all
unwilling and unfree 'slaves' serving the purposes of other
people. (It has been estimated that in the US as of 1987 some
seventeen surrogacy programs had arranged up to 4000 births.
The total number of births through surrogacy arrangements
would of course be larger than this if one took into account
informal arrangements which are not notified publicly.)

Surrogacy then does not of itself necessarily involve one

woman being used as a means to serve the ends of other people
and this argument against the practice of surrogate motherhood
fails. It might be replied, however, that while surrogacy may not
of itself involve the surrogate being used or exploited, never-
theless in the concrete social circumstances in which we find
ourselves, surrogacy is likely to be used in an exploitative way.

This is in fact the position of the feminist movement known

as FINRRAGE (the Feminist International Network of Resistance
to Reproductive and Genetic Engineering). According to this
view,

infertility is a problem for women only because they live in a society

which encourages women to see themselves as nothing more than
potential mothers. It is the failure of women to view themselves as
anything more than potential mothers that leads to their wish to use
reproductive technologies to fulfil a particular limited vision of
themselves. Rather than encouraging women to do so, we should
work to transform society in such a way that women do not feel they
have to be mothers . . . Some argue that the medical profession
succeeds in entrapping women into their programmes because
effectively brainwashed infertile women will do anything to have
children. 11

In this view then women are incapable of making truly free and
informed decisions, and the new forms of assisted procreation
or reproductive technologies, including surrogacy, and the new
ways of birth and family formation they make possible are

-79-

not really means of liberation for women but rather are new
forms of oppression by which women are locked into the role
of potential mother. Surrogate mothers may think that they
are being altruistic in helping other women to have children
but what they are doing in reality is helping to reinforce the
oppressive stereotype of woman as mother.

By any measure this is an extraordinary argument. It may be

that in some cases the desire to overcome one's infertility is
simply an unthinking response to social and cultural pressures.
But in many cases the wish to have a child is simply a very human
desire, and it is difficult to imagine why anyone should think that
they have a right to tell an infertile woman that she has been
brainwashed into thinking that she wants to have a child, or to
tell a woman who offers to bear a child for another that she does
not know what she is doing, or to accuse her of letting down the
women's cause, or to move so that she should be legally pre-
vented from choosing to act as a surrogate mother. One might
think that feminists who invoke the 'pro choice' principle with
regard to abortion and sexual lifestyle (including the right of
lesbian couples to have children by artificial insemination)
would see the same principle as applying to the decision of a
woman to bear a child for another. If a woman is capable of
making an autonomous decision to have an abortion, or to form
a lesbian union and have children within such a union, it is dif-
ficult to see why a woman cannot make an autonomous decision
to bear a child for another woman. If one adopts a pro choice
principle, that a woman has the right to use her body as she
chooses, then one must be consistent. One cannot use the prin-
ciple to justify a woman's right to have an abortion and so to
prevent a child from coming into existence and then reject it
vis-à-vis a woman's right to enter into a surrogacy arrangement
and so to bring a child into existence.
It is difficult, then, to see that there are any convincing argu-
ments of moral principle against surrogate motherhood. It does
not of itself necessarily involve treating women as means to the
ends of other women, or exploiting them, or treating them as

-80-

'slaves'. On the contrary it affirms the 'pro choice' principle that

a woman should be allowed to choose for herself how she is
going to use her body, and it affirms the 'pro life' principle that
having children is a central human good.

Consequences of surrogacy
We turn now to the arguments against surrogacy based upon the
alleged consequences of the practice for both the surrogate
mother and the child born of a surrogacy arrangement. As was
remarked before, in this kind of consequentialist argument it is
not enough to show that surrogacy may possibly lead to some
deleterious consequences for both surrogate mothers and the
children they bear for others; one must show that there is actual
evidence to suggest that it does lead to such consequences
typically or in most cases, and that these consequences are so
serious and of such magnitude as to warrant intervention by the
state to prohibit the practice. One must also show that, if it is
allowed, surrogacy is likely to become a widespread form of
family formation. When one looks at the arguments, however,
little hard evidence is brought forward to show that surrogacy
does in fact have the serious and malign consequences it is sup-
posed to have. A recent report of a committee of the Anglican
Archdiocese of Melbourne in Australia says, for example, that
surrogacy involves such deleterious consequences for the child
in terms of its sense of its own identity (who is my real mother
and whose child am I?) and for the surrogate mother regard-
ing her 'possible manipulation . . . within the context of
emotional family relationships', that it should be severely
discouraged by the community. (It should be mentioned that
the committee thinks that it would be practically futile for the
state to prohibit altruistic or non-commercial surrogacy, or to
subject participants in surrogacy arrangements to criminal pen-
alties.) The committee also expresses the fear that if altruistic
surrogacy is allowed this will be a thin end of the wedge for the
 -81-

introduction of commercial surrogacy which is, in their words,

'akin to slavery'. 12

One might expect that such large and confident claims about
surrogacy would be supported by empirical evidence about its
psychological effects on children or about the manipulation of
women in family contexts. One might also expect some com-
parisons to be made with what happens in 'ordinary' marriage
and family relationships, to see whether children born from sur-
rogacy arrangements are any worse off psychologically than
children born from ordinary families, or from single parent situ-
ations, or from artificial insemination, or from lesbian unions, or
from reconstituted families after divorce and remarriage. But no
such evidence is ever offered. There is, it seems, some evidence
to suggest that children who are adopted are statistically more
likely to have psychological problems than children born within
'ordinary' family situations, but no one has so far advocated that
this is so typical and so large a problem that the practice of
adoption should be banned. (What it does imply is that we
should be more careful about the adoption process with regard
to the problems of adopted children and relinquishing mothers.)
There is, of course, a great deal of evidence to show the del-
eterious effects of divorce and family break-up on children, but
once again no one has advocated that this is an argument for
prohibiting divorce and marriage break-up. To repeat the point
made before, what the consequentialist has to show is that the
practice of surrogacy actually has such undesirable conse-
quences, both for the child and the surrogate mother of the
child, of such seriousness and magnitude that the law should, as
with open access to hard drugs, prohibit it. It might be men-
tioned in this connection that out of 4000 recorded surrogate
births in recent years in the US only one per cent have resulted in
litigation. 13

It is apposite here to say something about the principle that

the best interests of the child should be considered to be para-
mount when one is considering surrogacy. This principle is
primarily a legal maxim which applies to cases concerning the

-82-
custody of children after divorce and marriage break-up; it also
applies to adoption processes and to cases where the child is
removed from its parents' care in cases of neglect or abuse. 14 In
those contexts the maxim has a completely clear meaning,
namely that the child who is already in existence has interests
and rights of its own which must be taken into account. But it has
been given the status of an absolute principle by some and used
to argue that surrogacy is necessarily and always against the best
interests of the child and so should be prohibited. Better that the
child not exist at all rather than be born of a surrogacy arrange-
ment.

At times it seems to be suggested the child born of a surrogacy

arrangement is necessarily being used as a means to the infertile
mother's end and so is not, according to Kant's principle, being
treated as a person in its own right. The infertile woman is
painted as selfishly pursuing what she thinks is her 'right' to have
a child. However, the child of a surrogacy arrangement is in
most cases brought into existence simply because an infertile
woman wants to have a child in exactly the same way that fertile
women want to have children. She does not claim a 'right' to
have a child, any more than a fertile woman claims such a right.
What exactly is the difference in intention between a woman
having a child through a surrogacy arrangement and having a
child in the ordinary way? A couple may, in the ordinary situ-
ation, wish to have a child for a variety of reasons, some altruistic
and some self interested. No doubt in some cases a child may be
brought into existence to provide another pair of hands to work,
to provide psychological support for a fragile marriage, to take
the place of a dead sibling and so on. But in the ideal situation a
couple will want to bring a child into existence as a manifes-
tation of their love for one another and out of a disinterested
wish to give life to a new human being. Similarly, there is no
reason why an infertile couple cannot in the same loving and
altruistic spirit wish to have a child and accept the offer of a
surrogate mother to bear a child for them. The child of a sur-
rogacy arrangement is no more a means to an end than is the

-83-

child of an ordinary marriage. One can imagine a mother saying

to her child born from a surrogacy arrangement: 'I wasn't able
to bear you myself but another woman offered to bear you for
me and I wanted you so much that I accepted her offer. What I
did and what she did was done out of love for you'.

As an American philosopher, Laura M. Purdy, has put it:

Considering the sorts of reasons why parents have children, it is

hard to see why the idea that one was conceived in order to provide
a desperately wanted child to another is thought to be problematic.
One might well prefer that to the idea that one was an 'accident',
adopted, born because contraception or abortion were not avail-
able, conceived to cement a failing marriage, to continue a family
line, to qualify for welfare aid, to sex balance a family, or as an
experiment in child rearing. Surely what matters for a child's well-
being in the end is whether it is being raised in a loving, intelligent
environment. 15

It is, then, simply not true that a child born of a surrogacy

arrangement is necessarily being treated as a means to some
other's end and as an instrument or exchangeable commodity or
non-person. The child born of a surrogacy arrangement is no
more the 'property' of the commissioning parents than is the
child of ordinary parents: it has exactly the same rights as the
latter.

Another version of the best interests of the child argument is

that being born from a surrogacy arrangement is likely to have
such damaging psychological effects on the child that surrogacy
should not be allowed. In other words, it is argued that the
effects on a child will be so devastating that it is better that the
child not be born at all. This argument has already been dis-
cussed and it has been noted that there is absolutely no evidence
to show that the sense of personal identity of children born from
surrogacy arrangements is so severely damaged that such chil-
dren should not be brought into existence. (It might be noted in
parenthesis that this argument is often used by 'pro life' people
who nevertheless argue that women may, even should, bring

-84-

into existence children suffering from grave physical and mental

handicaps, for example where the mother is a carrier of some
severe genetic disease.) Again, as noted before, children who are
adopted, or who have been born through artificial insemination
or through IVF by donated gametes, may suffer from psycho-
logical problems about their personal identity, but we don't use
this to argue that these modes of family formation should be
banned. What then, we may ask, is so different about surrogacy
that it should be legally prohibited?

Finally, while we are considering the supposed consequences

of surrogacy, something must be said about the alleged social
effects of the legal toleration of surrogacy. One gets the
impression from some statements concerning surrogacy that
allowing the practice will subvert the central values of our
society and the basic institutions of marriage and the family. But
once again there is no evidence to support this claim. Surrogate
parenting programs have been in existence in the US for over
ten years and in the states where surrogacy is legally allowed
there do not appear to have been the dire social effects spoken
about. Again, the number of couples involved in surrogacy ar-
rangements is still relatively small even in those states where
there is legal toleration of surrogacy. In Australia there are no
statistics but, on the evidence the former National Bioethics
Consultative Committee was able to collect, it would seem that
ten to fifteen couples might use this method of forming a family
in a year. Given the difficulties of making a surrogacy arrange-
ment, surrogacy is never going to be a preferred means of having
a child and forming a family. It will always be a last resort for
very few couples. It is, then, hard to imagine that allowing ten or
so people per annum to form families through surrogacy
arrangements is likely to open the floodgates and bring about
the subversion of marriage and the family.

As mentioned before, there are already many alternative

means of family formation accepted in our society -- adoption,
donor insemination, IVF using donor gametes, single parents,
homosexual parents, family reconstitution after divorce -- and

-85-

it is very difficult to see why surrogacy as a means of family

formation should be singled out and so unequivocally rejected.
It has been claimed that surrogacy represents 'an experiment
with family relationships', and in a sense it is; but there are many
other experiments with family relationships which have been
accepted by our society and there is no evidence to show that
surrogacy is a notably more dangerous 'experiment' than the
others.
The third and final issue concerns personal morality and the
law. Even if one could show that surrogate motherhood were
ethically undesirable it would not follow automatically -- at
least in a liberal society -- that it should be prohibited by the
law. For that it would be necessary to show that it involved
obvious and direct harm of a serious and large-scale kind to
other people, that it would be practicable to enforce the pro-
hibition and that enforcing it would not bring about more evil
than good. (A number of church committees have recognised it
would not be practicable to try to prohibit surrogacy directly
and they propose ways of severely discouraging the practice by,
for example, making any medical practitioner assisting a surro-
gacy arrangement guilty of gross misconduct, or by requiring
the commissioning parents to go through adoption procedures
in order to became the legal parents of the child.) But in a liberal
society where a special value is given to personal freedom and
where it is recognised that people may freely choose to pro-
create and form families in a number of different ways, it also
needs to be shown that choosing to form a family by using sur-
rogacy arrangements involves anti-social consequences of a
large and obvious kind, before one seeks to prohibit it by law.

It is difficult not to see the choice of the infertile couple to

enter into a surrogacy arrangement, and the choice of a surro-
gate mother to offer to bear a child for them, as being wholly
within the sphere of personal morality which it is not the law's
business to enter. The state has of course the right to regulate the
practice, as it does with adoption, artificial insemination, IVF and

-86-

other modes of family formation, but it does not have the right
to prohibit it. The state might, for example, make provision for
counselling women entering surrogacy arrangements to ensure
that they are capable of making free and informed decisions; for
keeping records of the birth circumstances of children born
from such arrangements; and for ensuring that there is an ad-
equate interval between the birth of a child and its being handed
over to the social parents in order to allow the surrogate mother
to make a considered final decision.

In our pluralist society people have very different views about

a range of moral issues to do with sexuality, reproduction and
family formation, and we have in many cases to agree to dis-
agree. Some Christians, in particular Roman Catholic Christians,
find it hard to accept this fact and they think that those who are
willing to allow abortion, or who support the rights of homo-
sexuals, or who endorse the use of the new reproductive tech-
nologies, or recognise the new modes of family formation,
including surrogate motherhood, are motivated by some kind of
ill will or subscribe to some form of moral libertarianism that
means anything goes in the ethical sphere. But respect for
and toleration of the conscientious moral and religious views
of other people, even when they are completely counter to
Christian views, have always been part of the mainstream
Catholic tradition, and that applies to the different modes of
family formation, including surrogate motherhood, as much as
anything else. From this point of view there is no difficulty in
Christians generally, and Roman Catholics in particular, ac-
knowledging (while quite properly having their own grave moral
reservations about) the conscientious right of infertile people to
have children through surrogacy arrangements or the right of a
woman to offer to bear a child for them. Some Christians may
choose not to use surrogacy arrangements for themselves, nor to
act as surrogate mothers, but they should respect the conscien-
tious decision of others to do so.

At present, many people's attitudes to the right of a woman to

-87-

bear a child for another if she so chooses are quite illiberal in that
they effectively deny the moral autonomy of the woman. They
need to be reminded that they are living in a liberal society.

Feminist views on
reproductive technology
Certain feminist views have already been mentioned in the dis-
cussion on surrogacy. One might have expected that the right
which has played a central part in the feminist movement, that
women have final control over their own bodies and their repro-
ductive processes, would have been invoked apropos of surro-
gacy. This right is a direct corollary of the fact that women are
autonomous moral agents and is simply a version of the general
principle of autonomy. If a woman is not able to use her body as
she wishes, so long as no harm is done to others, and if she is not
able to control her reproductive capacities as she freely chooses,
she is no longer in responsible control of a vitally significant part
of her life. (In a sense this is not an exclusively women's right
since it applies equally to men; but it applies of course in a special
way to women.)

In parenthesis, it might be remarked that the principle that a

woman may use her body as she chooses has been used mainly
with respect to abortion, but it is complicated in that situation
since the right of the mother to control her body and her repro-
ductive processes, and to have an abortion, is in conflict with the
quasi-right of the fetus (which will, all things being equal, be-
come or develop into a human being) to continued life. There is
no way in principle in which this conflict can be resolved so that in
all cases the mother's right to control her bodily and repro-
ductive processes takes precedence over the right of the fetus, or
vice versa. All that can be done is to weigh the two principles
with respect to the particular circumstances. Thus, for example,
if a woman's pregnancy were the result of rape or incest it would
seem that her right to control her body as she chooses (and to
have an abortion) should take precedence (at the cost of deny-
ing the quasi-right of the fetus to continued life); but if the

-88-

pregnancy were in the last trimester it would seem that the right
of the fetus should take precedence (at the cost of coercing the
mother, against her will, to continue the pregnancy).

However, as we have seen, some women have taken a differ-

ent view of surrogacy and of reproductive technology or assisted
procreation in general and there is now a wide range of feminist
views about these matters. It is worthwhile looking at these
views in a detailed way since they exhibit some of the complexi-
ties of applying the concept of autonomy in this area.

The feminist voice -- or better, feminist voices -- have played

a significant part in the debate over the moral and social impli-
cations of the new reproductive technologies. Since women are
affected by in vitro fertilisation and other forms of reproductive
technology in a much more direct and momentous way than
men, it is altogether to be expected that they will be major con-
tributors to the discussion. To some degree, it is true, the male
experience in reproductive technology has been neglected:
infertile men often choose to undergo difficult and recurrent
surgery to remedy their infertility and, so it has been said, 'male
emotions, desires and anger (apropos infertility) are equal to
that of the female, albeit expressed differently'. 16 Nevertheless,
it remains true that it is women who usually have to undergo the
major medical procedures and who bear the children brought
into being by the new birth technologies. It is their bodies which
are, so to speak, in contention.

When women speak about these technologies then their views

deserve special attention. The fact is, however, that they speak in
a variety of different voices. Carol Gilligan's celebrated book,
In a Different Voice, argues that women have a distinctive form
of experience of their own and a distinctive expression of that
experience. 17 However, over the last twenty years feminist
responses to the new birth technologies have undergone a rad-
ical series of changes and there is now a genuine 'pluralism' of
voices and views. They are, no doubt, still distinctively feminist
views and they bear a 'family resemblance' to each other, but
they are also very different from each other. (It is for that reason

-89-

that, in what follows, I cite at some length from the various

feminist writings.)

Some feminist thinkers have traced these developments to

demographic and social changes among middle-class women
over the last twenty years. Thus, three English feminists observe
that:

in the early 1970s, when the current wave of feminism began, most
of the women involved in the movement had had their children and
were searching for other means of fulfilment in their lives, or had
not had children and were not yet having to face the issue of
whether they ever would choose to be mothers. Both groups saw it
important to prove that women did not have to be seen only in
terms of their reproductive abilities. For both groups, reproductive
freedom meant freedom from reproduction. 18

However, these authors go on, some women of this group are

now more interested in having children because they are grow-
ing older -- women in their twenties in the 1970s can no longer
delay child bearing and have to make a decision -- and because
of changes in the political climate. 'Feminism', they say, 'is no
longer for many women the totally absorbing activity and form
of self-definition it once was. Feminists, like others, may be turn-
ing inwards to rear children, perhaps as the only social contri-
bution to make in a period of reaction and political quiescence.'
As a result, they conclude,

Babies themselves, not just the limitations they impose on their

mothers' lives, have after a period of near oblivion, become a matter
of interest to the women's movement. And this has led a few
feminists to experience problems with their own infertility, and
even more to take an interest in the issues surrounding pregnancy
and childbirth, including infertility and its treatment. 19

Quite apart from these factors, there has been a natural move-
ment of critical revisionism within feminism. All revolutionary
movements, whether they are political, religious or philosophi-

-90-

cal, usually begin with absolute and unilateral positions; they

then pass through a reflective and critical revisionist phase to a
more pluralist position characterised by the emergence and
acceptance of differing perspectives and interpretive frame-
works. This kind of development is clearly observable in many
religious movements, as well as in philosophical movements like
Marxism and Freudianism, and it is not surprising that it is now
appearing within feminism. One could, in fact, apply to the fem-
inist movement as a whole the observation by Carol Gilligan that
personal cognitive maturity involves 'changes in thinking that
mark the transition from a belief that knowledge is absolute and
answers clearly right or wrong to an understanding of the
contextual relativity of both truth and choice.' 20

Some may see this as a sign of incoherence and confusion

within the feminist position, but that would be a mistake. In fact
it is an index of maturity in any movement -- religious, political,
artistic, feminist -- that it is ready to eschew a strictly monolithic
position and tolerate, even welcome, a variety of views and
positions. Pluralism is a sign of vitality and strength, not of
exhaustion, weakness and confusion.
In the early 1970s a number of feminist thinkers welcomed
the advent of the new reproductive technologies as a means of
liberation for women from the tyranny of their biological nature
which condemned them to pregnancy and child bearing and
rearing. For example, the American writer Shulamith Firestone
argued in her book The Dialectic of Sex 21 that artificial repro-
duction would eventually allow women to escape the 'barbaric'
state of pregnancy. This in turn would allow women to over-
come their oppressed social position which is a direct conse-
quence of their biology. Firestone's position, and that of other
'first wave' feminists who shared her views, rested upon a
naively optimistic view of technology, as though it were value-
neutral and could be used at will by women for their own lib-
erationist ends. In the 1970s and 1980s, however, the critique of
this view of technology by thinkers such as Langdon Winner,
Jacques Ellul and others showed how deeply the various forms of

-91-

technology are already pervaded by socio-political values and

how difficult it is to make technology serve the cause of human
liberation. The techno-pessimism, as one may call it, that
emerged from this critique combined with the environmentalist
movement to show that in many cases the technology that was
supposed to free us from the determinisms of nature in fact
enslaved us further.

This critical and pessimistic attitude to technology was taken

over in the 1980s by a number of feminist thinkers vis-à-vis the
new reproductive technologies. The older, naively optimistic
view that these technologies were an instrument of liberation for
women (like the new contraceptive and abortifacient tech-
nologies) was rejected and they were now seen as a means for
males to oppress women under the guise of liberating them. The
new technologies involved women's bodies being used by male
scientists for research and, at a deeper level, they were an
attempt to deprive women of power over their most distinctive
capacity, reproduction, and make it subject to male control.

A further element in this argument is that infertile women are

led to submit themselves to this kind of scientific exploitation
because the 'pro-natalist' pressures of our society make them see
reproduction as bound up with their identity as women. As we
have seen apropos of certain feminist criticisms of surrogate
motherhood, a quasi-Marxist idea of 'false consciousness' was
also introduced in order to explain many women's desire to have
children. They may really think that they have such a desire but
they are not aware that it is a 'false desire' induced in them by
society: it is, to use a modish (and misleading) term, 'socially
constructed'. Further, by satisfying their own self-interested
personal wishes to have a child through IVF they are conniving in
the larger exploitation of women and betraying a lack of femi-
nine class consciousness. As Mara Mies has said, 'any woman
who is prepared to have a child manufactured for her by a fame-
and money-greedy biotechnician must know that in this way she
is not only fulfilling her own individual, often egoistic wish
to have a baby, but also surrendering yet another part of the

-92-

autonomy of the female sex over child-bearing to the techno-

patriarchs'. 22

This false consciousness on the part of women who resort to

IVF and other forms of reproductive technology in turn provides
a basis for legitimate paternalism since women in this situation
do not really know what is for their own good or for the com-
mon good of women as a whole and they have to be prevented,
for their own good and the good of women as a class, from using
the new reproductive technologies. Another feature of this
general position is its tendency to invent what might be called
Orwellian scenarios, where the future horrors of reproductive
technology -- mechanical wombs, using 'neo-morts' as fetal
incubators, gendercide through sex selection -- are imaginat-
ively conjured up. The most dramatic of these scenarios is the
'reproductive brothel' of Gena Corea: 'While sexual prostitutes
sell vagina, rectum and mouth, reproductive prostitutes will sell
other body parts: womb, ovaries, eggs'. 23 This general position
was espoused by other feminist thinkers in the early 1980s, such
as Mary O'Brien and Christine Overall, 24 and one of its main
expressions is to be found in the FINRRAGE movement. One of the
curious features of this movement is that it has found itself in
coalition not just, as one would expect, with the Green move-
ment but also with conservative Catholics and fundamentalist
Christians who are in most other respects (for example on abor-
tion and female homosexuality) totally at odds with the radical
feminist position. Thus, for example, the Vatican rejection of
IVF was welcomed by some members of FINRRAGE and they have
also found common cause with conservative Christian views on
embryo experimentation and surrogate motherhood.

This of course does not constitute an objection to their pos-

ition; however what is more difficult to explain is why the
technology of IVF and the other forms of assisted procreation
were singled out for opposition. After all, the contraceptive pill
and other means of contraception are also forms of technology,
as are the various forms of abortifacients. These kinds of tech-
nology are also part of 'male patriarchalist science' and involve

-93-

the intervention of men in the process of reproduction and the

use of women in scientific experimentation, but they are not
seen by these feminists as attempts to deprive women of their
reproductive powers. Contraceptive and abortifacient tech-
nologies which enable women not to have children are seen as
conducive to women's liberation (although there have been fem-
inist criticisms of male insensitivities in contraceptive research
and development). Again, women who use contraceptive and
abortifacient technologies are not presumed to be victims of
false consciousness, nor accused of letting the collective feminist
cause down, nor seen to be in need of paternalistic advice
and direction (even legal coercion). They are, it seems to have
been assumed, capable of autonomous decision-making about
contraceptive and abortifacient technology in a way in which
they are not capable of freely and autonomously choosing for
themselves about reproductive technology.

It is interesting to look in detail at the arguments used by

proponents of this position against surrogacy and embryo ex-
perimentation. As we have seen, with regard to the question of
surrogate motherhood some feminists of this persuasion have
argued that it is impossible for a woman to choose freely and
autonomously to act as a surrogate mother and to bear a child
for another woman. There are two variants of this argument:
first, that surrogate motherhood is of itself so exploitative of
women that it cannot be freely chosen, any more than a person
could freely choose to be a slave; second, that in the present social
situation it is not possible for a woman freely and autonomously
to choose to bear a child for another. The first variant is rep-
resented by Christine Overall, who claims that 'there is a real
moral danger in the type of conceptual framework that presents
surrogate motherhood as even a possible freely chosen alterna-
tive for women'. 25 The second is represented by Susan Dodds
and Karen Jones, who argue that in our present social situation
'it is unlikely that many women can make an autonomous choice
to enter into a surrogacy contract which would compel them to
surrender the child at birth'. 26 These authors do not argue that

-94-

surrogacy as such should not be chosen as an option by a

woman, but that in the present situation of society, where
women are oppressed and exploited, they should not make such
decisions. This in turn legitimates paternalistic action by the
state to prevent women choosing to bear children for other
women.

If the world were different, a policy of making surrogacy contracts

illegal might not be necessary. If surrogacy agreements were clearly
not exploitative offers, and if monitoring occurred to ensure that a
decision to become a surrogate reflected and protected a woman's
autonomy, then, perhaps, such agreements would be viable. How-
ever, that is not the present situation, and so surrogacy contracts
must become not only unenforceable, but, as they pay insufficient
regard for the resultant child and tend to risk commodifying both
women and children, illegal. 27

This strongly paternalistic attitude goes together, in some

feminist arguments, with a critique of an 'individualistic' con-
cept of rights and of moral 'libertarianism' based upon the
principle of autonomy. To the objection that feminist views on
contraception and abortion rely upon the right of a woman to
choose whether or not to have a child and upon the autonomy of
women in respect of their control over their own bodies, one
answer is that abortion is often a socially responsible act and is
not justified solely in terms of the individualistic right of a
woman to do what she wants to do with her own body. As it has
been put: abortion is 'an act of social responsibility with respect
to family formation'. 28 It is not clear, however, why the use of
abortifacient technology in order not to have a child is an
'act of social responsibility' and why the use of reproductive
technology in order to have a child is an act of irresponsible
individualism.
With regard to IVF and embryo experimentation, some fem-
inists subscribing to the position just outlined oppose such
experimentation not because the IVF embryo is seen as a human
person with the same right to life as a fully formed human

-95-

person, but rather because embryos come from the ova 'har-
vested' from women's bodies, so the latter become experimen-
tal 'sites' for reproductive scientists. The use of superovulatory
drugs and invasive surgical techniques also means that women
become experimental 'fodder'. As it has been put by Robyn
Rowland,

The feminist position on embryo experimentation does not recog-

nise the embryo as a separate human entity. It makes both women
and the social context central to its position. Few protagonists in the
embryo experimentation debate ask where the embryos came from.
They come from eggs. And where do the eggs come from? They
come from women's bodies. 29

These feminists are also concerned that this kind of experimen-

tation will lead to gender selection of early embryos, with the
consequence that female embryos will be systematically elimin-
ated in favour of male embryos. In other words, we will end with
a form of 'gendercide'.

In general, this feminist position claims that 'IVF is an un-

successful technology that threatens the freedom and the
well-being of women, and that only a few white, middle-class
heterosexual couples will benefit from IVF, along with the share-
holders of genetic engineering companies. A woman's partici-
pation in reproductive technology is thus the result of conform-
ing to the whims of male domination'. 30

'Third wave' feminist views

This stringent critique of reproductive technology was, perhaps,
the dominant view in 'second wave' feminist thinking through
the 1980s and still retains a good deal of influence. However,
there are now signs that the absolute rejection of reproductive
technology is being critically reassessed by some recent femin-
ists. These thinkers reject the naive optimism of early feminists
such as Firestone and recognise with Corea that the new tech-
nology is not value-neutral but is in fact pervaded by certain

-96-

technocratic values, and that there are real dangers of its being
used against women in an exploitative way. At the same time
they argue that the reproductive technologies can be used to
help women achieve liberation if they are able to control those
technologies for their own purposes. If the 'pro choice' principle
governs women's access to the new forms of contraception and
to improved ways of abortion -- both brought about by medical
technology -- why should it not govern women's access to IVF
and other forms of birth technology, provided that there is a real
choice for the women concerned?

A good example of this development in feminist thinking is

the recently published Tomorrow's Child: Reproductive Technology in
the 1990s by the three well known English feminists mentioned
before. In the preface to their book, Birke, Himmelweit and
Vines characterise the FINRRAGE position as being dominated by
fear -- 'fear that what we are witnessing is a takeover by
scientists of women's role in reproduction, and fear that we are
moving towards a dehumanised (and defeminised) technologi-
cal future. The position is one of total resistance to scientific and
male control of reproductive processes, by a complete rejection
of the new technologies'. As against this, the authors affirm the
primacy of the feminist principle 'that women should be able to
choose whether or not to bear a child': 'We feel that women, and
women alone, should be the ones to make the choice'. 31 At the
same time these authors adopt an attitude of healthy scepticism
towards some of the more extreme reproductive scenarios (the
possibility of ectogenesis and the mechanical womb, the use of
ova donation and embryo transfer to create Corea's and
Dworkin's 'reproductive brothel'). They also question the ver-
sion of Murphy's Law which a good deal of previous feminist
thinking has invoked: if a biotechnological development is theor-
etically possible it is likely actually to occur and it is bound to be
bad for women. This is, the authors argue, to adopt an unduly
pessimistic view in that it assumes that women are unable
to resist pressures from male medical technocrats and are
incapable of exercising autonomy and taking control of the
 -97-

technology themselves (as has happened to some extent in

ordinary birthing practices).

In the conclusion to their book the authors set out a number

of 'feminist principles' which supplement the 'pro choice' prin-
ciple and provide a social and political dimension to their
discussion. Reproductive politics, they say, must find ways of
changing the arrangements for reproduction in our society
which are oppressive to women, and of enabling women to carry
out effectively their reproductive choices. A similar view has
been taken by the American feminist philosopher Mary Anne
Warren, who argues that while 'the costs and risks of IVF treat-
ments to the female patient are substantial . . . they are not
known to be so great as to clearly outweigh the potential ben-
efits, in every case'. 32 'There are physical and social dangers for
women in reproductive technology but women can by various
means attempt to contain these dangers rather than seeking to
eliminate the new technologies altogether. They must also work
to gain more control of the technologies'. Warren says that 'it is
too soon to conclude that this new reproductive technology will
not serve women's interests . . . If women and other under-
privileged groups can gain a larger presence in the medical and
research professions, and if suitable modes of regulation can be
implemented, then the new reproductive technologies may pro-
vide more benefits than dangers.' 33 Again, another feminist
philosopher, Laura Purdy, argues against the position that sur-
rogacy is necessarily opposed to women's best interests. As she
puts it:

That surrogacy reduces rather than promotes women's autonomy

may be true under some circumstances, but there are good grounds
for thinking that it can also enhance autonomy. It also remains to be
shown that the practice systematically burdens women, or one class
of women. In principle, the availability of new choices can be ex-
pected to nourish rather than stunt women's lives, so long as they
retain control over their bodies and their lives. The claim that con-
tracted pregnancy destroys women's individuality and constitutes
alienated labour, as Christine Overall argues, depends not only on

-98-
a problematic Marxist analysis, but on the assumption that other
jobs available to women are seriously less alienating. 34

An optimistic view of the 'procreative technologies' and of

surrogate motherhood is also put forward by the American legal
scholar Lisa C. Ikemoto, who argues that they 'increase avail-
ability of choice, thereby increasing the opportunity for women
to achieve autonomy through decision-making. This in turn
advances sexual equality'. Ikemoto goes on:

Some feminists have disparaged the institution of motherhood by

stating that it prevents women from achieving equality. Other
women, including feminists, see it in more positive terms. Surrogate
motherhood gives infertile women or women who fear transmitting
deleterious genes a chance to enjoy the child-rearing aspect of
motherhood. No less important is that surrogate motherhood con-
stitutes a vehicle for a woman to help another woman in a uniquely
feminine way, by carrying her child. 35

A different kind of argument about surrogacy has been pro-

posed by the Australian sociologist and feminist Sharyn L.
Roach Anleu. This author argues that the distinction between
commercial and altruistic surrogacy is neither self-evident nor
natural but in fact reflects and reinforces gender norms. Altru-
istic surrogacy is seen as belonging to the private domestic
sphere where relationships 'are supposed to be based on affec-
tion and emotion which are private, irrational sentiments,
thereby inappropriate subjects for legal regulation'. 36 It is there-
fore more accepted, or at least not so sharply condemned, as
commercial surrogacy. 'In a sense', Roach Anleu concludes,

surrogacy is an extension of the kinds of nurturing related activities

women have always performed, such as child rearing, which have
not always been recognised as compensatable work, but treated as
resulting from natural female emotions and instincts. Paid surro-
gacy breaks the myth of the maternal instinct; not only can women
have babies and give them away, but they can also enter into a
contract that actually rewards them for having babies. Anything less

-99-

than that is exploitation because the notion of altruistic choice

is socially constructed and reinforces gender norms; payment for
services questions gender norms. 37
Birke, Himmelweit and Vines make the same point about the
private-public distinction. Commercial or contractual surro-
gacy, they say, offends people because it represents 'an over-
stepping of the boundaries between public and private, the
introduction of the public way of getting people to do things by
paying them money, into an activity which is supposed to
remain within the private sphere. 38 Feminists, they conclude,
'should be suspicious of such distinctions; the division between
public and private has on the whole been oppressive to women
and has been used to keep them out of the public arena'. 39

With regard to the issue of embryo experimentation, Karen

Dawson and Beth Gaze accept the claim of Robyn Rowland and
others that the present debate is focussed too much on the
embryo, without taking into account the woman who supplies
the ovum and who is the subject of research. However, they
argue, 'the separation of embryo research from the woman's
treatment has led to a situation where women undergoing IVF
treatment continue to accept the transfer of potentially defec-
tive embryos and the possibility of miscarriage, therapeutic
abortion, or giving birth to a child with congenital abnor-
malities, because of their commitment to the goal of having a
child'. If this situation is to be remedied and women protected,
some embryo research and experimentation must be carried
out. 40

In an essay entitled 'Is IVF a threat to women's autonomy?'

Mary Anne Warren claims that women are able to make free and
autonomous decisions about donating embryos for research and
experimentation. At the same time she lays down a number of
prescriptions to be observed by reproductive scientists and
technologists in order to ensure that the women in IVF programs
give genuinely informed consent to the procedure. 41 What is

-100-

essential is that IVF, embryo experimentation and all the other

procedures connected with IVF should as far as possible be in the
control of women. Warren uses very much the same kind of
argument in a study of gender selection and the danger of
'gendercide':

Sex selection is not always sexist, socially harmful, or disrespectful

of the child as an end in itself. Its sexism and its potential for harm
are very much a function of how it is done, why it is done, and
the social context. That being the case, universal condemnation
seems inappropriate, and regulation preferable, at least in the first
instance, to prohibition. 42

The 'third wave' feminists just mentioned do not constitute a

'school' or a 'movement'. Nevertheless, there are certain com-
mon features in their approaches to the new reproductive tech-
nologies. First, they are critical of any absolute and unilateral
rejection of the new technologies and of the techno-pessimism
which sees them as beyond any kind of control by women.
Control, they suggest, is what is needed, not condemnation or
prohibition. At the same time, they recognise the difficulties in
the way of achieving informed decision-making and control by
women. This group is also sceptical of the Orwellian future scen-
arios imagined by Corea and others of the FINRRAGE group, and
they are critical of the paternalistic attitudes of the same group
which, as has been said, are 'insulting' to infertile women. As an
older feminist thinker, Janet Radcliffe Richards, has put it: 'It is
too dangerous to try to "free" women who are regarded as
conditioned by forcing them to do what prevailing feminist ideo-
logy presumes they must want, because with that method there
is always the danger of ignoring women's real wishes. They may
not be conditioned at all'. 43

A different 'phenomenological' perspective on these issues is

provided by an American feminist and nurse, Margarete
Sandelowski. 44 Basing her observations on interview data with

-101-

infertile women, Sandelowski describes the painfully ambivalent

position of such women vis-à-vis the feminist movement. As
noted before, they are judged by some feminists to be victims of
false consciousness and of being self-interestedly dismissive of
the common good of women. Sandelowski replies to these
charges by emphasising the legitimacy of individual women's
experience of infertility and of their desires to have children with
the assistance of technology:

The infertile woman, here and now, forces those of us who care for
her to deal with a distinctively feminist moral dilemma: how to
engage an individual woman's concrete situation in its immediacy
while engaging the condition of women as a social group. Feminists
call for social rather than individual solutions to the problem that
technological and other controversial solutions (such as surrogacy)
for infertility pose for women and for feminist theory and action,
but infertility itself is experienced individually . . . The first social
solution to the problem with no nice feminist answer is for feminists
neither to minimize the painful reality of infertility nor to trivialize
the desire to conceive and bear a child. We do not have to deny the
infertile woman's agency to be vigilant of the consequences for
women of technological developments in reproduction. We do not
have to question the infertile woman's right to choose the solutions
to infertility available to her to affirm any woman's right to repro-
ductive freedom. We do not have to suspect the infertile woman's
desire for a child of her 'own' (genetically, gestationally), or a child
who might have been her own, to celebrate the value of all children
or to protect birth mothers from being forced to relinquish their
children. We do have to make a comfortable place for her at the
center of our passionate debates. 45

Social and legal implications

The implications of this discussion of the various new forms of
procreation and family formation are obvious enough. First, in a
liberal society the 'right to procreative liberty', with all that it
entails, should be recognised and legislative prohibitions should
be removed. (That does not mean, as we have seen, that the state

-102-

has no right to regulate the alternative forms of family for-

mation in much the same way as adoption is regulated.) This is
particularly the case with surrogate motherhood. If it is not the
business of the state to force or coerce a woman to have a child,
by making abortion illegal, it is equally not the business of the
state to prevent a woman from having a child by whatever
means she chooses. (Could a woman or a man choose then to
have a child through an incestuous relationship? Leaving aside
moral and religious objections to incest, insofar as there is a real
risk that the legalisation of incest would lead to the harm-
ful exploitation by one family member of another, relatively
defenceless member, the answer is no.)
Second, in a liberal society access to the new forms of repro-
ductive technology should be open to all and restrictions on
access -- for example, limiting IVF to legally married couples --
should be removed. People exercising their right to procreative
liberty in alternative ways should not be in any worse position
than those in a traditional married situation. At present in many
countries people seeking to overcome their infertility by IVF are
restricted in all kinds of ways that married and fertile people
would never tolerate. For example, under some legislation they
have to prove their moral fitness to have children as well as
satisfying stringent personal (age, for instance) and medical
tests. Most people in ordinary marriage situations would feel
affronted if they were forced to pass such tests before they were
'allowed' by the state to have children. However, some are quite
prepared to treat infertile women and couples in this illiberal
way.

Finally, as a corollary of the above, access to adequate health

resources should be made possible for all. If the state recognises
the family as a central social institution it should be prepared to
fund alternative forms of family formation in the same way as
it funds traditional forms. It cannot, in justice, discriminate
against the infertile and those who choose alternative means of
procreation.

-103-

NOTES
1. Joseph Raz, The Morality of Freedom, Oxford, Clarendon Press,
1986,
pp.392-3.

2. J. A. Robertson, "'Embryos, families and procreative liberty: the

legal structure of the new reproduction'", Southern California Law
Review, 59, 1986, pp.939-1041.

3. Lisa C. Ikemoto, "'Providing protection for collaborative, noncoital

reproduction: surrogate motherhood and other new procreative
technologies, and the right of intimate association'", Rutgers Law
Review, 4, 1988, pp.302-3.

4. Access to Reproductive Technology, Adelaide, National Bioethics

Con-
sultative Committee, 1990.
5. Linda and Maggie Kirkman, My Sister's Child, Melbourne, Penguin
Books, 1988.

6. Access to Reproductive Technology, op. cit., p.3.

7. Ruth Macklin, "'Artificial means of reproduction and our under-

standing of the family'", Hastings Center Report, 21, 1991, pp.5-
11.

8. Nancy E. Reame and Philip J. Parker, "'Surrogate pregnancy; clini-

cal features of forty four cases'", American Journal of Obstetrics
and
Gynecology, 162, 199, p.1222.

9. IVF and GIFT Pregnancies in Australia and New Zealand, 1988,

National
Perinatal Statistics Unit, University of Sydney, 1990.

10. Verspieren bases his own reservations about artificial insemi-

nation on other grounds. Patrick Verspieren, "'Moralité de l'insémi-
nation artificielle'", Etudes, 363, 1985, p.489.

11. Lynda Birke, Susan Himmelweit and Gail Vines, Tomorrow's Child.
Reproductive Technologies in the 90s, London, Virago, 1990, p.19.

12. Report on surrogacy by the Anglican Social Responsibilities Com-

mittee of the Archdiocese of Melbourne, Australia, 1990.

13. Brent Parker Smith, "'Anna J. v. Mark C.: proof of the imminent
need for surrogate motherhood regulation'", Journal of Family Law,
13, 1991-2, p.495.

14. See Australian Family Law Act 1975, s60 D. See also Stephanie
Charlesworth
, J. Neville Turner and Lynne Foreman, Lawyers, So-
cial workers and Families, Annandale, The Federation Press, 1990,
pp.90-2.

15. Laura M. Purdy, "'Surrogate mothering: exploitation or empower-

ment?'", Bioethics, 3, 1989, 31.

16. Colin D. Matthews in Surrogacy: Biomedical Dilemmas in the

1990s,
Adelaide, Dietrich Bonhoeffer International Institute for Bioethi-
cal Studies, 1990, p.4.
 -104-

17. Carol Gilligan, In a Different Voice: Psychological Theory and

Women's
Development, Cambridge, Mass., Harvard University Press, 1982.

18. Lynda Birke, Susan Himmelweit and Gail Vines, Tomorrow's Child:
Reproductive Technology in the 1990s, op. cit., pp.3-4.

19. ibid., p.4.

20. Carol Gilligan, In a Different Voice, op. cit., p.166.

21. Shulamith Firestone, The Dialectic of Sex, London, Jonathan Cape,

1971.

22. Mara Mies, "'Do we need all this? A call against genetic engineering
and reproductive technology'", in Patricia Spallone and Deborah
Steinberg
(eds.), Made to Order. The Myth of Reproductive and Genetic
Progress, New York, Oxford University Press, 1987.

23. Gena Corea, The Mother Machine, New York, Harper and Row,
1982,
p.39.

24. Christine Overall, Ethics and Human Reproduction, London, Allen

and Unwin, 1983.

25. ibid., p.125.

26. Susan Dodds and Karen Jones, "'Surrogacy and autonomy'", Bio-
ethics, 3, 1989, p.13.

27. ibid., p.17.

28. Heather Dietrich, Dissenting View, Surrogacy Report, National Bio-

ethics Consultative Committee, 1990, p.62.

29. Robyn Rowland, "'Making women visible in the embryo experi-

mentation debate'", Bioethics, 1, 1987, p.5.

30. Karen Dawson, Human Embryo Experimentation: A Background

Paper
and Select Bibliography, National Bioethics Consultative
Committee,
1990, p.32. This is not Dawson's own position.

31. Lynda Birke, Susan Himmelweit and Gail Vines, Tomorrow's Child,
 op. cit., p.x.

32. Mary Anne Warren, "'IVF and women's interests'", Bioethics, 2,

1988,
p.53.

33. ibid., p.54.

34. Christine Overall, "'Surrogate mothering: exploitation or empow-

erment?'", Bioethics, 3, 1989, p.24.

35. Lisa C. Ikemoto, "'Providing protection for collaborative, noncoital

reproduction'", pp.302-3.

36. Sharyn L. Roach Anleu, "'Reinforcing gender norms: commercial

and altruistic surrogacy'", Acta Sociologica, 33, 1990, p.70.

37. ibid., p.72.

38. Lynda Birke, Susan Himmelweit and Gail Vines, Tommorow's Child,
op. cit., pp.266-7.

39. ibid.

-105-

40. Karen Dawson and Beth Gaze, "'Who is the subject of the re-
search?'", in Peter Singer et al. (eds.), Embryo Experimentation,
Mel-
bourne, Cambridge University Press, 1990.

41. Mary Anne Warren, in Peter Singer et al. (eds.), Embryo

Experimen-
tation, op. cit., pp.125-40.

42. Mary Anne Warren, "'A Reply to Holmes on Gendercide'", Bioethics,

1, 1987, p.198. See also Warren's book, Gendercide: The
Implications
of Sex Selection, New Jersey, Rowman and Allanheld, 1985. See
also
Marlene Gerber Fried (ed.), From Abortion to Reproductive
Freedom:
Transforming a Movement, Boston, South End Press, 1990,
especially
the essay by Kathryn Kolbert, "'Developing a Reproductive Rights
Agenda for the 1990s'".
43. Janet Radcliffe Richards, The Sceptical Feminist, Harmondsworth,
Penguin, 1982, p.113.

44. Margarete Sandelowski, "'Fault lines: infertility and imperilled

sisterhood'", Feminist Studies, 16, 1990, pp.33-51.

45. ibid., p.48.

-106-

5
Distributing Health-care
Resources
The problem of scarce resources
The problem of how health-care resources should be allocated
or apportioned, so that they are distributed in both the most just
and most efficient way, is not a new one. Every health system in
an economically developed society is faced with the need to
decide (either informally or formally) what proportion of the
community's total resources should be spent on health care;
how resources are to be apportioned; which human diseases and
disabilities and which forms of treatment are to be given
priority; which members of the community are to be given
special consideration in respect of their health needs; and which
forms of treatment are the most cost-effective.

What is new is that from the 1950s onwards there have been
certain general changes in outlook about the finitude of re-
sources as a whole and of health-care resources in particular, as
well as more specific changes regarding the clientele of health-
care resources and the cost to the community of those resources.
Thus in the 1950s and 1960s there emerged an awareness in
Western societies that resources for the provision of fossil fuel
energy were finite and exhaustible and that the capacity of
nature or the environment to sustain economic development

-107-
and population was also finite. In other words, we became aware
of the obvious fact that there were 'limits to growth'. The new
consciousness that there were also severe limits to health-care
resources was part of this general revelation of the obvious.
Looking back, it now seems quite incredible that in the national
health systems that emerged in many countries after the Second
World War it was assumed without question that all the basic
health needs of any community could be satisfied, at least in
principle. God, or the 'invisible hand' of economic progress,
would provide.

However, exactly at the same time as this new realisation of

the finite character of health-care resources was sinking in, an
awareness of a contrary kind was developing in Western
societies: that people have a basic right to health care as a
necessary condition of a properly human life. Like education,
political and legal processes and institutions, public order, com-
munication, transport and money supply, health care came to be
seen as one of the fundamental social facilities necessary for
people to exercise their other rights as autonomous human
beings. People are not in a position to exercise personal liberty
and to be self-determining if they are poverty stricken, or de-
prived of basic education, or do not live within a context of law
and order. In the same way, basic health care is a condition of
the exercise of autonomy.

Although the language of 'rights' sometimes leads to con-

fusion, it is now recognised in most societies that people have a
right to health care (though there has been some resistance in
the US to the idea that there is a formal right to health care). It is
also accepted that this right generates an obligation or duty for
the state to ensure that adequate health care is provided and that
there should be equal access to whatever health-care resources
are provided out of the public purse. The state has no obligation
to provide a health-care system itself, but to ensure that such a
system is provided. Put in another way, basic health care is now
recognised as a 'public good' rather than a 'private good' that
one is expected to buy for oneself. As the 1976 declaration of the

-108-

World Health Organisation put it: 'The enjoyment of the highest

attainable standard of health is one of the fundamental rights of
every human being without distinction of race, religion, political
belief, economic or social condition'. 1 As has just been re-
marked, in a liberal society basic health is seen as one of the
indispensable conditions for the exercise of personal autonomy.

Just at the time then when it became obvious that health-care

resources could not possibly meet the demands being made
upon them, people were demanding that their fundamental
right to health care be satisfied by the state.

The second set of more specific changes that have led to the
present concern about the distribution of health-care resources
stems from the dramatic rise in health costs in most developed
countries, accompanied by large-scale demographic and social
changes which have meant, to take one example, that elderly
people are now major (and relatively very expensive) con-
sumers of health-care resources. Thus in OECD countries as a
whole, health costs increased from 3.8 per cent of GDP in 1960 to
7 per cent of GDP in 1980, and it has been predicted that the
proportion of health costs to GDP will continue to increase. (In
the US the current figure is about 12 per cent of GDP and in
Australia about 7.8 per cent of GDP.)

As a consequence, during the 1980s a kind of neo-Malthusian

doomsday scenario (analogous to similar doomsday extrapol-
ations about energy needs and fossil fuels or about population
increases) was projected by health administrators, economists
and politicians. In this scenario ever-rising health costs were
matched against static or declining resources, since it was as-
sumed that the community would not tolerate more than 10 per
cent of GDP, being spent on health care. (It should be remarked
that both the doomsday scenario and the assumption that some-
thing like 10 per cent of GDP is the absolute limit have been called
critically into question. As it has been argued: 'If the who dec-
laration claiming a universal human right to health is to have any
substance beyond its obvious manifesto content, the only way to
back it up nationally as well as internationally is a thorough

-109-

re-evaluation of public budgetary allocations'.) 2 At the same

time it has become clear to all except 'free market' ideologues
that a market-based health-care system does not offer a solution
to this rapidly escalating problem. Thus it has been pointed out
that:
in the 1980s, while other Western countries constrained expendi-
tures, the so-called 'competition revolution' in the United States was
associated with an increase in the rate at which health costs have
been increasing . . . Apart from its generally unacceptable distri-
butional effects the unregulated market does not appear to allocate
health care resources efficiently. Market-based systems may prove
to be viable if an appropriate regulatory framework can be devised,
but any system must face the apparently inescapable fact that con-
sumers will not be the agents that decide between the technical
alternatives. 3

Or, as another critic has put it:

The market ideology fails in health care quite simply because the
market fails in health care. That failure is fundamental. Markets
cannot work adequately without informed consumers. Patients in
many consumption decisions in health care are not informed
or at least not sufficiently so. Indeed, often what they consume is
information. 4

In this general context the debate over the allocation of

health-care resources has been mainly about economic evalu-
ation and efficient rationing of those resources on a costs and
benefits basis. As a result, the specifically ethical dimensions of
the debate have tended to be neglected. It seems to have been
assumed that if we can devise acceptable forms of cost-benefit
rationing of health-care resources the ethical questions can be
left to look after themselves.

This assumption, however, is both wrong-headed and danger-

ous since the allocation of health-care resources is not merely a
matter of efficient cost-benefit rationing but above all a matter
of human justice or equity where the interests of all concerned
-- patients, health-care professionals, the community at large --

-110-

have to be given their due. Again, as we shall see, the value of

personal autonomy also plays a central part, in that in a liberal
society people should as far as possible have real alternatives and
choices in health care and also a real degree of control over the
deployment of health resources. A paternalistic system of the
old kind where medical professionals effectively controlled
health care, and paternalism of the new kind where health
economists, policy planners and bureaucrats are increasingly
controlling health care in the name of 'rational' cost-effective
planning, cannot be squared with the values of a liberal
society.

More generally, the allocation of health care resources is a

business where ethical values play a part at every level of the
allocation process -- governmental, bureaucratic, institutional,
clinical unit, individual patient. It might also be added that dif-
ferent kinds of ethical issues arise at the different levels. Thus the
kinds of ethical questions that emerge at the clinical level are
quite unlike those that arise at the institutional or hospital level.
As Aristotle noted some time ago, the concept of 'health' is not a
univocal one which has the same meaning in all of its appli-
cations but a much looser one which has a varying or 'analogous'
meaning. The same is true of the concept of 'health care.'

Utilitarian approaches
As we shall see, the debate about the distribution of health-care
resources has been dominated by a consequentialist or utili-
tarian approach and method which determines the value of
medical treatment, health-care policies or strategies exclusively
in terms of measurable consequences or 'outcomes'. Utili-
tarianism is a protean concept but it is taken here to be a species
of consequentialism in that it is concerned with (a) general wel-
fare or happiness, or satisfaction of preferences or wants, as a
consequence of our acts, and (b) with consequences that are
quantifiable and summable in the sense that we can add together
the welfare, happiness or satisfaction of many different peopley

-111-

affected by our acts. Thus, for example, if five people are made
happier by act X as against one person being made happy by act
Y, then act X is five times better than act Y.

At a time when in mainstream theoretical ethics utilitarianism

has been stringently criticised and is now in considerable dis-
array as an ethical theory, 5 it has become the darling of the
health-care resource allocation experts. The late Cambridge
philosopher C.D. Broad once remarked that all good philosophi-
cal heresies go to America when they die, but whether or not
that is true, utilitarianism has certainly found a home among
health-care economists, planners and bureaucrats, even if it has
fallen out of favour with many professional moral philosophers.

Utilitarian approaches in health-care resource allocation are

basically concerned with getting the best outcomes for health
dollars spent and there is of course nothing wrong with that
laudable aim so long as it is concerned with means to already
decided ends or goals, and not with the determination of the
ends or goals themselves. (For example, we cannot plausibly
show, on utilitarian premises, that we should respect the lives of
gravely disabled newborn infants. But given that we have de-
cided, on non-utilitarian grounds, that we should respect the
lives of disabled newborns, we can show which are the most
effective ways of expressing that respect in a given set of cir-
cumstances.) But at the same time utilitarianism lends itself to a
form of bureaucratic and 'expert' paternalism which is im-
patient with the liberal ideal of individual autonomy and other
connected liberal values, such as the provision of diversity of
choice. As it has been put: in a liberal society 'the government
has an obligation to create an environment providing individ-
uals with an adequate range of options and the opportunities to
choose them'. 6 But for the utilitarian an efficient and effective
health system is a good health system regardless of whether the
health choices of individuals are diminished or not. (It might be
argued that utilitarianism could accommodate itself to the goal
of enlargement of choice in this area in that a good health
strategy would be one which had the consequence or outcome

-112-

of maximising autonomy and choice in the most cost-effective

way. But, as we shall see, it is not possible to quantify and
measure and do sums about such a consequence or outcome
[greater autonomy] in the way required by the theory of
utilitarianism.)

Utilitarianism has always found it difficult to cope with the

idea of personal autonomy as an ethical value. (The great
exemplar of classical utilitarianism was Bentham's Panopticon,
the quintessentially efficient prison system which allowed total
surveillance of the prisoners without a thought for them as
human beings.) As Rawls argues, for the utilitarian,
in calculating the greatest balance of satisfaction it does not matter,
except indirectly, what the desires are for. We are to arrange insti-
tutions so as to obtain the greatest sum of satisfaction: we ask no
questions about their source or quality, but only how their satisfac-
tion would affect the total of well-being . . . Thus if men take a
certain pleasure in discriminating against one another, in subjecting
others to a lesser liberty as a means of enhancing their self-respect,
then the satisfaction of their desires must be weighed in our delib-
erations according to their interests, or whatever, along with other
desires. 7

Rawls goes on to argue that utilitarianism cannot provide a basis

for personal self-respect. 8

Mill pretends that autonomy, liberty and individuality are

based upon 'the principle of utility', but in fact the values of
autonomy and personal liberty are for him as absolute as they
are for Kant. They are intrinsic goods regardless of any conse-
quences they may have and there is, for Mill, no envisageable set
of circumstances in which the general recognition of autonomy
and liberty might have such untoward consequences that their
restriction would be justified. As remarked before, there is in
fact no necessary link between utilitarianism and liberalism.

One can understand why the utilitarian approach is so

seductive for politicians and health-care economists and plan-
ners when there is a relative scarcity of health-care resources and

-113-

hard choices have to be made. The great attraction of classical

utilitarianism as an ethical theory was that it appeared to offer a
rational and hard-headed way of solving just such ethical prob-
lems. In principle, as we have seen, for the utilitarian the out-
comes or consequences of an act or policy are quantifiable and
measurable; as such they can be measured against and com-
pared with outcomes of alternative acts or policies and one can
calculate which is the better. In practice these measurements,
comparisons and calculations may be very difficult to make, but
in principle -- the utilitarian holds -- they can always be made.
It is this act of faith that, as we have said, makes utilitarianism as
a theory attractive to many people who are faced with having to
make difficult ethical decisions.
A corollary of this view is that, once again in principle, we are
never really faced with irresolvable ethical conflicts or dilemmas
where two ethical principles come into collision with each other,
as for example in abortion when the mother's right to control
her own reproductive processes comes into conflict with the
fetus's quasi-right to live (given that it is a developing organism
which, if all goes well, will eventually become a human being).
For the utilitarian there cannot be an irreducible plurality of
human goods that are not able in principle to be compared with
and weighed against each other and a solution 'calculated'. That
would be an 'irrational' situation.

It is not difficult to show that all of these assumptions of utili-

tarianism are open to serious objections and that the appearance
of hard-nosed rationalism is illusory. All human acts or policies
have consequences or outcomes but most of them do not have
quantifiable and measurable outcomes with a dollar sign in front of
them, which can be compared with and measured against other
acts and policies, and calculated as being 'better' or 'worse' than
the latter. Being in love, writing poetry, doing philosophy, en-
gaging in scientific investigations all have consequences or out-
comes and we can tell in a general way whether or not we have
been successful in those activities. But none have quantifiably
measurable outcomes which enable us to compare them with each

-114-

other. We cannot say that being in love is 'better' or 'worse' than

doing philosophy. They are irreducible human goods which can-
not be measured in a quantifiable way and weighed against each
other. In the same way, the primary values assumed in health-
care resource allocation are non-utilitarian values or 'intrinsic
goods' which cannot be measured, compared and calculated.
And a corollary of this is that ethical dilemmas or conflicts in this
area are always possible.

However, the fact that ethical values do not obey the rules
of utilitarian cost-benefit 'rationality' does not mean that they
are thereby 'irrational' and that we cannot meaningfully say
whether a medical policy is just or unjust; or whether it is
paternalistic or respects personal autonomy; or whether a hos-
pital system is more or less beneficent or compassionate. One
gets the impression from some of the health-care utilitarians that
only since the recent arrival of cost-effective measurement pro-
cedures have we been able to say whether a health system or
policy is successful or not. Previously, they imply, we blundered
about in total darkness, trusting our intuitions and hunches, but
not really knowing what the real consequences or outcomes
were and thus whether or not what we were doing was worth-
while.

The moral of all this is that, while there is a wholly legitimate

place for a utilitarian outcomes approach in the distribution of
health-care resources at the level of means, there are also central
non-utilitarian values and outcomes that cannot be measured in
a cost-benefit way, though that is not to say that we cannot
judge them rationally. As Plato and Aristotle reminded us a long
time ago, there are non-utilitarian forms of rationality.

Justice (or equity or fairness) is closely linked with autonomy

since it is concerned with treating people with equal respect
precisely because they are autonomous moral agents or persons.
To discriminate against people because of their race, colour,
gender or age is unjust because these characteristics have noth-
ing directly to do with a person's status as a self-determining
moral agent. If it could be shown that a person's race, colour,

-115-

gender, age or social class in some way made them less of a

moral agent in the full sense, then discrimination would not be
unjust. In the past, of course, people have tried to show that race,
colour and gender do in fact make a difference to a person's
status as a moral agent. Aristotle, for example, held that slaves
were not fully human and were not capable of autonomous
action; colonialist powers took much the same view of the
indigenous peoples they colonised, and medieval Christian
theologians claimed that women could not be ordained priests
because they were in a state of 'subjection' or inferiority -- in
other words, they were not fully autonomous agents. The pre-
tence was that these people were in the state of moral imma-
turity Mill speaks about when he says that his doctrine does not
apply to children nor to people in 'those backward states of
society in which the race itself may be considered as in its
nonage'. 9 Similarly in Australia the indigenous Australian Abor-
igines were held by the white invaders not to be capable of
owning land, so that the entire Australian continent was de-
clared to be terra nullius and the English settlers were thereby
legally able to appropriate the Aborigines' lands. We now, of
course, reject those attempts to single out various groups as
being of diminished autonomy and too morally immature to be
considered in an equal way with other people and to be accorded
equal respect.

Utilitarianism has not been able to provide a plausible account

of distributive justice. For the utilitarian a just act or policy is one
which produces, on balance, quantifiably greater benefits for the
maximum number of people. It may be that a minority of people
are gravely disadvantaged by the policy but these disadvantages
or costs are outweighed by the benefits to the majority. The
policy is therefore 'just' even if the minority is treated in a dis-
criminatory or partial way (as though they were not fully
autonomous and not worthy of the respect due to autonomous
agents or persons). Mill speaks of the 'tyranny of the majority'
which occurs when the majority unjustly uses its power to secure
its advantage at the expense of the minority, but he doesn't seem

-116-

to see that this kind of 'tyranny' is a necessary feature of utili-

tarian and majoritarian 'justice'. As many critics have pointed
out, utilitarianism cannot provide an ethical basis for protecting
the interests of minorities and powerless groups. 'The utilitarian
strategy', an American philosopher argues, 'does not take into
account the distribution of benefits and harms. It merely exam-
ines net aggregate benefits, which implies that if enough people
receive the benefits, it is plausible that even more enormous
harms to a small number will be outweighed by the aggregate
benefit to the masses'. 10

Of course, in practical affairs we have to use various devices to

get agreements so that decisions can be made. The will of the
majority is one of those devices, but there is nothing mystical or
sacred about majority votes and decisions. 'Vox populi' is not
really 'vox Dei' and the morality of acts and policies cannot be
determined by an appeal to majority wishes or preferences.

A health system in a liberal

society
What requirements does the liberal society demand of a health
system? Or, put in another way, given the values of personal
autonomy and of justice, what kind of health-care system and
what priorities for the allocation of health-care resources are
indicated?

We must first provide a rough definition of 'health care' since,

as we shall see, its meaning is not at all clear and distinct. Many
discussions about the allocation of health resources assume with-
out question that health care can be defined as that care which
professional and institutional (and technological) medicine can
provide. As Hafdan Mahler, former director-general of the
World Health Organisation, once put it: 'Everywhere it appears
that health workers consider that the "best" health care is one
where everything known to medicine is applied to every indi-
vidual, by the highest trained medical scientist, in the most
specialised institution'. 11 As against this 'medicalisation' of
health care, WHO's 'Health For All' strategy has emphasised the

-117-

interdependence between health and socio-economic develop-

ment and the importance of primary care: that is, people's
awareness of and response to their own health problems and a
recognition that health care is dependent upon housing, water
purity and supply, transport, mass media, communications and
so on. Again, emphasis is placed on issues of social justice and
social power. 'The "new public health"', it has been said, 'goes
beyond the conventional paradigm of illness as the outcome of
the assaults of pathogens, poor nutrition, addictions, unhygienic
living conditions or genetic predisposition, to address the con-
tribution of social justice, social action, power and access to
resources to shaping people's health and life chances'. 12

The public health movement has largely emphasised three

issues: rearranging social factors to prevent disease and illness,
sharing resources for the prevention of illness and curative
medicine as equitably as possible, engaging likely sufferers in
preventive medicine and in managing their own treatment. In
general the movement has emphasised prevention and care as
against medical intervention and cure. It is obvious that the
allocation of health resources in this context is very different
from that in the context of specific medical resources and
that the ethical issues involved are also very different. For
example,

effective implementation of WHO's 'Health for All' might require

expenditure upon a health policy impact unit or a statistical collec-
tion unit. Which would achieve the greater good? If the latter, what
weight should be given to privacy considerations against notions of
the public good. 13

Hicks complains that ethical issues raised by public health

have been given little attention by health ethicists: "The Encyclo-
pedia of Bioethics gives about 5 per cent of its space to public health
questions -- a proportion, ironically, roughly analogous to the

-118-

balance between medicine and public health spending in the

US'. And he goes on to argue:

A public health ethics approach would regard good health questions

as a sub-set of 'good life' questions. Therefore it would ask whether
banning the advertising of alcohol would be justified by the risk it
posed to free speech or whether a punitive approach to the AIDS
epidemic would be worth the damage it would do to that toleration
of difference which is a good test of the richness of texture of the
society. 14

It has also been claimed that health promotion, which is an

essential part of public health, is often neglected in debates
about health-care resources because it is not easy to measure it in
economic terms. 'Health promotion offers benefits for the dis-
tant future, which it is standard for economists to discount.
Moreover, structural health promotion, which is the basis of the
New Public Health promulgated by the World Health Organis-
ation, is a risky field in which it is usually impossible to predict or
measure the health benefits which accrue from individual pro-
grams'. 15 In addition a good deal of health-care resource allo-
cation takes place in a disguised or surreptitious form in other
areas such as education, the alleviation of poverty and housing.
By and large, in the health-care field the rich and well-to-do fare
better and the poor fare worse: 'People with the least education,
people who live in the least desirable neighbourhoods, and
people who work at the least prestigious jobs are all more likely
to die earlier than people at the other end of these scales . . .
virtually every disease strikes the lowest class more heavily'. 16
The upshot of all this is that 'health care' and 'health-care re-
sources' are diffuse and ill-defined concepts. If, as has been said,
improved education may have, in certain circumstances, a long-
term effect on improving the health of a community, then edu-
cation is a health-care 'resource'. This, of course, makes any
resource allocation scheme very difficult to run.

-119-

Patient and physician

Within the area of medical health care, the relationship between
the patient and the physician and other health professionals and
institutions is of course crucial to the debate about the allocation
of resources. We have already touched on this issue and noted
how difficult it is to find an appropriate model for the relation-
ship. We need to find a middle way between the older and newer
forms of medical paternalism which diminish the personal
autonomy of the patient, and on the other hand the view that
patients should be in full control of their medical treatment with
the physician being a mere servant.

The patient, it is true, has the primary responsibility for her or

his own health care and can accept or refuse medical treatment.
The physician must respect the patient's autonomy and right of
self-determination in this respect: that is the basis of the essential
requirement of informed consent to medical treatment. On the
other hand the autonomy of the physician and other health
professionals also has to be taken into account and their role
cannot be reduced to that of servants. In many cases the patient
must rely upon and trust in the professional knowledge and
technical competence of the physician. And the physician may
have to do what he or she judges to be for the good of the patient
where the patient is not able or competent to consent to the
treatment and to exercise some degree of control over it.

From this point of view the American health ethicist Daniel

Callahan has questioned the notion of 'patient rights'.

If we want to have good doctor-patient relationships, we can't re-

duce that relationship exclusively to the language of rights, particu-
larly the language of patient rights. A consequence is to jeopardise
the doctor's important role as a moral agent. At one extreme the
doctor is turned into nothing but a plumber. The challenge is to
recognise that when doctors and patients enter into a relationship
they begin to create a community, or at least a profound relation-
ship which the language of rights does not adequately describe. In
one sense each has to help the other. The doctor has to educate the

-120-

patient, help the patient understand what might serve his or her
welfare. And the patient has to find a way to tell the physician what
he or she is trying to live for. It ought to be a richer language than is
captured in the language of autonomy and rights. 17

There is, no doubt, something to be said for Callahan's view:

but far from demonstrating the need to go beyond the language
of autonomy and rights it reinforces the centrality of that lan-
guage, in that the physician-patient relationship involves each in
mutual respect for the autonomy of the other. The physician
must respect the patient's autonomous right to control his or her
own health and to refuse treatment (even if death ensues) and to
demand the right to exercise informed consent; the patient must
respect the physician's right as a professional to insist upon pro-
fessional standards and to exercise some degree of justified
paternalism where the patient cannot, or is unwilling to, take
responsibility for his or her own health-care decisions.

There is an analogy between the patient-physician relation-

ship and the relationship between learner and teacher, since in
both cases the physician and teacher are (ideally) enabling the
patient and student to assume responsibility for their own health
and learning respectively. One cannot cause or determine
another to be an autonomous or self-determining agent -- that
would be a contradiction in terms -- but one can nevertheless
create conditions which enable others to awaken to the meaning
of their autonomy and the realisation that they are masters of
their fate and captains of their own souls. Knowing is an auton-
omous act which people must do for themselves, but teachers
can, like a Socratic midwife, help students to be no longer faith-
ful parrots but to know and understand for themselves. In the
same way the physician must always, so far as is possible, help
patients to exercise some degree of autonomous control over
their health. That means that patients, like student learners,
must have genuine choices and alternatives available to them.
Where incompetent or unwilling patients are concerned,
medical paternalism always has to be justified and the onus of

-121-

justification is always on the one practising paternalism. As we

noted, the test must always be: is this something which the
patient, were she fully informed and fully competent, would
clearly consent to herself? Even here the physician must have
respect for the autonomy of the patient.

In the present context, when so much emphasis is placed

upon the scarcity of health-care resources, physicians and other
health professionals are being asked to consider the social di-
mensions of health care. Some critics have complained that the
rational allocation of health-care resources will never be possible
so long as physicians do not take account of the larger social
need to ration resources but remain fixated myopically on the
needs of the particular patient in front of them. But in a very real
sense physicians and other health carers must remain com-
mitted to using their professional skills to meet the health-care
needs of the individual patient. No doubt the physician must
operate within certain given economic and other constraints,
but it is not his or her business, as a physician, to act as a gate-
keeper and to control access to health-care resources. There is a
confusion of aims and functions if health-care professionals have
both to work for the good of the patient before them and to be
committed to the primacy of the needs of that patient, and at the
same time are required to act as cost-containment experts on
behalf of the health system and the community.

On the other hand, it has been argued that while the two roles
are in principle distinct the physician has willy nilly to com-
bine both in practice. Thus the US medical ethicist Edmund
Pellegrino has written:

In these matters, the physician serves best as an expert witness,

providing the basis for informed public decisions. He must lead in
pointing out deficiencies and raising the painful matter of choices.
At the same time each doctor must honor his traditional contract to
his own patient. He cannot allow the larger social issues to under-
mine that solicitude. The ethically responsive doctor will thus find
himself more and more involved in social and individual ethical
values, impelled to act responsibly in both spheres. The Hippocratic
ethic and its later modifications were not required to confront such

-122-

paradoxes. Today's conscientious physician is very much in need of

an expanded ethic to cope with his double responsibility to the
individual and to the community. 18

Health-care resource
allocations: four examples
These then are the most general features that a health system in
a liberal society should have. However, it is worthwhile exam-
ining in a little detail how ethical considerations arise in specific
and concrete areas of health-care resource allocation. A major
difficulty here is that the different levels of decision-making are
usually not distinguished from one another. Decisions at the
level of governmental policy-makers and health bureaucrats,
who have to allocate health-care resources in competition with
other areas -- such as defence, education, law -- are made in a
very different way (and have different ethical implications) from
the decisions made by hospital administrators who have to div-
ide up a given health budget between the competing depart-
ments of a hospital. And within a given department or unit, such
as an intensive care unit for newborns, very particular and
immediate decisions have to be made about the allocation of
resources to competing kinds of patients, for example 500 gram
birthweight infants as against 1000 gram birthweight infants.
The ethical issues that arise at this level are very different from
those facing the hospital administrator or the health bureaucrat.
Again, at the individual physician-patient level, ethical ques-
tions present themselves in a more subtle way. As we shall see,
there is a complex array of ethical values, sometimes concordant
sometimes discordant, involved in making decisions in these
areas. These values set severe limits to 'rational' planning of a
utilitarian cost-benefit kind.

Access to reproductive technology

Most people acknowledge that infertility is a disability and that
people who are infertile should have access to certain forms of
medical treatment (tubal surgery, hormonal treatment, sperm

-123-

analysis and the like). But there is strong disagreement about

how serious a disability infertility is and how great a claim treat-
ment for infertility has upon publicly provided health-care
resources, and whether such treatment should be seen as part of
the 'basic health care' which is supposed to be available to all.

Some people see infertility as a grave disability, both psycho-

logically and socially. A disability or a disease is not merely a
bodily dysfunction, but a bodily dysfunction in a given social con-
text. Thus infertility prevents people doing what other people in
their circumstances are usually or normally able to do. Those
who hold that infertility is a serious disability point to the high
value given to the family in our society and to the fact that
infertility prevents family formation. If the family is so import-
ant, they argue, then one would think that infertile couples
would have a strong claim on health-care resources so as to
enable them, as far as is feasible, to form a family.

It has been estimated (although no firm evidence is available)

that the incidence of infertility in Australia is of the order of
8-10 per cent. With regard to the various forms of artificial
procreation used to alleviate infertility, some 5000-6000 donor
inseminations are carried out in Australia each year; it is esti-
mated that there is a 10-15 per cent chance of conception in an
insemination cycle and the live birth rate is thought to be
6-10 per cent per cycle. In addition there were, in 1988, some
9000 in vitro fertilisation cycles carried out in Australia and New
Zealand, of which 743 or 8.1 per cent resulted in a live birth.
Again, there were 2800 GIFT (gamete intrafallopian transfer)
treatment cycles carried out, of which 528 or 18.4 per cent re-
sulted in a live birth. The number of people seeking alleviation of
their infertility through these treatments is therefore consider-
able and, given the rigours of the treatments they have to
undergo, one could say that they see the having of a child
through IVF or GIFT, and thus the formation of a family, as of at
least as much value to them as most other treatments for non
life-threatening health conditions. It might be mentioned here
that infertile couples do not claim, as is sometimes alleged, that
 -124-

they have a 'right' to have a child, any more than people gen-
erally claim to have a right to good health. What they claim is
that they have a right of access to public health funds for the
treatment of their condition in exactly the same way that other
people have a right of access to funds and treatment for in health
or disease.

Others, however, as we have seen, view infertility as being

relatively unimportant in itself. Women in our society, they say,
are conditioned by the "pro-natalist' culture to think that being a
mother and beating a child is necessary to their identity as
women, so that one cannot be a 'real' woman unless one has had
a child. But this is a form of 'false consciousness'. Women can be
'child free' and yet lead fulfilled lives.

Having a child and forming a family may be very satisfying to some

couples, but this is not a basic need, like education, which generates
a 'right'. There are many things we would like to have, but cannot
have, and we cannot claim that we have a 'right' to have them.
Having children is one of those things. 19

It is clear from what has been said that we cannot decide how
health-care resources should be allocated to the alleviation of
infertility by the various forms of reproductive technology un-
less we first settle the question of how we value infertility, that is
determine how serious a human disability it is. That, as we have
seen, is a complex business since we are dealing not just with a
bodily dysfunction but with a dysfunction with a social aspect:
how infertility is perceived within a particular socio-cultural
context.

If we are able to decide upon a valuation of infertility and its

alleviation by reproductive technology we then have to decide
whether IVF and GIFT are efficient means of alleviation, and how
they are to be ranked against other alternative services. In one
sense the success rate is not very good (this is especially true of
IVF). But (a) it is much better than zero since there are at present
no other alternatives; (b) given the medical history of the

-125-
infertile patients presenting for IVF treatment it is to be expected
that success rates will be low; (c) it is claimed that it is not far
short of mother nature's own success rate in that a high per-
centage of naturally formed embryos in utero do not implant or
are spontaneously aborted; and (d) there are good prospects of
improved success rates resulting from further research. 20

Regarding costs, the estimated costs for 5000 couples on IVF

programs in 1987 in Australia was some $30 million, of which
the federal government paid $17 million, the patients $6 million
and health insurance funds $7 million. It has been estimated
that, all up, the cost of each IVF 'take home' baby is about
$40 000. (Funding for IVF was changed in 1990 by the govern-
ment's decision to extend funding for the various components
of IVF treatment. This initiative suggested that, in the govern-
ment's perception, IVF and the other forms of reproductive
technology were now accepted by the community and that in-
fertility was also seen as a sufficiently grave condition to warrant
health-care funds being used to provide medical treatment to
enable people to have children.)

Some have claimed that the costs of IVF treatment are dis-
proportionately high. It is true that they appear so when com-
pared with the costs of ordinary natural childbirth. But if they
are compared with the costs of keeping a low-weight premature
infant (born through natural childbirth) alive by intensive care,
and of coping with the continuing effects of its premature birth,
often through the rest of its life, then $40 000 per IVF child is very
cheap. No one argues that intensive care for newborns should be
restricted solely on the grounds that it is so costly and it is dif-
ficult to see why alleviation of infertility by IVF and GIFT, so that a
child is able to be born, should be restricted solely for reasons of
cost. (Though some have argued that intensive care 'saves' a life,
whereas IVY 'merely' creates one, and that whereas we have an
obligation in the first case we do not in the latter.)

What emerges from this discussion is the difficulty of deciding

how health-care resources should be allocated to the alleviation
of infertility by IVF and other forms of reproductive technology.

-126-

We must, in fact, rephrase the question to read: in the kind of

society which has (a) opted for such and such a level of health-
care services to be financed out of public funds and whose finan-
cial resources are at such and such a level; (b) where diseases and
disabilities such as infertility are defined in such and such a way
and given such and such a valuation ('serious', 'cosmetic' or
whatever); (c) where there are very large differences about these
valuations and health-care priorities among various groups in
the community (for example, 'consumer groups' of infertile
couples on IVF programs who see IVF as their only way of having
a child and forming a family as against certain feminist groups
which see IVF as 'male patriarchalist technology', and with a
large number of people in between these two extremes) -- what
in this context is the fairest way of allocating health-care
resources for the alleviation of infertility?

This complexity is further enhanced by the fact that these

various groups continually engage in 'political' action to pro-
mote their own views and to bring about change in the prevail-
ing situation regarding health-care resources for infertility. For
example, vigorous lobbying by a US national infertility support
group called 'Resolve' resulted in legislation defining infertility
treatment, like pregnancy-related procedures, as medically
necessary health benefits covered by insurance. 21 The same is
true of IVF support groups in Australia. On the other hand there
is a curious coalition of interests opposing IVF and reproductive
technology in general, which comprises feminist groups such as
FINRRAGE, conservative elements in the Catholic Church and
anti-technology groups. Politicians and policy-makers have to
take account of these lobbies since reproductive technology is
now a contentious political issue in many countries.

Intensive care of newborns

In a sense the question of what value should be placed upon the
intensive care of newborn infants is almost at the opposite
extreme from that of the use of reproductive technology to

-127-

alleviate infertility. As we have seen, there are large differences

in attitudes to the latter, but there is virtual unanimity about the
high priority to be given to the intensive care of newborns. The
principle of 'the sanctity of human life' has here its clearest
application, and it is supported by the fact that newborn infants
are seen as the most defenceless and vulnerable of all human
beings. The powerful symbolism that attaches to the care of
disabled newborns is a major factor in the way our community
views such care. (One might contrast it with the much more
ambivalent symbolic character of IVF: on the one hand it is seen
as a way of bringing about 'the miracle of human birth', on the
other hand it is seen as a way of 'playing God' and of attempting
to technologise human reproduction.)

The costs of neonatal intensive care are, however, very high

and vary in inverse proportion to the birthweight of the
newborn infant. 22 For example, with regard to infants with a
birthweight of 1000-1500 grams, the survival rate is 95 per cent
and long-term neuro-developmental disability rates are only
5-10 per cent. The future quality of life of these infants is there-
fore, on average, very high. The average intensive care cost per
surviving infant has been estimated at $22 199. When, however,
infants with birthweights of less than 1000 grams are con-
sidered, the long-term survival rate is of the order of 60 per cent
and the impairment rate is between 8 and 14 per cent. For
infants with a birthweight of 900-999 grams the cost per sur-
vivor is $38 377. Overall, the average cost per survivor of infants
of less than 800 grams birthweight is $128 409, while the cost per
survivor of infants with a birthweight of more than 800 grams
(800-899 grams) is $43 972. For infants with a birthweight
between 500 and 599 grams the intensive care cost per survivor
is $151 911.

Commenting on these costs, Tudehope et al. point to the

pressures to institute a cut-off for intensive care at the 800 gram
birthweight level, since it is there that the costs per survivor
become so discrepant. Referring to 'expenses incurred with

-128-

prolonged ventilatory care of infants who subsequently died',

the authors say that in the intensive care unit of the Mater
Misericordiae Mothers' Hospital in Brisbane, Australia, in 1987,

four babies of birthweight 423 g, 626 g, 650 g, and 860 g, received

mechanical ventilation for 102, 220, 126 and 112 days, respectively,
at a cost of $691 408 for no survival. Had these babies been iden-
tified earlier as having no long-term future and ventilatory care
terminated or not instituted, the cost per survivor of infants of
birthweight under 1000 g in 1987, would have been reduced from
$76 798 to $48 902. Although long-term survival at the Mater
Hospital for infants of birthweight less than 1000 g has steadily
improved from 31 percent in 1977 to 62 percent in 1987, there has
been a concomitant increase in time for non-survivors. 23

'There is a clear demarcation of costs of care', Tudehopeet al.

go on, 'for infants below 800 g compared with those above this
limit. It could therefore be argued on utilitarian cost-benefit
grounds that a birthweight of 800 g should be the cut-off level for
non-introduction of neonatal intensive care because the cost of
$128 409 per survivor below 800 g compared with the $43 972
per survivor between 800-999 g is too great a financial burden to
society'. 24 The authors, however, reject this argument and say
that 'such decisions should be based upon human compassion
not upon economic expediency'. 25 They claim that economic
considerations cannot by themselves be used to determine what
amount of health-care resources should be allocated to this area.
Neonatal intensive care costs, they argue, compare favourably
with other expensive health treatments, such as coronary bypass
surgery. For example, renal transplants cost $15 000 for the first
year and $2000-2500 for the following ten years; renal dialysis
costs $15 000-30 000 per year; liver transplants cost $60 000 per
person; the total lifetime cost for each AIDS diagnosed patient is
about $934 000 ($35 000 in direct health costs, including AZT,
and $879 000 in indirect costs). Again, in terms of life years
gained by each patient a newborn might gain up to 70 years

-129-

(with 40 years as an economic contributor and taxpayer) as

against an adult who might gain 15 years of productive life
through coronary bypass surgery. Further, restricting individual
high-cost medical treatments such as those involved in intensive
care may be less economical than making savings in relatively
low-cost but commonly used treatments with large clienteles.

As against arguments of economic expediency, Tudehope

and his collaborators claim that 'the primary medical responsi-
bility must be to do the best for the infant, the parents and the
family, even if those interests conflict with those of society'. 26 At
the same time they indicate that the infants' 'best interests' may
in some cases require the recognition that there is no effective
treatment and that treatment should be discontinued since it
serves no purpose. In other words, compassionate care may
require that no further active treatment be given to the infant. In
making this decision, although the authors do not advert to this
consideration, the physicians and parents must consider the
likely future 'quality of life' of the newborn and not merely
quantitative years gained. This is a contentious area since some
people, and even some physicians, believe that everything that is
medically possible, even heroic measures, must be provided for
newborns regardless of their prospective quality of life. If this
ethical view were adopted it would be very difficult to establish
priorities about the allocation of health-care resources in this
area since, in principle at least, there would be no limits to the
use of such resources. On the other hand no one appears to be
prepared to claim that care for disabled newborns is actually, or
ought to be, determined solely by cost considerations. 27

Once again, we are confronted with a situation where a com-

plex set of values are in play: the 'sanctity of human life', the
special 'symbolic' position of defenceless and vulnerable infants,
the best interests of the child, the likely future 'quality of life' of
the newborn, the professional responsibilities of the physicians
and other health carers, the comparative costs of health treat-
ment. In a sense the remarkable success of the intensive care of
newborns has exacerbated the problem in that it is now possible

-130-

to attempt treatment of extremely low birthweight infants,

where the costs are dramatically increased. 28

Renal transplantation
Renal transplantation is an area where the just and efficient
allocation of scarce resources has always been a central con-
sideration since (a) the availability of donor kidneys is severely
restricted relative to the demands of patients suffering from
renal failure, and (b) the medical criteria for the use of renal
transplants in respect of individual patients are extremely com-
plex. 29
The process of allocating donor kidneys to particular patients
involves a number of different levels of decision-making. There
is, first, the personal doctor-patient level, where a doctor and
patient decide whether a renal transplant is medically feasible
and personally acceptable. Second, there is the institutional
level, where physicians in their role as program directors have to
decide about the amount of medical resources to be committed
to a renal program as against other programs in the institution.
Third, there is the state and national level, where the allocation
of health-care resources to renal programs has to compete with
wider health priorities and even with non-health priorities. Inevi-
tably political considerations play a large part at this level.
Fourth, there is the international level, where issues related to
the relative needs of developed countries and underdeveloped
countries, and of the obligation of the former to allocate some
medical and health-care resources to the latter, have to be taken
into account.

It might be mentioned here that this latter is an aspect of the

health resources allocation debate that has not so far been taken
into serious account in Australia, though it has been given some
consideration in Europe. 30 The World Health Organisation's call
in 1988 31 to set the goal of acceptable levels of health for all
peoples, and to diminish the gross inequalities in health-care
resources as between developed and developing countries, has

-131-

not received much notice in Australian or US discussions about

health-care resource allocation. What proportion of health funds
should be set aside to meet obligations to developing countries is
not usually factored into the cost-benefit calculations of health
economists.

A recent study makes the point that since 'medical need tran-
scends national boundaries' any account of health care as a
universal human right 'should recognise that the greater needs
of the poorest countries ought to be met first, before even think-
ing about improving our own quite tolerable condition'. 32
Unfortunately, in the present climate of economic rationalism,
this seems no more than a pious hope. Nevertheless, it is a
primary ethical consideration in any allocation of health-care
resources.
The decisions made at these different levels may not always
harmonise with each other. For example, a decision that a phys-
ician may make about allocating a kidney to an individual who is
his or her patient may conflict with a decision that the same
physician may have to make as director of a renal transplant
program in an institution. 'In Australia', it has been said, 'the
physician-patient relationship is all important and is the main
gate-way by which persons are assessed as suitable to be placed
on an allocation list'. 33 If this is so then it places severe restric-
tions on any attempt to allocate resources in a systematic way at
the institutional and national levels. However, as noted before, it
has been claimed that physicians can no longer evade the larger
social consequences of their decisions and that in rec-
ommending a renal transplant in a particular case they must also
explicitly take into account both institutional and national re-
sources. (Implicitly, of course, they already do so because in
practice their individual advice and decisions are constrained by
the level of health-care resources available at the institutional
and national levels.)

Here we have a version of the opposition between an ap-

proach to health-care resources allocation which is based on
health needs (given the needs of renal patients, how can we best

-132-

meet them within a given expenditure?) and an approach based

on cost-benefit considerations (given that we have such and such a
budget for renal transplant programs, how can we best meet the
needs of renal patients?). There may appear to be no real
difference between these two approaches, since the level of
resources available for renal transplants to a large extent reflects
the fact that the needs of renal patients are given a certain value
or weighting by the community, the medical profession and
politicians. Nevertheless, the difference of perspective between
the approaches can be important.

The larger question has also been raised: should major bodily
organs, because they are so scarce, be considered as individual
'property' or rather as 'assets of the community'? At the first
joint meeting of the European Society for Organ Transplanta-
tion and the European Renal Association ( Munich, 1990) on the
theme, Ethics, Justice and Commerce in Organ Replacement, the fol-
lowing resolution was proposed: 'Cadaveric organs procured
within a community should be considered assets of the com-
munity, and the community rather than just the medical pro-
fession should determine their allocation through announced
criteria'. 34 It is not clear exactly how in practice 'the community'
might feasibly determine the allocation of major organs, includ-
ing kidneys, but it is evident that there is a concern that organs
should be allocated according to the principles of justice or fair-
ness. This involves specifying publicly the criteria in accordance
with which the allocation of bodily organs is to be effected.

The difficulty, however, is that the medical judgment as to

whether a given patient is medically fit or suitable for a renal
transplant is very complex, since it depends on immunological
compatibility between donor and recipient. Again, it is not al-
ways possible to draw a clear line between purely medical
indications and non-medical indications such as age or lifestyle.
Nevertheless, one can at least distinguish the obvious cases of non-
medical indications and exclude them as criteria for allocating
renal transplants. For example, there now appear to be data to
show that the age of the recipient does not adversely affect the

-133-

outcome of renal transplantation. (Australian figures for 1989

show a 38 per cent increase in the numbers of new patients on
renal dialysis who are between the ages of 60 and 79 years.) As it
has been put:

Because there are no guidelines for the application of 'medical

fitness' it is very easy for that criterion to be used by physicians to
make personal assessments of the person's worth to society. Such a
'social worth' principle would tend to be interpreted adversely to
the aged . . . Older persons are often regarded as being economically
non-productive, more expensive in the use of health resources and
to have had a reasonable 'life innings'. It may also be interpreted
adversely to antisocial personality types who may be judged as non-
compilers and also to persons with significant criminal convictions.

The same author goes on to argue that 'in programs which are
supported by public funds such as exist in Australia, any form
of selection on social worth is unacceptable. It is discrimi-
natory, and open to being used capriciously, arbitrarily and
unjustly. 35
However, it might be argued that while this is clear in prin-
ciple, kidneys and other major organs are in such extremely
short supply that in practice some non-medical criteria will in-
evitably be used to select patients. Some indeed have argued that
in a situation of drastic scarcity it is responsible and even just to
use such 'social worth' criteria (for example, by not allocating a
liver transplant to a chronic alcoholic).

In the celebrated case of the Seattle Artificial Kidney Center at

the University of Washington in the early 1970s, the following
criteria were used to select patients for dialysis: the patients'
emotional maturity and responsibility, their financial resources,
their value to the community at large. Using these criteria the
selection panel excluded a beatnik on grounds of social value, a
woman with a dubious reputation on grounds of lack of re-
sponsibility and a logger because of his lack of financial
resources. On the other hand, being a scout leader and a Sunday
school teacher favoured patients' inclusion in the program. 36

-134-

It might be remarked in parenthesis that considerations of

'social worth' have been suggested in the allocation of repro-
ductive technology resources. The South Australian Repro-
ductive Technology Council has, for example, outlined criteria
for prospective IVF parents that are very similar to those used for
adoptive parents. It could be argued in this case that 'the best
interests of the child' born through the use of that technology
justify reference to social worth criteria (for example, whether
the couple seeking IVF have been convicted of child abuse). On
the other hand, it can also be argued that IVF parents are being
assessed and judged, simply because they are infertile, in a way
that fertile couples would never tolerate.

There are a number of other factors which have to be taken

into account in the allocation of donor kidneys. First, there is a
tendency in any health program to favour low risk cases. As it
has been put: 'Like all health programs, transplantation pro-
grams must be seen to have successful outcomes in order to
retain their funding. Unfortunately, if used alone, both this prin-
ciple and that of "medical efficacy" have the potential to lead to
a bias towards selecting the "low cost case" which has the great-
est chance of success'. 37 Second, at the clinical level different
principles are used in the allocative process: for example, some
claim that priority should be given to those in most urgent need,
those whose life is imminently threatened; others claim, how-
ever, that priority should be given to those who have been
waiting in the queue the longest (often because of immuno-
logical factors). Third, it has been noted:

The emphasis placed on tissue matching has a bias against patients

who do not have an anglo-saxon background. The most affected
group in Australia are Aborigines who are disproportionately rep-
resented as a group suffering renal failure in the community and are
receiving dialysis treatment, yet only approximately half have trans-
plants, whereas the caucasian statistics show more evenly balanced
numbers between transplant and dialysis. The reasons for this dis-
parity include the emphasis which is placed on tissue-matching
which means that they will rarely get high tally scores unless an

-135-

Aboriginal kidney becomes available. Another complication is that

there are cultural reasons as to why such kidney availability is un-
likely. Similar arguments would apply to other groupings such as
Asian and European communities. 38

It is evident from the above that the just or fair allocation of

renal transplants is based upon a complex set of ethical assump-
tions about (a) whether the donation and reception of a kidney
is a purely personal transaction between donor, physician and
recipient, or whether a kidney is an 'asset of the community'
whose allocation can only be decided by community processes
involving publicly specified criteria; (b) whether medical criteria
alone should be used to determine fitness or suitability for renal
transplants, or whether non-medical ('social worth') criteria
may also be used given the extreme scarcity of kidneys for
transplantation; (c) whether some priority weighting (or 'posi-
tive discrimination') should be given to the patients (for
example, Australian Aborigines and other non-Caucasians) dis-
advantaged by the use of immunological criteria. Unless we are
prepared to make ethical judgments about such issues we cannot
make meaningful decisions about the allocation of health-care
resources in this area.

HIV/AIDS Treatment
Ethical questions relating specifically to health-care resource
allocation issues in the HIV/AIDS area are raised by the large costs
of treatments, educational and preventative programs, research
and so on. (As already remarked, it has been estimated that the
total ongoing treatment costs for an HIV/AIDS sufferer are close
to $934 000: $55 000 in direct health costs, including AZT, and
$879 000 in indirect costs.) This is compounded by the escalat-
ing numbers of HIV/AIDS sufferers.

What proportion of health-care resources should in fairness

be distributed to HIV/AIDS treatment, prevention and control,
mainly (for the moment) directed to one section of the com-

-136-

munity, as against other diseases affecting other sections of the

community? Again, what proportion of health-care resources
should as a matter of justice be allocated to AIDS prevention
programs as against the direct treatment and care of taps
sufferers? These issues are all the more difficult to resolve
because of the highly 'political' character of the current my/AIDS
debate, with diverse interest groups and lobbies -- public health
groups, health professionals, gay community organisations,
'homophobic' groups of various kinds -- all playing an active
and vocal role. 39

Ethical issues also come up apropos of privacy, confidentiality

and personal autonomy with regard to the kinds of programs
that should be funded. Should AIDS education and prevention
programs be restricted to providing people at risk with infor-
mation on the basis of which they can make their own decisions?
Or should they be directed more actively at changing the atti-
tudes of those in the high risk area and at paternalistically
restraining their behaviour because of the social effects of
HIV/AIDS? Or again, should tests for HIV be made mandatory in
certain circumstances (for example, before blood donation or
surgical procedures) and should the results of such tests be used
to inform others (say, contacts of HIV sufferers) even though this
involves a breach of confidentiality? Or would such testing be a
gross violation of personal privacy? 40

One might note here a recent report that 10 000 newborn

babies were screened for HIV in New South Wales in Australia in
1989 without parental consent. 41 These tests from ten hospitals
were part of a study of the incidence of HIV/AIDS in the com-
munity conducted by the National Centre for HIV Epidemiology
and Clinical Research and were approved by the respective hos-
pitals' ethics committees on the ground that the public interest
outweighed the breach of privacy involved. The New South
Wales Privacy Committee, however, severely criticised these
tests because parental consent had not been obtained.

There is a tension in Australia between members of the medi-

cal profession, who generally favour HIV/AIDS testing, and those

-137-

(policy makers, lawyers and members of the community) in

favour of Commonwealth and state privacy legislation. Thus, in
a recent survey of Western Australian physicians -- consultant
staff members of Perth's major teaching hospitals and fellows of
the Royal College of General Practitioners -- 74.3 per cent indi-
cated that it was not always necessary to obtain informed
consent for HIV testing (general practitioners were markedly
more likely to think that consent was necessary than were con-
sultants). The authors of the survey conclude: 'We have shown
that the majority opinion of senior members of the medical
profession is that specific informed consent should not always
be requested, that there is great support for compulsory testing,
and that confidentiality may be broken in certain circumstances.
The nature of medical practice is to synthesise information
and to make judgments which balance many, often competing
interests.' 42

On the other hand, recent privacy and health services legis-

lation strongly emphasises the right to privacy of HIV/AIDS sub-
jects. Thus the Victorian Health (General Amendment) Act 1988
affirms the right of HIV/AIDS sufferers to keep information of
their condition private and confidential, though this right may
be overridden in certain special circumstances. There is, how-
ever, no statute law to guide medical scientists or practitioners
regarding breaches of confidentiality, though there are common
law precedents for breaching confidentiality where the fives of
other people are at stake. 43

On a more philosophical level, those who emphasise the value

of personal autonomy argue against direct intervention and
paternalistic forms of HIV/AIDS education and prevention, which
they claim could lead to gross abuses of basic human rights.
They argue that sexual activity and sexual lifestyles are essen-
tially private matters and, since HIV/AIDS is mainly transmitted
through sexual activity, it should also be seen as being in the
private realm. Thus a Canadian bioethicist, Patricia Illingworth,
claims that male homosexuals are, through their high risk be-
haviour, primarily harming themselves. Since it is not the busi-

-138-

ness of the state in a liberal democratic society to prevent

people from harming themselves, the state has no right to inter-
vene. It follows from this that 'AIDS education programs which
target high risk groups and which go beyond providing them
with information about their risks, are paternalistic inter-
ferences. From a liberal perspective they are unjustified'. 44
Illingworth makes a similar point in a recent article entitled
'Warning: AIDS health promotion programs may be hazardous to
your autonomy'. 14 The same author in her book AIDS and the
Good Society 46 argues that in the debate about HIV/AIDS public
health strategies there has been a conflict between older public
health laws relating to epidemic control, where patient privacy
was subordinated to what was seen as the good of the com-
munity, and newer legislation reflecting more liberal views on
the fundamental right to personal privacy. It is no longer suf-
ficient to show merely that HIV/AIDS is an infectious disease in
order to claim that it should therefore be subject to state con-
trol.

On the other hand, the US bioethicist Ronald Bayer takes the

view that contracting and transmitting AIDS cannot be seen as a
purely private matter since it has obvious consequences for
others. Some degree of state control is therefore legitimate in
this sphere. Thus Bayer argues that in some circumstances there
is a duty to warn an AIDS sufferer's sexual partners of the
former's condition. This duty takes priority over the duty of
confidentiality and respect for personal privacy. Again, the be-
haviour of some HIV-infected individuals who demonstrate utter
disregard for the well-being of others is an appropriate subject of
state action: 'Consent to sexual intercourse is not consent to
exposure to a lethal virus any more than marriage provides a
warrant for unconsented sexual intercoursel.' 47 Bayer claims
that, since the state can intervene in this realm only because of
the possibility of harm to others, his position can be reconciled
with classical Millian liberalism.

A version of this debate has recently taken place in Australia

apropos of suggestions that coercive deterrence is needed to

-139-

restrain identifiable promiscuous homosexuals or intravenous

drug users from infecting Australian Aborigines. No one, it has
been argued, is at liberty to engage in sexual behaviour that is
likely to spread a fatal disease like AIDS, especially among groups
such as Australian Aborigines. Others, however, claim that
culturally appropriate education', and not the use of coercive
means, is the only suitable way of preventing the spread of
HIV/AIDS into rural Aboriginal groups. 'It would be paternalism',
it has been said, 'and racist to suggest that Aboriginal com-
munities are unable to develop or participate in community
education'. 48

It is clear that any allocation of resources to the HIV/AIDS area

must take account of the ethical issues detailed above and that it
will make a difference to the mode and extent of resource allo-
cation as to whether the state (a) sees certain high risk behaviour
as a purely private matter and takes the attitude that it should
restrict itself merely to supplying information to enable homo-
sexuals or intravenous drug users to make their own auton-
omous decisions about engaging in high-risk HIV/AIDS related
behaviour; or (b) plays a paternalistic role in attempting to save
people in high risk groups from themselves; or (c) actively inter-
venes to prevent harm being done to others. One might strike an
analogy here with the control of hard drugs on the one hand and
cigarette smoking on the other. With regard to the latter, apart
from restricting cigarette advertising and smoking in certain
places, the state limits itself to supplying information to enable
cigarette smokers to make up their own minds; with regard to
the former the state has so far taken the attitude that drug use
has such grave social consequences that it must be actively pre-
vented and it has been prepared to deploy increasingly large
resources in the so-called 'war against drugs'. Those who support
active intervention in the HIV/AIDS area see this as analogous to
the control of hard drug use. Both are private acts but with grave
social consequences.
By way of a general conclusion it is clear that severe
constraints are placed upon purely 'rational' cost-benefit

-140-

approaches to the problem of resource allocation by the ethical

assumptions we have been considering. As we have seen, these
assumptions bear upon the nature of patient-doctor relation-
ships (for example, patient autonomy vis-à-vis medical paternal-
ism, the physician's obligations to his or her patient vis-à-vis
obligations to take a larger social view about resource allo-
cation); the priority to be placed upon certain medical needs and
treatments (for example, whether infertility is to be deemed to
be a serious human disability or to be merely of 'cosmetic' im-
portance); whether a health-needs based approach should take
precedence over a resources cost-benefit approach; whether
non-medical ('social worth') criteria are just or unjust and
should or should not be used in the apportioning of scarce health
resources such as major bodily organs or reproductive tech-
nology services to infertile couples; whether bodily organs
should be seen as 'assets of the community' in whose allocation
the community has a legitimate interest, or whether organ
donation should be seen as a private transaction between
donors, physicians and recipients; or again whether some form
of 'positive discrimination' is justified in the allocation process;
whether HIV/AIDS is something that falls within the sphere of
private morality or whether it has such potential for harm to
others that high risk homosexual or drug user groups should be
subject to coercive restriction.

More generally, it is obvious that in many of the issues con-

sidered above we are faced with a prima facie conflict be-
tween ethical values; it is not clear which value should be
preferred as against another. It is not clear, for example, that
the conduct of HIV/AIDS subjects falls within the sphere of per-
sonal morality so that there is no ground for state interven-
tion restricting their behaviour or overriding their claims to
privacy. On the other hand, it is equally unclear whether the
protection of vulnerable groups in the community (such as the
Australian Aborigines) requires the coercive restriction of high
risk HIV/AIDS subjects, or even whether such restrictions would
be practicable.

-141-
A further constraint on 'rational' resource allocation comes
from the fact that certain health situations have what may be
called a powerful 'symbolic' or 'metaphorical' character. 49 Thus
intensive care for newborn infants symbolises people's concern
for the value of human life and for the protection of the defence-
less, so that any attempt to allocate resources in a rational
cost-benefit way in this area is seen almost as an attack on the
'sanctity of human life' itself. It is wrong to call these issues
'emotive', but they do set a limit to any kind of rational assess-
ment of health-care priorities, all the more so since politicians
and policy makers (and the media) are usually very sensitive to
them. Again, they can change in a quite volatile way from time
to time; thus, for example, abortion is no longer a symbolic issue
for the majority of people in Australia (though it is in the US),
whatever they may think about its morality; on the other hand,
human embryo experimentation and genetic manipulation in
humans certainly is. Again, while most people now accept arti-
ficial insemination, they are more hesitant about IVF and surro-
gacy. IVF still, to some extent, symbolises the medical scientist
'playing God', and surrogacy symbolises an attempt to bring
motherhood and reproduction out of the purely 'private' sphere
into the 'public' or social sphere. Finally, HIV/AIDS has of course a
complex and potent set of symbolic connotations: 'the plague',
homophobic fears, disease as divine punishment.

For the most part, utilitarian cost-benefit approaches to

health-care resources distribution or allocation neglect the
ethical issues we have been considering. Instead, they tend to
look at disabilities and diseases and their treatments in a de-
contextualised way and establish ranked lists of health-care
'priorities' (duly quantified and costed) as though there were no
possibility of real conflict between those priorities.

Reaching community
consensus
Granted that the allocation of health-care resources depends
upon ethical assumptions or judgments, how do we as a com-

-142-
munity reach agreement on those assumptions? For example,
how do we attain some kind of consensus on how serious a dis-
ability infertility is and the proportion of resources that should
be apportioned to IVF and other forms of reproductive tech-
nologies? As we have seen, some people see infertility as a grave
disability which prevents them from having children and form-
ing a family. Given the importance accorded to the family in our
society, they ask why the alleviation of infertility should not be
accorded much the same importance. Other people, however,
see the importance given to having children as the result of
socio-cultural factors (pro-natalist attitudes which in turn reflect
views about women's identity as women being bound up with
fertility and reproduction) and women's 'false consciousness'.
For these the allocation of health resources to reproductive
technology has a very low priority.

Or again, how do we reach any kind of consensus about the

priority to be given to and the allocation of resources for inten-
sive care for low-weight newborn infants, or renal transplant
programs, or AIDS programs?

Some have claimed that this is basically a medical matter to be

decided by reference to the medical facts about patients and to
the professional values of physicians (to preserve life, relieve
suffering, maintain health). 50 However, while of course medical
data are relevant to the allocation of health-care resources they
are never determinative, precisely because, as we have seen, an
evaluative-ethical dimension is always involved in resource allo-
cation. As the philosophers remind us, values cannot be derived
directly from facts. Again, the traditional 'Hippocratic' pro-
fessional values of physicians are too general and abstract to be
of any real use in specific allocative decisions.

For example, medical information about the condition of a

renal patient -- his or her prognosis with or without treatment,
histocompatibility, antibody levels, urgency of treatment -- is
necessary for deciding whether a patient is a candidate for a
renal transplant. But a number of patients may satisfy the purely
medical criteria, and in a situation of resource scarcity we need

-143-

to have a way of deciding between their claims. Again, it has

been argued that
determining what counts as a benefit is inherently controversial and
independent of medical facts. One patient may have the greatest
chance of survival of acute illness; another may have the great-
est predicted years of survival; still another may receive the
greatest relief from suffering or morbidity and another may get the
most satisfaction. Medical facts alone cannot tell us which of these
patients will benefit the most from dialysis or transplant. More criti-
cally, even if we knew which patient would benefit the most medi-
cally from the procedure, we cannot automatically conclude that
that patient should receive the medical procedure. Social utilitarians
would insist that we take into account social and other non-medical
consequences of assigning the scarce resource -- a determination
about which physicians surely are not expert.

Others insist that fairness or justice as well as medical or social

utility be taken into account in deciding what is an ethical
allocation of organs:

For example, some might argue that justice requires that each
candidate receive an equal chance of getting a scarce, social, life-
saving resource such as a kidney even if not all have an equal chance
of benefiting. They may insist that those who have waited longest or
those who are sickest get priority, recognising that these patients
may not be the ones who would predictably benefit the most. 51

Supporters of the market claim that if health-care resource

consumers are free to buy resources from entrepreneurial pro-
viders, a consensus about health-care priorities will be estab-
lished quasi-automatically and there will be no need to consult
the community directly. Thus in the new reformed Dutch
health-care system, consumers and representative consumer
organisations are given incentives and information to select cost-
effective health insurers who are free to negotiate contracts with
providers. The assumption is that if there is market competition

-144-

among health insurers and in health-care provision, insurers win

be forced to select cost-effective providers. 52 This depends, how-
ever, on consumers having sufficient expert information to
make informed choices about health-care priorities so that they
will be able to effect a trade-off between quality of care, treat-
ment and price. Because of this, the Dutch government proposes
to support the role of independent consumer organisations to
gather and assess information, especially for less-informed
demographic subgroups, and to require providers to supply
specified data. However, it is not known how or to what extent
these consumers will make use of this information. 53

However, as has been noted before, even if consumers are

able to make rational health-care choices and even if the market
works to produce the most rational (in cost-benefit terms) allo-
cation of health-resources, it does not follow that that mode of
allocation is necessarily the most equitable or just. If we have
already determined the broad goals or ends of the health system
(for example, the provision of basic health care as a condition of
autonomy and the enhancement of equality, justice and patient
choice and control) then the means of achieving those goals
might very well include some element of market demand and
supply. But market forces will not determine the broad goals or
ends themselves.

It is often suggested that the community as a whole should be

consulted to decide about health expenditure priorities. Indeed,
in most discussions of health-care resource allocation this is al-
most a ritual incantation, it being assumed without question that
we all know what 'the community' is and know how to consult it
on its wishes and determine what it really wants.

Two forms of community

consultation
The most celebrated case of such consultation occurred in the
state of Oregon in the US in 1987, when people in the state
were asked to decide whether they wanted basic medical ser-
vices extended to some 3000 disadvantaged people as against

-145-

continuing a major organ transplant program for some thirty

potential patients. Following the decision to help disadvantaged
groups and to discontinue the organ transplant program, the
Oregon Basic Health Services Act was passed in 1989. Under the
Act the Oregon Health Services Commission was set up to deter-
mine priorities in health services and to promote community
involvement in forming a consensus on the 'social values' to be
used to guide allocation decisions. 54 As part of this latter task the
commission (which included both providers and consumers)
used a 'Quality of Well-being Scale' (QWB) which purports to
measure the value that society places on the prevention of death,
modes of functional disability, alleviation of pain, depression,
visual defects and so on. This was supported by a random-
sample telephone survey and by personal surveys. In addition a
ranked list of health services was compiled under seventeen
categories.

Some examples of categories include: acute fatal conditions where

treatment prevents death, with full recovery to previous health state
(e.g. appendicitis); maternity care (e.g. prenatal care, delivery ser-
vices, post-partum care); preventive care for children (e.g. immu-
nisations, well-child care); acute fatal conditions where treatment
prevents death, without full recovery (e.g. stroke); chronic fatal
conditions where treatment extends the life span and to some
extent improves quality of life (e.g. diabetes). 55

These categories were put in an order of priority on the basis

of information from forty-seven public meetings held through-
out Oregon. Within each category specific conditions and/or
treatments were given a cost-benefit priority and the resultant
basic health services plan was submitted to an independent actu-
arial firm which determined the cost of delivering each health-
care item on the list. The state legislature must consider the
commission's order of health-care priorities but it cannot alter
them. Its sole task is to determine how many health services can
be funded, beginning from the top of the list, and then to decide
whether additional funds are necessary to ensure that a basic

-146-

health services system is provided. Late in 1991 the Oregon state

legislature accepted the prioritised list of health services and
allocated funds on the basis of the list. 56 However, it now ap-
pears that the US government is unwilling to allocate federal
funds to the Oregon system.

The Oregon scheme has been seen as a model for basing

health-care allocation decisions on community 'grass roots' con-
sultation, and a number of other US states -- for example,
Vermont, New Jersey and California -- appear to be following
suit. 57 Community health decisions organisations have emerged
in those states and a national American Health Decisions organ-
isation has been founded to co-ordinate the activities of state
bodies and to facilitate the creation of new groups.

At the same time there has been some critical reaction to the
Oregon scheme, questioning its bias in favour of the health
needs of white, middle-class, college-educated members of the
community who are able to use 'community consultation' for
their own purposes. Again, it has been emphasised that public
consultation on health-care resource matters needs to be a con-
tinuing process if it is to be effective and that this is an expensive
business. Further, it has been pointed out that the health values
on which there was consensus among Oregonians are extremely
general. Thus, in answer to the question, 'Do Oregonians share a
living tradition of values about health care that can help define
some package of health services as constituting a common
good?', the values given priority were prevention, quality of life,
cost-effectiveness, ability to function and equity. 58

The elaborate Oregon system of community consultation in

health-care resource allocation has some affinities with the (Qual-
ity Adjusted Life Year (QALY) approach, where health conditions
and treatments are given a numerical weighting on the basis of
objective data and interviews with a representative group of
people who estimate the worth or quality of life likely to be
brought about by a given treatment. The cost of the treatment is
then estimated and the treatment is given a cost-QALY rating.
For example, it has been estimated that in the UK it costs $8000

-147-

to obtain one QALY through a heart transplant and $1200 for one
QALY by hip replacement.

Some have proposed the QALY approach as a sufficient means

of resource allocation by itself. Thus, for example, an English
health economist has argued that if a medical district had one
million pounds growth funding 'its managers would recognise
that it could produce 5988 QALYS from advice by general prac-
titioners to stop smoking, 1333 QALYS from hip replacements,
and seventy-one QALYS from hospital dialysis. Clearly a health
authority wishing to maximise QALYS would invest its one million
pounds in advice by general practitioners to stop smoking'. 59
Critics of the QALY approach have dwelt upon its lack of prac-
ticability at the individual patient level, its suspect methodology
and its utilitarian philosophical foundations. Thus with regard to
selecting cancer patients for treatment priority it has been
said:

Selection involves critical analysis both of use of resources and qual-

ity of outcome for the patient. Measuring use of resources is rela-
tively easy, but who measures the quality of the outcome -- the
clinician or the patient? For example, a treatment which causes
partial reduction in the size of a tumour may represent clinical suc-
cess for the physician but the patient may feel no better for it. On the
other hand, patients often declare themselves pleased with a treat-
ment they have received, yet show little evidence of benefit in
clinical terms. Quality of outcome is hard to measure. It is therefore
difficult to design guidelines which will ensure that scarce or expen-
sive resources are given only to those cancer patients in whom need
and likely benefit are greatest.

This observer concludes that while the QALY approach 'may be

useful for health planners in choosing between two types of
medical procedure, it seems much less appropriate in deciding
which patient to treat first when scarce resources are being
allocated'. 60

Other critics have attacked the methods by which weightings

are given to certain health conditions and treatments. Thus, it

-148-

has been claimed that the so-called 'objectivity' of the QALY

approach is in fact based upon 'subjective' community views and
attitudes determined by highly fallible interview techniques. 61
What a QALY signifies is that, in a structured and usually de-
contextualised interview situation, the majority of people (most
of whom have no direct experience of the disabilities they are
interviewed about) in a particular community at a particular
time estimate the relative seriousness of certain disabilities and
the effectiveness of certain treatments, in terms of the number
of years of 'quality life' they obtain for the patient, as having
such and such a numerical equivalent. 62 No doubt it is helpful in
any allocative process to know what the majority of people on
average think are valuable health states and treatments at any
one time (in so far as this can be ascertained by consumer choice
techniques). But of course we cannot determine ethical values
by majority voting in this way. Referring to utilitarian schemes
of allocation, Richardson notes that:

there is . . . no consensus on the process by which issues of equity

and distribution should be resolved. There is an implication in the
literature that such issues should be determined by seeking the
opinions of a representative cross-section of the community.
Majority voting is not, however, universally accepted as a basis for
ethical decision-making in all contexts. 63

In parenthesis, the difficulties of community consultation for

decision-making apropos of health-care resources allocation are
shown very clearly in the US National Public Opinion Survey poll
commissioned by the Harvard Community Health Care Foun-
dation in 1988. In this survey 1250 people representing a cross-
section of the American public were polled, together with 200
physicians, 200 employers, one hundred nurses, one hundred
political leaders at the federal and state levels, and fifty labour
leaders. Very large differences emerged among the various
groups about the criteria to be used and priorities in the
allocative process. In particular there was a notable lack of

-149-

consensus between public views of health needs and the views of

health professionals (doctors and nurses). It is fair to assume
that if a larger range of views had been canvassed -- the old as
against the young and middle aged, women as against men,
blacks as against whites, other ethnic groups as against whites and
blacks -- even larger discrepancies would have emerged. 64

Further evidence of variability in people's judgments about

the value or weight to be given to health conditions and treat-
ments is to be found in surveys about preferences related to the
age of the patient. Thus a recent survey asked randomly selected
members of the public in the UK how they would choose
between patients of different ages with the same life-threatening
illness. Most respondents chose younger children in preference
to older patients, but then found it difficult to discriminate
between two-year-old and eight-year-old children and thirty-five-
year-old adults and sixty-year-olds. 65
Because of these difficulties, a number of health economists
and planners have adopted a much more modest and cautious
attitude to the QALY and other utilitarian approaches to health-
care resource allocation. While insisting that these approaches
have some value in that they enable us to limit the breadth of
disagreement and also the scope of arbitrary decision making,
they also admit that the QALY approach is not sufficient to deter-
mine such health resource allocation decisions. 66 From a liberal
point of view, a more serious flaw in all of these utilitarian
schemes is that they they tend to be dirigiste in style and to be
quite uninterested in patient choice and control of health-care
resources. Their supporters often claim that they represent a
democratic way of allocating health-care resources in that the
preferences of the community are consulted and the list of
health-care priorities established on the basis of those prefer-
ences. But the preferences of 'the community' are in fact the
preferences of the majority (and usually of the most socially
powerful, educated and articulate groups), so minority and
'voiceless' groups such as infertile couples, indigenous peoples,
and lower-class women, tend to miss out and be marginalised.

-150-

Further, once the list of allocation priorities is established, albeit

through 'community consultation', the individual patient's
choice and capacity for control is severely restricted. A television
company which engages in consumer surveys of viewers' pref-
erences and then establishes its program offerings by averaging
out those preferences is not being 'democratic' for the simple
reason that the viewers have no effective control. The same is
true of health-care resource allocation schemes of the Oregon
kind.

These various difficulties are, however, secondary to the

crucial philosophical objections that can be made against the
utilitarian underpinnings of the QALY type approach. In particu-
lar, as we have noted, it has been argued that utilitarianism can
provide no rationale for distributing benefits and costs in an
equitable way since it merely examines net aggregate benefits,
so that if a large enough number of people receive the benefits,
even large harms to a small number will be outweighed by the
aggregate benefit to the former. 67 As Amartya Sen has said, the
utilitarian is unconcerned with inequalities of utility distri-
bution: 'even the minutest gain in the total utility sum would be
taken to outweigh distribution inequalities of the most blatant
kind'. 68 Again, as we have seen, utilitarianism cannot really give
an adequate account of the value of personal autonomy and of
its associated values: equality, justice, toleration of ethical diver-
sity. The QALY approach and similar approaches stand or fall on
the philosophical validity of utilitarianism as an ethical theory,
and if that theory is, as can be shown, philosophically in-
coherent, those approaches are without any kind of visible
support.

We have so far been considering community consultation as a

formal and structured process for establishing health-care pri-
orities. However, 'the community' can be understood in a much
more diffuse and unstructured way to include all the groups,
subgroups, organisations and loose coalitions with some kind of
interest in health care. Similarly 'community consultation' can
be understood in a much more informal way to mean the very

-151-

complex interchange and negotiation between those groups,

which result eventually in some kind of tentative consensus on
health-care priorities. In this informal debate and negotiation,
factors of very different kinds play a part: religious and philo-
sophical ideas (for example about the value of human life in its
various phases), developments in medical science and tech-
nology (for example IVF and the other forms of reproductive and
genetic technologies), legal considerations (for example about
patient autonomy and the rights of the patient vis-à-vis the phys-
ician), changes in professional status (for example the decline
of medical paternalism), social developments (for example
women's demand for control of their bodies), political and
bureaucratic changes (for example the now fashionable demand
for 'rational' cost-effective approaches to public utilities in the
health, welfare and education area). To some extent we have
seen the interplay of such factors in our consideration of the
treatment of infertility by the new reproductive technologies,
intensive care for low birthweight newborn infants, renal trans-
plant programs and HIV/AIDS programs. It is also instructive to
look at the slow and complex development of new ethical and
legal attitudes in the community to 'quality of life' consider-
ations and the limitation of medical treatment. 69
Not all the ethical, legal and social developments that emerge
from such a process are ipso facto good or desirable (an informal
community consultation can be, objectively speaking, just as
wrong about ethical values as a formal community consultation)
but in an open and pluralistic society there is, perhaps, a greater
chance that such developments will be subjected to a more strin-
gent kind of critical purification than is likely in more formally
structured and directed approaches like the Oregon scheme.

Many people speak as though we all know what 'the com-

munity' is and how to discover what it wants in the realm of
health care, very much as Jean-Jacques Rousseau thought we
could discover what the 'General Will' was -- that is, what the
community 'really' wanted. Politicians, for example, are very
prone to tell us what 'the community' wants and what it will and

-152-

will not stand. However, in a liberal society the degree of public

agreement or consensus on the ethical issues we have been con-
sidering is limited by the very values which are at the heart of
such a society. The liberal society is characterised by uncon-
ditional respect, as Kant would say, for personal autonomy, and
that carries with it a respect for ethical pluralism and a resistance
to the state and the law intervening in the realm of personal
morality or ethics. That does not imply that the various groups
within society should not have their own forms of agreement or
consensus about bioethical matters, nor that they should not try
to persuade others in the general community. What it does
mean is that they cannot expect the state to impose any one of
those subgroup consensuses upon the general community.

The limits to planning

Throughout this chapter we have emphasised that the ethical
values that are presupposed in any resource allocation scheme
set limits to any kind of cost-benefit, utilitarian approach. And
the difficulties of reaching consensus on these values impose
further limits on so-called 'rational' planning in this domain.
Again, even if there is an agreement on basic health values, the
possibility of conflict between values is always present. Such
conflicts can be irreducible or 'tragic' in the sense that they
cannot be resolved by appealing to a higher value. They can,
however, often be negotiated, though there are no formal rules
or principles for negotiating decisions about resource allocation.
From this point of view, the only kind of planning that is avail-
able to us is similar to what the political philosopher Karl Popper
calls 'piecemeal social engineering'. 70

Popper distinguishes between social utopianism and the more

modest and tentative approach of piecemeal social engineering.
The utopian is one who has a clearcut blueprint or rational plan
for society and everything is governed by this plan. The attrac-
tions of social utopianism are that, apparently, we all know
where we stand and we have the (illusory) assurance that we

-153-

won't be faced by any moral dilemmas or conflicts. Its disad-

vantages are, as we know all too well, that it often leads to
high-minded tyranny by social planners and bureaucrats, and
the suppression of the unpredictable diversity of human life. But
if we reject utopianism and other forms of 'rational' planning of
this kind we are not then faced with anarchy. We can, Popper
says, control and improve the social process by concentrating on
short-term, flexible and revisable goals. In the sphere of health-
care resource allocation we can do a great deal in this way to
make the apportionment of scarce resources more just and
equitable by looking at, for example, questions of access to
various forms of health care, by working out ways (as the con-
sumer movement has done) for individual patients and com-
munities to have greater control over health care, by devising
strategies to resist the 'technological imperative' in health
care, by being prepared to think small rather than always
thinking big.

Above all, in a liberal democratic society we must keep the

community debate over health issues open and tolerant so that
the various parties to that debate can all contribute to the com-
plex and often lengthy process by which some kind of a liberal
consensus on how to approach the basic ethical issues can be
achieved. (Intelligent, well-informed and balanced media com-
mentators -- extremely rare specimens to date -- are essential
for this public discussion.) In a liberal democratic society that is
the only process -- clumsy and fallible as it may often be -- that
we have at our disposal to reach such a consensus.
NOTES
1. "'Preamble to the constitution of the World Health Organisation'",
in World Health Organisation: Basic Documents, 26th edn, Geneva,
WHO, 1976, p. 1.

2. M. Hayry and H. Hayry, "'Health care as a right: fairness and medi-

cal resources'", Bioethics, 4 1990, p.21.

3. J. Richardson, "'Economic assessment of health care: theory and"

-154-

practice', Working Paper No. 5, National Centre for Health Program

Evaluation, Canberra, 1990.

4. G. Mooney and U. J. Jensen, "'Changing Values and Changing

Policy'", in U. J. Jensen and G. Mooney (eds.), Changing Values in
Medical and Health Care Decision Making, Chichester, John Wiley,
1990, p. 187.

5. See, for example, J. Rawls, A Theory of Justice, Cambridge, Mass.,

Harvard University Press, 1971; Bernard Williams, Ethics and the
Limits of Philosophy, Cambridge, Mass., Harvard University Press,
1985. For criticisms of utilitarianism by philosophers of law, see
Joseph Raz, The Authority of Law, Oxford, Clarendon Press, 1986,
and The Morality of Freedom, Oxford, Clarendon Press, 1987;
Ronald Dworkin
, Law's Empire, Cambridge Mass., Harvard University
Press, 1986.

6. Joseph Raz, The Morality of Freedom, op. cit., pp.417-18.

7. J. Rawls, A Theory of Justice, pp. 30-1.

8. ibid., p.179.

9. John Stuart Mill, On Liberty, R. B. McCallum (ed.), Oxford, Black-

well, 1946, p.9.

10. R. M. Veatch, A Theory of Medical Ethics, Basic Books, New York,

1981.

11. H. Mahler, "'Health: A Demystification of Medical Technology'",

Lancet, 1975, pp.829-37.
12. Janice Reid and Peggy Trompf (eds.), The Health of Aboriginal Aus-
tralia, Sydney, Harcourt Brace Jovanovich, 1991. On these issues I
am indebted to the paper by Neville Hicks, "'An Approach to Ethi-
cal Issues in Public Health'", Proceedings of Australian Bioethics
Associ-
ation Conference, Melbourne, 1991. See also P. H.N. Wood and E.
M. Badely
, "'The Origin of Ill-health: An Appraisal of the Strategy for
Health for All and its Implications'", in A. Smith (ed.), Recent
Advances in Community Medicine, Edinburgh, Churchill Livingstone,
1984, pp.11-37.

13. N. Hicks, ibid., p.83.

14. ibid., pp.84, 85.

15. Stephen Leeder and Jason Grossman, "'Is there more to health
than
money?'", unpublished paper, 1992.

16. S. Tesh, Hidden arguments: political ideology and disease

prevention policy,
New Jersey, Rutgers University Press, 1988, p.34.

17. Daniel Callahan, "'Beyond individualism'", Second Opinion: Health,

Faith and Ethics, 9 1988, p.60.

18. E. Pellegrino, Humanism and the Physician, Knoxville, University of

Tennessee Press, 1979.

-155-

19. See the report by the National Bioethics Consultative Committee,

Access to Reproductive Technology, Adelaide, 1991.

20. On the relative success of IVF/GIFT -- an area which is a 'bioethical

minefield of inconsistency and malapplied statistics' -- see David
Molloy
and John Hennessy, "'The regulation of clinical repro-
ductive medicine'", in H. Caton (ed.), Trends in Biomedical
Regulation,
Sydney, Butterworths, 1990, pp. 191-207.

21. Cited in Making Health Care Decisions, Harvard Community Health

Plan, Cambridge, Mass., 1988 Annual Report, p.16.
22. The following details are taken from D. I. Tudehope, W. Lee,
F. Harris, and C. Addison, "'Cost-analysis of neonatal intensive and
special care'", Australian Paediatrics Journal, 2 5, 1989, pp.61-5.

23. ibid., p.64.

24. ibid., see also L. J. Murton, L. W. Doyle, W. H. Kitchen, "'Care of

very
low birthweight infants with limited neonatal intensive care re-
sources'", Medical Journal of Australia, 146, 1987, pp.78-81.

25. ibid.

26. ibid.

27. Though see Murtonet al. "'Care of very low birthweight infants with
limited neonatal intensive care resources'", op. cit.

28. For further discussion of the ethical and legal issues involved in
the treatment of disabled newborns, see the contributions by
Mr Justice Michael Kirby and Julie Hamblin in Proceedings of
the National Consensus Conference on Neonatal Intensive Care,
Sydney,
Department of Health, New South Wales, 1989. See also the con-
tributions by Julie Hamblin and Max Charlesworth in Proceedings of
the Birth Defects Conference, International Clearinghouse for Birth
Defects Monitoring Systems and Australian Teratology Society,
Sydney, 1991, and the paper by Loane Skene The Baby M Inquest:
Treating Children with Severe Spina Bifida, Melbourne, Law Reform
Commission of Victoria, 1991. See also Helga Kuhse, "'Quality of
life and the death of Baby M", Bioethics, 6, 1992, pp.233-50. The
special problems arising from the donation of organs from new-
borns, when there are difficulties (as in anencephaly) in determin-
ing whether they are 'brain dead', are discussed in a symposium
sponsored by the Law Reform Commission of Victoria, the Royal
Children's Hospital, Melbourne, and the Australian Association
of Paediatrics Centre in March, 1991. See Anencephalics, Infants'
and Brain Death: Treatment Options and the Issue of Organ
Donation,
Melbourne, Proceedings of Consensus Development Conference,
1992.

-156-

29. The following discussion relies to a large extent on the paper by

 Robyn Layton, "'Allocation of kidneys -- community and ethical
issues'", Ayers Rock Dialysis and Transplant Workshop, 1991. See
also R. R.H. Lovell "'Ethics, law and resources at the growing edge
of
medicine'", Australian and New Zealand Journal of Medicine, 20,
1990,
pp.843-9, on the history of renal treatment in Australia.

30. See, for example, the work of the Centre de Bioéthique at the
University of Louvain-la-neuve in Belgium.

31. From Alma-Ata to the Year 2000, Geneva, WHO, 1988.

32. M. and H. Hayry, "'Health care as a right'", op. cit., p. 14; see also
Hans Kung, Global Responsibility, London, SCM Press, 1991.

33. Layton, "'Allocation of kidneys'", op. cit., p.6.

34. Cited in Layton, p.3.

35. Layton, p. 7. See also Michael Kirby on the Sage dialysis case in
the
UK, Bioethical Decisions and Opportunity Costs, George Judah
Cohen
Memorial Lecture, University of Sydney, 1985.

36. See E. Keyserlingk, "'The moral choice: allocation of scarce re-

sources'", Journal of the Canadian Medical Association, 121, 1979,
pp.1388-1406.

37. Layton, "'Allocation of kidneys'", op. cit., p.8.

38. ibid., pp. 10-11.

39. On the 'political' character of the debate in the US see Ronald

Bayer
, Private Acts, Social Consequences, New York, The Free Press,
Macmillan, 1989.

40. See M. Gunderson et al., AIDS: Testing and Privacy, Salt Lake City,
University of Utah Press, 1989.

41. Annual Report of NSW Privacy Committee, Sydney, 1990.

42. David I. Grave and John B. Mulligan, "Consent, compulsion and

confidentiality in relation to testing for HIV infection: the views of
W.A. doctors'", The Medical Journal of Australia, 152, 1990, pp.
174-8.
43. For a perceptive overview, see Margaret J. Lane, "'Privacy Protec-
tion and Medical Research -- Ethical and Legal Issues in Public
Health'", Bioethics News, Monash Centre for Human Bioethics, 11,
1991, pp.3-12.

44. Patricia Illingworth, "'Bayer Revisited'", Bioethics, 6, 1992, p.31.

45. In Christine Overall and William Zion (eds.), Perspectives on AIDS:

Ethical and Social Issues, Toronto, Oxford University Press, 1991.

46. Patricia Illingworth, AIDS and the Good Society, London,

Routledge,
Chapman and Hall, 1991.

47. Ronald Bayer, "'AIDS and liberalism'", Bioethics, 6, 1992, pp. 23-7.
See
also the same author's Private Acts, Social Consequences: AIDS
and the
Politics of Public Health, op. cit.

-157-

48. J. Hyde, "'Why Professor Hollows is Wrong About AIDS'", The Age,
27 March, 1992.

49. See Susan Sontag, Illness as a Metaphor, New York, 1978. Sontag
discusses the ways in which cancer and tuberculosis have reflected
cultural views of these diseases and those affected by them.

50. See, for example, E. D. Pellegrino and D. C. Thomasma, For the

patient's good: the restoration of beneficence in health care, New
York,
Oxford University Press, 1988.

51. R. M. Veatch, "'Who empowers medical doctors to make allocative

decisions for dialysis and organ transplantation?'", in W. Land and
J. B. Dossetor eds., Organ Replacement Therapy: Ethics, Justice,
Com-
merce, Berlin, Springer-Verlag, 1991, p.33.

52. Frederik T. Schut, "'Health care reform in the Netherlands: A prom-

ising perspective for Australia?'", National Health Summit, Sydney,
November 1991. See also Choices in Health Care: A Report by the
Gov-
ernment Committee on Choices in Health Care, The Hague, 1992.
53. ibid., p. 19. See also M. Charny et al., "'Britain's new market model
of
general practice: do consumers know enough to make it work?'",
Health Policy, 14, 1990, pp.243-52, and W. Van der Ven, 'Peres-
trojka in the Dutch health care system, European Economic
Review,
35, 1991, pp.430-40.

54. See John Kitzhaber, "'The Oregon experience'", in The Ethics of

Allo-
cating Health Resources, Sydney, NSW Department of Health,
1991,
pp.45-55.

55. ibid., p.52.

56. See Paige K. Siper-Metzler, "'Oregon Update'", Hastings Center

Report,
Sept./Oct. 1991.

57. See Bruce Jennings, "'Bioethics at the grassroots'", Hastings Center

Report, June/July 1988, and "'Grassroots bioethics revisited: health
care priorities and community values'", Hastings Center Report,
Sept./Oct. 1991.

58. A special supplement of the Hastings Center Report, May/June

1991,
discusses the Oregon scheme. See Charles J. Dougherty, "'Setting
Health Priorities: Oregon's Next Step'", and David C. Hadorn, "'The
Oregon Priority-Setting Exercise: Quality of Life and Public Policy'".

59. A. Maynard, "'Logic in medicine: an economic perspective'", British

Medical Journal, 295, 1987, pp. 1537-41. For criticism of Maynard
see John Rawles, "'Castigating QALY's'", Journal of Medical Ethics,
15,
1989, 143-7; "'The QALY Argument'", Journal of Medical Ethics 16,
1990, pp.93-4.

60. Basil A. Stoll, "'Choosing between cancer patients'", Journal of

Medi-
cal Ethics, 16, 1990, p. 73.

-158-

61. See Hiram Caton, "The Quality Adjusted Life Year: a social tech-
nology'", Bioethics Research Notes, 3, 1991, p.32.
62. On the practical difficulties of measurement and interview tech-
niques in the QALY and other similar approaches see J. Richardson,
"'Economic assessment of health care: theory and practice'", The
Australian Economic Review, 1st quarter, 1991, table 2 and table
3.

63. 'Cost utility analysis; what should be measured -- utility, value or

healthy year equivalents?' Working Paper no. 5, Melbourne, Mon-
ash University National Centre for Health Program Evaluation,
1990, p.35.

64. Louis Harris and Associates, National Opinion Survey, Making

Difficult Health Care Decisions, 1988. For a critical overview of the
process of community consultation see Consultation: An Appraisal
of
Community Perspectives, Australian Health Ethics Committee,
Canberra, 1991.

65. P. A. Lewis and M. Charny, "'Which of two individuals do you treat

when only their ages are different and you can't treat both?'", Jour-
nal of Medical Ethics, 15, 1989, pp.28-32.

66. J. Richardson, "'Economic assessment of health care'", p. 18, and

R. J. Verkes
and P. J. Thung, "'Medical Decision Analysis'", in Jensen and
Mooney (eds.), Changing Values in Medical and Health Care
Decision
Making, p.85.

67. R. M. Veatch, A Theory of Medical Ethics, New York, Basic Books,

1981.

68. Amartya Sen, "'Equality of what?'" in Liberty, Equality and the Law,
Selected Tanner Lectures on Moral Philosophy, Cambridge,
Cambridge University Press, 1987.

69. See, for example, Max Charlesworth, "'What kinds of life are not
worth living?'", Teratology Conference, Sydney, 1991.

70. The Open Society and Its Enemies, 1945, Princeton University
Press,
1966, 5th revised edn.

-159-
6
Consensus in a
Liberal Society
The liberal ideal and bioethical
realities
At the end of The Republic Plato confesses that the state he has
constructed is an ideal, a thought-experiment, and that it would
be difficult, even impossible given human self-interest, to realise
in practice. Nevertheless as a utopian political regime it has a
purpose, Plato suggests, in that it enables us to measure actual
political structures and processes against it. Plato's aim, of
course, was to show that both tyranny at one extreme and
popular or mob democracy at the other could never be just
regimes, and that we need the paternalism of an elite group of
'philosopher rulers' to bring about a just society.

To some extent the ideal of the liberal society elaborated here,

and its implications for bioethics, plays the same role as Plato's
imaginary polis in that it enables us to assess the actual state of
current bioethical discussion and practice in our society. In
many liberal democratic societies the liberal values we have been
discussing often exist in a compromised form and there are
flagrant inconsistencies in the way those values are applied in
bioethical practice. As a result, the respect for personal
autonomy, the animating value of the liberal society, is often
mixed with various forms of paternalism, both medical and

-160-

bureaucratic; the state and the law often invade the realm of
personal morality and act as moral policemen; the toleration of
ethical pluralism is minimised in the name of social unity and
cohesion.

In the various bioethical issues we have discussed we have

seen these compromises and inconsistencies in operation. Thus,
while there have been significant gains in our realisation of the
right of people to control the manner of their dying, just as they
have a right to control the course of their lives, there is still
resistance to admitting that people have, in certain circum-
stances, a right to bring about their own deaths. Again, while
there has been widespread acceptance of new ways of pro-
creation and, to some extent, of a right to 'procreative liberty',
there is still much hesitation about certain forms of reproductive
technology and such alternative means of family formation as
surrogacy arrangements. Finally, in the area of health-care re-
source allocation or distribution, while there is a concern for
justice and the promotion of the values associated with auton-
omy, the utilitarian cost-benefit approach adopted at present by
many health economists and policy makers and bureaucrats --
an approach that lends itself to bureaucratic paternalism and
dirigisme -- goes directly counter to these values. There are then
still hesitations, backward steps and inconsistencies in the
recognition and acceptance of liberal values in the sphere of
bioethics, and there remain relics of the older view of things,
when the state saw its function as enforcing a basic public
morality, whether declared by Rousseau's General Will or by
Lord Justice Devlin's 'man on the Clapham omnibus'.

One could mention many other medical ethical and bioethical

issues where the gap yawns between the liberal ideal and current
ethical discussion and practice. We claim that we are living in a
liberal society and yet very often we adopt quite illiberal
attitudes in many areas of health ethics, medical ethics and
bioethics.

We cannot neglect the political aspect of all this. Many bio-

ethical issues, in particular those arising from the new forms of

-161-

assisted procreation and those to do with death and dying, are

politically sensitive in the sense that lobby groups, including the
Churches, bring pressure to bear on their political representa-
tives apropos of these issues. As a result there is a good deal of
political wheeling and dealing about them. It often takes con-
siderable courage for a politician to stand up for liberal values in
this area: as it has been put, there are no votes in promoting
'dying with dignity' laws or legislation permitting surrogacy
arrangements. (What one might call the politics of bioethics is a
subject that would repay study.) The role of the media, often
exaggerating the sensational aspects of bioethical issues, also
does not help the cause of calm and dispassionate community
reflection on these questions.

Ethical agreement in a
multicultural society
One of the issues briefly discussed in a previous chapter was the
idea of a public morality or a community consensus which would
be the basis for our judgments in medical ethics in general and
bioethics in particular. Many people have claimed that unless we
have such a basis of 'core values' bioethical discussion will be
futile. This is, no doubt, the hope that many people have of the
'expert' bioethics committees that have proliferated in many
countries, as though select groups of quasi-Platonic sages will
be able to agree upon and formulate a common bioethical
code. Unfortunately, without detracting from the value of such
committees, this is a vain hope -- they too reflect the ethical
pluralism that exists in the community at large. They can, of
course, have a valuable educative role in promoting public dis-
cussion on bioethical questions, but they cannot realistically be
expected to formulate a corpus of ethical principles that would
constitute a public or common morality and which would guide
the discussion of controversial bioethical issues. 1

In our discussion of this question it was argued that in a liberal

society the only common morality or ethical consensus there
could be would be one founded on the primary liberal values --

-162-

moral autonomy, autonomy-based equality and justice, and

annexed values. In such a society there cannot be any consensus
on second-order or 'partisan' or confessional values, for example
that heterosexual and monogamous marriage is (as Christians
would want to hold) the ethically preferred way of family
formation, or that deliberately ending one's life is (as orthodox
Jews would want to maintain) against God's will; or that organ
transplants violate the integrity of the body and spirit (as
Buddhists believe); or, more controversially, that abortion is
equivalent to murder of the innocent (as many Christians
hold).
These, and many others, are moral positions which various
groups in society may legitimately espouse and propagate, but
about which we have as a community to agree to disagree. How-
ever, once again it is difficult in the hurly-burly of community
life, with various sectional or partisan interests being pressed, to
maintain this meta-partisan or meta-confessional stance. The
difficulty is compounded in a multicultural society where the
ethical views of various minority groups are often derived from
religious foundations radically different from, and sometimes in
conflict with, the quasi-Christian ethics (attenuated and secular-
ised as they may be) of our society.

In France President Mitterrand set up in 1984 a National Con-

sultative Committee on Ethics in the Life and Health Sciences to
overview biotechnological and bioethical issues. On that com-
mittee, apart from medical and legal and governmental repre-
sentatives, there are also representatives from what the charter
of the committee calls 'the four main philosophical families of
France' -- Catholicism, Islam (now the second largest religious
grouping in France), Protestantism and Marxism. These various
groups not only have different ethical views about the issues we
have been considering so far; they also have differing views
about the foundations of ethics and the nature of the ethical
enterprise, as well as about the relationship that ought to obtain
between the sphere of ethics or morality on the one hand and
that of the law on the other. Many Muslims, for example, believe

-163-

that if a practice is contrary to Islamic religious law then the state

has the right, through the civil law, to prohibit that practice. In
fact, in many traditional, religiously based societies the strict
distinction that is made in liberal societies between the sphere of
morality and that of the law simply does not obtain.

The Salman Rushdie affair is, of course, a dramatic example of

the severe and apparently intractable religio-ethical problems
that can arise in a multicultural society. Leaving aside the
attitudes of those Muslims outside the United Kingdom, many
British Muslims also see Rushdie's book as blasphemously and
sacrilegiously offensive to their Islamic religious beliefs and at
the same time demand that the British law directly intervene in a
sphere which, in the majority British culture, is not the state's or
the law's concern. Some British Muslims have indeed demanded,
in effect, that the British legal system adopt the same view of
sacrilege (at least with respect to Islam) as the Islamic Sharia or
religious law does itself. Here the conflict is not just about dif-
fering ethical views, but about the whole nature of ethics and its
social implications.

Such cases raise questions about religiously based minority

groups, with religiously based ethical and social ideas, within a
multicultural society such as Australia. The more general ques-
tion also arises as to whether the whole idea of multiculturalism
is itself an essentially secular one. Thus it might be argued that
religious pluralism and tolerance are possible only in a society
based upon the secularist premise that the sphere of religion and
the sphere of the state are distinct and separate, and further that
no religion can make absolutist and exclusivist claims to be the
only 'true' or divinely ordained religion. Historically, it might be
said, the separation of religion and the state only became poss-
ible in Europe with Christianity's loss of power and the collapse
of the European religiously confessional societies after the
French Revolution. In this view, religious pluralism and multi-
culturalism presuppose that religious groups give up any
absolutist and exclusivist claims and are prepared not merely to
tolerate passively other religious and non-religious groups, but

-164-

to positively respect and welcome them in a genuinely multi-

cultural situation. Put in another way, it might be argued that
there is a contradiction between multiculturalism (based on
liberal values) and absolutist and exclusivist religions.

It is true that the liberal society is based upon a polycentric

view of culture -- a society composed of a number of quite dis-
tinct subcultures, each with its own distinctive set of values. For
Mill, indeed, the liberal society is of its very essence pluricultural
in this sense. It not only tolerates a wide diversity of experiments
in living: it positively welcomes and encourages such diversity as
a condition of social and cultural vitality. In fact, the liberal ideal
provides the only real basis for a genuinely multicultural society
and it is not surprising that most of the attacks on multicultu-
ralism have come from those who are critical of the liberal ideal
and who sigh for some kind of 'confessional' and authoritarian
society based upon a unitary socio-moral consensus.
If we understand multiculturalism in this way there are a
number of implications for religiously based subcultural groups
within a liberal society. First, such groups must recognise in
some way the value of what we have called cultural polycen-
trism, as against the monocultural view that a society must have
a unitary set of ethical values and framework of meaning, and a
unitary cultural consensus. Put in a negative way, if any of the
constituent subcultures were to say in effect: we can only live in
social relationships with other groups if the values of our
particular subculture are adopted as the basis of a unitary
cultural consensus -- then, by definition, a multicultural society
is not possible.

As noted before, this raises difficulties for certain religiously

based subcultures, that is subcultures where the social consensus
is based upon a religious consensus and where citizenship and
religious membership are seen as identical. In a liberal society
what these religious subcultures have to accept is that they
cannot carry over their theocratic or confessional views about
the relationship between religion and society into the wider
society.

-165-

Traditional Australian Aboriginal groups find no difficulty in

admitting that other non-Aboriginal groups may have their own
'Dreamings' and their own religious Law. Again, some forms of
traditional Hinduism admit, on theological grounds, the possi-
bility of different religious 'ways' and of different religio-cultural
forms. Certain historical manifestations of Judaism, Christianity
and Islam, however, have insisted that their religio-ethical-
social values are universal, absolute and exclusive, and that the
best that other groups, with competing worldviews and values,
can expect is passive toleration. Contemporary forms of Chris-
tianity, on the other hand, willingly and positively recognise a
degree of relativity both with respect to the various bodies or
'churches' within Christianity and also with respect to the other
world-religions. In this view the concept of 'the Church' has
undergone a radical transformation from a monocultural or uni-
tary one to what might be called a 'multicultural' or polycentric
one. In one sense, indeed, the ecumenical movement within
Christianity, and between Christianity and other religions, is a
form of ecclesial multiculturalism motivated not just by what is
seen to be the unfortunate and regrettable fact of religious
division, but also by an awareness that there may be some posi-
tive kind of divine meaning in the fact of religious diversity both
within and without Christianity.

Multiculturalism also requires that the constituent subgroups

recognise some form of the liberal ideal and subscribe to the
liberal act of faith that it is possible to have a society without
consensus upon a substantive set of moral, religious and social
values, save for consensus upon the values of personal
autonomy and liberty, with all that they connote. This latter
'consensus' excludes any attempt to impose a particular con-
sensus based upon a partisan or sectional set of moral and social
values. In the West the Christian Churches have gradually, if
reluctantly, come to terms with the liberal society, although
there are spasmodic attempts by some Christian groups to im-
pose their set of religio-ethical values as the social consensus for
all, particularly in the area of reproductive and family issues.

-166-

(The Vatican Instruction on Respect for Human Life, 1987, on repro-

ductive technology, for example, called on the civil authorities to
prohibit in vitro fertilisation.) Ultra-orthodox forms of Judaism
and Islam, however, totally reject the separation between re-
ligion and the state and the idea that the state, and the law, can
be religiously agnostic. For them the liberal ideal and the mul-
ticultural society can, at best, only be tolerated faute de mieux and
no kind of consensus is possible with those who are in effect
'moral strangers'. 2 Since, as we have seen, many bioethical issues
touch upon religio-cultural sensitivities, it is important to work
out the relationship of the various subcultural groups in a mul-
ticultural society to the values of the liberal society. In essence,
as has been said, the various groups may quite legitimately es-
pouse and propagate their own specific religio-moral positions,
but at the same time they cannot demand that they be imposed
upon the whole community. They must agree to disagree.

Conclusion
From one point of view, the liberal society can appear too ab-
stract and 'thin' an ideal to evoke deep and passionate commit-
ment of the kind that partisan or confessional or sectional
positions inspire. It is difficult to get excited, so to speak, about
Dworkin's characterisation of the liberal society as one 'whose
constitutive morality provides that human beings must be
treated as equals by their government'. 3 This is, at first blush, not
the kind of ideal that one might be prepared to die for.

The liberal ideal can appear like this because autonomy and
its associated values are often seen in negative or weak liber-
tarian terms, as though they simply meant that one could do as
one chooses, and as though they were wedded to some kind of
atomic and self-interested individualism. But when we see auton-
omy and its attendant values in a more positive light -- one
thinks here of Kant, Newman and Mill -- the liberal society
appears as a richer and more compelling ideal. For Kant the
autonomous moral agent or human person is deserving of

-167-

unconditional respect and there is no more valuable thing in the

world than a human person exercising the freedom to choose
and follow out her or his own destiny. For Newman the human
person 'has a depth within him unfathomable, an infinite abyss
of existence'. For Mill the individual is sovereign 'over himself,
over his own body and mind'. A society of autonomous, self-
determining, moral agents or persons is subject to many risks
and dangers, as well as being open to the possibility of degen-
erating into a narrow and sterile individualism preoccupied
with 'rights'. But the liberal act of faith is that such a society
is infinitely preferable to a society of moral 'infants' who live
under 'authorities', always do what is 'objectively' right and live
out their allotted roles in 'traditional' structures, but never
really choose their lives for themselves. As Isaiah Berlin has
said: the liberal ideal may be possible only in special and rare
socio-cultural circumstances and it may be difficult to maintain.
But it is, nevertheless, an ideal which represents a major and
precious development in humankind's moral consciousness
and we should not be deterred by the currently fashionable
relativistic views about Western values from acknowledging and
honouring it.

NOTES
1. For an interesting philosophical discussion on the possibility of a
 'common morality' in a pluralistic society see the recent book by
the
noted US bioethicist H. Tristram Engelhardt, Bioethics and Secular
Humanism: The Search for a Common Morality, London, SCM
Press,
1991.

2. The term is that of H. T. Engelhardt, ibid.

3. Ronald Dworkin, Law's Empire, Cambridge, Mass., Harvard Univer-

sity Press, 1986, p.441.

-168-

Index
abortion, 41, 80, 88 -9
Aquinas, Saint Thomas, 2, 11,
on suicide, 32 -3
Aristotle, 11, 49 - 50
Augustine, Saint, 2
Australian Aborigines, 116, 135 -6, 140,
166
authoritarianism, 2, 16, 165, 168
autonomy
and altruism, 6, 22
and feminist views, 8
and health-care resource allocation, 8,
111, 150
and HIV/AIDS, 138 -42
and individualism, 6, 21, 34
and newborn infants, 45 -8
and quality of life, 7, 48 - 52
and utilitarianism, 7
Christians and, 2, 3
concept of, 10 - 15, 37
criticisms of, 21 -6
in a liberal society 1, 2, ch. 2
Kant on, 12 - 13
Mill on, 15 -20, 21
Sartre on, 14 - 15
Bayer, Ronald, 139
Berlin, Isaiah, 5, 20, 168
bioethics committees, 162
birth
new modes of, 63 -9
see also surrogacy
Birke, Lynda, 97, 100
Callahan, Daniel, 120 -1
cadaveric organs, 133
categorical imperatives, see Kant
Catholic Church
and assisted reproduction, 87
and natural law, 3, 69 - 70
see also Instruction on Respect for Human
Life
conscience
Aquinas on, 2, 11,
Christian views of, 2, 3
Newman on, 11 - 12
common good, 23
community consensus, 142 -5, 152 -3,
in a liberal society, ch. 6
community consultation, 145 -33
community values, 25, 26, 27
the Oregon approach, 145 -7
the QALY approach, 147 -51
consequentialism, 3
consequentialist arguments against
surrogacy, 71 -2, 81 -5
see also utilitarianism
Corea, Gena, 93
Court of Appeal, UK
on medical treatment of disabled
newborn infants, 46 -8

-169-

Dawson, Karen, 100

Devlin, Patrick, 23, 161
donor insemination, 77
Dodds, Susan, 94 -5
Dworkin, Ronald, 4, 5, 167
'dying with dignity', 31, 36 -8
dying, ch. 3
and the hospital, 55 - 60
Hindu attitudes to, 43 -4
Islamic attitudes to, 42 -3
 Japanese attitudes to, 44
Jewish attitudes to, 42 -3
multicultural attitudes to, 41 -5
ecumenical movement, 166
embryo experimentation, 100 -1
ethical relativism, 18
euthanasia, 6, 33,
and the Nazis, 53
in the Netherlands, 39 - 41
family formation, 7, 63 -9, 75 -7
'false consciousness', 92 -3, 125,
feminist views
on reproductive technologies, 8,
88 - 102
'pro choice' principle, 71, 80 -1, 88 -9
'third wave' views, 96 - 102
Feminist International Network of
Resistance to Reproductive and
Genetic Engineering (FINRRAGE),
79, 93, 97
Firestone, Shulamith, 91
Foot, Philippa, 37 -8
Foucault, Michel, 37
freedom of expression, 13 - 14
Gaze, Beth, 100
gender selection, 101
Gilligan, Carol, 89
hard drugs, 140
health care, 117 -18
right to, 108 -9
health-care resources, 8
distribution of, ch. 5
ethical aspects of, 110 -11
international aspects of, 131 -2
market-based distribution, 110,
144 -5
problem of, 107 -11
public health aspects of, 118 -19
'symbolic' aspects of, 142
to disabled newborn infants,
127 -31
to HIV/AIDS treatment, 136 -42
to infertility treatment, 125 -7
to renal transplantation, 131 -6
 utilitarian approaches to, 111 -17
Hicks, Neville, 118 -19
Himmelweit, Susan, 97, 100
Hinduism, 166 -7
HIV/AIDS, 136 -42
and personal privacy, 137 -40
costs of treatment, 136
hospital, the, 55 - 60
human life
beginning, ch. 4
ending, 6, ch. 3
see also quality of life
Ikemoto, Lisa C., 65, 99
Illingworth, Patricia, 138 -9
infertility, 66, 67, 101 -2, 123 -4
Instruction on Respect for Human Life, 70,
76, 167
in vitro fertilisation, 63 -4, 75 -6, 95 -6,
101, 124 -6, 128
individualism, 6, 21, 34, 167 -8
interests of the child, 70 -1, 82 -3, 84,
130, 135
Islam, 163 -4, 166 -7
Job, 50
Jones, Karen, 94 -5
Judaism, 42 -3, 166
justice, 115 -16, 144 -5
Kant, Immanuel, 12 - 13, 78 -9, 167 -8
on suicide, 22 -3
killing and 'letting die', 34, 35
laissez faire, 5
liberal society, ch. 2, 15 -27
and Christians, 4, 166
and consensus, 160 -8
and ethical relativism, 4
and Hinduism, 166
and Islam, 163 -4, 166
and John Stuart Mill, 15 -20
and multiculturalism, 165
and procreative freedom, 66 -9, 102 -3
and the right to die, 52 -5

-170-
 and utilitarianism, 7
common good in, 24
concept of, 1, 5
consensus in, 7, 18, 23
minority groups in, 24, 42, 45, 55
neutrality of, 24, 25
role of law in, 1, 7
libertarianism, 2
Lorber, John, 50 -1
Mahler, Hafdan, 117
majoritarianism, 116 -17
McCormick, Richard A., 4, 33 -4, 38
Mies, Mara, 92
Mill, John Stuart, 5, 6, 15 -21, 25, 113,
116, 168
on individuality, 19, 20
on the liberal society, 15 - 20, 165
Mishler, Elliot G., 57
morality
and the law, 1, 7, 17, 27, 68 -9, 164
public, 1, 27
multiculturalism, 18, 162 -7
Muslim views in bioethics, 163 -4
National Bioethics Consultative
Committee, 67, 85
natural law 3, 32, 69 - 70
newborn infants, 36, 112
choosing for, 45 -8
costs of treatment, 128 -30
medical treatment of, 46, 47, 127 -31
quality of life of, 47, 130
with spina bifida, 50 -1
Newman, John Henry, 11 - 12, 168
Nietzsche, F., 3
'nightwatchman state'. 5
O'Brien, Mary, 93
outcomes, 111 -12, 114 -15, 148
Overall, Christine, 93 -4
paternalism, 2, 16, 17, 38, 58 -9, 111 -12,
121 -2
patient rights, 120
Pellegrino, Edmund, 122 -3
physician-patient relationships, 59 - 60,
120 -3, 141
'piecemeal social engineering', 8, 153 -4
planning, 153 -4
Plato, 160
pluralism, 1
ethical, 1, 2, 18, 161
in feminism, 91
Popper, Karl, 153 -4
positive discrimination, 136
privacy, 137 -9
private-public distinction, 99 - 100
procreation, assisted, 2, 8
see also in vitro fertilisation
procreative liberty', 7, 65, 102 -3
Purdy, Laura M., 84, 98 -9
quality of life, 7, 35, 48 - 52
of newborn infants, 46 -7
Quinlan, Karen Ann, 38
Rawls, John, 5, 113
Raz, Joseph, 5
refusal of medical treatment, 34 -5
Remmelink Commission, Netherlands,
39 - 40
renal transplantation, 131 -6
reproductive technology
access to, 123 -7
Richards, Janet Radcliffe, 101
Richardson, J., 149
'right to die', 2, 33, 36 -8, 52 -5
Rowland, Robyn, 96, 100
Roach Anleu, Sharyn L., 99 - 100
Rousseau, Jean-Jacques, 152, 161
Rushdie, Salman, 164
Sandelowski, Margarete, 101 -2
Sartre, Jean-Paul, 14 - 15
Seattle Artificial Kidney Center, 134
Sen, Amartya, 151
Shklar, Judith, 23 -4
'social worth' criteria, 134 -5
South Australian Reproductive
Technology Council, 135
suicide, 30 -41
Aquinas on, 32 -3
assisted, 33 -4, 40
autonomy and, 33 -4
 decriminalisation of, 39 -41, 45
Kant on, 30 -1
McCormick on, 33 -4
surrogacy, 8, 65 -7, 69 - 88
and personal liberty, 74 -5, 86 -8
and slavery, 78 -9, 82
arguments of moral principle against,
76 - 80
Australian Catholic bishops on, 70

-171-

consequentialist arguments against,

81 -6
IVF assisted, 76 -7
Old Testament views on, 76
techno-pessimism, 92
traditional societies, 26, 41
Tudehope, D.I., 128 -9
utilitarianism, 6, 7
and autonomy, 113
and health-care resources, 8, 111 -17,
142, 151
and quality of life, 48 -52
utopianism, 153 -4
Verspieren, Patrick, 40, 77
Vines, Gail, 97, 100
Warnock Committee, UK, 77
Warren, Mary Anne, 98, 100
Weir, Robert, 54 -5
Wolfenden Committee, UK, 17, 23
World Health Organisation, 109, 117,
131

-172-